House debates

Monday, 22 March 2021


Family Law Amendment (A Step Towards a Safer Family Law System) Bill 2020; Second Reading

11:37 am

Photo of Clare O'NeilClare O'Neil (Hotham, Australian Labor Party, Shadow Minister for Senior Australians and Aged Care Services) Share this | | Hansard source

All of us in this parliament are aware of one of the tragic realities of life in Australia today, that there are thousands upon thousands of women—women in the electorate of every single person in this chamber—who are victims of domestic violence and abuse by an intimate partner. This is a horrible problem; an awful sore that our country confronts. But for so many of the women who are in these situations, the worst part of what happens to them is not actually the violence and trauma they experience; it is the things that occur and are seen by their children.

This is the subject of the Family Law Amendment (A Step Towards a Safer Family Law System) Bill 2020, a very important bill which I have the privilege of speaking about today. We know that today we have a family law system in Australia that allows for many situations where violent and abusive former partners have unsupervised access to their children, even when there's good evidence that those people present a real danger to those young people. This needs to change.

I want to thank the member for Moreton, who is here with me in the chamber, for tabling this very important bill. This bill will make crucial changes. Sometimes in this parliament we can overcomplicate things. We think every problem needs billions of dollars put towards it to make any resolution. But one of the beauties of the bill before us is that it's simple, it's a bill that will cost nothing, it's a bill that will save lives and it's a bill that will better protect Australian children.

The bill before us will do two things. Firstly, it will remove section 61DA of the Family Law Act, which provides the presumption of equally shared parental responsibility, to end the confusion that this section has occasioned since it was first understood. This confusion has led to the dangerous misconception that equally shared parental responsibility should automatically mean equal time with both parents, even in instances where one of the parents would represent a danger to the child. Secondly, it would remove section 65DAA of the act, which requires judges to navigate this very long and complicated pathway before being able to determine parenting arrangement; and inquiry after inquiry has told us that this section is routinely used by coercive and abusive partners to essentially punish the person who is a victim of that abuse.

The very important context for the discussion we are having today is the existence of domestic violence and abuse in so many cases which come under the purview of the Family Law Act and what was previously the Family Court. According to the Australian Institute of Family Studies, somewhere between 70 and 85 per cent of family law matters involve allegations of violence and abuse. This makes this system incredibly dangerous for women and children in particular. It essentially puts victims on the back foot in parenting negotiations and creates ample opportunities for abusive partners to exercise control over the person they are victimising. We know that about 80 per cent of women who seek help for domestic abuse have experienced some type of coercive control.

It is very timely for us to have this discussion in the chamber; it's been just over a year since the tragic and absolutely horrific murder of Hannah Clarke and her three beautiful children in Brisbane. This example is one that we should look at and think about frequently when we are examining how to create a safe and open environment for women and children in our country. One of the things that tugs at my heart strings when I hear of Hannah Clarke's case is knowing that she did all the right things. This is really the point today: the law, and the system that surrounds these cases today, is inadequate. It is inadequate in many cases, but perhaps nowhere more so than in the family law.

I want to again credit the member for Moreton for taking up the mantle of this incredibly important issue. The family law should be there to protect Australians, not to be used as a weapon for further abuse; and the changes that are straightforward, practical, and inexpensive that are recommended to this house today have my full support.

11:42 am

Photo of Barnaby JoyceBarnaby Joyce (New England, National Party) Share this | | Hansard source

This is a vexed issue. The greatest amount of traffic in my office is pertinent to family law. I suppose I come to this debate with a slightly different perspective, and that is perspective predominantly, but not exclusively, of men who can't get access to their children and how this absolutely tears them to pieces. I believe it comes from a range of areas. The court doesn't have a presumption of equal share, it has a consideration of equal share; and a consideration of equal share in many instances, from what I have seen, works against the male partner. One marriage in three, unfortunately and tragically, falls apart. Of course many of those marriages have children; and where this is most prescient is with young children. The last thing anybody wants is that our children be used as weapons in the dissolution of relationships. But quite often, unfortunately, that becomes the case: where the vitriol of settlement comes into play, access to the children is used as a mechanism to hurt one partner or the other. And this is something that we have to fix up, because it is not the child's fault.

Everybody in Australia, unless there is something demented about them, was completely and utterly devastated by the issues pertinent to Hannah Clarke. What we had there was obviously a disgusting criminal act. But, as hard as it is to say it, the vast majority of men who are trying to get access to children are not disgusting criminals; they are people dealing with a situation that is tearing them apart. I will relay one of the discussions that I've had recently where the guy said, 'I'm not an alcoholic. I'm a hard worker. I've never been violent. I've never committed a crime. But every time I try to get access to my child it's stymied. The process is such that I always feel my former partner has all the cards. Whether I turn up to pick them up and they're not available that week, or whether we're trying to negotiate without offending the children, without having an argument in front of the children'—which is the last thing he wants. He finds this process is beyond his capacity.

The constituency which I suppose I come into this chamber to represent—as you know I talk about the 'weatherboard and iron'—are the poorer guys, because they don't have the money to go through the court system and properly represent themselves. So what we have is the clumsiness of self-litigation. As I always say, a person who self-represents has a fool as their client. The judge is not there to advise. The judge is there to judge. And this means that their position is even further diminished.

I'll go on to other mechanisms which are used from time to time. I'm not saying that this is always the case but from time to time they're used. I've dealt with this in my office—such as the issue of AVOs. There are times when AVOs are absolutely an essential requirement—the person is violent. But sometimes they are used as a mechanism to create further isolation from the children. For an AVO I need to say, 'I feel scared by this person' and that's a very hard thing for the police not to prove. It's how you feel. From time to time, not exclusively, I have also seen that.

The reason I say this in closing is I bet you it's the same case for so many offices. This issue is so pressing that it comes up day after day. I suppose it brings forward a lot of work that you, therefore, have to do and try to resolve. In offices we're not judges. We're certainly not lawyers. We're not solicitors. Yet you feel obliged to do what you can to try and assist these people. So I felt it was incumbent upon me to speak on this matter to possibly give another side of the story.

Debate adjourned.