Family Law Amendment (A Step Towards a Safer Family Law System) Bill 2020 Speech

June 15, 2020

So far 2020 has been a bizarre year: the world has changed dramatically in just a few months.

After the bushfires and before the pandemic set in, Australians were shocked in February by the callous murders of Hannah Clarke and her three young children, Aaliyah, Laianah and Trey. Four Queenslanders murdered on a suburban Brisbane street by Hannah's estranged partner; the children's father. It was horrendous and it shocked this House and the country.

Their horrific murders created an outpouring of grief and promises by leaders to 'act'; to make a 'difference'.

In the four months since Hannah and her children were murdered, nearly 20 women have been murdered by their current or former partners. Thus far in 2020 a total of 25 women have been murdered by a current or former partner. Twenty-five mothers, daughters, sisters, friends—25 distraught families broken forever.
In the month of May eight women were murdered by the person who once loved them. This national crisis is worthy of this parliament's attention.

And yet, we have had report after report tabled in this parliament, like this—and just in the last 2½ years another 93 recommendations—most now are fine words gathering dust.

Before Hannah Clarke's murder, Women's Legal Services Australia teamed with Rosie Batty to call for 'Safety First in family law'—five steps to creating a family law system that keeps women and children safe.
Launched in October last year this campaign was endorsed by more than 90 frontline organisations, including men's support organisations.

One of the first tasks in the five-step program is to remove the presumption of equal shared parental responsibility from the Family Law Act—Phillip Ruddock's 2006 amendment.

Immediately after Hannah Clarke's murder the Women's Legal Service again called for action to keep women and children safe. They asked for legislation to remove the presumption of equal shared parental responsibility and create an emphasis on safety in the Family Law Act.

There were fine words spoken in the aftermath of Hannah Clarke's murder but they echo hollower and hollower every day that they are not followed up with simple, no-cost action—that is, legislation.
It's difficult to implement change from opposition. It requires the will of the government or for the Liberal and National Party MP's to have a free vote, for any meaningful legislative change to occur.

I know the coalition needs the votes of One Nation in the other place and this bill will annoy that political party, nevertheless, today I will commence the journey towards legislative change.

The coronavirus has taught us many things—(not just how to wash our hands properly) but also that when there is a genuine will, Australians can work together and achieve great things.

The Great Southern Land has done better than most in containing the coronavirus. We listened to the expert advice and, importantly, we acted on it (apart from the odd Black Lives Matter rally).
Sadly, we can't say the same about domestic violence.

The experts have been giving us advice since 2006 when the 'equal shared parental responsibility' provisions were first included in the Family Law Act. The then shadow Attorney-General Nicola Roxon's second reading speech to the Family Law Amendment (Shared Parental Responsibility) Bill 2005 said:
…some victims of family violence may develop the false view that they cannot stop their abuser from having contact with their children. I am advised by some service providers in the sector that this is already happening, mostly involving women who, despite their fears and concerns, feel that new laws mean they will have to accept equal time.

In report after report, concerns have been raised about the presumption of 'equal shared parental responsibility'. This bill implements the first of the three urgent priorities put forward by the Women's Legal Service.

This bill repeals section 61DA of the Family Law Act. That section contains a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child. There are two exceptions to the presumption: where there is abuse of the child or another family member; or where there is family violence.

Although these exceptions are in the legislation, they have not been effective in preventing inappropriate applications of that presumption.

Research shows that the exceptions are not often applied. Parents are forced to continue their parental relationship even where there is a history of family violence.

A report published by the Australian Institute of Family Studies in 2010 evaluating the 2006 amendments found that where both family violence and child abuse had been alleged, over 75 per cent of cases resulted in orders for equal shared parental responsibility. Where the allegation only concerned family violence, almost 80 per cent resulted in orders for equal shared parental responsibility.

It is clear that the 2006 exceptions don't work as Attorney General Ruddock intended.
A report by the Australian Institute for Family Studies in October 2019 found that in matters where litigation was started but resolved before judgment, orders for shared parental responsibility were made in 94 per cent of cases.

In many families the abuse continues when parents are forced to share parental responsibility for their children after separation.

There is a widely held misconception that 'equal shared parental responsibility' means 'equal shared care', that is, parents will spend equal time with their children—30 minutes each per hour effectively.
This misconception sets up a false expectation that parents have some right to guaranteed equal time with their children.

This can incentivise an abusive partner to litigate their parenting dispute. It may lead to a parent agreeing to an unsafe parenting arrangement in the belief they have no choice.

As a judge of the Family Court of Australia, Justice Richard O'Brien, observed in a speech in 2010:
A law that cannot be understood by the people affected by it—or worse still lends itself to being actively misunderstood—is a bad law. That is particularly so when we are talking about a law which affects families and children.

Anyone who works on the front line of the family law sector will tell you that no two families are the same.
To quote Leo Tolstoy's Anna Karenina, 'All happy families are alike; but an unhappy family is unhappy after its own fashion'.

It is stating the obvious to say a presumption presumes that all families, or at least most families, are the same—with the same problems and requiring the same solution.

That is simply nonsense.

Actually, all parents have a common law duty of parental responsibility from the birth of their child. Common law parental responsibility is held jointly and severally by each parent and is only displaced by a specific court order conferring parental responsibilities.

This bill does nothing to displace the common law duty of parental responsibility. What this bill does is ensure that when that common law duty is displaced by a court order, that order will be made in the best interests of the child.

Every child deserves to have decisions made about their life, made in their best interests and only their best interest.

The current presumption is a dangerous fiction that urgently needs to be repealed.
The repeal of this section will ensure that in every decision made about a child the only consideration will be whether the proposed order is in the best interests of that child.

This bill also repeals section 65DAA of the Family Law Act. That provision compels a court to consider, where an order is made for equal shared parental responsibility, that the child spend equal time with each of the parents or substantial and significant time with each of the parents.

The 2019 ALRC report unequivocally recommended that section 65DAA be repealed. In their final report they said of this section:

… the convoluted and complex decision making pathway, that must be arrived at through an understanding of the combination of legislation and case law, adds significantly to the time and cost of any parenting matter, and ultimately to the overall delays within the courts.

The Australian Institute of Family Studies report from October 2019 found that 97 per cent of parents don't go to a court to decide their parenting arrangements when love has soured.

Section 65DAA provides an extremely difficult path for judges to navigate and makes it impossible for parents to predict what order a court would be likely to make in the event they cannot agree to their own parenting arrangements.

The amendments contained in this bill will ensure that all parenting orders, including orders for parental responsibility and the time the children spend with each parent, will be made in the best interests of the children in accordance with the legislative framework contained in part VII of the Family Law Act.

This private members bill will not fix everything that is wrong with the family law system. But it is a start—a small step.

We've seen in the past few months the enormous benefits that flow from listening to experts.
For many years family law experts have said loud and clear that the amendments contained in this bill will make the family law system safer for families.

I'm introducing this bill, not as a party-political stunt, but in a genuine effort to address a longstanding problem that already has a known solution. And I genuinely believe that this piece of legislation can save lives and can change lives.

I'm introducing this bill for Hannah Clarke; and for her children, Aaliyah, Laianah and Trey; I'm introducing this bill for the more than 25 women already murdered this year; I'm introducing this bill so that we can start to fix a system that somehow allows a woman in Australia to be murdered every week; a system that is putting children's lives at risk.

And I commend this bill to the House.