Chris Hayes (Fowler, Australian Labor Party) Share this | Hansard source

'I've spent the last two years stuck in the Federal Circuit Court trying to protect myself and my children from the vileness perpetuated against us by my former husband. I have directly experienced the incompetence of the court due to the focus on the presumption of joint parental rights. It keeps overruling without reviewing any evidence of family violence orders that have been made by the Magistrates Court and have been put in place to help our safety.' They're the words of Carissa Vita, a domestic violence survivor. I think she succinctly puts in perspective the inadequacies of the current family law framework. This issue is one at the forefront of Women's Legal Services Australia, which notes that up to 85 per cent of Family Court matters involve domestic violence and goes on to say the presumption of equal shared parental responsibility shifts the focus away from child safety, placing children at risk from further abuse. I'd like to thank the member for Moreton for his bill and his continued advocacy in this space.

Earlier this year our nation was rocked to the core by the tragic and senseless murder of Hannah Clarke and her three children. Before Hannah Clarke's murder, the Women's Legal Service teamed up with Rosie Batty to establish the Safety First in Family Law plan. One of the first initiatives in the five-step program was removing the presumption of equally shared parental responsibility, as found in section 61DA of the Family Law Act. This campaign was started in October last year, with the call for action reignited in the immediate aftermath of the tragic death of Hannah Clarke and the children. Unfortunately, it's now been eight months since the tragedy and the call to action remains that—simply the call—as there has been a failed commitment to reform the family law system, so that it is safer for women and children.

The presumption of equal shared parental responsibility is often misinterpreted by the community and practitioners, I might add, as equal time—as misconception that is harmful to women and children. This misconception often plays a large influence in parents who are negotiating consent agreements. Women who experience family violence and who cannot access or afford properly legal representation are often persuaded to believe that equal sharing is the only option under the law. This misconception can further give an abusive partner the incentive to litigate a parenting dispute. This often has the effect of increasing the litigation costs and time, while perpetuating further abuse.

While there are two exceptions to the equal shared parental responsibility under the Family Law Act covering abuse and family violence, these exceptions have been less than effective in real practice. Shorna Moore, Director of Policy at the Federation of Community Legal Centres Victoria, highlights this when she says:

In too many cases children are being forced to maintain a relationship with a violent parent, due to the presumption of shared responsibility.

This view is also reinforced by the research conducted by the Australian Institute of Family Studies in 2010, which found that, where family violence and child abuse have been alleged, 'more than 75 per cent of cases resulted in orders for equal shared parental responsibility'; however, where the allegation is only in respect of family violence, 'almost 80 per cent' of cases result in equal shared parental responsibility.

It is clear that the current framework is not working effectively and is only likely to worsen, in my opinion, if the Family Court is merged with the Federal Circuit Court. We owe it to Hannah Clarke and her children and the countless other women and their children who have been murdered or forced to endure a terrible ordeal at the hands of abusive partners to change this system. We must always act to ensure the best interest of the child is the paramount consideration in these circumstances. I quote the words of Laura Bos, Executive Chair of the Small Steps 4 Hannah Foundation:

What we have seen with Hannah Clarke and her babies is that 'gaming' the custody system is one nobody wins, and in the worst possible way.

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