Terri Butler (Griffith, Australian Labor Party, Shadow Minister for the Environment and Water) Share this | Hansard source

[by video link] Victims of violence shouldn't bear the legal burden of rebutting the presumption that the abuser should equally share parenting. The best interests of the child, including children's interest in being safe from violence, should come first in family law, yet the law as it stands today tells the courts to start with the presumption of equal shared parental responsibility. Madam Deputy Speaker Claydon, as you know very well—because you're involved in a parliamentary inquiry in relation to these laws, to which I will refer shortly—this situation has been the subject of criticism both in and outside of this parliament. The Women's Legal Service is calling for the removal of this presumption, and the member for Moreton has introduced this private member's bill, the Family Law Amendment (A Step Towards a Safer Family Law System) Bill 2020, to seek to give effect to that call and to reform these important laws.

The Women's Legal Service says that the presumption shifts the focus of the decision-makers, which is the courts, away from children's safety and away from the best interests of children to an emphasis on shared care so that the current system places victims of violence on the back foot in court, in mediation and in their negotiations with the violent perpetrator. The Women's Legal Service further says:

The legislation is complicated, easily misunderstood and its links to equal time incentivise violent perpetrators to pursue their "rights" in the court and other processes putting kids at risk.

It is also very complex, making trials and legal processes longer and more expensive.

Madam Deputy Speaker, as you know, in the 2009 report Time for action, the National Council to Reduce Violence against Women and Their Children pointed out:

Under previous (almost identical) legislation, evidence emerged that a very strong pro-contact culture had arisen and that the "the opportunity for a significant relationship with both parents" took precedence over a history or even recent experiences of violence and abuse.

That was a report from that council at the time, and that same report said that evidence from the council's own consultations and from the judiciary itself tended to show that such a presumption was inappropriate for a great number of families using the act.

In a bipartisan report of the House of Representatives Standing Committee on Social Policy and Legal Affairs in 2018—which I believe you were the deputy chair of, Madam Deputy Speaker Claydon—the committee said it had:

… received considerable evidence that the presumption in the Family Law Act 1975 (Cth) of equal shared parental responsibility is leading to unjust outcomes and compromising the safety of children.

The committee recommended that:

… the Australian Law Reform Commission, as part of its current review of the family law system, develops proposed amendments [to the legislation], and specifically, that it consider removing the presumption of equal shared parental responsibility.

In its 2019 report on family law, the Australian Law Reform Commission described the language used in the law as 'confusing' and recommended redrafting the relevant provision to refer to a presumption in relation to joint decision-making on major long-term issues to draw a clear distinction between, on the one hand, responsibility, and care and time on the other. They also recommended that the legislation should make it clear that in determining what arrangements for the care of a child would promote the child's best interests, the court must determine on all of the material before it: what is best for the particular child in their particular circumstances.

It is really obvious that there will be different views about how children's interests will be best served in family law matters, but I would hope and expect that every member of this House would be of the view that children's safety should be paramount—and that that paramountcy should be clear to all who come into contact with the family law system. Unrepresented parents and others should be under no doubt that a court would, if called upon to adjudicate, seek to discover precisely what is in the best interests of the children concerned.

As we are within the 16 Days of Activism against Gender-Based Violence, it is particularly timely to consider the impact that the design of statutory provisions has on victims and survivors of violence and their children. This is a long-term issue that the Morrison-Joyce government should address, particularly given the bipartisan nature of the House committee report that called for the change. I want to thank the stakeholders who are continuing to press this issue—it is an important one. There should be no position in our law that suggests that people who are victims and survivors of abuse should be forced to rebut a presumption that the abuser, the perpetrator, should have equal rights in relation to the children. It is incredibly important that this matter be dealt with, and I call upon the Morrison-Joyce government to take heed of this private member's bill; to take heed of the views of stakeholders and committees of this parliament; to take heed of the many representations that been made over a very long period of time; and to resolve this situation in the interests of children.

See this speech in context