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New Domestic Violence Bill – In Memory Of Hannah Clarke


A new Bill has been proposed to Parliament following the tragic death of Hannah Clarke and her three children. This Bill proposes to clarify the law surrounding Parental Responsibility under the Family Law Act 1975 (“the Act”).

At present, family law begins with a presumption that parenting needs to be shared equally when parents separate. The Act states at Division 2 section 61C, sub-section (1) that ‘each of the parents of the child who is not 18 has parental responsibility for the child’. The argument put forward by Federal Labor MP Graham Perrett is that this unfairly puts both parents on the same footing when a dispute begins regardless of their conduct.

Currently, under legislation the Court must make a presumption that shared parental responsibility is in the best interests of the child. Section 61DA, sub-section (1) states:

“When making a parenting order in relation to a child, the court must apply 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.”

However, section 61DA, sub-section (2) goes on to state that this presumption does not apply in circumstances where family violence or violence to the child has occurred. While this sounds like it might be quite clear, under the Act the general rule is that the Court must first satisfy itself that the risk of family violence is imminent, present or, has occurred previously.

As discussed in my previous blog, family violence does not always leave a distinguishable mark. For example, in cases of emotional or mental abuse, the effects may not present themselves until later in life. In these circumstances, it could be difficult for one party to satisfy the Court with the evidence that this has occurred. If the other party vehemently denies the allegations it could be argued that this is baseless slander, defamation or assassination of character on the part of the other party to the proceedings.

In some cases, the Court may request a report to be provided by a Single Expert Witness. Single Expert Witnesses include but are not limited to; Counsellors, Psychologists or Psychiatrists and Social Workers. These reports can sometimes uncover the presence of verbal, emotional or mental abuse, however, this is not always the case.

Currently, under family law, there is a widely held misconception that equal shared parental responsibility means equal shared care. However, under the Act ‘parental responsibility’ means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. This does not necessarily mean equal shared care of the children.

At the head of the ‘Small Steps 4 Hannah Foundation’ which was established after Ms Clarke’s murder, Laura Bos said that children need to be at the centre of every decision that is made, however, they are not pawns in a game and they are not a knot in the middle of a tug-of-war.

Ms Bos believes that parenting orders are one of the most sensitive aspects of family breakdowns and says there is evidence of how these arrangements are used to exacerbate family disputes. She agrees with Mr Perrett and the numerous inquiries presented to Parliament that has called for a scrapping of the ‘presumption’ which was introduced in 2006.

At Butlers, we have a skilled, professional and reliable Team who can assist you should you require, assistance, clarification or advice with parenting matters.  


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Friday, 07 May 2021

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