A private member’s bill,[1] which is to be heard when Parliament sits in October, proposes to remove the Family Law Act presumption of equal shared parental responsibility and the court’s associated consideration of equal time or substantial and significant time with each parent.

The bill was drafted as a result of the highly publicised and sickening deaths of Hannah Clarke and her three young children; Aaliyah, Laianah and Trey, by her husband, Rowan Baxter.

What happened to Hannah Clarke and her three children?

Like most horrific cases like this, Baxter had a long history of family violence. Hannah and Baxter attended mediation to try to come to an agreement on how Baxter would spend time with the children. It is reported that the parties agreed to Baxter having the children 6/14 nights, being three nights in the first week and four nights in the second week.

This was not enough for Baxter. He would not sign a consent order which would make the agreement legally enforceable. Baxter wanted equal shared care of the children.

On a number of occasions Baxter took the children without Hannah’s permission or refused to return them to her.[2] On 26 December 2019; Hannah and the children met with Baxter to test out their new skateboards they received for Christmas. When Hannah was crossing the road, Baxter grabbed the pair’s daughter, Laianah and ran to his car, taking off with her. Baxter did not return Laianah for four days.

As a result of Baxter’s behaviour, Hannah obtained a Domestic Violence Order (better known as a Family Violence Intervention Order in Victoria) against Baxter.

Baxter applied for the DVO to be varied and he was successful in gaining access to see his children again.

In late January 2020, during a changeover, Baxter breached the DVO against Hannah by grabbing her and twisting her arms behind her back when she found and destroyed A4 photos of herself in her underwear in Baxter’s car. The breach meant that Baxter could no longer see his children.

On 19 February 2020, Baxter ambushed Hannah and her children in the car. He set light to the car which burnt his children, restrained by seatbelts, alive. Hannah managed to escape with 97% burns to her body and seek help. Sadly, she later passed from her injuries. Whilst the car burned, Baxter suicided by stabbing himself to death.

What does the Bill propose?

The Bill proposes to remove the following two sections of the Family Law Act:

  • Section 61DA – the presumption of equal shared parental responsibility; and
  • Section 65DAA – the requirement for the court to consider equal time or substantial and significant time with each parent in certain circumstances.

The intention of the Bill is to have the legislation focus on the safety of women and children. It is argued that the current legislation forces parents to ‘continue their parental relationship’ even in circumstances where there is a history of family violence.[3]

We will consider the proposed removal of section 61DA and section 65DAA in our next few blogs so keep your eyes open for an update.

If you require assistance with your parenting arrangements, need to respond to an intervention order or want to discuss your options, please contact Rowan Skinner & Associates Lawyers. We are LIV Accredited Family Lawyers in Melbourne.

 

[1] https://www.brisbanetimes.com.au/national/queensland/a-timeline-of-domestic-abuse-hannah-clarke-and-her-children-s-last-weeks-20200222-p543cf.html

[2] https://www.grahamperrett.net.au/media/speeches/family-law-amendment-a-step-towards-a-safer-family-law-system-bill-2020-speech/

[3] https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r6508