Philip Ruddock (Berowra, Liberal Party, Attorney-General) Share this | Hansard source

Because we want them to do it on the basis that there is a reasonable apprehension. I am simply saying that courts have to make a judgment all the time in relation to these sorts of questions. They have to deal with a whole range of issues of reasonableness in a whole range of circumstances.

The member for Gellibrand says that the amendment does not provide scope to consider the particular circumstance of the victim. The member for Sydney even gave an example of a constituent whose ex-husband engaged in repeated acts of violence and suggested these acts of violence would not be admissible in assessing the reasonableness of her fear of violence by him to her. This is simply not true. It is the reasonable person in the shoes of the victim that the court must consider, not some notional reasonable person.

Thirdly, the member for Gellibrand states that, when it comes to mediation, frankly it does not really matter whether or not one person’s fear is reasonable—that even an unreasonable fear will affect the power balance between the parties. It is simply not fair of us to force people into mediation if they are absolutely terrified, but it does matter whether one person’s fear is reasonable. If you do not have an objective test, people can claim what they want. A person who has never been exposed to violence in their life can claim fear of violence however irrational it may be. That person would then be able to avoid the family dispute resolution requirement.

The government amendment will allow a family dispute resolution practitioner to consider whether the ability of the party to negotiate freely is affected by issues such as history of family violence, the likely safety of the parties and the risk that a child may suffer abuse. If, after considering these matters, the practitioner considers that it would not be appropriate to conduct the proposed family dispute resolution, he or she may issue one of the new certificates.

It is also not appropriate to add the additional element to cover a child witnessing violence. This was also considered by the LACA committee. They did not see merit in adding to the existing definition. This amendment is not necessary, as the existing definition would cover the situation where exposure to violence causes a child to fear or be apprehensive for their own safety. The government rejects the amendment.

Question put:

That the amendment (Ms Roxon’s) be agreed to.

See this speech in context