Michael Keenan (Stirling, Liberal Party, Shadow Minister for Justice, Customs and Border Protection) Share this | Hansard source

by leave—I move amendments (1) to (4):

(1) Schedule 1, item 2, page 3 (lines 19 to 22), omit the item.

(2) Schedule 1, item 3, page 3 (lines 23 to 25), omit the item.

(3) Schedule 1, item 6, page 4 (lines 6 to 9), omit the item.

(4) Schedule 1, item 8, page 4 (line 12) to page 5 (line 23), omit the item.

Before I speak specifically about the detail of these amendments I refer very quickly to the tone in which this debate has been conducted. We have just heard from the Attorney-General and we have also heard from other members of this House who in some instances talked about the detail of the bill but, unfortunately, in other instances did something that I think is pretty disgusting—that is, they came in here and somehow asserted that those on this side of the House would be less concerned about family violence, would be less concerned about the welfare of children in a failing marriage and would be less concerned about the myriad very complicated issues that we see within the family law system. I want to talk about the amendments, but I would ask members on the other side who come in here and frame their comments within those terms to reflect on how deeply offensive that is.

The amendments that I now move seek to omit the government's proposed amendments to the definition of family violence in the Family Law Act. The definition now proposed defines family violence as:

... violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.

It differs from the existing question in that it imposes a subjective test. The existing definition requires a reasonable fear for the family member's wellbeing or safety. The new definition attempts to qualify its subjectivity by incorporating a list of examples of behaviour which includes assaults, repeated derogatory taunts, damage to property and other unreasonable or criminal behaviour. However, it is an open question as to whether the list of examples is sufficient to frame and limit the subjective definition.

There is no doubt that any of the behaviours limited would cause a person to be fearful; they would also give rise to a reasonable fear for a person's wellbeing or safety under the existing law. The problem with the subjective test is that the person seeking to demonstrate that another person is violent need only state that he or she feared controlling or coercive conduct; the state of mind need not be reasonable. The consequences of a finding of violence can be drastic and permanent. It is not appropriate that a court need not inquire as to whether a fear is well founded. The effect of the coalition's amendment will be to retain the objective tests within the existing legislation.

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