Robert McClelland (Barton, Australian Labor Party, Attorney-General) Share this | Hansard source

The government opposes these amendments. The opposition has moved amendments to omit items 2, 3, 6 and 8 from schedule 1 of the bill. Item 45 of schedule 1, which contains the transitional arrangements, as a consequence would also be amended. These proposed amendments to the bill would preserve the existing definition of family violence in the Family Law Act.

The government is categorically opposed to the opposition's amendments. The new definition of family violence presented in this bill is a keystone of the reforms. I have listened to the call for a better definition and have based the reforms on expert advice. The bill greatly improves the existing definition because it better captures harmful behaviour, is more descriptive and requires decision makers to closely consider the personal experience of the child growing up in a family riddled with violence. The proposed definition was recommended by the Australian Law Reform Commission and by the New South Wales Law Reform Commission in their report Family violence—a national legal response. A large number of submissions to the public consultation of the exposure draft also supported this amendment.

The definition sets out a general characterisation of behaviour, which must coerce, control or cause fear in a family member, and a non-exhaustive list of examples of harmful behaviour likely to be captured by the definition. The government considers that the overarching descriptors of family violence appropriately target the range of behaviour that results in subjugation of family members. This approach will give the courts clear legislative guidance about family violence and will help judicial officers to better consider behaviour, including patterns of behaviour within the factual context. The new, more descriptive definition will also educate and guide advisers and members of the public about family violence and, over time, will assist in changing culture. The government rejects any proposal that would require family violence to be hinged on how a reasonable person might react in a particular situation or what the violent perpetrator might have intended. To require reasonableness or intent as a precondition to family violence is to take a narrow approach to what is an insidious problem and would be particularly concerning in the context of a controlling relationship.

The Australian and New South Wales law reform commissions and the Family Law Council recommended the removal from the Family Law Act of the semi-objective test of family violence. That test requires a person to reasonably fear for or to reasonably be apprehensive about his or her personal safety, along the lines, I would suggest, that the opposition is proposing—that is, it imports an objective standard but requires the decision maker to put themselves in the position of the potential victim. A requirement to prove intent is not supportable, as it may discourage victims of violence from disclosing evidence of harmful behaviour.

The bill is about protecting the safety of children. The bill is a family law bill; it is not a criminal law bill. Family violence is not generic or superficial. It is individualised, it can be gravely insidious and it can escalate. People should not be afraid that their experiences will be dismissed. They should not have fear of losing their children or suffering prejudice in their proceedings if they speak up about those fears. For those reasons, the government rejects the amendments.

Question negatived.

See this speech in context