Michael Keenan (Stirling, Liberal Party, Shadow Minister for Justice, Customs and Border Protection) Share this | Link to 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.

Robert McClelland (Barton, Australian Labor Party, Attorney-General) Share this | Link to 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.

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

by leave—I move opposition amendments (5) to (8):

(5) Schedule 1, item 18, page 7 (lines 5 to 15), omit the item.

(6) Schedule 1, item 20, page 7 (lines 20 and 21), omit the item.

(7) Schedule 1, item 26, page 10 (lines 9 and 10), omit the item.

(8) Schedule 1, item 27, page 10 (lines 11 and 12), omit the item.

These amendments relate to the government's proposed repeal of the criteria misleadingly described as the 'friendly parent' provision. Section 60CC(3)(c) of the act currently requires family courts to consider the willingness of one parent towards facilitating the other to have a meaningful relationship with the child. The provision has been criticised as discouraging parents' disclosures of family violence and child abuse for fear of being found to be unfriendly. The bill seeks to repeal this provision and replace it with considerations of the extent to which each of the child's parents has taken or failed to take the opportunity to participate in major long-term decisions in relation to the child, spend time with and communicate with the child and the extent to which each of the parents has fulfilled or failed to fulfil the parents' obligations to maintain the child. These criteria already exist in section 60CC(4).

The explanatory memorandum cites the evaluation of the Australian Institute of Family Studies and the Family Law Council report as the basis for the repeal of this provision. This is misleading. The Australian Institute of Family Studies found that some concerns were expressed that the provision discouraged the reporting of violence, but there was no statistical information to actually suggest that this was the case. The criticism was in fact voiced in the Chisholm report, and that remained uncited within the explanatory memorandum and was described as 'gossip' by the Family Law Council. I can refer the Attorney to the exact reference within the executive summary of that report.

The failure to facilitate a relationship between a child and a separated parent remains an important issue for the attention of a court and has been found to be an incident of emotional abuse in several reported cases. If the enhanced violence and abuse reporting obligations are supported, there can be no reason for a parent's obstructive behaviour to be excluded from consideration. It should also be noted that this consideration should not arise in the usual course if there are well-founded fears that contact with the other parent exposes the child to violence or abuse. The existing section 60CG makes this clear.

The unwillingness of a parent to facilitate a close and continuing relationship with the other parent is undoubtedly a relevant consideration when making parenting orders. In 2009, in the case of Villey and Prabsik, Mr Justice Watts ordered that a seven-year-old child be removed from his father's primary care to that of his mother. The relevant factual findings were that the mother had suffered a significant mental illness following the parties' separation as a result of the treatment she had suffered at the hands of the father during the relationship. Psychiatric examination of the parties revealed the mother to be fully recovered, with an excellent prognosis. She had rebuilt her relationship with the child in an appropriate manner, assisted by professionals. The father, however, was assessed as having a narcissistic personality, with overvalued ideas or a delusion that the mother remained ill, unsafe and should have minimal involvement in the child's life.

Mr Justice Watts accepted the mother's argument that it would be more likely for the child to have a meaningful relationship with both parents if he lived with his mother rather than with his father and that the child would be likely to suffer psychological harm by damage of his relationship with his mother if he continued to reside with his father. This finding would have been more difficult to come to had this consideration been present within the act. I therefore urge the House to support the coalition's amendments.

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

The government again rejects the opposition's proposed amendments—that is, to omit items 18, 20, 26 and 27, which deal with the additional considerations as to determination of the best interests of the child.

The government's proposal finds support not only in the report of Professor Chisholm, which was referred to—the Family Courts Violence Reviewbut also in the Family Law Council's family violence report and the Evaluation of the 2006 family law reforms by the Australian Institute of Family Studies. If the opposition were to examine the submissions to the Senate inquiry, they would see that key stakeholders and the family law experts, including those to which I have referred, support this proposal.

Following my department's public consultation on the exposure draft, the government responded to concerns raised about the proposed repeal of section 60CC(3) and (4) and (4A). Accordingly, we adjusted this measure to ensure that any disincentives to disclosing violence are removed while at the same time healthy child-parenting relationships continue to be encouraged. In saying that the friendly parent provisions may discourage disclosure, Professor Chisholm said:

... the appropriate message might be that the parent needs first to make sure the children are safe. There may still be a need to try and preserve some benefit from the children’s relationship with the other parent, but it should not compromise the children’s safety.

That is essentially the philosophy of this proposal. The government's amendment bill is an important measure that will encourage victims of violence to speak up for their children. I urge all members of the House to support the government's initiatives and, on that basis, reject the opposition's proposed amendments. Question put:

That the amendments be agreed to.

The House divided. [13:46]

(The Speaker—Mr Harry Jenkins)

Question negatived.

Peter Slipper (Fisher, Liberal Party) Share this | Link to this | Hansard source

Order! It being past 1.45 pm, the debate is interrupted in accordance with standing order 43. The debate may be resumed at a later hour. Are there any statements by honourable members?