Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Hansard source

I move:

(1)    Schedule 1, item 3, page 4 (lines 18 to 22), omit the definition of family violence, substitute:

family violence means:

(a)

conduct, whether actual or threatened, by a person towards, or towards property of, a member of the person’s family that causes that or any other member of that person’s family to fear for, or to be apprehensive about, his or her personal well being or safety; or

(b)

conduct, witnessed by a child, in which a person intentionally causes physical or psychological harm to a member of the person’s family.

This amendment deals with the definition of family violence. We would make the case that the position we are putting forward is an improved one. This amendment does two things—firstly, it reverts to the existing definition of family violence and, secondly, it adds an alternative definition that makes it clear that circumstances in which a child witnesses violence are included the definition of family violence.

This issue, of course, is very important to Labor. We are very concerned that the government is making a change to the definition of family violence without much consideration of its consequences. We are particularly mindful of the impact that this change will have in the context of compulsory mediation. It is unreasonable, Labor believes, to force people into negotiation with someone they are terrified of. It does not matter whether a court would consider that fear to be reasonable or not. If the person feels fear, it would certainly affect the outcome and fairness of the mediation. That is simply plain. To think otherwise, I think, misses the point. Cases such as these would clearly benefit from the structured and formal environment of the courtroom.

We are concerned that this change to the definition could put some circumstances of family violence beyond the reach of the court to consider. The Senate committee heard evidence about the types of cases that could in fact be affected—for example, those which have involved a long pattern of threatening or menacing behaviour in which any one incident might not be considered to reasonably engender fear. We need to be certain that the courts are able to deal with these sorts of cases appropriately.

Labor’s view, therefore, is that this is another issue which should be left until the AIFS has had a chance to consider the issue. It is not integral to this bill. There is no excuse for acting too hastily. The government does have the opportunity to not proceed with that and to in fact adopt Labor’s position. In particular, we would like to see some serious consideration of a conduct based test that focuses on the behaviour of the perpetrator of violence, not on the reaction of the victim. Similar approaches are used in the states and should be considered at a federal level.

The second part of this amendment deals with the circumstances in which children witness physical or psychological harm intentionally committed against family members. It would give due recognition in the law to the harmful effects to children of witnessing family violence. The House committee heard that this is a particular problem with the current law. We see no reason that this simple amendment should not be addressed at this opportunity. We therefore seek the support of the government and minor parties.