Chris Ellison (WA, Liberal Party, Minister for Justice and Customs) Share this | Hansard source

by leave—I move government amendments (1) to (5):

(1)    Schedule 1, item 3, page 4 (after line 22), at the end of the definition of family violence, add:

Note:    A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.

(2)    Schedule 1, item 43, page 33 (lines 11 to 17), omit subitems (1) and (2), substitute:

(1)    Section 60CC of the new Act applies to orders made on or after commencement.

(2)    The amendments made by items 13, 29 and 30 of this Schedule apply to parenting orders made on or after commencement.

(3)    Schedule 1, item 43, page 33 (lines 26 and 27), omit subitem (6), substitute:

(6)    The amendment made by item 22 of this Schedule applies to parenting orders made on or after commencement.

(4)    Schedule 1, item 43, page 34 (lines 1 to 3), omit subitem (8), substitute:

(8)    Sections 65DAA, 65DAB, 65DAC and 65DAE of the new Act apply to parenting orders made on or after commencement.

(5)   Schedule 1, Part 2, page 34 (after line 7), at the end of the Part, add:

44 Grounds for discharging or varying parenting orders

The amendments made by this Schedule are taken not to constitute changed circumstances that would justify making an order to discharge or vary, or to suspend or revive the operation of, some or all of a parenting order that was made before commencement.

Note:  For the need for changed circumstances, see Rice and Asplund (1979) FLC 90-725.

A vote may well want to be taken separately on each of these, I do not know, but I will deal with the government amendments (1) to (5) because they can be dealt with adequately together. Government amendment (1) deals with the definition of family violence. It adds a note to the definition of family violence to clarify that the test to determine reasonableness of a fear or apprehension of violence takes into account the circumstances of the person who is relying on the reasonable fear or apprehension of violence. I canvassed this earlier at some length in general debate on the definition of family violence and I will not go further than that, other than to say that this recommendation implements recommendation 5 of the report of the Senate Legal and Constitutional Legislation Committee.

Government amendments (2) to (4) relate to timing of the bill. These address concerns that the bill would not apply to court applications made prior to the commencement of the bill. Originally we had intended that the bill would only relate to new cases brought after the legislation took effect. This was, of course, an issue because there were people involved in current litigation who said, ‘Why can’t we have the benefit of the new legislation?’ Recommendation 10 of the report of the Senate Legal and Constitutional Legislation Committee recommended that there be an analysis:

... of the cost implications on current litigants, future litigants and the courts on maintaining two regimes for a period of three years for the determination of Part VII applications.

What it was getting at, of course, was that you would have this ongoing effect of the two regimes, if you like.

These government amendments provide that the key provisions in schedule 1, which change the way the courts approached parenting orders, will apply to all parenting orders made on or after commencement regardless of whether the proceedings were initiated before commencement or not. I think these amendments strike the appropriate balance between ensuring uniformity and not unduly disadvantaging existing litigants. The period between passage of the bill and commencement by proclamation will mean that existing litigants will have appropriate notice of the changes to the litigation prior to commencement. I think that is a fairly beneficial amendment to the bill.

Government amendment (5)—and I might stress that the Family Court has asked for this—clarifies the government’s intention that schedule 1 of the bill is not to operate so as to allow previously resolved parenting orders to be reconsidered purely on the basis of changes to the legislation. The case of Rice v Asplund clearly limits the court’s capacity to rehear matters to cases where there is a significant change in the circumstances of the parties or a significant matter that was not previously considered.

Of course, that is reasonable. One would not want to have court orders changed willy-nilly. But what we want to do is put beyond doubt that the changes to the Family Law Act 1975 brought by this bill do not constitute such a significant change in circumstances as would require a rehearing of the matter. I think this is a very important amendment. We do not want hundreds of people applying to change orders just because of the change in legislation. It will mean that the change in legislation will not constitute a significant change. That is something which I believe reflects commonsense.

They are the five amendments that the government seeks to move. They are on three different aspects. Government amendment (1) is on the definition of family violence. Government amendments (2) to (4) are on the timing of the bill. Government amendment (5) is on the fact that this change in legislation will not be a significant change such as to found a basis for applications to vary orders. I commend the amendments.