Family Violence Protection Amendment Bill 2017


Mr RICH-PHILLIPS (South Eastern Metropolitan) — The issue of family violence or domestic violence is one that has very much come to the fore in the community's thinking over the last five years or so. There has been a much stronger emphasis on the issue in the community broadly in terms of legislative responses from government, intervention responses from the courts and from Victoria Police, policy responses within government, policy responses within the private sector and indeed activities within the community sector. We really have seen a strong emphasis on the issue of family violence over that five-year time frame, the recognition of hidden violence in domestic situations and the need for that to be identified and of course stopped or, desirably, prevented.

It is important in the debate and the discussion around domestic violence that we are mindful to include all violence in the domestic situation in our thoughts, in our policy responses and indeed in our legislative responses. We have of course seen that over recent years with very broad policy responses. We have also seen from time to time responses which tend to focus only on domestic violence as it is targeted towards women and targeted towards children. Of course women and children do make up the majority of people who are subject to domestic violence, but it is also a fact that they are not the only cohort of people subject to family violence or domestic violence. It is important that we ensure that all our policy responses and all our legislative responses are appropriate for all cohorts of the community who are the victims of domestic violence.

I was interested to note an email from the parliamentary organisation today talking about a program that it has signed up to within the organisational structure of the Parliament which focuses exclusively on violence towards women and violence towards children. I think it is unfortunate that the Parliament has adopted a program which is only focused on women and children and excludes violence against other members of the community, because we know for a fact that there are other forms of domestic violence in our community. We know that there is violence which occurs in same-sex relationships. We know that there is elder abuse from adult children towards their elderly parents. We know that there is violence from adolescent children towards their parents. None of these forms of violence in a domestic situation, or any situation, are acceptable, and we need to ensure when we are making policy responses that we are mindful of all these forms of violence and that we do not seek to diminish one form of violence — one cohort of victims — because we are focusing on a different cohort. That program that the Parliament has signed up to very much focuses only on women and children and, in doing so, excludes other victims of family violence, and I think that is unfortunate.

Out of interest I had a look this morning at the 1800RESPECT website, which is one of the key resources available to the victims of family violence or domestic violence. There is a hotline, and there are also website resources that talk about family violence. And again the emphasis is very much on women and children as victims, implicitly to the exclusion of other victims of domestic violence. There is a fact sheet on that website which highlights — correctly — that women and children are the majority victims of family violence and almost as an aside points out that there are other victims of family violence as well. If we have policy responses which diminish the significance of domestic violence against other cohorts of the community, we risk discouraging the reporting of that violence by those other cohorts of the community and we risk diminishing in the minds of the victims the significance of that violence.

If you have a same-sex relationship or indeed a situation where a male partner is subject to domestic violence, which is not necessarily only physical violence — we know that domestic violence is not necessarily only straight-out physical violence — and you have a range of support resources which are targeted at one cohort only and implicitly not at male victims, or if by virtue of the fact that male victims are not mentioned with the frequency of other victims the message is sent that males should absorb that violence and males should stand up to that violence, then they do not have access to the same resources that other members of the community do.I think if we are sending that message because we are only focusing on one cohort of victims in our policy responses, that is very regrettable. I think we must be very mindful in all our policy responses and legislative responses that by targeting certain groups we are not seen as excluding other victims and that we do not send an implicit message to those other victims that the violence they are subject to is something that they should man up to or stand up to and take on the chin because it is not as important as domestic violence against other victims.

This bill makes a number of amendments to the legislative framework that exists for family violence, in particular in relation to the Family Violence Protection Act 2008 and the way in which orders under that and related legislation operate. There are half a dozen main provisions in the bill which I will run through briefly. Division 1 of the bill, clauses 4 to 16, establishes a presumption, which will be rebuttable, that if an applicant for a family violence intervention order has a child who has experienced family violence, that child will also be included in the applicant's family violence intervention order or in a separate order.

The coalition believe that is an appropriate measure. Where there is a child who is subject to family violence alongside an adult who is the applicant, including that child in the order or in a related order on a presumptive basis that they are also the victim of violence under the same circumstances is an appropriate way to streamline that judicial process and minimise the trauma that would be experienced by those families seeking orders in respect of intervention. I note that it is something that would be subject to rebuttal if the order was contested, but establishing that baseline presumption is a positive step.

Clauses 25 to 30 of the bill provide that certain documents, such as family violence intervention orders, can be served by alternative service — that is, other than by serving those orders in person. The Parliament needs to be cautious about where these provisions are used and how they are used because one of the principles of our justice system generally — not talking specifically around family violence — is that where parties are engaged in the justice system, where applications are made in respect of them and where accusations are made against them they should have the opportunity to respond to those applications and they should have the opportunity to respond to allegations which are made against them. The traditional way in which the justice system has ensured that happens is by requiring generally the physical serving of an order or a document to an accused party indicating that proceedings will take place.

When you move away from that mechanism — and there can be very good reasons to move away from that mechanism — you increase the prospect that the counterparty to proceedings will not be aware of or engaged in those proceedings, and that is something we need to be very cautious of as a legislature in putting in place structures and mechanisms which allow proceedings to take place where there is a risk that one of the parties to the proceedings, the respondent to the proceedings, may not be fully engaged or fully knowledgeable of those proceedings. I note that this mechanism gives discretion to the court as to where it would come into operation, but as a policy principle this legislature needs to be mindful of ensuring that all parties to proceedings have knowledge of those proceedings and that we do not, in our haste to expedite proceedings and ensure that proceedings take place, unreasonably create a risk that respondents to proceedings may not be fully aware of or have the opportunity to be fully engaged in those proceedings.

The next major provision of the bill is in clause 32, which provides that the first mention date for family violence safety notices must be within 14 days of the respondent being served. The proposal here is to increase the current five-day period to 14 days. We believe again this is something that needs to be monitored carefully. Obviously orders around domestic violence — family violence — are things that are sensitive. They involve personal relationships and inevitably the breakdown of personal relationships — relationships between partners, relationships between children and their parents — and where intervention is required through the judicial process, ensuring that happens quickly is important. That was certainly the intention, I believe, of the original five-day time frame, which was set for first mention from the respondent being served, in recognition that these are sensitive and important issues and should be dealt with as expeditiously as possible.

Expanding that to 14 days does change that environment significantly. I can say I have had the good fortune of never having been in an environment like that and of never having had family members in an environment like that, but for a proportion of our community in Victoria that is not the case. To have an environment where orders for whatever reason need to be sought and for that to be dragged out over two weeks from when a respondent is served could be a very stressful time and a very difficult time. While it seems for us as legislators and as policymakers and to the courts administratively that one week versus two weeks effectively is not significant, if you are living in an environment where family violence is occurring, to have that minimum time period extended to two weeks is actually a significant change, and the way in which this operates is something that in practice we will need to be cautious about.

Clause 33 of the bill is another key provision, which gives the court the power to strike out an appeal under the Family Violence Protection Act 2008 where the appellant fails to appear at the mention date or the hearing of an appeal, and we believe that is a reasonable step. If somebody has lodged an appeal to an order and then fails to appear or fails to respond, getting that matter dismissed and off the books quickly is an appropriate step. Indeed it is a step, a measure, which would probably have a very positive application elsewhere in the judicial system, where appellants, having sought an appeal, are then not responsive in prosecuting an appeal. To be able to get those matters off the books quickly, I think, would be a good thing across the judicial system in its entirety, not only in this provision, which we will see inserted into the family violence framework.

Clauses 46 to 53 of the bill give the Koori Magistrates and County courts jurisdiction to deal with family violence matters. Clauses 54 and 55 provide that prosecution for the offence of failure to disclose a sexual offence committed against a child under the age of 16 under section 327 of the Crimes Act 1958 must not commence without the consent of the Director of Public Prosecutions (DPP). This is a provision which the coalition has some concern with. In government the coalition inserted section 327 into the Crimes Act — and I well remember the debate at the time — to create for the first time the offence of failure to disclose a sexual offence committed against a child under the age of 16. Where an adult person is aware that a sexual offence has been committed against a child — a person under 16 — for the first time the coalition government created the positive responsibility for an adult to report that. If an adult is aware of a child being subject to child sexual abuse, there is a positive obligation for them to report that.

The amendments to the Crimes Act certainly recognised that an adult can be in difficult circumstances. They can be subject to domestic violence themselves or they could be at risk themselves, and in creating this new criminal provision, exemptions were also created to recognise the difficult circumstances that the adult person could find themselves in and recognise that it is often not going to be cut and dry for a person with knowledge of a child sexual offence. Appropriate provision was made for that. We believe that this provision in the bill in clauses 55 and 54, which prevent a prosecution even being commenced without the consent of the DPP, is too limiting in the way that provision can be used.

We believe that the appropriate safeguards were put in place for adults at risk — adults with knowledge of the child sexual offences who themselves are at risk — in the Crimes Act, and raising the bar over which of these prosecutions can commence by requiring the consent of the DPP rather than their being able to be commenced by Victoria Police is a step too far and makes it far too limiting and far too difficult for offences of this nature to be the subject of prosecution. For that reason we will be seeking to amend the bill in committee stage with nine amendments, the effect of which will be to omit clauses 54 and 55. There are consequential amendments around renumbering, but given the current absence of those amendments we will proceed with simply seeking the omission of clauses 54 and 55.

The other key provision of the bill is clause 61, which repeals uncommenced changes from the 2014 legislation, which was the coalition's legislation, allowing for self-executing orders. These are the finalisation orders which allow for an initial order which is not contested to become a final order so that the applicant does not need to return to court. We believe that was an appropriate step to take in streamlining the operation of family violence intervention orders where a matter is not contested. Requiring the parties to come back so that an interim order can be made into a final order does not make a lot of sense if it is not contested. It was the view of the coalition that having a mechanism which allowed for an interim order to become a final order if it was not contested was appropriate. The government has indicated through clause 61 that they do not intend to proceed with that prospective element which had not commenced at this point in time, and therefore clause 61 seeks to repeal that.

This bill is largely technical in what it does. We do have concerns about the provisions related to failure to disclose a child sex offence by an adult. We do not think that raising the threshold to require the Director of Public Prosecutions to commence a prosecution is appropriate, and we will be seeking to omit that from the legislation.

While sounding a note of caution about how some of the other provisions may work, the coalition does not oppose them.   We think they will on the whole add some useful changes in streamlining the way in which family violence intervention orders work and should be an important contribution to the response to domestic violence in Victoria.

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