Page 1155 - Week 04 - Thursday, 17 March 2005
little wary about some of the provisions. Mr Stefaniak spoke eloquently about the conflict of rights that appear in this legislation. He quoted the Chief Minister as saying that this legislation is a higher level of protective response. That sounds good in theory, but, when you have such a high level of protective response, you actually have in many cases a lower standard of proof than would be normally accepted under the criminal law, which creates considerable tensions that do bring rights into conflict.
I would flag with you, Mr Speaker, the provisions of proposed section 9 (1) (e). These provisions have been in existence for a long time. They have been in existence, essentially, since the act which this bill is replacing has been in existence. I would like to reflect upon the operation of these provisions. Proposed section 9 (1) (e) says that conduct is domestic violence if it is harassing or offensive to a relevant person. A relevant person is defined as a domestic partner of the original person, a relative of the original person, a child of a domestic partner, or someone who normally lives or normally lived in the same household as the original person.
That seems, on the surface, to be fairly inoffensive. It is about harassing and offensive actions and the standard we set in these circumstances is very low. Normally speaking, under tort law and elsewhere in the statute book, something which is harassing or offensive would need to pass a reasonable person test. That would mean that it would be an objective, not a subjective, test. In tort law, for instance, a reasonable person is actually referred to as a person of reasonable fortitude. What we have in this provision is a situation where there is the propensity to abuse the domestic violence and protection orders provision for a whole lot of ulterior motives. That is not to say that there are not people in the community who are violent towards people that they live with and that those people should not be dealt with.
But when you have a test which is so lax that it opens up many opportunities for abuse, you need to consider the implications of having a domestic violence order taken out against you. If you have a domestic violence order taken out, an order under this act or an order under its preceding acts, there is a whole lot of things that you cannot do. For instance, you cannot obtain a firearms licence. But the thing that I am most concerned about is the impact that it has on the operation of the Family Law Act. Section 68F of the Family Law Act, which is about how a court determines what is in a child’s best interest when we are looking at custody, says that, subject to subsection (3), in determining what is in a child’s best interest the court must consider a set of matters, one of which is any violence order that applies to the child or a member of the child’s family.
Mr Speaker, the evidence is legion—Mr Stefaniak touched lightly on the issues—of people taking out domestic violence orders as a means of getting even in family law matters. When it comes to custody it is often the case, and it is definitely the experience of, particularly, the lone fathers’ groups, that domestic violence orders are taken out as a means of circumventing custody orders in favour of fathers. That is something that I am particularly concerned about and that all of us should be concerned about. We should be looking very carefully at the operation of this act. I am concerned that, over the course of the years, there has been no tightening up of this provision that allows for the potential for misuse of the act.
We know from our personal experiences in representing people that anyone who has had any experience in representing people or dealing with people who are struggling with the