Page 1324 - Week 04 - Thursday, 30 March 2017
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amendment will not proceed. From my reading, my understanding is that Mrs Kikkert has no objections to this. The existing clause allows the parties to tailor an order to suit their needs and requirements, if all parties consent. I believe that one can safely assume that a victim of family violence would not genuinely consent—genuinely consent—to any variation of a protection order if they felt that they or their child might still be at risk of harm.
The issue at hand is one of risk of harm to a protected person and/or their child in the event of an amendment to a protection order. Section 83 of the Personal Violence Act specifies the following:
A party to a proceeding for a protection order may apply to the Magistrates Court for a review of a consent order … only on the ground that the making of the original order was induced or affected by fraud or duress, other than fraud of the party or duress applied by the party.
That indicates that the court is aware that this can occur in some instances and has the power to intervene.
The same argument exists for the proposed amendment in the Personal Violence Act at clause 96, which in effect is the same wording and has the same intention.
It is my understanding that there are existing provisions and protections that will deal with the matter of coercion of a protected person to amend an order or if a child remains at risk. The court can and has the means to inquire into these matters to assess the facts if there is doubt about the consent. The court can already join a proceeding on behalf of a child’s interest, as was discussed on Tuesday.
Division 3.6 of the Family Violence Act specifically states that the safety of the affected person and children are paramount and that, in deciding the conditions to be included in a family violence order, a court must give paramount consideration to the safety and protection of the affected person and any child directly or indirectly affected by the respondent’s alleged conduct.
In relation to the Family Violence Act, particularly with the new residential behaviour change program for men, I can foresee or hope that in the future more applications will be made to amend a protection order because the perpetrator’s views and attitudes have changed or are changing and the victim is feeling safer. Again, this would have to occur with consent from both parties, and this is another reason why we are supporting the government’s amendments.
I do understand, I hope, why Mrs Kikkert is concerned that the safety of a child or protected person may be at risk if the court can proceed, regardless of whether amending the order will not adversely affect the safety of the protected person or child or if the amendment would reduce the protection of a child who is 15 years or younger, which are some of the grounds mentioned in subsection (1) of section 5. However, I understand that the current legislation as it sits and is amended in this bill will provide the protections that are required. I would also like to assure
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