Victims of Family Violence (Strengthening Legal Protections) Legislation Bill

Members, we now come to the Victims of Family Violence (Strengthening Legal Protections) Legislation Bill, and we start with Part 1. Just let me clarify—we’ve got a Minister in the chair, so we can go ahead, thank you. We’re starting with Part 1. This is the debate on clauses 3 to 16, “Substantive amendments”; and Schedules 1 to 3. The question is that Part 1 stand part.

With the Victims of Family Violence (Strengthening Legal Protections) Legislation Bill, when we’re looking at Part 1, considering that there are various subparts, I want to first focus on subpart 1 of this bill and just ask the Minister a question partly around, in clause 5, new subsection (4), but also in conjunction with subsection (8).

One of the provisions for this bill—we’ve now seeing a switch of Minister in the chair; that’s all good. One of the things we’re seeing with this particular bill is around the fact that judges will have to have regard to the following circumstances regarding having that protection, and this is to do with litigant abuse—I’m looking at new subsection (4) of section 128B. One of the things I’m interested to hear the Minister’s advice on is around what the threshold is for some of this judgment, particularly when it comes to the threshold for a number of acts that form part of a pattern of behaviour. Now, this is a definition that is given under the litigant abuse under subsection (8) of new section 128B.

Now, as we all know, one of the major issues when it comes to family violence and other forms of violence, like domestic violence or even sexual violence, is the fact that it is very hard for us to determine that sort of incremental and potential microaggression throughout the different periods. I would like to know: when we are looking at how judges give regard under subsection (4), what would be the way that the judge may be able to identify patterns of behaviour, as opposed to the more clearer way of having a singular instance? For example, would the judge be able to go, based on microaggression or certain terms being used and/or the frequency of some of the terms being used? So, yes, I would really like to hear from the Minister on the judge’s identification or some of the advice around the identification of patterns of behaviour over a number of acts.

Thank you, Madam Chair. First of all, I’m hoping the Minister will walk us through the Amendment Paper that’s been tabled. It does refer to it being technical amendments, but obviously, it having been put on the Table there, it’s not tracked or anything, so it’s hard to know exactly what those allegedly minor and technical drafting changes are. I’m assuming it’s something that the Parliamentary Counsel Office’s come up with, but it would be useful if they could be identified.

I’m sure the Minister will appreciate that this bill does do something relatively significant in that whilst its intention is entirely appropriate and we’re in support of the bill, what it does do is limit peoples’ ability to file proceedings or take any steps, in some cases, in court in situations where there is family violence. There is a delicate balance to be struck. I’m particularly interested in the Minister’s view of the Government’s intention as to where that line is drawn, because, trying to put it sensitively, what is an abusive use—not abusive to a court, but to a person. What is an abusive use of a procedure? There are very differing perspectives on that, and whilst almost any legal proceeding is difficult, onerous, stressful, and sometimes even traumatic, that in and of itself doesn’t make it an abuse.

I’m just wondering if the Minister can give guidance in terms of, in particular, new section 12B—the key section of this legislation—where that threshold will be, because I’m not sure the language entirely captures it. How are we going to strike that balance between those who, rightly or wrongly, feel they’ve got a point to make, whether it’s accurate or not, and those who want to make that point, whilst at the same time we act protectively? Even if an action is unfounded, it may be brought for the genuine purpose of asserting an erroneously believed right, and that probably falls on the permitted—not ideal, but permitted—side of the line, whereas clearly the real issue is where people know full well that they have no legal right or entitlement, and the sole purpose is when you bring the action to, essentially, harass—I think is one of the words that’s used.

Absolutely, this is a good piece of legislation, but I’m keen to hear the Minister’s view on, in particular, how we expect the judges to approach that problem. For the benefit of the Minister who has been subbed in, I was just asking for a walkthrough of the Amendment Paper, as well as the other thing. Well, I’ll leave those two things there, and the third point I’ll come back to.

Thank you, Madam Chair. Further on from my question before, my question is around Schedule 1, which is part of Part 1—so we’re looking at clause 12.

Now, in terms of Schedule 1, with the transitional element—and I fully agree with the previous speaker, the Hon Dr Duncan Webb, that this is a good bill and that this is a necessary bill for communities, particularly when it comes to victims of family violence. However, I want to check with the Minister: in Schedule 1, clause 1, particularly around the transitional element, I would like some guidance from the Minister around the application of section 12B, and specifically clause 1(3), which is where it says, “the Judge must only have regard to a party’s conduct that occurred after the commencement.”

Previously, I asked the Minister a question around the definition of “pattern of behaviour” in subsection (8) of new section 12B, but I want some guidance from the Minister about whether that pattern of behaviour needs to have commenced only when this bill comes into effect or whether the judge is able to draw on a pattern of behaviour that occurred before but has been continued on as part of that—knowing that the judge may not be able to use it, but whether the judge is able to refer to it as a continuation of a pattern of behaviour.

Thank you, Madam Chair, and I thank my parliamentary colleagues for their comments on this piece of legislation, the Victims of Family Violence (Strengthening Legal Protections) Legislation Bill.

Just by way of introduction, the bill’s purpose is to strengthen the courts’ statutory powers to protect victims of litigant abuse in family proceedings—and we’re all, I think, conscious of the fact that, particularly when marriages break down or where family disputes have arisen, there can be an enormous amount of emotion. In the vast majority of cases, people resolve those outside of the court process, but often they do end up in the courts, and there are examples of when the court processes themselves can become so difficult for one or other party to cope with—this legislation has been brought forward to enable the court to be able to make an order. First, they need to look broadly at the behaviour inside and out of court proceedings, focusing on the intent of the behaviour to determine whether it’s litigant abuse, and then, if an order is made, the court will require a party to seek approval of the court to make any further steps in existing or new family proceedings for up to three years. The order is to bring some discipline.

We’ve had a few questions raised, first, about what is meant by conduct and why the bill doesn’t define it. Well, when a person applies for an order, as I said, the court is required to look broadly at behaviour in and outside of the court proceedings, focusing on the intent of the behaviour to determine whether there is litigant abuse, and so that’s what is being referred to in terms of conduct. Limiting the definition of “conduct” to particular types of behaviour would likely narrow it in a way that would exclude relevant behaviour and may also lead judges to focus on the form of behaviour rather than whether it is intended to abuse.

Another question has been raised around what litigant abuse is. Litigant abuse occurs when someone uses the court system to harass, contact, and control their victim rather than to resolve legitimate disputes. It can include things such as filing excessive, sometimes abusive, documents that require the other party to respond or attend multiple court sessions. It can also cause significant emotional and financial harm to victims. The bill defines litigant abuse as abuse to another party to the proceedings—conduct that is intended to harass, annoy, or harm other parties to proceedings.

We also have a question around the Amendment Paper, around drafting changes. The first change clarifies that the policy intent of the bill is that the judge should look at all relevant conduct when deciding whether a party is in litigant abuse. The version as reported back from the Justice Committee could be misinterpreted as excluding the conduct towards other parties in related proceedings from the circumstances, to consider whether making an order—for example, conduct towards grandparents who are not part of the main proceeding—and that wasn’t intended. The second change shifts the definition of psychological abuse to the definitions subsection. This simplifies references throughout the bill, to avoid repetition.

Thank you very much, Madam Chair. Thank you very much to the Minister for those helpful answers to the questions already. Just further in relation to the Amendment Paper, I would be interested to know whether those were changes that were generated from the Parliamentary Counsel Office—whether they were simple drafting corrections or clarifications—or whether that was, in fact, departmental advice. That would be useful for us to understand.

My question to the Minister relates to the intent of this bill and one of the main issues that has been raised—by, particularly, those who advocate in family violence support services or women’s refuges and those NGO spaces—that particularly affects women is that there was a concern that this legislation may in fact possibly be used against the very people we’re trying to help. When there are long-term spouses that are using the legal system to stalk and harass and make people’s lives a misery, there was a concern that this provision could be used by the perpetrator against the victim when the victim was potentially seeking a protection order or other types of legal instruments and going through the courts to try and seek the protection of the courts. For me, it actually demonstrated how little trust the users of the Family Court or the court system have. They have like zero faith, really, in the process itself, which is very sad.

I’d be really interested to know from the Minister if he’d received advice about this issue, whether he has any concerns about how this new provision could be used in other contexts, and if he has any plans in fact to monitor this and to review it to understand how it is being used by the courts down the line and if he will take any steps to build that into the process. Thank you.

My question is around the scope of the breadth of this amendment. This is an amendment to the Family Court Act, and I guess that means it relates only to family proceedings. I guess the hook is the fact that abusive litigants can use other jurisdictions, and although the provisions refer to a judge, I’m assuming that that’s a judge in the Family Court jurisdiction. Although the Family Courts are part of the District Court, my question is whether these provisions will protect someone from, say, a civil claim in the District Court or a claim through the employment processes, including the employment court—say, for a family company that employs spouses—or not.

That’s the first thing, and I guess the second thing is: if not, then what? If not, then how do we protect people in other jurisdictions, because vexatious litigants are well-known for finding every way and every jurisdiction in which to file proceedings. Will this extend to the wider courts, only the District Court, or only the District Court in exercise of its family jurisdiction?

The question is that the Minister’s amendments to Part 1 set out on Amendment Paper 53 be agreed to.

Amendments agreed to.

Part 1 as amended agreed to.

Part 2 Consequential amendments