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Family Law Amendment (Family Violence and Other Measures) Bill 2018

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2016 - 2017 - 2018

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

SENATE

 

 

 

FAMILY Law amendment (family violence and other measures) Bill 2017

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

Amendments to be Moved on Behalf of the Government

 

 

(Circulated by authority of the

Attorney-General, the Honourable Christian Porter MP)

                                                                                                        



 

AMENDMENTS TO THE FAMILY Law amendment (family violence and other measures) Bill 2018

general Outline

1.       These amendments to the Family Law Amendment (Family Violence and Other Measures) Bill 2017 (the Bill) would remove measures which would criminalise breaches of personal protection injunctions made under sections 68B and 114 of the Family Law Act 1975 .

FINANCIAL IMPACT

2.       There are no financial implications from implementing these amendments. 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Family Law Amendment (Family Violence and Other Measures) Bill 2017

1.       These amendments to the Bill are compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Overview of the amendments  

2.       The amendments to the Bill remove proposed measures to criminalise breaches of personal protection injunctions made under sections 68B and 114 of the Family Law Act.

 

3.       The amendments result in the retention of current sections 68C and 114AA of the Act, which provide for enforcement of breaches by civil action brought in the family law courts.

Human rights implications

4.       The amendments engage the following human rights:

 

·          Eradication of discrimination against women: Articles 2 and 3 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).

 

·          Protection of children on dissolution of a marriage, and generally: Articles 23(4) and 24(1) of the International Covenant on Civil and Political Rights (ICCPR), and Article 3(2) of the Convention on the Rights of the Child (CRC).

 

·          Protection of children from physical, sexual or mental violence, injury or abuse: Articles 19(1) and 34 of the CRC.

Eradication of discrimination against women: Articles 2 and 3 of the CEDAW

5.       The amendments retain civil enforcement provisions for breaches of an injunction made for personal protection under sections 68B and 114 of the Family Law Act. Courts may grant such injunctions in circumstances arising out of the marital relationship, or for the personal protection of a parent of a child, or a person who is to spend time with, communicate with, or live with a child, or a person who has parental responsibility for the child.

 

6.       The existing enforcement provisions in the Family Law Act enable family law courts to provide civil protection for victims of family violence, the majority of whom are women. This allows courts to respond to gender-based violence (Article 2 CEDAW) and protect women to ensure that they can enjoy their human rights (Article 3 CEDAW).

 

Protection of children on dissolution of a marriage, and generally, and protection of children from physical, sexual or mental violence, injury or abuse: Articles 23(4) and 24(1) of the ICCPR, and Articles 3(2), 19(1) and 34 of the CRC

7.       As noted at paragraph 5 above, the amendments retain civil enforcement provisions for breaches of an injunction made for personal protection under section 68B of the Family Law Act. Courts may also grant such injunctions for the personal protection of a child.

 

8.       The existing enforcement provisions in the Family Law Act enable family law courts to provide protection for children who are victims of family violence by making an order against violence which carries civil sanctions.

Conclusion

9.       The amendments are compatible with human rights because they maintain the protection of human rights.



 

NOTES ON AMENDMENTS

Amendment 1: Clause 2, page 2 (table items 3 and 4)

1.       This amendment would omit table items 3 and 4 from the commencement table and replace them with a new table item 3.

2.       This is a consequential amendment resulting from Amendment 9.

3.       The commencement period in table item 4 applied to the measures in Schedule 1, Part 2, Division 2, which would be removed by Amendment 9.

4.       This amendment would replace table item 3 in the table to provide that Part 2 of Schedule 1 will commence the day after the Act receives Royal Assent.

Amendment 2: Schedule 1, heading to Division 1, page 8 (lines 3 and 4)

5.       This amendment would omit the heading for Division 1 in Schedule1, Part 2.

6.       This is a consequential amendment resulting from Amendment 9. Amendment 9 would remove Division 2 in its entirety from Schedule 1, Part 2, resulting in only one Division remaining in Part 2.  As a consequence, a Division heading is no longer required.

Amendment 3: Schedule 1, item 15, page 9 (line 23)

7.       The amendment would substitute the word ‘Part’ in place of ‘Division’ in Schedule 1, Item 15.

8.       This is a consequential amendment resulting from Amendment 2.

Amendment 4: Schedule 1, item 15, page 9 (line 25)

9.       The amendment would substitute the word ‘Part’ in place of ‘Division’ in Schedule 1, Item 15.

10.   This is a consequential amendment resulting from Amendment 2.

Amendment 5: Schedule 1, item 20, page 10 (line 30)

11.   The amendment would substitute the word ‘Part’ in place of ‘Division’ in Schedule 1, Item 20.

12.   This is a consequential amendment resulting from Amendment 2.

Amendment 6: Schedule 1, item 20, page 10 (line 33)

13.   The amendment would substitute the word ‘Part’ in place of ‘Division’ in Schedule 1, Item 20.

14.   This is a consequential amendment resulting from Amendment 2.

 

Amendment 7: Schedule 1, item 24, page 11 (line 12)

15.   The amendment would substitute the word ‘Part’ in place of ‘Division’ in Schedule 1, Item 24.

16.   This is a consequential amendment resulting from Amendment 2.

Amendment 8: Schedule 1, item 24, page 11 (line 14)

17.   The amendment would substitute the word ‘Part’ in place of ‘Division’ in Schedule 1, Item 24.

18.   This is a consequential amendment resulting from Amendment 2.

Amendment 9: Schedule 1, Division 2, page 11 (line 25) to page 19 (line 8)

19.   This amendment would omit Schedule 1, Part 2, Division 2 in its entirety from the Bill.

20.   Schedule 1, Part 2, Division 2 of the Bill would have repealed existing sections 68C and 114AA of the Family Law Act and replaced them with new sections 68C and 114AA respectively, providing that a breach of an injunction for personal protection granted under section 68B or 114A is a criminal offence.

21.   Successful implementation of these measures requires effective mechanisms to be in place to ensure that the offences could be properly enforced.

 

22.   In consultation with the Government, and in evidence before the Senate Legal and Constitutional Affairs Legislation Committee, some stakeholders advocated for more time for the resolution of implementation issues, notwithstanding the proposed 12 month timeframe for the commencement of these measures.

 

23.   Following the Australian Law Reform Commission’s comprehensive review of the family law system, and depending on its findings, consideration will be given to re-introducing the proposed offences at a future time.

 

24.   In the meantime, the omission of the proposed offences from the Bill will result in the continuation of existing sections 68C and 114AA. Under these existing provisions, state, territory and federal police officers are authorised to arrest a respondent without a warrant if the officer believes, on reasonable grounds, that an injunction for personal protection has been breached.

 

25.   Once arrested, the police officer must bring the person before a family court by the close of business on the day following the arrest, or the first day after a weekend or public holiday. The effect of the injunction is that once at court, the protected person can make an application that the person be dealt with for breach of the injunction.

 

26.   Division 2 would also have inserted new sections 68D, 68E, 114AB and 114AC, allowing state and territory magistrates to revive, vary or suspend an injunction for personal protection when hearing a criminal proceeding for a breach of that injunction.

 

27.   With the omission of the proposed offences, those proposed new provisions are not necessary. Civil proceedings for the breach of an injunction would take place in a family law court, which would have the power to amend the injunction (and any related family law orders) in those proceedings if an amendment was appropriate.