Susan Templeman (Macquarie, Australian Labor Party) Share this | Hansard source

I'm pleased to be able to continue the comments I made earlier on the Federal Circuit and Family Court of Australia Bill 2019. Among the most heartbreaking stories we MPs hear in our offices are from those going through the agonies of a Family Court matter. The process is brutal for so many partners and their children. There are many issues that get raised with me, and I'm going to focus on those that are most relevant to this legislation that the government has put forward. I support the amendment moved by our shadow Attorney-General.

The time it takes to have a court resolution, which typically comes only after a long time of conflict and heartache, is simply appalling. The average amount of time it's taking for a case to be heard in the Family Court is 18.6 months from the date the matter is filed to the date on which the trial commences. In the Federal Circuit Court, the average is 17.5 months. In some cases, it's taking more than two years from the date of a judgement being reserved to the date on which the judgement's finally delivered. These are delays that impact profoundly on the life of every single person within those families and on their ability to move forward.

Parramatta court has one of the longer wait times for court-appointed family consultants to produce family reports, and of course that's the critical document providing an independent assessment of issues in a case. Those are the reports that help judges make life-changing decisions about the arrangements for children. The main focus of all those reports is the child: what is in the best interests of the child? For a report in the Federal Circuit Court at Parramatta, the wait is eight months, and in the Family Court it's six months. This adds further delays. They're beaten by the Sydney courts, which have slightly longer delays. So for people living in the Blue Mountains and Hawkesbury there is no choice but to wait.

I think every person in this chamber accepts that there are serious problems in the Family Court at the moment. The main cause of those problems isn't a secret. The Australian Law Reform Commission found:

… the family law system has been deprived of resources to such an extent that it cannot deliver the quality of justice expected of a country like Australia, and to whose family law system other countries once looked and tried to emulate.

Over the last seven years, what we have seen with the problems of the Australian family law system is a story of absolute neglect by those opposite. The system has been neglected by Prime Minister Tony Abbott, neglected by Prime Minister Malcolm Turnbull and neglected by Prime Minister Scott Morrison. For a start, the Family Court and Federal Circuit Court judges haven't been replaced in any sort of timely manner as they left. There's been no increase in funding despite the increasing demand. There's been review after review, with dozens of sensible recommendations, and those have not been applied. It's all been ignored. It's all been neglected. The gutting of community legal centres and legal aid hasn't helped either. So here we are. Instead of working to fix the family law system the government decides to restructure the Family Court and the Federal Circuit Court in a way that all the experts say will make what is already a bad situation even worse for Australian families and, as we should be putting first here, Australian children.

I want to state very clearly that what we see the Prime Minister and the Attorney-General doing here with these bills is essentially to seek to abolish the Family Court as a specialist and standalone court. This court system is a very proud Whitlam legacy. Like most of the great social reforms that have occurred in Australia, everything from Medicare to a world-leading superannuation system to providing free legal services to people in need, the Family Court of Australia has been a long-lasting and fundamental reform. We know now, though, that it needs to get better.

The Family Law Act 1975 brought about two major changes. The first was no-fault divorce and the second was the establishment of a family court. Let's be clear, it is a specialist multidisciplinary court—not specialist judges but a specialist court system—for the resolution of family disputes. Of course, there was huge debate on when those changes were made. History shows there were 28 sitting hours in the debate on that bill. There were many disagreements and much debate across both sides. The members of that House, 45 years ago, took it seriously. It's very disappointing to see how few members opposite are interested in speaking on these reforms today. There are plenty of people on our side who want to talk about this very important issue but very, very few opposite. You have to wonder if people even know what they're going to be voting for when the bells ring.

To the detail of the legislation: I suppose we should be thankful that the Morrison government isn't trying to reinstitute fault based divorce—that's the upside. But what it is proposing to do, by undoing the second of those major changes that the Family Law Act introduced, is combine the Federal Circuit Court and the Family Court into one court with two divisions, and that court would be called the Federal Circuit and Family Court of Australia. The current Family Court will become Division 1 and the current Federal Circuit Court will become Division 2 if this legislation passes. Both of them would operate under the leadership of a single Chief Justice and a Deputy Chief Justice, with a single set of rules and a single point of entry. The Appeals Division of the Family Court isn't being replaced by anything. Instead, all Division 1 judges would be able to hear appeals, either as a single judge or as part of a full court.

When the government originally proposed the merger in the last parliament, the current Attorney-General said he would stop appointing new judges to Division 1 as current judges retired, which would have gradually abolished the Family Court over time. He's backed away from that position and promised to keep appointing them, but nothing in this bill guarantees the continued existence of Division 1. The Attorney-General made his intentions for this merger very clear in the last parliament, and now we're meant to assume that he has changed his view as he says, 'Trust me.' I'm sorry; this side does not trust what those opposite say. We look at what you do. Those opposite very rarely can be trusted to do the things they say.

Even if this bill is amended to guarantee the continued existence of Division 1, that doesn't address the fundamental problem with this bill, which is that instead of increasing the specialisation in the family law system, which is what has been recommended by review after review, the Morrison government is watering it down. It shouldn't be a surprise, but it is a disappointment that this will profoundly harm Australian families, and in particular children, at what is probably their greatest time of need. This bill robs the Family Court of its essential distinguishing feature, and it collapses the Family Court into what is already one of the busiest, most poorly resourced and overburdened courts, the Federal Circuit Court.

If you're one of the six Federal Court judges at Parramatta trying to manage the current caseload for Western Sydney, which includes families in my electorate of Macquarie, you might be one of the three judges with 400 to 500 cases on your docket. All we're going to do, as the feedback from experts has demonstrated, is create longer waits, poorer decisions, and more delays and anguish for families already going through horrible experiences.

I want to talk about specialisation. If anything, the need for specialisation in this court has grown. When Whitlam established the family law court, he talked about a court with interrelated, co-located services and resources. Specialisation doesn't mean specialist judges; it's this whole system that operates around them. It was about creating an environment that would have regard to what Whitlam described as the 'human problems' of couples and families, not just their legal rights. For vulnerable children and families who need the family court system, they need one that is not only efficient but also safe and sensitive to their particular needs and vulnerabilities. That specialised understanding is paramount, but that's one of the things we're going to lose.

You'd expect that any decision about changing a system that has served us for so many years would be based on sound evidence. You'd expect that the government would have consulted widely. That has not happened. The Morrison government claims that the merger has been informed by independent reviews and inquiries over a decade. The only problem is that none of the reports listed on the Attorney-General's website as the source of the evidence even recommends this sort of radical reform. Not one of those reports even considered this sort of reform. In fact, only one of the five reports that is on the website recommended restructuring the Family Court and Federal Circuit Court, and it recommended an entirely different model which would have maintained a standalone specialist family law court.

I should also point out that, more recently, the interim report of the Joint Select Committee on Australia's Family Law System—the so-called 'Hanson family law inquiry'—listed almost 70 reviews of the family law system, and not a single one of these reviews had ever recommended that the family courts be structured in the way the government is proposing. So please don't stand there and tell us that this is based on expert recommendations and advice. This government, this Prime Minister and the Attorney-General have ignored all of the experts and the reviews. The only thing being cited is the findings of a six-week desktop review of data by two accountants from PricewaterhouseCoopers. Imagine that! You are making the most profound changes to the family court system in more than 40 years on the basis of a desktop review by two accountants. I fear the consequences that this will have for families. I urge them to reach out to me as we go through this process to find out what sorts of consequences it has. I hope the government then listens to those consequences and reconsiders the decisions that it has made.

In the time that I have remaining, I want to go to some of the experts who have spoken about this and put on the record their comments and findings about the proposal. There has been no meaningful consultation with the users of the family law system—Australian families. There's been nothing with the legal profession or other family specialists. Other than the Chief Justice, the government didn't even consult the judges of the Family Court, which is just extraordinary. If he'd bothered to listen, the Attorney-General would have heard from the Law Council of Australia, which undertook the most comprehensive landmark report on the family law system last year. Their advice was the opposite of what is happening here. They advised that a strengthened standalone specialist family law court with an increase in capacity to deal with family violence specialisation was the way forward. We've also got more than 110 stakeholders—ranging from women's legal services, community legal services, Aboriginal and Torres Strait Islander legal services, child protection advocates, disability services—all writing to the Attorney-General asking him—begging him—to abandon this proposal. They've been ignored.

I want to finish with the words of the very first Chief Justice of the Family Court of Australia, Elizabeth Evatt AC, who said that the proposed merger will lead to undesirable outcomes for children and families. She says:

Merging the Family Court into a generalist court will undermine the integrity and the structural specialisation of the Family Court.

This should not be happening.

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