Ged Kearney (Cooper, Australian Labor Party, Shadow Assistant Minister for Skills) Share this | Hansard source

I rise today to speak on the Federal Circuit and Family Court of Australia Bill 2019 and the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019. I want to echo the words of my friend and colleague the member for Isaacs, who has outlined just how bad this bill is. Through this bill the government is seeking to abolish the Family Court as a specialist and standalone superior court. The Family Court of Australia is a proud Whitlam legacy. Like most of the great social reforms that have occurred in Australia, from Medicare to our world-leading superannuation system to free legal assistance services for Australians in need, the Family Court of Australia is an institution that has served our nation admirably.

The Family Law Act 1975 instituted two major changes: it established the Family Court of Australia, a specialist multidisciplinary court for the resolution of family disputes; and it instituted no-fault divorce. Thankfully, the Morrison government is not proposing to reinstitute fault based divorce, but what it is proposing to do is to undo the other of the major changes introduced by the Family Law Act, which was the establishment of the Family Court of Australia as a specialist superior court. This would be a profoundly retrograde step which would harm Australian families and, in particular, children at their time of greatest need.

Like thousands of other families, I myself have been through the trauma of divorce. I did so with four kids in tow, all enduring the pain of that process, and it is very painful for some of us, perhaps even for most of us. I can't tell you how I appreciated the knowledge and skill of the specialists in the Family Court, who saw through the posturing and bluster; who managed the insults and the accusations; who sidestepped the blaming and the shaming, the anger and the pleading; and were not fazed by tears, not to mention managing to forge and land a fair and reasonable legal outcome. So you see specialisation does not just mean specialist judges.

The Whitlam government's vision of a specialist Family Law Court was of a court with interrelated co-located services and resources. It was about creating an environment that would have regard to what Whitlam described as 'the human problems' of couples and families and not just their legal rights. And that was exactly my experience.

The realisation of that vision has never been more important, especially for vulnerable children and families, who need a family court system that is not only efficient but also safe and sensitive to their particular needs and vulnerabilities. Everyone accepts that there are serious problems in the Family Court at present. The main cause of those problems, though, is not a mystery. As 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, to whose family law system other countries once looked and tried to emulate.

Over the last seven years, the story of the Australian family law system has been a story of neglect, neglect and more neglect. Family Court and Federal Circuit Court judges have not been replaced in a timely manner. Funding has not increased in response to increasing demand, and review after review, including many dozens of sensible and measured recommendations, has been ignored. The evidence from experts that this merger proposal will increase cost, increase time and increase stress for families and children and place further stress on Federal Circuit Court judges is particularly alarming. It makes a complete mockery of the government's claim that this bill will streamline services and make it easier for families going through this trauma.

The Senate Legal and Constitutional Affairs Committee heard evidence the average number of cases across all Federal Circuit Court judges is 337 at present—I repeat, an average of 337 cases per judge. For contested family law matters in the Family Court, it is currently taking on average 18.6 months from the date a 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 is taking over two years from the date of a judgement being reserved to the date on which the judgement is finally delivered. In some Federal Circuit Court and Family Court registries it's taking on average 12 months for court appointed family consultants to produce family reports. A family report is an absolutely critical document that provides an independent assessment of issues in a case. Those reports help judges to make life-changing decisions about arrangements for children, noting that the main focus of a family report is the best interests of the kids.

These sorts of delays are not merely statistics. In its landmark 2019 report on the family law system, which the government has so far ignored, the Australian Law Reform Commission referred to a number of concerns associated with the present delays in the Family Court system, including the potential for children and parents to spend long periods living in limbo waiting for trial; the safety risks to parties and children arising from delayed resolution of disputes that involve protective concerns, including contributing to homelessness; the scope for delay and uncertainty to exacerbate conflict; and the potential for clients to consent to outcomes that fall short of the security and protection a court order can provide. Instead of working to fix the family law system, the government remains determined to restructure the Family Court and the Federal Circuit Court in a way that will make a bad situation worse for Australian families. You would expect that such a radical reform would be based on sound evidence and you would expect that the government would have consulted widely. It's not, and the government didn't.

The Morrison government claims that the proposed merger has been informed by independent reviews and inquiries over a decade. The Attorney-General's Department website lists five reports under the heading 'The evidence base for the reforms'. The only problem with that is that none of the reports listed on the website actually recommended these radical reforms—none! None of those reports even considered these reforms being proposed. In fact, the only one of the five reports that recommended restructuring the Family Court recommended an entirely different model which would have maintained a standalone specialist family law court.

The Attorney-General and the Morrison government have ignored all of this. Instead, in their efforts to promote these bills, the Attorney-General continues to cite the findings of a six-week desktop review of data by two accountants from PricewaterhouseCoopers. Imagine that: making the biggest change to the Family Court system in over 40 years on the basis of a short desktop review by two accountants—a review, by the way, that has been widely panned and thoroughly discredited. The Attorney-General did not undertake any meaningful consultation in relation to his proposal to effectively abolish the Family Court. There was no meaningful consultation with the legal profession or with other family specialists like counsellors or child psychologists. There was no consultation with users of the Australian law system—Australian families. Other than with the Chief Justice, the government did not even consult with the judges of the Family Court. The arrogance of the government is breathtaking.

This government's proposed abolition of the Family Court as a standalone specialist court is not merely friendless; it has been almost universally condemned. One hundred and ten stakeholders ranging from the Law Council of Australia to Women's Legal Services, Community Legal Centres, Aboriginal and Torres Strait Islander Legal Services, child protection advocates and disability services right across Australia have written to the Attorney-General asking him to abandon this proposal. They've been ignored. Those 110 individuals and organisations oppose this proposal because they believe that it will harm vulnerable children and families in need of specialist family law assistance. They think these bills will increase, rather than decrease, cost, time and stress for families and children in the law system; place further stressors on the Federal Circuit Court judges, who are already struggling under unsafe, unsustainable and unconscionable workloads; and, importantly, fail to address any of the fundamental problems plaguing the family law system, including the risk of family violence survivors falling through the cracks.

The president of the Law Council of Australia, Pauline Wright, has said:

There must be an increase not a decrease in specialisation in family law and violence issues. This is critical for the safety of children and victims of family violence.

The National Aboriginal and Torres Strait Islander Legal Services—which, I might say, are housed in my electorate—have said that the proposed merger:

… will disproportionately impact the most vulnerable including Aboriginal and Torres Strait Islander children and families who need the most support.

…   …   …

From our experience, as Aboriginal organisations, we say that mainstreaming does not achieve efficiency or better outcomes for our people and that specialisation in the law is important and it works. Our main call is for more specialisation and more resourcing into the cultural competence of the family court system. The introduction of specialist Aboriginal Courts in the family law system has seen an increase in Aboriginal participation. We implore the Parliament to do the right thing by our communities and reject this bill which does not address the root causes of these problems. We fear, in the middle of this global pandemic, the bill will exacerbate the issues that our communities are facing.

But, in his smug arrogance, the Attorney-General has dismissed these concerns with a wave of his hand. I genuinely don't understand how anyone could support these bills. I don't understand what it seeks to achieve. It will hurt traumatised kids at a time when they need support. The Attorney-General should withdraw these bills and simply concentrate on fixing the family law courts.

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