Linda Burney (Barton, Australian Labor Party, Shadow Minister for Families and Social Services) Share this | Hansard source

I rise to oppose this bill, the Federal Circuit and Family Court of Australia Bill 2019, and the accompanying bill, the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019. These bills propose one of the most sizable structural reforms to the court system, merging the Federal Circuit Court and the Family Court. The government should own up to what they are seeking to do with these bills. They are seeking to abolish the Family Court as a specialist 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. Firstly, it instituted no-fault divorce. Secondly, it established the Family Court of Australia, a specialist multidisciplinary court, for the resolution of family disputes. When the Family Law Bill 1974 was debated in the House of Representatives over 45 years ago, nearly half the House—a total of 59 members—made speeches. The House spent 28 sitting hours debating that bill. There was disagreement. There was debate. But across the political spectrum members of the House took the reform seriously. Australian families deserved no less. By contrast, how many people on the other side of the House are going to speak on these bills today? Do Liberal backbenchers even know what they are voting for, and do they care?

Prior to the Family Law Act, the Matrimonial Causes Act 1959 set up 14 grounds for the grant of a divorce, including adultery, desertion, habitual drunkenness, imprisonment and insanity. To get a divorce a spouse had to prove the other party was at fault. Private investigators did very well out of divorce law as it existed prior to the Family Law Act, but since the commencement of the act in January 1976 the only ground for divorce in Australia has been that the marriage has broken down irretrievably. This can be established if the court is satisfied that the parties have lived separately and apart for a continuous period of 12 months. Neither party has to prove that the other person is at fault.

As Gough Whitlam said on 19 May 1975:

Let us keep in mind that marriage is essentially a human relationship between 2 people. It takes 2 people to make a marriage but it takes only one to break it. Idealists might wish that it were otherwise, but it is not. It is time society acknowledged that simple fact. We have no right to condemn 2 people to live together in misery and suffering for a moment longer than necessary. Ultimately the only test of a marriage is whether both parties agree to maintain it. If one party is unwilling to maintain it the marriage has broken down. I do not believe any reasonable person would suggest that 12 months is not sufficient time to prove that a marriage has broken down.

The Family Court system is an important mechanism through which we can protect individuals experiencing family and domestic violence. We know that many matters which pass through the Family Court relate to or involve family violence. According to Women's Legal Services Australia, 50 per cent of Family Court matters involve domestic violence and child abuse. We also note the Family Court is a specialist court, with specialist judges and specialist staff, which works to resolve some of the most complex and, I would add, highly emotional and often traumatic matters. The Family Court with its staff and resources is best placed to manage these types of cases.

We all acknowledge the major challenges confronting the Family Court—in particular, the lengthy court wait times, delays and backlogs—in resolving family law disputes. According to the Australian Law Council, parties are waiting up to three years in the Family Court to finalise cases involving family violence. Of course this is unacceptable. Justice delayed is justice denied. Nor is it acceptable, however, that we replace one evil with another. Some community groups, such as Women's Legal Services Australia, have also expressed serious concerns, particularly in relation to how this message may impact the lives and safety of individuals experiencing family or domestic violence. Indeed, the Federal Circuit Court does deal with a large proportion of family law matters. However, the reality is that the Federal Circuit Court is a generalist court; it's charged with dealing with the more simple, straightforward and less complex family law matters. The more complex matters are considered by the Family Court.

Family law matters are inherently complex, as I said. They are highly emotional, deeply personal and often traumatic. Family Court Justice Diana Bryant said that family violence features in a high proportion of contested cases—something like 41 per cent. As I mentioned earlier, Women's Legal Services Australia says 50 per cent of Family Court matters involve violence. According to Miranda Kaye and Jane Wangmann of the University of Technology Sydney, these matters often involve concerns about substance abuse, mental health, parenting capacity and, of course, family and domestic violence. They have written, 'It is disappointing the new court appears to be merely an expansion of the generalist Federal Circuit Court at the cost of destroying the more specialist Family Court of Australia.' They also write, 'One of the requirements for appointment to this court is that a judge must have the expertise to be considered a suitable person to deal with matters of family law.' The most difficult and complex cases are saved for specialist judges with appropriate experience. This is, ultimately, why the Family Court matters do take longer to resolve. That complexity is only compounded by the presence of family or domestic violence. The specialist nature of the Family Court means that it has an important role to play in protecting individuals experiencing family violence. Former Family Court Justice Diana Bryant says:

I can say that I have spent my whole career—40 years—in family law. I think I have a reasonable knowledge of all those areas gained over that time, but I am still learning and it's not something you can pick up in five minutes. I think having specialised judges is important.

Wendy Kayler-Thomson of the Law Council said:

It would be disastrous to have a trial judge who has not had any family law experience and then to have a single judge on appeal also having no family law experience.

What is clear from these cases is that they—both legal as well as domestic violence advocates—are seriously concerned that this measure will end specialist expertise within the Family Court.

The government also wants to abolish the specialist appeals division of the Family Court and transfer this responsibility to the Federal Court. Beyond concerns expressed about the constitutional validity of this, there is also the concern about the most complex cases, those which reach the appeals stage, being heard by the Federal Court. When I think of the complexity of the cases of family and domestic violence which we hear enter our courts and of the pain and trauma of having to relive these experiences, I want to make sure—and I think we would all want to ensure—that the judge or the justice presiding over the case is trained, skilled and experienced to take on this case. The Australian Bar Association has expressed concern about not only the loss of the specialist capabilities that the Family Court brings but also the adequacy of funding and resourcing of the court.

A big part of the conversation around backlogs and delays comes down to resourcing. Our courts are under-resourced, legal assistance services are under-resourced and this government has failed to appoint replacements for a number of judges who have retired. Labor has had much to say about the funding of legal services in the context of family violence matters.

The Morrison government's proposal to effectively abolish the Family Court of Australia as a standalone specialist court is friendless, but it has many opponents. No fewer than 110 stakeholders, ranging from the Law Council of Australia to Women's Legal Services Australia, Community Legal Centres Australia, National Aboriginal and Torres Strait Islander Legal Services, child protection advocates and disability services from across Australia, have written to the Attorney-General to ask him to abandon this proposal. The Attorney-General has ignored their pleas. These 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; increase rather than decrease cost, time and stress for families and children in the family law system; place further stresses on Federal Circuit Court judges who are struggling under unsafe, unsustainable and unconscionable workloads; and, finally, fail to address any of the fundamental problems plaguing the family law system, including the risk of family violence survivors falling through the cracks.

In the time that I have left, let me just read into the Hansard some of those objections. The very first Chief Justice of the Family Court of Australia, someone I know personally, the Hon. Elizabeth Evatt AC, has said:

The proposed merger of the Family Court and the Federal Circuit Court … will lead to undesirable outcomes for children and families.

…   …   …

Merging the Family Court into a generalist court will undermine the integrity and the structural specialisation of the Family Court. The impact of losing this institutional specialisation is not properly understood, and has been downplayed

The Hon. Alastair Nicholson AO RFD QC, the second Chief Justice of the Family Court, who served in that position for many years, has fully supported Ms Evatt's remarks. Mr Nicholson also said:

It is unbelievable that Government would propose the dissolution of a Federal Superior Court in this fashion without the most careful and searching Public Inquiry and without carrying out significant research and without consulting the many experts in this field.

Cases can be extremely complex and require specialist knowledge of the type that has always been available in the Family Court, which has provided leadership in the proper interpretation and principles to be applied by other courts with family law jurisdiction.

The President of the Law Council of Australia, Pauline Wright, has said of the proposed merger:

It would result in the effective abolition of the Family Court of Australia, a respected, specialised and focused court dealing with family law issues.

National Aboriginal and Torres Strait Islander Legal Services said:

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

The Attorney-General has shown his arrogance by dismissing these concerns with a wave of his hand, in the face of overwhelming opposition from family law experts across the country, instead of working with experienced practitioners and experts to improve the family law system for the benefit of Australian families. The Morrison government has instead decided to let everything rest on the findings of a discredited six-week desktop review by two accountants. Australian families deserve better, and the Labor Party, as I said, will be opposing this legislation vigorously.

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