House debates

Monday, 26 November 2018

Bills

Federal Circuit and Family Court of Australia Bill 2018, Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018; Second Reading

4:07 pm

Photo of Julian LeeserJulian Leeser (Berowra, Liberal Party) Share this | | Hansard source

Peter Miles used a rifle to shoot Katrina Miles and his four grandchildren as they slept in their beds, before walking back to the farmhouse to kill his wife of more than 40 years. Mr Miles's daughter, Katrina, had moved in with her parents after the breakdown of her relationship with the children's father, Aaron Cockman. Ms Miles and Mr Cockman were also undergoing a lengthy shared custody battle in the Family Court. I had the privilege of meeting Aaron Cockman, a very brave man, earlier this year. Mr Cockman described how the lengthy and costly court battle over child custody rights was an expensive exercise, adding a high degree of emotional strain.

The most recent tragedy in a string of mass murders and family violence occurred in a Perth suburb on 3 September, when Mr Anthony Harvey, aged 24, allegedly murdered his wife and his three children, murdering his mother-in-law the following day.

There is never an excuse for family violence. There's never an excuse for murdering another human being. People must never take the law into their own hands. These extreme reactions highlight the additional stress placed on deeply dysfunctional and fragile families going through lengthy court hearings, especially when there are child custody matters involved. Family law proceedings can also create an increased risk of suicide. It's been reported that there's a connection between family breakdown, relationship dissolution, separation, divorce and deaths by suicide, especially among men.

Parents Beyond Breakup is an Australian charity operating Dads in Distress and Mums in Distress groups. They work with parents who are struggling with family separation. In 2016, Parents Beyond Breakup noted that 350 parental suicides were avoided as a result of their assistance and services. As the chair of the Parliamentary Friends of Suicide Prevention, I commend them for the important work that they do. I had the chance to visit a Dads in Distress group in my electorate, run by Campbell Lennox, to see firsthand the work they do in sensibly navigating people through the issues that confront parents in the family law system. Many of the men I saw had been separated from their children for a long time. Many had terrible experiences with lawyers and the system. Dads in Distress helped them concentrate on getting through the system without getting angry about the injustices they saw. I was impressed with the level of sophistication of the program. Campbell described the stress and pain experienced by parents and children going through the Family Court.

It's become apparent to me that the adversarial system is not the right tool for managing most marriage breakdowns, and that lengthy delays in process add additional strain. What we've done, effectively, is put an adversarial court system in the middle of a major social problem, and it hasn't worked. What the reforms in this bill try to do is to make the process less cumbersome and less painful.

Family Court reform is required not only to mitigate extreme reactions but also to relieve the pressure on families experiencing the sadness, stress and trauma of family breakdown. ABS statistics show that in 2016 there were 46,604 divorces in Australia, with two divorces per thousand people. Of these divorces, over 40,000 children were involved. In the Berowra electorate, the census records that 7½ per cent of people are either divorced or separated. Improving the efficiency of the courts will reduce delays in the family law system and streamline the time it takes courts to process applications. This will considerably reduce the stress inflicted on families.

The Family Court and the Federal Circuit Court deal with a significant number of disputes, with approximately 22,000 applications for final orders received each year over the past five years. However, the courts have struggled to keep pace and to finalise those applications. For example, in 2016-17, the family courts finalised 600 fewer final order applications than they received. This has led to the backlog in final order family law matters pending in the Family Court and the Federal Circuit Court, growing from 17,200 to 21,000 over the past five years. Reducing this backlog will positively impact on separating couples and their children, because delays in the court system only extend the conflict between the parties. The longer a matter takes before the courts and the more legal costs incurred, the less likely the parties are to have an amicable relationship post separation, which has a significant impact on any children involved.

Having two courts, the Family Court and the Federal Circuit Court, responsible for family law has led to inefficiencies, confusion, delays, additional costs and unequal experiences for many families. Additional judicial resources and funding just won't fix the underlying structural problems here and the fragmented system. Deep structural reform is required to effectively expend taxpayer money and drive efficiency. The new system is designed to be simpler and faster and to help move 8,000 cases through the system each year.

I commend the Attorney-General on commissioning the PwC report, the Review of efficiency of the operation of the federal courts, in December last year. That report found that the age of cases awaiting resolution has increased in the last five years. Approximately 29 per cent of Federal Circuit Court cases and 42 per cent of pending Family Court cases are now older than 12 months. The national median time to trial has also increased to well beyond a year in both courts. In the Federal Circuit Court, median waiting times have increased from 10.8 months to 15.2 months. In the Family Court, it's from 11½ months to 17 months. This is a dramatic increase, and this has real, negative impacts on families waiting for their cases to be processed.

The current structure means each family has to go through a different court experience. Is it any wonder that families going through separation are confused? The family law application process varies significantly between the Family Court and the Federal Circuit Court. This is due to a combination of the courts' legislative framework, including their respective acts, regulations and rules, and the operational and cultural practices that have evolved over time. Quite often, cases are transferred between both courts. In 2017, 1,200 families were the subject of transfer between the courts, some after 11 months of being in one court. These were 1,200 cases that had to start proceedings again in a new court, with new rules, procedures and processes. Clearly, this is wasting everyone's time and is a drain on court resources—not to mention creating considerable anguish for the families going through it.

There also appears to be inconsistencies in appeals adjudication, with 75 per cent of appeals from the Federal Circuit Court being heard by a full bench of three Family Court judges, despite their legislative ability to be heard by a single judge sitting alone. This contrasts with the Federal Court, where approximately 88 per cent of appeals from the Federal Circuit Court in general law matters are heard by a single judge.

It's not hard to pinpoint the system bottlenecks and argue the case for the urgent need for a consolidated court reform. The retiring Chief Justice of the Family Court, the Hon. John Pascoe, knows only too well of the challenges and pressures facing the family courts in terms of funding; judicial resources; judicial health and wellbeing; growing jurisdiction; complicating social factors, like drugs and violence; and ever-increasing case filings. The Chief Justice was also Chief Judge of the Federal Circuit Court of Australia for 13 years. Chief Justice Pascoe came to the bench having had a distinguished career as a legal practitioner and CEO, with broad involvement in extracurricular life, including his work with the Duke of Edinburgh award and broader work on child protection in Asia, which was highlighted at the ceremonial sitting of the Family Court to mark his retirement a few weeks ago.

I was working for my predecessor, Philip Ruddock, when he was Attorney-General and appointed the Chief Justice as Chief Federal Magistrate. The Chief Justice has always been an advocate for his court and sought to see the courts adequately resourced and respected. Under John Pascoe's leadership, His Honour developed what was the Federal Magistrates Court from a magistracy of 25 federal magistrates to a court of 65 judges. His appointment to the Family Court of Australia last year harnessed his administrative experience and jurisprudence, while allowing his new Chief Judge Alstergren to manage and further the success of the Federal Circuit Court. If the proposed reforms are enacted, Chief Justice Pascoe will have seen the two courts form into a single court of over 100 judges. His legacy will have been to ready a system of two courts that share one jurisdiction into a more streamlined model so as to better serve Australian families in distress and aid vulnerable children. I wish to pay tribute to Chief Justice Pascoe for his service to Australia in heading both of these difficult jurisdictions and for being a voice for court reform.

This bill merges the Federal Circuit Court of Australia and the Family Court of Australia into an overarching unified administrative structure known as the Federal Circuit and Family Court of Australia. These structural reforms would create a framework for common leadership, common management and comprehensive and consistent internal case management. This will, in effect, create a single point of entry and a consistent pathway for Australian families in having their family law disputes dealt with in the federal courts.

I also strongly support the proposal to fast-track appeals through a newly established family law appeal division in the Federal Court of Australia. This system will centralise appeals from the Federal Circuit and Family Court of Australia in family law matters. These structural changes will improve access to justice for families and provide greater certainty and consistency within the entire federal law system. These reforms will significantly improve the efficiency of the family law system, reducing backlog and driving faster, cheaper and more consistent resolution of disputes.

It's important to understand the detail of what is and what isn't being proposed. There are five key legislative amendments. First, the reforms don't abolish an existing court. Second, an overarching unified administrative structure will be established, with the government's intention that the FCFC would operate under the leadership of one chief justice, Chief Justice Alstergren, to be supported by a deputy chief justice, the former Labor Attorney-General Justice Robert McClellan. Third, more importantly, there'll be a single point of entry into the family law jurisdiction of the Family Court system. The issuing of common rules of courts, practice notes and directions will create consistent and effective internal case management approaches to family law, with a renewed focus on resolving disputes as quickly, inexpensively and efficiently as possible for the court and the parties. Ultimately, the reforms ensure that appropriate expertise and specialisation is retained within the new court structure. Finally, this bill will encourage common rules, forms, and practices and procedures, as well as case management, between the courts.

This isn't the first time Family Court reform has been discussed. Many family law experts, including judges, have welcomed the proposal of a single entry point. The split system and duplicated model with different rules, forms and processes have also drawn criticism. Despite the support for family law reform, previous attempts have failed. Reforms have been put on the backburner, meaning the suffering of families under stress has been even greater. We've reached a critical juncture, where the stakes are simply too high to ignore. We've seen the extreme reactions in the recent string of family murders. All these cases have common themes—lengthy child custody disputes in the courts.

The backlog of cases waiting to be resolved, coupled with the current cases slowly moving through the outdated system, has reached a crisis point for the people experiencing it, and it presents a compelling case for urgent reform. Court reform focused on efficiency and fast-tracking processes and on streamlining those processes is well overdue. I strongly support the government's Family Court reform proposal and congratulate the Attorney-General for tackling what has become an urgent issue in our country, in every community across our country, with the over 40,000 marriage breakdowns that end in divorce every year. It's my pleasure to commend the bill to the House.

4:18 pm

Photo of Mike FreelanderMike Freelander (Macarthur, Australian Labor Party) Share this | | Hansard source

I rise today to speak on the Federal Circuit and Family Court of Australia Bill 2018 and related bills. It is a little daunting to speak after the member for Berowra—a very eminent lawyer in this House—but I think my perspective is slightly different. I will outline why I think that this bill has been rushed through and why I think we could do better. What the government is proposing through this legislation is the most significant change to the Family Court since it was first established in 1975 by the Whitlam government—one of the many reforms enacted by the Whitlam government that changed Australia for the better for many, many decades. Of course, one of the other outstanding reforms of the Whitlam government was the development of Medibank, later to become Medicare—again, another social revolution in my own personal field of medicine that changed Australia for the better for many decades.

Because this legislation is a major change, it needs to be very carefully considered and carefully thought out. These bills, which total almost 500 pages in length, will subsequently make amendments to 125 further bills. As I have learnt over many years, in my work as a paediatrician, family law is a very complex matter, and the matters that family law deals with are themselves very complex and require expertise of a high level to resolve.

As a member of the House of Representatives Standing Committee on Social Policy and Legal Affairs, I've recently taken part in an inquiry that considers aspects of our judicial system and, in particular, the family law system. As part of this inquiry, the standing committee held a number of hearings all over the country, spoke to countless stakeholders and visited a number of different courts across the land. I must say that some of the evidence that we heard was quite harrowing and one could not fail to be impressed by the courage of some people and some of the difficulty they had faced in their family law matters, and by the enormous patience and expertise of the court officers and the judicial officers involved in the family law system. However, it was also apparent that there was clearly a need for reform. That reform will need to be in many different areas.

The committee, through its investigations, uncovered some truly disturbing aspects of our judicial system and our family law system. Whilst we saw that the legal system in family law urgently needs reform, the Labor members of the committee want to ensure that this legislation is carefully considered and looked over with a fine-tooth comb. If it's not, and we are left with changes to the law that do not significantly improve how the system functions at the present time, we would have grave concerns for the families and, in particular, for the children involved in the family law system.

This bill, put forth by the government, seeks to combine the Federal Circuit Court and the Family Court into one court, establishing the new Federal Circuit and Family Court of Australia—the FCFC. This effort to streamline and further compact our justice system brings the courts into a single entity, having both covered under one umbrella. This means that two currently separate entities will be given a single Chief Justice and Deputy Chief Justice, a single set of rules and a single point of entry.

While the two amalgamated entities will undertake the same roles and functions under this legislation as they currently do, it's worth noting that the Attorney-General has expressed an intention not to appoint new judges to FCFC division 1 as they retire. This is a division that, under this legislation, will effectively replace the existing Family Court. This is a major concern. What this means, in not so many words, is that this legislation would amount to a gradual abolition of the Family Court over time. This bill, as it stands, will result in the work of the Family Court being absorbed by FCFC division 2, which presently stands as the Federal Circuit Court.

The Morrison government should come clean and own up to what it is clearly doing here. Through this bill, the government is trying to abolish the Family Court—one of the great legacies of the Whitlam Labor government. It is a great legacy. Whilst we saw evidence of need for reform, the Family Court system itself as a separate entity, we feel, is very important to preserve. What is truly disturbing is that the government is trying to do this under a cloak of secrecy. Disgracefully, it appears that those opposite haven't even bothered to consult with families currently in the system or with many of the judicial officers working in the system. They are effectively seeking to get rid of the Family Court and haven't bothered to consider the families who have used it or who are using it.

As I said, my role in the aforementioned standing committee, my role as a local MP working with local constituents and my experience as a paediatrician have collectively shown me that our legal system is in dire need of reform. It's undeniable that the Family Court presently is in need of attention and is facing significant problems. Issues such as backlogs are increasingly unacceptable, because delays in the court system are not only not helping but damaging people who are caught up in the system. The reality is, though, that the Abbott-Turnbull-Morrison government is at least partly to blame for this. I don't think you'll hear those opposite admitting to this, but much of the existing backlog has arisen due to the failure of the coalition government to adequately fund the court system, their failure to adequately fund the legal assistance services and their failure to appoint replacements for judges upon their retirement. I could say that the government have botched all due process, especially in their failure to consult the broader community on this proposed legislation.

I think it's worth noting that the feedback that the government is now receiving from key stakeholders on its 500-plus page bill has been almost entirely negative. These, of course, are only the early responses, and I suspect that, with reflection and with time, the feedback will be even more caustic. Most of the feedback has been negative, and that's in the early days of this legislation, and I think that says it all, really. Once again, it appears that this government is engaging in policy on the run without consulting the experts.

While the fact that these bills are around 500 pages long might suggest otherwise, the government's pathetic excuse of a solution to fix the ongoing issues of the Family Court speaks for itself. Under these bills, the government is planning to get rid of all the specialist expertise that presently exists in the Family Court. Yes, it is true that the majority of cases are heard and handled within the Federal Circuit Court. However, what the current Attorney-General, Christian Porter, is agreeing to do with this legislation is to hand over all legal matters pertaining to family law to the generalist Federal Circuit Court. The one thing we learnt with our committee work was that it requires a great deal of expertise to deal with some of these very complex family law matters. As I've said, many matters that are presently handled in the Federal Circuit Court are especially complex and are difficult to deal with unless someone has expertise in these areas.

The court is appropriately presided over at the present time by personnel who are equipped to deal with such complex matters. They are specialist judges with the appropriate level of experience required to hear such cases. It's also partly because of the complex nature of these select cases that matters that are referred to the Family Court can take a long time to resolve. There are often no shortcuts. The specialist skill and detailed consideration that is required to hear such cases is no reason to simply get rid of the Family Court altogether. Here the government appears unwilling to acknowledge and accept the fact that specialist judges should be hired to consider complex family law matters in detail. This, it appears, is mere semantics to the government. With the swipe of a pen, they can approve the abolishment of a crucial establishment and with it its institutional knowledge and its capabilities.

I just want to go back briefly to the government's complete failure to undertake the appropriate level of consultation. Be assured this legislation is significant. It is of major significance to many in my electorate, to many of the families I've dealt with over a long period of time and, in particular, to many of the children—sometimes they're not thought of in complex family law matters. The Liberal-National government should have at least attempted to get some input from the wider community and the relevant stakeholders. This has not happened. They've handled this whole debate and the development of their legislation very poorly. They've not even bothered to pretend to engage with the people and the groups who are in the family law system every day. They've neglected the family groups, the registrars, the legal assistance services, the lawyers, the judges, the family assessors, the psychologists et cetera that have a big role to play in family law matters.

Seemingly aware of their complete and utter failure to consult key stakeholders, the government have tried to ram this legislation through the parliament. What they were doing was clear to all of us. The government were intent on making sure that nobody would have the opportunity to look into their proposals. They didn't want any oversight. They didn't want to have to consult. They didn't want any scrutiny of this major change to our family law system. That was evident through all their ill-conceived attempts to place restrictions on the time available to make submissions on these matters, which they initially wanted to be over and done with in just three weeks. I think that is appalling, given the complexity and the society-changing nature of this legislation.

Labor saw this coming. We wrote to the Attorney-General back in June requesting that the government do the right thing and come clean with an exposure draft of the bill, but—surprise, surprise!—they refused to accommodate our request. We are firmly in favour of adequate consultation, especially on such significant matters. The issues that are presently plaguing our judicial system in family law should be addressed. The government cannot hope to do that without reaching out to stakeholders. Instead, they are abolishing the Family Court. I am firmly of the opinion that all stakeholders, whether or not they're in favour of the changes, should get the opportunity to have their say on these very complex matters.

To me, the government's failure here demonstrates their laziness. Rather than actively engaging with the broader community, hearing about people's experience in the Family Court and having appropriate discussions with the experts, they've decided to rush this legislation through. It's appalling. Rather than trying to solve the underlying problems, the government appear to be attempting to brush the issues under the carpet in the hope they'll go away. Any discussion, or attempted discussion, from the Labor Party about family law matters is met with a whole range of cliches from the Prime Minister, who does nothing but shout and make very negative comments about any constructive attempt to address this legislation.

The Attorney-General and this out-of-touch government can pretend all they like that adequate consultation has been undertaken, but the evidence says otherwise. You only have to look at the Australian Bar Association and the Law Council of Australia, the two eminent bodies representing all legal practitioners in Australia, who provided the disturbing revelation they were given an early draft with only two days to respond and strict limitations on who they could discuss the draft with—again, another appalling piece of government manipulation. Indeed, it appears that the government's consultations were limited merely to the Chief Justice of the Family Court and the Chief Judge of the Federal Circuit Court. This is complex legislation that takes around 500 pages to outline, with amendments to 125 other bills, effectively axing an essential institution, yet it seems the government think it's okay to consult with two people. This is a travesty, and I would be highly embarrassed to be sitting among those opposite. I could liken this style of governance to a toddler having a temper tantrum, throwing his toy across the room because it doesn't work, and wanting to get another one. Make no mistake; that is what the government are doing. Rather than dealing with the issues facing the Family Court in a responsible, logical manner, they're choosing to throw the whole situation aside.

As a member of the Standing Committee on Social Policy and Legal Affairs, I was part of the inquiry that looked into family law. The inquiry, though truly eye-opening, reinforced what I already knew to be true, which is that the government have underfunded the family law system for a long period of time, and that has contributed to most of the problems. As a paediatrician, I've had a great deal of exposure to the legal system; in particular, to the Family Court. I've known for years that our legal system is overrun, our judges are overburdened and our courts are underresourced. We need to expand and improve our legal institutions, not merely abolish them. I doubt there was ever a more apt application of the phrase 'cutting off the nose to spite the face' than what we're seeing here. These bills represent the greatest changes to the family law courts since they were formed in 1975 and they need to be properly assessed.

4:34 pm

Photo of Andrew WallaceAndrew Wallace (Fisher, Liberal Party) Share this | | Hansard source

The breakdown of a significant relationship and then the process of separation in a marriage or a long-term de facto relationship is widely acknowledged to be one of the most stressful and difficult periods of any individual's life. Repeated studies have found a direct association between divorce or separation, increased anxiety and depression and increased risk of alcohol and drug abuse. Other research suggests that any family separation can have a substantial impact on personal wellbeing for years afterwards. In many cases, unfortunately, mental illness in one or both partners is a contributing factor to bringing a case to the Family Court in the first place. Mental illnesses can be associated with irritability, hostility, a reduction in personal responsibility and withdrawal from others—all of which can put considerable strain on a relationship.

A multinational study of mental disorders, marriage and divorce published in 2011 by the University of Groningen, among others, found that 18 different mental disorders studied increased the likelihood of relationship breakdown by between 20 per cent and 80 per cent. In fact, as many as 90 per cent of marriages in which one partner suffers from bipolar disorder end in divorce. Mental illness can also make disputes more difficult to resolve and increase the likelihood that a relationship breakdown will lead to court proceedings.

Poor mental health is often evident among families who come to the Family Court before these proceedings even begin. The Family Court's website puts it very well, where it says:

The reality is that by the time people reach the courts, stress, despair, anxiety, depression and other forms of mental illness are common, along with anger and frustration, and frequently a sense of powerlessness.

However, the necessity in too many cases of going through an arduous, stressful, arcane, highly expensive and unnecessarily lengthy process of litigation make all of these mental health impacts considerably worse.

Each year for the past five years, the Family Court and Federal Circuit Court have received a combined 22,000 applications for final orders in respect of family law matters. Yet the backlog of cases pending in the Family Court has grown over the same period from 17,200 to 21,000 applications, with the average age of those cases now older than 12 months. In 2016-17 alone, the two courts finalised a combined 600 fewer family law matters than they received. This deficiency has inevitable and highly damaging results for those with cases before the courts. Since 2012-13, the national median time to trial has increased from 10.8 months to 15.2 months in the Federal Circuit Court, and from 11½ months to 17 months in the Family Court. Vulnerable families, many going through the most stressful time of their lives, are waiting well over a year in limbo for their case to be heard. Now, I actually suspect that the reality is it's even longer than that. Importantly, these delays are calculated from the time the application is brought for a hearing, not from when the relationship began to fracture, and it doesn't include that long period of time when the courts are dealing with interlocutory matters.

I think we can all easily imagine that when it comes to access to your children or to your future financial security, every day of uncertainty is intensely stressful. For children, who cannot fully understand the process, it's even worse. For too many, what can be years of this intense uncertainty, anxiety and stress is simply unendurable. We must act to change this situation and to get cases resolved much more quickly. In this matter, as is so often the case in government, simply throwing money at the problem will not make a difference for families. It will not solve the underlying inefficiencies which are inherent in the structure of the current arrangements. We know this because, despite the number of family law applications for final orders remaining approximately the same over recent years, and without any material reduction in the courts resources, the rate of cases being finalised by the court has been in consistent decline.

The government has identified clear and unambiguous inefficiencies in the system which would allow us to turn the situation around and make meaningful gains for families. It has been estimated that the structural reforms laid out in this bill would improve the efficiency of the court by as much as a third, with time for as many as 8,000 additional matters every year. Specifically, the bill before the House directly addresses four of the most important inefficiencies in the existing system and will also seek to set in motion cultural change which will pay further dividends in the years to come.

The first and most striking of these inefficiencies is the huge delay and additional costs caused by the number of cases which are currently transferred between the two existing courts. In 2016-17, almost 1,200 families had their disputes transferred from one court to the other. In each of these cases, the individuals involved had to restart their proceedings from scratch, playing out the entire interlocutory procedures again, following the rules and procedures of the new court. In the case of those unlucky enough to be transferred to the Federal Circuit Court, they face an average delay of 11.1 months for the dispute even to come before the court. Not only does this dramatically extend the length of time taken to resolve the specific disputes which are transferred but it creates a substantial number of what are, in effect, redundant extra cases which were being heard unnecessarily in the wrong court. This uses up precious court time which could be deployed in hearing more disputes.

This bill brings these two courts together under a single, unified structure: the Federal Circuit and Family Court of Australia, or the FCFC. This single administrative structure would retain two divisions, allowing disputes of different levels of complexity to be heard in the most appropriate venue. However, the bill allows that the two divisions would be led by the same Chief Justice and deputy chief, who would be able to make a single, early and effective judgement as to which division a dispute should be heard in. This would eliminate the need to transfer disputes between courts in the vast majority of cases and would also allow a single case listing to be managed efficiently from application to finalisation by a single registry. These reforms alone could result in the courts finalising up to an additional 3,500 family law matters every year.

As I mentioned, presently the Federal Circuit Court and the Family Court of Australia operate under different rules of court, practices, procedures and forms. This not only is a source of considerable delay when cases do have to be transferred from one court to the other but it further increases the cost and complexity and therefore the length of the process for families. Family lawyers must be familiar with the processes and application requirements of two separate courts, and they must spend time assessing which of the courts is most appropriate for a given dispute. It is more difficult for families to know what to expect and what the process will cost, while in the administration of the court itself separate court registry staff are needed with expertise in each set of procedures, reducing overall capacity to deal with cases.

This bill would deal with this issue by facilitating the appointment of a single Chief Justice and Deputy Chief Justice and would place into the Chief Justice's hands the ability to set the rules of court for both divisions. It would also require the appointment of a single chief executive officer with responsibility for the administrative affairs of both divisions of the court. The bill specifically provides that even if the Chief Justice and Chief Judge, being the heads of the two divisions, are different individuals, they must work cooperatively to achieve a common approach to case management, including common practices and procedures, rules of court and their forms. It's estimated by the Attorney-General's Department that these streamlined processes and single approach to the administration of the court could result in up to 3,000 additional family law matters being finalised each and every year.

The bill also addresses the inequity, suffering and impact on children caused by one or other party vexatiously using the procedures of the court to extend the dispute beyond what is necessary. Though not common, the motives of revenge and the passionate desire to win at all costs, which can be uniquely inspired by a relationship breakdown, combined with the inefficiencies in the current court's operation, can leave the system vulnerable to intentional extension and unnecessary extension of proceedings. This bill will help to reduce the potential for these damaging behaviours by providing that the overarching purpose of practice and procedure provisions in both divisions is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and as efficiently as possible.

Further, the bill provides where a lawyer has failed to comply with his or her statutory duty to aid in the just resolution of disputes as quickly, inexpensively and efficiently as possible, the judge may order that the lawyer bear the costs of certain proceedings personally. This change to the stated purpose of practice and procedure, the new provisions surrounding costs and the direction towards harmonisation of rules and of court and case management would, in my view, over time tend to encourage a cultural change in the conduct of litigation in these courts. This bill and the debate we have had in this place will make it clear that the FCFC and the practitioners who appear before it must be focused on resolving disputes as quickly, inexpensively and efficiently as possible.

Finally, at present, despite the fact that appeals from the Federal Circuit Court to the Family Court can be heard by a single judge, 75 per cent are in fact heard by a full bench of three Family Court judges. There are inconsistencies with this approach. In the Federal Court, for example, 88 per cent of appeals in general law matters are heard by a single judge. This bill, therefore, amends the Federal Court of Australia Act to establish a new family law appeal division in the Federal Court of Australia and, critically, requires appeals from the FCFC (Division 2) to be heard by a single judge, unless a judge determines a full bench is required. It's estimated that up to 1,500 additional family law matters could be finalised each year through this streamlined management of appeals. If even just a quarter of the estimated efficiency gains from these measures are realised then the court will be able to return to finalising more cases than it receives. It will begin to reduce the huge backlog which is having such a detrimental effect on the wellbeing and mental health of tens of thousands of Australians.

These reforms have the potential to transform the efficiency of our family law system and they'll do so at a net cost of only $1 million over the forward estimates. In the long term, these changes will ensure our family law system costs less. This is what good government is all about—cost effectiveness, efficiency and making a difference with practical and pragmatic reform for all Australians.

4:49 pm

Photo of Chris HayesChris Hayes (Fowler, Australian Labor Party) Share this | | Hansard source

I rise to make a contribution on the Federal Circuit and Family Court of Australia Bill 2018 and the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018. These bills represent one of the most significant changes proposed to the Family Court since its establishment in 1975 under the Whitlam government. The Federal Circuit and Family Court of Australia Bill 2018 contains the main provisions of the government's proposed changes. Basically, it will consolidate these two courts. The related bill will basically make consequential amendments to, as I understand it, 125 bills. In summary, this bill combines the Federal Circuit Court and the Family Court into a new amalgamated court, the FCFCA. Effectively, it involves merging two existing structures under the one umbrella, giving them to a single Chief Justice and Deputy Chief Justice; a single set of rules; and a single point of entry. So far, that all sounds quite palatable. The existing Federal Court will become division 2 of the new body and the Family Court will be division 1.

While a separate Family Court has been allocated to the new amalgamated court, there has been an intention expressed by the Attorney-General that there'll be no new appointments to judges in division 1. In other words, no new appointments to judges in what would have been considered the Family Court. What we see is the gradual abolition of the Family Court; the winding back of what was ventured back in 1975, to have a specialised court to deal with issues of matters of the family. Further to these changes, the bill seeks to abolish the appeals division of the Family Court, transferring the appellate jurisdiction to the Federal Court.

I want to make it clear: we will be opposing this legislation. We'll be opposing it on the basis that there has been inadequate consultation with the various stakeholders, which I'll go through in a moment. This is being rushed through. In spite of what the previous speaker just said, this is an economic drive. It does nothing to enhance the actual performance of the respective courts, and I'll deal with that as well. I want to make clear that we are opposing this legislation. The government has had the opportunity to review the performance of the Family Court. It has made various criticisms, as colleagues opposite are making at the moment.

But, Mr Deputy Speaker Howarth, you have to look at how they have resourced the Family Court. The former Attorney-General, who's now ensconced happily over in London, went on for years refusing to replace judges in the Family Court. The dilemma of the Family Courts, the backlog, was partly due to the lack of resources. You see that in the appointment of registrars, court staff and, importantly, judges. I find this a little bit bewildering, wanting to rush this piece of momentous legislation through before it has had the opportunity for the appropriate stakeholders to be properly consulted. By the way, the only stakeholders that were consulted—except for PricewaterhouseCoopers, who wrote the 500 page report—were the Chief Justice and Chief Judge. It wasn't exactly going to the users of the court system: the people who are representing families; people who are engaged in the issues, particularly in the Family Court; those supporting the mental health welfare of participants; and the Law Council or the Bar Association. None of those were actually consulted. None of those were asked, 'What would make a more efficient court system for the end user?'

I accept that those opposite see this as a bit of a cash grab: 'We can merge these two bodies together and, as a consequence, they'll spend less money on the Federal Court and the Family Court,' but I'm not sure that that is precisely what we want to be putting out there within the community. When I look around here, all electorates—like yours and mine, Member for Werriwa—have families which have been impacted on by the Family Court. We all have families that have levels of discord, regrettably. It takes time. We all have families that have relied on the specialisation of that court to seek justice. This has all been fast-tracked, as I say, simply in respect to the economics of that Federal Court system—the Federal Circuit Court and the Family Court. This is not about what's best for end users.

The government should take responsibility and own up to what they have done to the Family Court. This was a great initiative under Gough Whitlam. Regrettably, we understand what the divorce rate is in this country. Regrettably, many of those divorces are very contested and emotional dramas. The view in 1975 was, 'We do need a specialised court, with specialised judges, to be able to actually help people through this.' That is what they are trying to throw out now. Even though, as I say, in division 1 there will be the Family Court provision, if you aren't going replace any of the judges there, if you're not going to replace the registrars and if you're going to have a single set of rules and a single point of entry, it can mean only one thing. This is eventually going to be the Federal Circuit Court effectively doing all the Family Court matters.

I know a lot of my colleagues appear regularly in the Federal Circuit Court, and I know it deals with a lot of family matters as it is now. But when matters get very complex and very specialised, they are then referred to a judge in the Family Court. That's the way it works in practice now. But this legislation will effectively put these into one court—the Federal Circuit and Family Court of Australia. It will diminish the specialists in the Family Court. They will be merged as effectively one new court without that level of specialisation in family matters.

I'm okay if the other side want to come in and say, 'Family matters are less and less important to us now.' But they haven't been honest in doing that. They've said this is about efficiencies. It seems to me the inefficiencies—the backlogs—that we see in the Family Court have been very much at the hands of this government through the lesser allocation of funds. A good colleague of mine from my former days is Morry Bailes, who is now the President of the Law Council of Australia. He said:

Australia's family court system today is under immense pressure but rushing through changes without proper consultation is not the answer.

…   …   …

We owe it to the people caught-up in the family law system not to give the most significant court changes since 1975 a mere cursory glance, or a simple tick-and-flick.

I don't know what the government thinks of the Law Council of Australia these days, but I think Morry's view is quite right there—this is being rushed through. The lawyers weren't consulted on this.

We acknowledge that there have been significant problems in the Family Court, but a lot of these unacceptable delays get down to the levels of resourcing and, as a consequence, this is at the hands of this government. We certainly don't hear the government talking about the backlog. We don't hear them talking about the inadequate funding. As I said, former Attorney-General George Brandis was quite forthright in his position that you didn't have to replace retiring judges. In other words, this government have actually contributed to the problems they're trying to escape from now by simply amalgamating these two legal institutions.

Many of us participated in the debate earlier today about White Ribbon Day and the issue of domestic violence. Regrettably, that's something that impacts on all of our electorates. It's just a fact of life that matters of domestic violence disproportionately affect women. It has been one of the central aspects of the current Family Court because, invariably, domestic violence repeatedly is part of the more complex cases dealt with by the Family Court. If these matters were formally before the Federal Circuit Court they would be then allocated to a specialist judge in the Family Court. You all know the statistics on the prevalence of domestic violence, so you must understand the impact of not having matters of such gravity heard before a specialist legal institution. I want to read the words of the President of the Australian Bar Association, Noel Hutley SC:

The Family Court of Australia and its specialist judges perform important work in difficult and complex family law cases, but the court has been under-resourced for many years. The ABA remains of the view that the court should not be dismantled after 40 years of operation without careful consideration of the value that maintaining a properly-resourced specialist family court would bring.

This proposal from the government is based simply on what I would call the 'desktop research' of PricewaterhouseCoopers. They are a pretty formidable research based organisation, but it is their research that the government is relying on to say, 'If we do this, we're going to have that amount of greater efficiency within our court system.' The report, in my opinion, makes some far-fetched assumptions, including that there would be an equivalent level of complexity between the Family Court and the Family Circuit Court. As I said a little earlier, I think that's a ridiculous notion, but it's not surprising that those who are not directly involved in those respective jurisdictions would come to that conclusion. They did not talk to the Bar Association and they did not talk to the Law Council of Australia, yet they have made that 'desktop conclusion', if you like, that the complexities in both those legal jurisdictions would be very similar.

I just think that the notion of putting this through with this degree of haste is wrong. We do need the Senate to review this piece of legislation, and I think the reporting time of 15 April next year is a good time for the Senate to come back on this. It also gives us the opportunity to hear from the Australian Law Reform Commission's landmark inquiry into the family law system, which, I understand, is due on 31 March. We on this side are interested in having proper processes protecting family law matters. We've been critical of the way this government has treated the Family Court and the way it has inadequately resourced it, and we are very, very critical of the way this government's trying to ram this piece of legislation through, clearly without adequate consultation with stakeholders—whether they be for or against the change, for that matter. As a consequence, we'll be voting against this on the basis of reserving our position after reviewing this in the Senate committee. (Time expired)

5:04 pm

Photo of Anthony AlbaneseAnthony Albanese (Grayndler, Australian Labor Party, Shadow Minister for Tourism) Share this | | Hansard source

I rise to speak on the Federal Circuit and Family Court of Australia Bill 2018, which, if successful, would see the Family Court of Australia, essentially, abolished. This bill comes without any real consultation, a pattern that we have become used to seeing from this coalition government, a coalition government that decides policy on the spur of the moment, that doesn't consult properly and that doesn't think issues through. This is a government that, each and every day, searches for something that it can dismantle or destroy. That's because it is a government with no ideas. It is a government that is frightened of the present but terrified of the future, a government that is liberal in name only. It is a government that is certainly not even conservative, because conservatives support institutions in our society. This is a government that undermines institutions, that is prepared to rip up decades of what have come to be seen as normal processes in which people have rights as well as obligations. The problem is the reactionary ideology of those opposite coupled with a lack of preparedness for government. When the member for Warringah, Mr Abbott, took office in 2013 he did have a plan to get rid of Labor. He certainly didn't have a plan to govern. He defined himself by what he was against, not what he was for. Likewise, Malcolm Turnbull had a plan to get rid of Mr Abbott as the Prime Minister.

Photo of Luke HowarthLuke Howarth (Petrie, Liberal Party) Share this | | Hansard source

Order, you'll refer to members by their correct title.

Photo of Anthony AlbaneseAnthony Albanese (Grayndler, Australian Labor Party, Shadow Minister for Tourism) Share this | | Hansard source

But he also had a plan—

Photo of Anthony AlbaneseAnthony Albanese (Grayndler, Australian Labor Party, Shadow Minister for Tourism) Share this | | Hansard source

Yes, yes.

Photo of Luke HowarthLuke Howarth (Petrie, Liberal Party) Share this | | Hansard source

Thank you.

Photo of Anthony AlbaneseAnthony Albanese (Grayndler, Australian Labor Party, Shadow Minister for Tourism) Share this | | Hansard source

He also had a plan to govern, and instead possessed—and you would know, because you've been a part of supporting the overthrow of prime ministers, Mr Deputy Speaker Howarth—and when Malcolm Turnbull was—

Photo of Luke HowarthLuke Howarth (Petrie, Liberal Party) Share this | | Hansard source

Order! I'm in the chair. Don't reflect on the chair, please. Just stick to the bill, thanks.

Photo of Anthony AlbaneseAnthony Albanese (Grayndler, Australian Labor Party, Shadow Minister for Tourism) Share this | | Hansard source

You sought to intervene in the debate, Mr Deputy Speaker.

Photo of Luke HowarthLuke Howarth (Petrie, Liberal Party) Share this | | Hansard source

I just want you to refer to the member for Warringah by his correct title.

Photo of Anthony AlbaneseAnthony Albanese (Grayndler, Australian Labor Party, Shadow Minister for Tourism) Share this | | Hansard source

And I have done that. He is the former Prime Minister, and Malcolm Turnbull is just Malcolm Turnbull.

Photo of Luke HowarthLuke Howarth (Petrie, Liberal Party) Share this | | Hansard source

No, sorry.

Photo of Anthony AlbaneseAnthony Albanese (Grayndler, Australian Labor Party, Shadow Minister for Tourism) Share this | | Hansard source

Malcolm Turnbull is just Malcolm Turnbull.

Photo of Luke HowarthLuke Howarth (Petrie, Liberal Party) Share this | | Hansard source

The shadow minister referred to Malcolm Turnbull and then referred to Mr Abbott. Mr Abbott is still a member of the House and he'll be referred to as the member for Warringah.

Photo of Anthony AlbaneseAnthony Albanese (Grayndler, Australian Labor Party, Shadow Minister for Tourism) Share this | | Hansard source

Malcolm Turnbull, the person who was removed by people, without proper process, people who were prepared to go into the caucus room, as David Speers outlines in his book, OnMutiny. If people aren't proud of their achievement in removing elected prime ministers, I'm not surprised, because that's what characterises why this government have a problem with policy direction and why they come up with legislation to effectively abolish an important institution, the Family Court of Australia, without proper process, without thinking through the implications, for women and children in particular, of such a measure. The fact is that the new Prime Minister can't even explain to parliament why he, rather than Malcolm Turnbull, is in that job, much less what he stands for.

The bill before us today would see the most significant changes to the Family Court system since it was established by the Whitlam government in 1975. The Family Court is a proud Whitlam legacy. Like most of the great reforms that have occurred in this nation, it is a Labor legacy, a Labor reform making a difference to the power relationships in society, transferring some of the power that existed prior to 1975 with men in relationships to women and children. That's what the Family Court's creation was about—to be something that made a big difference; something that reactionaries wouldn't work out why it's a problem, that it would simply be dismissed.

As part of Gough Whitlam's focus on contemporary relevance, these reforms sought to bring the laws governing this nation in line with the reality of life in 1970s Australia and beyond. It also included, of course, no-fault divorce, which prior to then didn't even exist. Prior to then, we had outrageous legal action in the courts of Australia, where women in particular were vilified and put through incredible trauma as a result of nothing other than the power relationships which existed in society and which were ratified by the court at that time.

That's why this debate is important. This bill has been slammed by the sector, which is understandably furious about the lack of consultation beyond the Chief Justice of the Family Court and the Chief Justice of the Federal Court. Indeed, the president of the New South Wales Law Society had this to say:

… the government should be condemned for going through what is clearly a sham consultation process. … You don't do this sort of thing on the run.

The president of the Law Council of Australia said this:

We owe it to the people caught-up in the family law system not to give the most significant court changes since 1975 a mere cursory glance, or a simple tick-and-flick

And the president of the New South Wales Bar Association said:

There should be no indecent haste to attempt to ram through the Parliament proposed legislation that should be carefully considered and assessed based on evidence.

The fact is that when the experts themselves are telling you that you have it wrong then you're wrong. The government would be wise to listen to these leading legal voices who don't want to see this policymaking on the run.

The fact is that these reforms are significant. They would fundamentally change the way that families, lawyers and advocates interact with the family law sector. The bill before us won't solve the present-day problems in the Family Court. There are unacceptable delays and backlogs which only add to the pain of those caught up in the system, but much of this backlog is a consequence of inadequate funding for the court system, inadequate funding for legal assistance services and the failure of the former Attorney-General, George Brandis, to appoint replacements for judges as they retired.

We know this because former Family Court Chief Justice, Diana Bryant, has called on the federal government to boost funding. The former Chief Justice told the ABC:

… while overall delays in the Family Court were about 17 months from filing to hearing, some people have to wait up to three years to get their case to trial.

That is three years of stress for everyone involved—parents and children. As former Chief Justice Bryant said:

There are very vulnerable people caught up in the system and at the moment we are powerless to do a lot about it. … I feel as though the Government doesn't understand the effect this is having on families.

This bill won't fix any of these problems. What it will do instead is end specialist expertise in Family Court matters, handing all family law matters to the more generalist Federal Circuit Court. While the Federal Circuit Court currently handles a large number of these cases, the most complex cases are reserved for the Family Court. This court is presided over by specialist judges with appropriate experience, which is why these cases can take longer to resolve. It certainly is not a reason to get rid of the court altogether. The government also wants to abolish the specialist appeals division of the Family Court and hand that function to the Federal Court instead. That is in spite of the fact that the Federal Court has never handled family law before.

Now, this government is trying to ram these bills through before its 1 January 2019 deadline. Firstly, it tried to restrict the time given for submissions to just three weeks, for bills that are nearly 500 pages long. Then, after the Senate inquiry period was extended, with the report date due on 15 April 2019, the government tried to rush the process, forcing a Senate committee vote to change the reporting date back to 26 November 2018. At the time, the Deputy Clerk said that even with the committee's resolution the bill cannot be put to the Senate for debate until after the 15 April 2019 date that has been set by the Senate. Thankfully, common sense has prevailed and the government has dumped its idea to have reporting before the end of the year, but even now the coalition is trying to rush the bill through the lower house even though it can't go through the upper house until after April of 2019. It makes no sense at all.

It is just the latest example of a government that acts increasingly like an opposition in exile on the government benches. They're not worthy of being ministers. They're much more comfortable with being opposition spokespeople, because they're defined time and time again by what they're against. The only thing that they're in favour of is various factional manoeuvrings on their front and back benches to try to manoeuvre different people into the highest offices of the land, including prime ministerships and deputy prime ministerships, and we've had three people in each of those positions. I now, as the shadow minister, have shadowed no fewer than nine different infrastructure or urban infrastructure ministers in the last five years. None of them can get on top of their brief before they're replaced. That's why you have this extraordinary circumstance whereby, even when this government has legislation it's putting forward before the House, it's not legislation in favour of something; it's legislation which is against the parliament.

On this bill they actually had two speakers who participated along with over a dozen members from this side of the House. Next we have the Social Services Legislation Amendment (Housing Affordability) Bill 2017, on which there are eight speakers from the opposition and none from the government, and then we have the Fair Work Amendment (Family and Domestic Violence Leave) Bill 2018, on which there are 20 speakers from the Labor Party and one from the government. The fact is that this government has abandoned its responsibility to promote appropriate reform, to legislate, to make Australia fairer, to promote consensus and to ensure that the parliament represents the many and is not monopolised by the concerns of just a few.

But this bill is consistent with the coalition's business model, which is one of division. Instead of working with institutions, they want to tear them down. They aren't interested in listening to experts. They aren't interested in working in partnership with the community. That's why we see this flawed legislation brought before the parliament to undermine and abolish an organisation that has done work since 1975. There they have been for the better part of half a century, doing this work. They have been starved of funds, they have been starved of appointments to the judiciary and now they're saying the solution to that is just to get rid of it completely. The coalition might think it's fine to get rid of prime ministers on a whim and to get rid of deputy prime ministers on a whim, and we can't do anything about what activity coalition members engage in with that, but we can oppose the abolition of this court, and the fact is that the government is out of ideas and out of time.

What they should do is call an election. We heard today in question time the Prime Minister outline why, indeed, the Victorian state election result was a good one for the coalition. If that is the basis of their logic then they should, indeed, put themselves and the nation out of their misery, allow people to have a say on issues such as this and have a government that has a positive agenda.

5:19 pm

Photo of Matt KeoghMatt Keogh (Burt, Australian Labor Party) Share this | | Hansard source

The two bills before the House today, the Federal Circuit and Family Court of Australia Bill 2018 and the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018, seek to make the most significant changes to the administration of family law in this country since 1975, well before I was even born. Together these bills run to almost 500 pages and ultimately seek to convert two separate court structures into one single court structure.

Before coming to this place I was a lawyer. Some say there are too many lawyers in this place, but in actuality, while there are many members of this House and the other place with law degrees, a much smaller number have practised law and a much smaller number again have practised and had experience outside of the area of industrial relations. I started my legal career working in a small outer-suburban practice. The office is on the same block as my electorate office is now. The majority of the work done in that legal practice in my formative professional years was in the area of family law. As a new lawyer in our community, I was also a member of the board of Starick Services, a local community service that runs refuges and other services for victims of family and domestic violence in the electorates of Burt, Swan and Hasluck in Perth's south-eastern suburbs. Subsequently, I was a member of the executive and then President of the Law Society of Western Australia and a Director of the Law Council of Australia.

Across these roles I have worked with women and men navigating the family law system—women, children and even men that have had family and domestic violence perpetrated against them—the frontline staff supporting women and children fleeing family and domestic violence, and many experienced family law practitioners across Western Australia and Australia, as well as the Family Court judiciary both at a state and federal level. And, of course, this has been followed by many friends, family and constituents who have spoken to me about their experiences of navigating the family law system across Australia. So I think I make my contribution to the debate on this legislation with some insight.

The first point to acknowledge here is one of process. Ordinarily, where a government is looking to effect significant legislative and structural change with detailed and lengthy legislation, you would see wide and lengthy consultation with all stakeholders. In this case you would assume that there would have been consultation with the legal profession, judiciary, court administrators and, importantly, Family Court user groups and representatives of the families who have to navigate the Family Court system—in particular, those who can give insight into navigating such a system when not represented by a lawyer, as is the case for so many parties of family disputes. You would also expect consultation with those able to provide views on behalf of the so many children whose lives are affected by the work of the Family Court every day, and all of this would take considerable time.

You would also think that, when considering the biggest changes since the introduction of the Family Court in 1975, some 43 years ago, the government would have been keen to ensure that it gets the changes right, but in this case—and I think you know where I'm going to go with this—no. The government's handling of these changes and these bills is so poor, and their contempt for the users of the family law system so high, that they haven't bothered to talk to any of these groups. Instead, they have sought to ram the legislation through the parliament before Christmas to have a new replacement Federal Circuit and Family Law Court of Australia up and running by January. Not only is this process too swift, but it ignores that the former Attorney-General of this government, Mr Brandis, had commissioned the Australian Law Reform Commission to conduct a landmark inquiry into the family law system, which is scheduled to report at the end of March next year. How on earth can it be a good idea to seek to rush through massive structural changes to the Family Court before the government has the recommendations for reform to the family law system from the Australian Law Reform Commission? I can tell you: it's not a good idea.

The concerns about this, though, are not just mine. The Law Council of Australia has said that they are deeply concerned by the truncated three-week time frame for the public to scrutinise the recently introduced merger. The President of the LCA said:

We owe it to the people caught-up in the family law system not to give the most significant court changes since 1975 a mere cursory glance, or a simple tick-and-flick.

The Australian Bar Association have also stated the Family Court:

… should not be dismantled after 40 years of operation without careful consideration of the value that maintaining a properly resourced specialist family court would bring.

Key here, of course, is the emphasis on the description of such a court, whichever court, as being 'properly resourced', but I'll return to that later. In response to such process concerns, Labor and the crossbenchers in the Senate have voted to provide the Senate committee reviewing this legislation through to April to review and report. This timing will ensure that consideration can be given to the findings of the Australian Law Reform Commission's inquiry as well as to allow extensive consultations and hearings by that committee around Australia.

Let's now turn to the content and effect of these bills, which is to abolish the Family Court of Australia and to rename the Federal Circuit Court—previously the Federal Magistrates Court of Australia—as the Federal Circuit and Family Court of Australia. But don't let that name mislead you. There will be the creation of a new division of the renamed Federal Circuit Court, division 1, which will have the original jurisdiction of the Family Court. Its judges will be transferred to that division. This will make the remainder of the existing Federal Circuit Court division 2 of the new court to be established. The appellate jurisdiction of the former Family Court will be transferred over to the Federal Court. The new Federal Circuit and Family Court of Australia will have new rules and a combined registry. As someone who has been involved in the review of court rules, this is no trifling exercise in and of itself, and yet we seek to rush the legislation through.

As a Western Australia, I can see merit in the merger of the work of the Family Court of Australia and the family law jurisdiction of the Federal Circuit Court into one court, because that is what we have in the Family Court of Western Australia. The benefits of that model are clear and it's easy for all to see. Indeed, the singular court of this nature was recommended by a review commissioned during the time of Attorney-General McClelland about a decade ago. But that is not what is happening here. Instead, the government is proposing to make the current Family Court a mere division of the Federal Circuit Court, with the new merged court continuing to have the general federal jurisdiction. Many, including myself, would say that this is not a good model in and of itself.

But it gets worse, because the Attorney-General has stated it is the intention of this government to no longer appoint new judges to the new division 1—that's the family division—of the Federal Circuit and Family Court of Australia as they retire. The effect of this will see not only the eventual removal of a dedicated family law division of the court, but also much worse. It will see a movement away from and eventual abolition of specialist family law judges. Just so this point is abundantly clear: understand that at present to be appointed a Family Court judge, not only must the usual qualifications for judicial appointment be met but also the person must be, by reason of training, experience and personality, a suitable person to deal with matters of family law.

Let's be clear here: the Family Court and the practice of family law is a specialist area of jurisprudence and jurisdiction. It was created more than 40 years ago for a very important reason—that is, recognising the delicate nature of family proceedings. These are not commercial disputes. These are not criminal proceedings. These are dealing literally with people's lives and with their most intimate relations, whether they merely continue to be married and it's for how they dispose of property between themselves or, more regularly, for how they will continue to care for their children and how their children will have access to their parents. In way too many cases, we have the overlay of family and domestic violence involved as well. So to remove the concept and to remove the idea of a specialist Family Court from our nation's jurisprudence is a significant and, I think, negative thing. But not only that, the government proposes to do it on a whim by creating a merged federal jurisdiction by no longer having specialist judges appointed in this area of law. One may say, 'Thank God for the Family Court of Western Australia,' where we will keep that separate specialist system.

I've mentioned the concerns that have been raised by some in the legal profession. In fact, it's even the case that the judges in the Family Court have complained about this process and about what is proposed. Concerning to them, as I think it is concerning to many, is that the government has based its proposal for this merger of courts on a desktop review of statistics which does not in any way understand the fundamental differences of the two courts that are proposed to be merged or have any understanding whatsoever of the nature of Family Court disputes. As I said, I have sympathy for and can see the benefit of a singular Family Court in Australia as we have in Western Australia, but that is not what is actually proposed here. What is actually proposed here is the abolition of a specialist Family Court and, over time, the abolition of any specialist Family Court judges operating in a federal jurisdiction whatsoever so as to leave it to general law judges in the federal sphere, whether they be in the Circuit Court or on appeal in the Federal Court. That is an unacceptable situation, and I see no basis for it. No-one has put forward any basis for it. The government wishes to proceed with it without the benefit of any information coming from the Law Reform Commission, who won't proceed until March.

While we're here, the government says, based on its desktop review, that there should be efficiencies and that the delays are too long. Absolutely they are right; the delays in the family law system are too long. They create injustices in themselves, they create retraumatisation in themselves and they make situations that are clearly already bad within a family much worse. But the key to solving that issue is fundamentally different. The issue there is one of resourcing. It's one of resourcing for the courts. It's one of resourcing for family mediation services. It's one of resourcing, critically, for legal aid and other legal assistance services.

To give you a very solid example of the way in which family law and the administration through our courts has in no way been assisted and in which the funding has been constrained, in 1975, when the Family Court was established in Western Australia—it is a joint federal-state jurisdiction—there were five judges of that court. Fast forward 43 years. You might imagine there's been some population growth in that time, but how many judges are there in the Family Court of Western Australia? Five. We have seen no increase in the number of judges whatsoever in Western Australia. There has been an increase in numbers in some of the other Family Court registries around Australia, but in no way have those increases kept pace with the increase in population or the increase in the number, nature and complexity of the cases that are now being dealt with in family law courts around Australia.

We also have a situation where this court, understandably, often—in fact, in probably the majority of cases—involves at least one side not being represented legally. What that presents is cause for delay, misunderstanding and injustices. Despite some of the rhetoric that get from those on the other side of the House, on the government benches—you would think that at least the Attorney-General, of all people, would know better—particularly in the family law jurisdiction, it is the lawyers that are doing the hardest work in nearly all cases to try and make these matters come to resolution more quickly and more justly. They understand the system. They understand the issues. They understand the evidence that needs to be pulled out. They understand the work that needs to go into presenting a full case before the court and meeting resolution. Very often it's because of the work of those lawyers, when they're available to do that work, that these matters can be resolved by consent and don't require trial in the first place. But very often, because at least one of the parties can't get that legal representation and advice, many matters which probably could have been resolved earlier are dragged out, do have to be deferred, do have to be adjourned, and eventually still have to go to trial.

There is a resolution available here, and it's about making sure that we have a properly funded legal aid and civil litigation system and that we are providing that legal assistance to those who need it. One of the most traumatic things that can happen in a person's life is having to go through the family law system, so the government should actually pay attention to the real issues instead of stuffing this around.

5:34 pm

Photo of Shayne NeumannShayne Neumann (Blair, Australian Labor Party, Shadow Minister for Immigration and Border Protection) Share this | | Hansard source

I rise to speak on the Federal Circuit and Family Court of Australia Bill 2018 and Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018. These bills are the government's very big step towards amalgamating the Federal Circuit Court of Australia and the Family Court of Australia under the guise of resolving issues in those courts. Specialist judges within the family law system have a vital role to play in extremely complex family law cases, but the court is grossly under-resourced. The court system is experiencing serious issues, with many families being denied expeditious, just and cost-effective resolution. And the government believes, wrongly I think, that this bill will make change to see cases finalised faster and with greater cost saving for users. The amalgamation will result in a single point of entry for all family law and general law cases through the new Federal Circuit and Family Court of Australia. Appeals would be heard by a single judge of the Federal Court.

Issues could have been resolved, as I say, through adequate funding of court and legal-aid support services. This bill is abolition of the family law system by stealth. Before I entered politics in 2007, I was an accredited family law specialist and partner of a Brisbane CBD law firm, so I come to this debate with a degree of interest and expertise having spent hundreds, if not thousands, of hours in the Family Court and Federal Magistrates Court, as it was then called. I support the purpose and intention of the family law system and any reformation which seeks to improve the family law system for the benefit of Australians.

Most Australians are not charged with criminal offences. Most Australians don't go to court over civil actions, debt recovery or indeed personal-injury actions, but they interact with the family law system. About one in three first marriages break up; about one in two second marriages break up. It's in those circumstances that people interact most often than not with the family law system. And indeed it is the case that these bills seek to make very large changes to that system—the largest change since the Whitlam government introduced the Family Court of Australia in 1975.

Following its election in 1972, the Whitlam government set about making changes to the archaic laws on divorce, custody, access and family law matters. In September 1973 the then Attorney-General, Senator Lionel Murphy, introduced the Family Law Bill into the Senate for consideration and comment. This bill proposed a 12-month separation as the only grounds for no-fault divorce. This applied, of course, an historic precedent being established. Prior to that, there were shocking examples of private investigators being engaged and people having to prove all manner of things against each other. No-fault divorce was a seminal and important reform. Detailed provisions were made relating to property settlement, and custody and maintenance expanded beyond proceedings to include property, spousal maintenance, and, eventually, child maintenance and child support.

We have seen a major expansion of jurisdiction from the Matrimonial Causes Act, which previously was confined to those aspects of divorce. It was originally intended these matters would be heard in the supreme courts of the states or a proposed superior court of Australia. However, the later establishment was defeated by two votes in the Senate in 1974 and a tied vote in 1975. The legislation provided options for the state to establish state family courts with federal-government funding. But by August 1975, Western Australia, as the member for Burt said, was the only state to take up the invitation. Following the dismissal of the instrumental and important reform in government—the Whitlam government—the incoming government attempted to revitalise the offer to the states to establish their own courts, but this failed.

In January 1976, Elizabeth Evatt, Austin Asche, Kenneth Pawley and John Ellis were sworn as judges of the Family Court of Australia, a ceremony in Sydney presided over by what I am sure would be a very happy Justice Lionel Murphy, the main architect of the court. The Family Court was established with a view to having a specialised court so that complex legal matters could be presided over by specialist judges. Across the court's history, its role has expanded to include what was then called contact, parental responsibility, child support, leave to adopt, Hague Conventions on child abduction, and matters concerning sterilisation of children involving parental responsibility and also gender reassignment—a vast expansion of the court's jurisdiction, often done through COAG arrangements and agreement. The Senate committee which oversaw the initial process at the time that the court was established made a recommendation that judges be appointed where 'by reason of training, experience and personality, the person is a suitable person to deal with matters of family law'. This gave rise to section 22 of the Family Law Act, which is arguably one of the most important features of the court, ensuring cases would be presided over by specialist judges.

The establishment of the Family Court of Australia has been one of the most significant improvements to our legal system in the last half century. It brought the legal profession of Australia to the forefront of reform and remains one of Labor's most significant achievements. It has been copied, internationally recognised and praised. In 1999 the Howard Liberal coalition government attempted to provide a quicker and cheaper option for litigants in family law matters and established the Federal Magistrates Court, which is the antecedent, of course, of the current Federal Circuit Court. I don't think that was a smart move. I have never thought it was a good move. I don't think it resulted in better justice for people. They then endeavoured to curb, by the way, the jurisdiction of the court in parenting issues in part VII of the Family Law Act by curbing and prescribing—indeed, meddling in—the court's jurisdiction and discretion with respect to parenting audits by imposing a prescriptive hierarchy of considerations for the court to determine, with primary and secondary considerations in terms of parenting orders that a court would make.

Now we have a Liberal government and a Liberal Attorney-General attempting to fix up the mistakes of his predecessors in underfunding and underresourcing legal aid, community legal centres and the Family Court system itself by arguing that this is a reform. It's not reform at all. It won't fix up the system, it won't make it cheaper and it is not better. There are many people who appear in the Federal Circuit Court and the Family Court who are self-represented, and judges painstakingly and with a lot of care and consideration assist those people in these matters to represent themselves to the best of their ability. It's not uncommon for any court listing in Sydney, Melbourne, Brisbane, Parramatta or whatever to find 40 per cent or more of people being self-represented in those cases at first instance. Many people can't afford the cost involved in litigation. But I can say—and the member for Burt is right—that my experience is that most lawyers try to settle cases. Most people come in with the best of intentions, and it is indeed the fact that 95 per cent of cases settle before getting to a final hearing. I personally did far more consent orders, agreements that were filed and approved by court, than court hearings that lasted, say, two, three, four, even 14 days or longer.

The courts handle over 106,000 family law applications each year, and a significant portion of this number is the 43,800 divorce applications to the Federal Circuit Court. They are done more often than not by themselves. There were 14,200 consent orders made in terms of applications to the court last year. Twenty thousand, five hundred final order applications were received each year, with the vast majority of those received by the Federal Circuit Court. Currently, family law applications can be lodged in either the Family Court or Federal Circuit Court. Often cases of two days or fewer in terms of length and about less complex and simpler matters are lodged in the Federal Circuit Court, and matters can be transferred. Complex matters involving significant child abuse—often called Magellan type cases—are often dealt with in a separate list by Family Court judges with particular expertise. Quick, less complex applications, as I've said, are referred to the Federal Circuit Court, and I have seen and been personally involved in many cases where matters were transferred between courts.

The report commissioned by the government and conducted by PwC over a relatively short period of time really was a complete failure of this government. The way they did it was a really bad mistake. The data wasn't sufficient to determine the complexity of how the courts varied. It was really a desktop arrangement. PwC were quick to infer the Family Court was less efficient. The Family Court is not without failings, faults and foibles. It's not without problems. Any lawyer who practised in the jurisdiction would get frustrated with delays and backed up caseloads, which contribute to the frustration and anguish of those caught up in the system. At times it seemed like the delays resulted in people going through the pain of divorce a second time. This was particularly the case if final orders weren't made expeditiously and with care by judges in relation to parenting issues. People couldn't get on with their lives in terms of property settlement.

But often judges dealt with cases with real expertise, care and consideration. They understood the vagaries and frailty of human nature and understood the jurisprudence in this area. I'm very concerned that we'll have judges who are not trained and don't have long experience practising the jurisprudence of family law. Indeed, I've seen judges who've been appointed to courts exercising family law jurisdiction—fine lawyers in their own right and very capable in, perhaps, commercial law, building law or criminal law—struggle, from time to time, to get their heads around financial circumstances and complex property matters, or difficult Hague convention cases—very challenging cases involving the most horrible child abuse. The legislation before the chamber is not the way to go. It's unsurprising there's a backlog of cases. It could be addressed with proper funding of the court system and better funding of legal aid to make sure people have representation.

One thing about having legal representation and going through a court system is that often it equalises the power imbalance for women who have been physically or sexually abused, who, understandably, feel they want to settle the matter and get on with their lives but will not achieve the kind of property settlement, spousal-maintenance support and child support outcomes that I would describe as a fair and just settlement under, historically, sections 79(4) and 75(2) of the Family Law Act. The President of the Law Council, in May this year, said:

Further investment in the courts and legal aid is still required to deliver the best outcomes for children and Australian families.

And I say: amen to that!

Presently, as I said before, the majority of cases are handled by the Federal Circuit Court, and the most complex matters are reserved for the more experienced specialist judges who preside over the Family Court. I've seen circumstances in which people have been appointed to the Appeals Division of the Family Court and the government has not appointed a replacement for that judge, who deals with trial matters—matters at first instance, interim hearings and final hearings. That's one reason there are delays. If you appoint an experienced judge who's dealing with matters at the trial level, or the final hearing level, to the Appeals Division then you'll have a backlog. That's the trouble: they're not appointing the judges that they need and resourcing the courts the way they need to. This is a significant change to our court system. It is a big change that will have an impact on people.

Friday last week, across Australia, we marked White Ribbon Day, and yesterday, Sunday, was International Day for the Elimination of Violence against Women. On Friday I was privileged to be at Ipswich State High School. I want to congratulate Sarah Lake, the year 7 student welfare officer, and Principal Simon Riley, a White Ribbon ambassador, as I have been, who made a fantastic speech on the issue of violence against women, about how men have to respect women and people need to change. Domestic violence takes place in many ways. It can be physical and sexual abuse, familial isolation, religious persecution, financial domination—there are a whole range of manners in which it can be exercised, and it's shocking; it's a disgrace. Men need to have a look at themselves, because it happens at all levels of our society.

I also want to congratulate the Zonta Club of Ipswich. I was there yesterday, with the member for Ipswich, Jennifer Howard, for the launch of the club's 16 days of activism against domestic violence. I'll have an 'orange lady', as they call it, with slogans all over it in my office—I always have one. I want to encourage and congratulate the President, Pat Evatt, and all the members of the Zonta Club of Ipswich for their activism in this space.

I want to finish on this note: these are very complex areas to deal with. The government are swiftly trying to introduce changes, which I think has been a farce from the start. They should listen to the Bar Association, the Law Council of Australia and other stakeholders, as the member for Burt mentioned. The government should have a look at themselves again and look at the history of this court. If they funded the courts properly and funded legal aid properly we wouldn't have the problems we're having in the system.

5:49 pm

Photo of Sharon ClaydonSharon Claydon (Newcastle, Australian Labor Party) Share this | | Hansard source

I rise to join my colleagues in speaking on the Federal Circuit and Family Court of Australia Bill 2018 and the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018. If this proposed set of reforms was to proceed, it would represent the most significant change to family courts since they were created some four decades ago by the Whitlam government. Together, these would see the Family Court of Australia merge with the Federal Circuit Court. There would be a single Chief Justice and a single set of rules. If the government's plan is carried out in the way it has been outlined in these bills before the House, it would also see the end of specialist expertise within the Family Court. What this government effectively wants to do is hand all family law matters, over time, to the more generalist Federal Circuit Court. Concerningly, this would include family law specialists who are specially trained to deal with family violence from the system.

Labor will oppose these bills, because the government has fundamentally failed to make the case that this change is indeed the best way forward. This government has been adamant that these changes will increase efficiency in the system. But it is utterly unclear how what the government is proposing will in fact reduce waiting times, create faster dispute resolution or reduce costs. There is no evidence that these reforms would result in an improved service or outcome for members of the public using these courts. We are seriously concerned about the government's appalling lack of consultation with stakeholders. It is hard to overstate what a seismic change this would be, and yet it's hard to understate the work that the government is putting into making sure it is the right way to proceed. Labor does not take our family courts for granted, and it is extremely worried about the consequences of such enormous change undertaken without due process or consideration.

Labor understands that the family law system is under dire pressure at the moment, make no mistake. As many as 22,000 family law final order cases are filed annually across both courts. The number of cases awaiting resolution has grown from 17,000 to 21,000 under this government's watch, and median time to trial has ballooned from 10.8 months to 15.2 months in the Federal Circuit Court and from 11.5 months to 17 months in the Family Court.

The personal impacts of this mess on the families caught up in the Family Court system are diabolical. People are left waiting in limbo, sometimes for years, for their cases to be resolved. This isn't just an inconvenience. It is a serious matter of community safety, given that we know that the majority of these families are facing tragic issues including domestic violence, substance abuse and extreme family breakdown. We also know that women—who are most often the victims of this family violence—are at their most vulnerable when they actually take these actions against their abusive former partner. That is when they are in the most danger. Yet these cases now are dragging out for months and months, and, indeed, years.

A fundamental driver of this backlog is that the government has utterly failed to adequately fund the Family Court system. Nor has it invested in desperately needed resources in legal assistance services. This is an observation that the Social Policy and Legal Affairs Committee made when it looked at the family law system and delivered a report to this parliament only months ago—a report that this government appears to be taking zero interest in, despite having designed the terms of reference and asked the committee to undertake the inquiry. The government is currently showing the same discourtesy to the Australian Law Reform Commission, which was asked to undertake a root-and-branch review of the system over a two-year period.

But this sentiment about the lack of funding and adequate resourcing is also echoed by the Law Council of Australia president, Morry Bailes, who said:

Chronic underfunding for more than a decade has led to a court system which continually struggles to meet the needs of the community.

And that is what is at stake. In March, the Law Council of Australia released an issues paper that acknowledged the growing complexity of family law cases and that the Commonwealth, as a bare minimum, needed to commit to a substantial funding boost to remedy the significant delays. The council also recommended a substantial increase in legal aid funding to improve justice outcomes and the efficiency of court proceedings. But you won't hear the government talk about this, and this bill demonstrates how completely deaf they still are to these critical concerns. Regretfully, but certainly not surprisingly, the measures in this bill provide no extra funding for the chronically underresourced court system or associated support services. That is zero additional funding.

Since it came to power, the government has consistently demonstrated that it's more interested in propping up tax breaks for high-income earners than properly investing in the Australian courts that tens of thousands of families in distress rely on year after year. Not only has the government ignored stakeholders and Australian families caught up in this fractured system but they've tried to overrule the democratic will of the Senate to ram their bill through the parliament.

Recently, the Senate voted to extend the deadline for the legislative inquiry report until 15 April next year. This would ensure enough time for thorough consultation, and the Australian Law Reform Commission's review of the family law system could then be taken into account. But government members of the committee initially refused the Senate's demands and instead set their own reporting deadline of 25 November this year. This would have meant that stakeholders would only have had three weeks to make submissions to these bills, which stretch over 500 pages. Then the committee would only have had three days to consider submissions before the final report was published.

To make these huge structural changes to the Family Court system before the commission had completed its report is both reckless and foolish. The Australian Bar Association president, Noel Hutley, has recognised the importance of parliamentary oversight, stating:

The ABA remains of the view that any legislation to restructure Australia’s family law system requires close and careful examination by Parliament.

I am very pleased that the government has succumbed to the pressure from Labor and other stakeholders and backed down from this shameless attempt to ram this bill through the committee process and deny it the time it needs to undertake this inquiry properly. But this still leaves massive problems with the government's consultation process to date. Who did the government actually consult in the development of these bills?

Well, the Chief Justice of the Family Court and the Chief Judge of the Federal Circuit Court. And that is it. Indeed, virtually the entire basis of the government's argument is a PwC report commissioned by the Attorney-General which was the result of just six weeks of desktop research, and included consultation with only senior stakeholders. The government hasn't bothered to talk to the people and the groups who use the family law system every day—the family groups, the registrars, the legal assistance services, the lawyers and the judges. I've spoken to a number of legal professionals in my community about what these changes will mean, and I have to say that they've been unequivocal about the need to avoid damaging and reckless action without thorough consideration of the outcomes. Indeed, concerns raised locally reflect those raised by the Australian Bar Association—the lawyers there—around how this would remedy the known existing problems in the Family Court system.

My colleague, the member for Blair, before me talked about the shocking delays in judicial appointments. My goodness, in Newcastle we've experienced that firsthand over a number of years. There are also enormous workloads on these judges now, to the point where there are serious concerns around judges' mental health and wellbeing in this country. That's not a good place for our judicial system, by anyone's measure. If the government cannot take the time to do its job properly and can't be bothered to talk to the people and the groups who are in the family law system every day, I can bring them any number of stories of people that these changes will affect. I regularly hear from constituents in my community of a system that is under extreme stress and pressure. Complicated and difficult cases with issues of family safety are at stake. They're being held up all over the country, and the human toll is immeasurable.

The government's plan, through these bills, would see an end to the specialisation provided by the Family Court. What the Attorney-General effectively wants to do is hand all family matters to the more generalist Federal Circuit Court by abolishing the specialist appeals division of the Family Court and, over time, the Family Court entirely. If such a broad, sweeping change is to proceed, the government must ensure that it is making the right decisions in the best interests of those Australians suffering under the current system. At this stage, it has fundamentally failed to make the case. Indeed, the feedback from stakeholders so far would suggest that that's because the government's plan is 'deeply flawed', 'ill considered' and 'quite possibly dangerous'. A quick perusal of the submissions that this inquiry received illustrates the depth of concern stakeholders have and demonstrates how important it is that this inquiry is given the time it needs to do its job. I would like to share a few of these contributions with the chamber today.

The Queensland Law Society said:

In our view, the proposed reforms are significantly flawed and the Bills will not achieve their intended objective.

Their submission went on to say:

… this would see a court well-versed in sensitive family law matters abolished in favour of a court which handles multiple areas of law. We submit that this would be to the detriment of families who will not have the benefit of the expertise the Family Court currently provides.

Women's Legal Services Australia was equally cautionary, raising its deep concerns, which include:

        All of this is gravely worrying. In the week of the International Day for the Elimination of Violence against Women and in a year when 66 women already have lost their lives at the hands of violence in Australia, this government is proposing a move that might compromise their safety even further. This is utterly unforgivable.

        Sadly, that wasn't an isolated view. Indeed, the safe steps Family Violence Response Centre submitted to the inquiry that:

        … the Bills will result in a loss of family law specialisation, diminishing the courts' capacity to understand the nature and dynamics of family violence, and respond in a way that is trauma-informed and ensures the safety of victim survivors. In particular, it is not clear whether new judges appointed to the new family law division or the family law appeal division would be required to have specialist family law and family violence expertise.

        This was echoed by Domestic Violence NSW, which submitted:

        DVNSW is concerned that this will result in the loss of the current expertise and specialist features in the current family law system. Specialist knowledge of family law and family violence is critical in ensuring the safety of women and children experiencing domestic violence.

        These are not small quibbles. They are profound flaws that may point to a serious risk to the safety of women and children facing domestic and family violence.

        In summary, this bill demonstrates the Morrison government's arrogance. They have utterly failed to undertake appropriate consultation with stakeholders and Australians in relation to the most significant changes to the Family Court since its establishment. They have tried to ram these changes through with scant regard for their potentially massive impacts. Early feedback suggests that the responses of key stakeholders is almost universally negative, with serious concerns about women's and children's safety. I implore this government to give up this fanciful and ridiculous reform. (Time expired)

        6:04 pm

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

        In the last few days, Elizabeth Evatt, the first Chief Justice of the Family Court of Australia, has shared her views on the decision by this government to combine the Federal Circuit Court and the Family Court into one. In a Sydney Morning Herald interview, she describes it as a 'personal disappointment' and points out:

        When we set it up the Family Court was provided with internal counseling and mediation services. It was meant to be a place where you would get your issues resolved without having to resort to litigation but all those services have been reduced and, as they say, privatised.

        She is absolutely right that many of the things that really were pivotal to this being a huge reform of the Whitlam government have been weakened in recent years. There is no doubt that there are problems and things need to change.

        The Family Court system is a source of pain to many of my constituents. The main complaints are the long time it takes to have matters dealt with and the huge cost involved in resolving child custody issues. It can take years, not months—years when people are in limbo before they get a resolution. I've seen dads in pain at the prolonged separation from their children. I've seen mothers in agony at this limbo in their lives. I've seen grandparents torn by the loss of contact or upheaval in their grandchildren's lives. The mental toll it's taking is unacceptable. At the heart of it all, while I don't personally get to see it because they don't walk into my office or email me or stop me in the street, I know there are children whose futures are being changed by the long delays and tortuous process that their parents go through. I'm concerned about the dangers of doing things that will make the current situation worse.

        These bills, taken as a whole, represent the most significant changes proposed in the family law courts since they were created in 1975 by the Whitlam government. Basically, the Federal Circuit Court and the Family Court become a single structure under the one umbrella, with a single chief justice and deputy chief justice, and a single set of rules. While they now have separate divisions and, we understand, will carry on the same roles they have now within this umbrella structure, the Attorney-General has expressed an intention not to appoint new judges to the division handling Family Court matters. That amounts to a gradual abolition of the Family Court over time. The appeals division of the Family Court would also be abolished and transferred to the Federal Court. These are not minor changes. Let's be clear about this: this is abolishing the Family Court, a legacy of the Whitlam government, without even bothering to speak with the families who are currently in the system. Any changes really should require wide consultation because getting this wrong impacts so profoundly on so many lives.

        I do want to make it absolutely clear: I believe there are serious problems with the Family Court system. In May 2017, the then Chief Justice Diana Bryant said that the court was letting families down because of huge backlogs and lack of resources. At that time she said that, while overall delays were 17 months from filing to hearing, some people were having to wait three years to get their case heard. She also said the court was so underresourced that it had no ability to provide post-order checks on whether family orders were even being complied with. The reality is that much of the backlog is due to inadequate funding of the court system, inadequate funding for legal assistance services and the failure of the former Attorney-General, George Brandis, to appoint replacement judges as Family Court judges retired.

        If the changes being proposed were part of a well-researched, well-examined process, I might not stand here with the concerns that I have. I am well aware that at the moment the Federal Circuit Court handles the majority of family law cases, but the most complicated and difficult cases are reserved for the Family Court, and it has specialist judges with appropriate experience to hear those cases.

        The only evidence the government has provided that their changes will work is the report it commissioned PwC to do, which involved six weeks of what's known as 'desktop research' and consultation with senior stakeholders. Let's be clear what 'desktop research', the management consultant jargon, is. It means you literally sit at your desk, you review data, you review information and you draw conclusions. It has a place, but not in a system like this. There was no requirement for these people even to walk into a court—let alone to sit through the intricacies of cases—to consult with families in the processes or to consult with the lawyers working on those cases. They haven't spoken with registrars, legal assistance services, the peak bodies of the professions involved or the organisations that advocate for victims of family violence, nor have they spoken to a wide range of judges themselves. I think this is really the Achilles heel of the plan: the lack of consultation with the people who are experiencing the current delays and challenges of the Family Court system.

        There's no doubt in my mind that we do need to vastly improve the way families navigate the system, so that they face fewer delays and much less trauma. But for this government to have tried to ram these bills through the Senate was never going to be in the interests of sound legislation. As the Law Council said back in August, the truncated three-week time frame for the public to scrutinise the bills was 'deeply concerning', and that puts it mildly. As Law Council of Australia president, Morry Bailes, said:

        We owe it to the people caught-up in the family law system not to give the most significant court changes since 1975 a mere cursory glance or a simple tick-and-flick.

        I couldn't agree more. I think the significance of the Family Court and the challenges its judiciary face in their determinations cannot be underestimated. There is no doubt that their decisions can be life changing and I, for one, would like to know that the expertise is deep in that bench, not dividing its time between the full range of Federal Circuit Court matters.

        There is no good reason to rush this through the House, and the Senate inquiry which is currently underway needs to be given the time to do the work this government has failed to do in writing the legislation. The Law Council and the Australian Bar Association have both called for much more thorough consultation, as has virtually every group involved in this part of the legal process, and we would agree on this side of the House. I'm pleased that the Senate has decided it would not allow this to be rushed through. This House should wait for the outcome of the Senate inquiry too, as well as the completion of the landmark Australian Law Reform Commission review into the entire family law system.

        I'm not a lawyer and I've never had personal involvement with the Family Court. My first awareness of the Family Court was a very, very public tragedy. I was a final-year university student when the aunt of one of my close school friends was killed by a bomb at her home in July 1984. Pearl Watson, the wife of Family Court judge Ray Watson, was one of four people murdered in a series of attacks between 1980 and 1985 that targeted the judges of the Family Court and their families. A lawyer and another citizen were also killed. A trial is currently underway and a man has pleaded not guilty to the charges, so I don't intend to say any more about the actual events. All I know is that even in the very best of situations, judges of the Family Court carry a huge responsibility.

        As a parliament, we have an equally huge responsibility to make sure this system is well resourced, well structured and in the hands of experienced people so that families are safe and supported as they go through such difficult processes. These bills give me absolutely no confidence that that outcome would be achieved, and I cannot support them.

        6:14 pm

        Photo of Emma HusarEmma Husar (Lindsay, Australian Labor Party) Share this | | Hansard source

        It's great to follow my colleague the member for Macquarie. She makes a very poignant point about the people whose lives have been lost through the Family Court system. In 1996, on the steps of the Parramatta Family Court, Jean Lennon was murdered by her then husband or ex-partner after they had been in the Family Court. We are not talking about something that is owed or deserves a tick-and-flick mentality.

        I rise today in complete opposition to the Federal Circuit and Family Court of Australia Bill 2018. Anyone who has had any experience with the family law courts would agree that the need for reformation is significant, desperately required and overdue. However, there is absolutely no way that what this government has presented to us is anywhere close to the reform that we need. A generalist solution to some of the most complex legal issues facing our country will only cause greater risks for the children and families, like Jean Lennon, who are subjected to proceedings. The need for significant reform is great. Tinkering around the edges and taking a piecemeal approach is not good enough and will further risk the childhoods and the lives of those who are caught up.

        Labor members on this side of the House know how important the family courts are for protection and the outcomes for families who need it. It was Gough Whitlam and his government, after all, who in 1975 created the act, and since then it has remained unchanged with the exception of very minor amendments. Australian families now, though, look very different from how they looked in 1975. We have moved beyond those cultural and societal norms of families, and families today are made up of many different factors. We also now have a new epidemic flooring some families who find themselves needing the help of the Family Law Courts: domestic violence.

        Of course, it's not a new problem at all. It has existed for generations, but society has changed and formed the view that we no longer see domestic violence as a private matter. In 2017 the Standing Committee on Social Policy and Legal Affairs conducted an inquiry into family law and family violence and how the two are intersecting. I note that one of the members of this parliament who worked on that is sitting here at the desk. None of the 33 recommendations from our report have been actioned, none of the advice presented acknowledged and none of the committee's work—those people who gave evidence—supported. These recommendations were ignored by this government, yet they talk a big game when it comes to protecting those people who have found themselves on the receiving end of violence against women and the need to help and support women and children.

        Instead of acting on any of the recommendations, we find ourselves here, debating tinkering with a very complex system, and debating defunding a system whose entire jurisdiction is to support children who find themselves between parents who are at war. We know that not all family breakdowns end up before the Family Court needing such intervention, and I want to put on record my absolute applause for those adults who break up reasonably, respectfully and in a child-focused manner, recognising that, just because adult parties cannot make a relationship work, it should not mean the children in that relationship should suffer.

        When parents need the intervention, our system should be responsive. It should support the children and support them in a way that responds to their needs. The backlogs in the Family Court are causing serious issues and creating dangerous and painful situations for those who are stuck in the system. The solution is not to wipe out the entire system. It needs investment, it needs reform and it needs urgent attention. The delays are costing families huge sums of money and causing swathes of distress, and kids are being punished by having their lives placed in limbo by the ongoing delays.

        Take a family who has a child who is four years old. They break up. Custody over that child is contested. The child at some point over the next two years has to enrol in kindergarten, but the parents can't agree. They go back to court, each swearing an affidavit, each having representation, each facing costs. The court and the judge—a person who is not an expert on this child—make a decision in their life. That child now faces being seven or eight years old in the current system before their matter is completely resolved and they have any certainty over their lives. That is a quarter of that little person's childhood forever drained from their life because this government cannot be bothered to address the delays that we now see.

        Our court officers, judges and those who work in the family system need to be shown more respect by this government and have their work valued and supported, not relegated to a cost-saving exercise. This legislation that is proposed by this hapless, incompetent government who fail to see the importance of family law in our society will leave families in further crisis. I have risen a number of times in this House to bring this to the parliament's attention—to no avail though.

        The proposed removal of judges who are specialists that preside over matters relating to children and complex family matters is a disgrace. When you need a script for medication, you go to the doctor, a GP, not a surgeon. When you need help with your family law matter, you need a family law practitioner, not a commercial lawyer. It is basic commonsense but not for this government, who, sadly, see family law as a good place to scrape a few modest savings together at the expense of so many and our society at large.

        The Federal Circuit Court judges have broader experience and decide on matters as varied as trademark law, workplace relations and administrative law. Eighty per cent of matters in the Federal Circuit Court involve far less complex cases. The Family Law Court has carriage of 20 per cent of the family court matters. These are complex issues facing our society that require specialised skill and the experience of the judges that are hearing the case. These 20 per cent of cases are complicated and they can involve a range of social issues, including drug and alcohol abuse, child abuse, criminal matters, family and domestic violence, and mental ill health. These matters are serious, they are complex and they deserve the attention of judges who are specialised and equipped to deal with such things.

        This simplistic approach of rolling these two courts together, as proposed by this inept government on the other side, does not do anything for those families who have complex matters that require detailed and thorough hearings. These are the families who painfully and traumatically relived their experiences to give evidence at our inquiry. We've asked them for their input, but they have been ignored. The lack of consultation with regard to this bill has angered so many in the sector. Stakeholders have not been consulted. The Law Council, the legal assistance services and judges themselves have protested to the government on this matter. It is incredibly unusual to hear judges speak out on these matters, but they have been blowing their whistles as best they can in their positions. They're forced into defending themselves as they're accused by this government of not performing adequately. The consultation has been botched and Minister Porter owes nothing short of an apology to those who have had aspersions cast on them and their work.

        We then had the debacle over the consultation period and the changes to it, which came after the government announced the Australian Law Reform Commission would 'holistically and thoroughly investigate' and report back on the family law system. It's due next year. It's possibly the largest, most significant review of its kind to be undertaken in this complex family law system. This government is now not waiting for that inquiry to run its course and to make findings based on a thorough investigation—an inquiry, mind you, that it asked for. This inquiry will be wide ranging and will take evidence from many people who are currently in the system. This inquiry is landmark and is due to report on 31 March next year. It makes no sense whatsoever to rush or make any substantive changes before that time. Due process, adequate consultation and proper decision-making must take place given the scale of the changes that are proposed and the magnitude this court has over the lives of so many families.

        Family law is a serious issue. This government should be taking its responsibility to the people inside the system equally seriously. The bill needs proper consultation with input from the sector, and the government should not ignore the advice from experts that it already has in front of it. It is time to face reality and admit that it got this wrong; to listen to those who have had everyday experience of the family law system, who deserve to have their say; and to improve it for the next family who find themselves there. It would be pure arrogance for Minister Porter, the Attorney-General, to continue with the proposed changes, which are ill-conceived and ill-thought through. Sure, the government's proposed changes could streamline the system, but we know that there is not a one-size-fits-all square peg to the hole that is family law. Packaging it up neatly may work as a solution on a spreadsheet or to a bean counter or on Minister Porter's notebook but, trust me, in real life, it will not.

        I have a solution for him, since he seems devoid of any real ideas. How about we invest in the system? The solution is to provide the courts with the funding that they need, unlike the underfunded system we currently see. The member for Macquarie pointed out Chief Justice Diana Bryant's comments last year, where she was begging for more money and resources. This proposed bill smacks of cost saving, but it will cost our nation so much more in damages if the social fabric of our families and our communities is tarnished in this way. Ensuring that there is a large pool of judges, experienced and ready and able to fill the benches as our retiring judges leave, will provide the human resources to hear more cases in a more timely and effective manner. There is an economic and social benefit in getting through the backlog.

        Minister Porter is suggesting that family law court judges would face certain extinction, slowly dying out as the government refuses to replace the retiring judges. Their solution to allow generalist judges to hear complex law cases is just simply not acceptable. All the government has as evidence that this will work is a report commissioned by consultancy PricewaterhouseCoopers, which took six weeks of desktop research as well as some consultation with a few senior stakeholders. That report made some very heroic assumptions, including that there was an equivalent level of complexity between the Family Court and the Federal Circuit Court. That is patently a ridiculous assumption to make and it undermines the findings of this report, which, unsurprisingly, was that the Family Court was less efficient than the Federal Circuit Court—hardly surprising when you're dealing with such complex cases.

        The government has handled this bill incredibly poorly and has not bothered to talk to people and groups who are in the family law system every single day: the family groups, the charities, the registrars, the legal assistance services, the lawyers and the judges to name but a few. There are absolutely serious issues facing the Family Court right now. Delays are one part. The idea that you can give the courts less money to do more with is absolutely absurd. The government continue to run a flawed agenda with a process they do not comprehend and they are relegating families and, moreover, vulnerable children to lives on a waiting list—lives which are unstable and unpredictable. The government have the capacity right now to act by giving money to the courts and by replacing the judges who have recently retired, to enable more cases to be heard in a timely manner and get those families off the waiting list. Families should not be in limbo for four years because this government see them as a place to save money.

        This week I have the pleasure of arranging a briefing for members of the community who know too well the shortcomings of the family law system, who know what it's like to be affected by it and who work with children who have been devastated as a result of the inadequate process of the family law system. They will come to Canberra to advocate for a better, fairer system that is focused on better, more timely outcomes for families who need it.

        My great fear is that, 20 years from now, someone occupying these benches will get up and make a national apology to those families being disadvantaged by the current delays. We can stand up in this place and debate this and speak to the complexities of the delays, time frames and legal-speak but, at the end of the day, we are talking about our children. We are talking about their lives and their stability. All of us in here, each and every person, who haven't experienced the dog's breakfast of family law should be grateful.

        The government needs a laser-like focus trained on the outcomes for children who are subject to the Family Court. It needs a laser-like focus on bringing change that is needed and funding that is so desperately required. Anything less than that is an abject failure to do the exact thing government is supposed to do, which is protect its citizens. I applaud the work of all those people in the system and thank them for their tireless work on behalf of the families and children who find themselves there. It is not a choice that people voluntarily submit themselves to without good reason. The work that these people do is intense and the consequences are immense. I look forward to welcoming the delegation of family law activists this week to parliament and to working with them to ensure that the right and just outcomes are reached, not a cost-saving exercise that benefits nobody.

        6:27 pm

        Photo of Julie OwensJulie Owens (Parramatta, Australian Labor Party, Shadow Assistant Minister for Citizenship and Multicultural Australia) Share this | | Hansard source

        When you are talking about the Family Court, you are talking about something incredibly important. Every member of this House has probably looked into the eyes of a parent who's said: 'Can I show you a photo of my children? I haven't seen them for six years.' You know, as they give you the photo, that it is going to break your heart—and it does. It breaks your heart looking at the photo, but the person giving you the photo lives with that every day. There are so many people—we all meet them every day—who struggle with the exceptional delays in the Family Court system and who are unable, even with the system that we have, to work through their relationship with their ex to do the best thing by the child and both parents. We all know this. It is a thing that breaks your heart. I am a grandparent and, if Grandad and I broke up—which we won't—I think I would just about die if I couldn't see my grandchildren. Grandad and I can't break up because I think it would kill me. It would kill me. So we're talking about something incredibly important.

        I'm not a lawyer at all. In fact, I'm a piano player. I'm a conservatorium graduate classical piano player.

        Photo of Madeleine KingMadeleine King (Brand, Australian Labor Party, Shadow Minister for Consumer Affairs) Share this | | Hansard source

        And parliamentarian.

        Photo of Julie OwensJulie Owens (Parramatta, Australian Labor Party, Shadow Assistant Minister for Citizenship and Multicultural Australia) Share this | | Hansard source

        And a parliamentarian now as well, but always a piano player. So I don't know a great deal about the legal language and legal structures that underpin our court systems. I don't. A number of speakers prior to me have spoken very eloquently about those systems. What I want to talk about today is the process—or, rather, the lack of process—that this government has embarked on in dealing with one of the most important things in people's lives, which is the welfare of their children, at one of the most difficult times in their lives, which is during the break-up of their family. What you see when you look at the process that this government has embarked on is an extraordinary lack of care. The only way to describe it is a shocking lack of care.

        The two bills that we're looking at today—the Federal Circuit and Family Court of Australia Bill 2018 and the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018—effectively abolish the Family Court, which was established back in 1975. The legislation doesn't do it in one step. Initially, it combines two courts—the Family Court and the Federal Circuit Court—into one court which effectively will remain two separate courts. But the minister has admitted that, over time, the government won't reappoint Family Court specialists. So eventually the Family Court as we know it will disappear altogether into the Federal Circuit Court.

        If the government had approached that idea with the proper consultation with the people who are affected by this decision, if the consultation had taken place over a long time, if there had been input, if it had been debated and discussed and if the sector had come to some agreement about the way this should be done, I probably wouldn't be up here speaking about this in the way that I am. But that hasn't happened. What we've had instead is basically a six-week desktop review by a firm that did a desktop review of the courts and decided this would bring efficiencies, and that's it. The consultation has been virtually nil.

        There are serious problems with the Family Court at present. There are unacceptable delays. We know that. But there are ways to deal with that, and one of them is to appropriately appoint justices. We know, for example, that back in 2016 in Parramatta we had a situation where one judge was handling 600 cases. We had the Family Court in Parramatta waiting 560 days for the replacement of a judge who had retired. We had people waiting up to three years for a settlement. Your six-month-old child is 3½ in three years. Your 10-year-old boy goes through puberty in that three years. Your 15-year-old daughter is dating. In the life of a child, three years is a long, long time, and three years in the life of a parent without a settled relationship with their child is almost unimaginable.

        The consultation has been so poor that, essentially, the government didn't consult with any of the people we would have expected them to consult with. They tried to push these changes through so quickly that initially they gave the sector only three weeks to comment on a bill that is some 500 pages long. As a result of that, we've had judges speaking up against these changes. Judges are usually pretty conservative in the comments they make. In this case they've been quite vocal. Virtually every association and organisation that represents the legal fraternity have had something to say about this. Organisations that represent people fleeing domestic violence have had something to say about this. Right across the board, we've had commentary after commentary on the lack of consultation by this government. The Law Council, for example, has said:

        The Law Council is deeply concerned by the truncated three-week timeframe for the public to scrutinise the recently introduced court merger bills.

        The two bills, if passed, will merge the current Federal Circuit Court of Australia and the Family Court of Australia into the new Federal Circuit and Family Court of Australia. The bills signify the biggest changes to Australia’s justice system in decades.

        On Thursday, the same day the bills were introduced in the lower house, the Senate Legal and Constitutional Affairs Committee reduced the reporting deadline from 15 April 2019 to 26 November this year. The Committee also fixed a submission closing date of 14 September.

        Law Council of Australia President, Morry Bailes, said the peak body already held significant concerns about the proposal to merge the courts, and a three-week deadline to scrutinise the bills would short-change a court system already at breaking point.

          …   …   …

        "We owe it to the people caught-up in the family law system not to give the most significant court changes since 1975 a mere cursory glance, or a simple tick-and-flick," Mr Bailes said.

          …   …   …

        "A reporting deadline in mid-April 2019 would allow the Senate to consider the recommendations of the Australian Law Reform Commission’s Family Law Review. The final report is due on 31 March 2019.

        That's worth commenting on as well: there is actually a Law Reform Commission family law review due on 31 March, one that was commissioned by this government—by former Senator Brandis. It's due in March 2019. To make this change before that commission review reports is quite bizarre. One really has to ask: why is there the rush here? What is going on here that this government feels they need to rush this through in this way, before they even have all the information? The Senate inquiry isn't due to report until next year. Again, it's irregular for a government to try and push bills through before the Senate committee's report. It's hard to figure out exactly what is going on here, and why the government feels it's necessary to push such an extraordinary change through without proper consultation.

        The Australian Bar Association president, Noel Hutley SC, says:

        … the ABA remains of the view that any legislation to restructure Australia's family law system requires close and careful examination by Parliament.

        The structure and implementation of any reform of the area can only be determined if all interested parties have access to and appropriate time to consider, the most up-to-date information available and particularly the PwC report which the Commonwealth Attorney-General has referred to as being the basis of the current proposals.

        That PwC report was the short desktop analysis of the role of both courts, and it's that report that made the recommendation to combine the two courts. PwC is not a body with expertise in both courts. It is certainly not a body that you would expect to make a considered assessment based on the complexity of family law, particularly since family law in Australia, as we all know, is getting more complex by the day, as we have more and more families where the broader family is split across continents. There are significant family violence issues.

        What we see with this combination of the courts and the government's intention, eventually, to not replace the Family Court judges is a move towards a court that does not have specialist expertise in family matters—a court that does not have expertise in the matters before it. Shockingly, perhaps that is why this government thinks that its changes will be more efficient. It seems to be adamant that this merging of the two courts and the removal of the family expertise will actually increase the efficiency of the court.

        The minister states that there will be up to 8,000 extra cases per year cleared because of this merger. Yet there's no additional expenditure. There are no additional dollars—zero additional dollars—and no additional justices. No extra money, merging two courts and removal of expertise in family law gives you efficiency only if the only thing you care about is the speed and the cost of the decision. If all you care about is the speed and the cost of the decision relating to a child's future and their relationship with their parents then maybe this is fine. But for most of us, if we think about it, we know that when it comes to family break-up, with all the complexity, anger and difficulty that people have in resolving those issues and the complexity when you add family violence, when you have extended families across continents, when you have careers that move interstate—all the things that affect it and all the complexity before you even put the emotion into it—the decision needs to be the best one, not the quickest one. It needs to be the best one, not the cheapest one.

        There are some cases in policy, and health is one, where what is best for the patient is almost universally cheapest for the taxpayer—you intervene early, have a person stay home, all those things. In nearly every case when it comes to health, if you treat the patient in the best way possible, the cost over a lifetime is less for the taxpayer. In this matter, this is not the case. This is not a case where reducing the cost and going for efficiency rather than outcome is a good result for the community or the family. It is simply not that.

        I also want to point out that, given this is the most significant change to the Family Court in nearly 50 years—actually, it's effectively the abolition of the Family Court after 50 years following an eight-week review and a very short consultation process—there are two speakers, I think, on the other side on this bill. I'm just going to double-check; yes, two. This is one of the most significant changes in 45 years, and there are two members of the government who have decided to speak on this. They're hardly proud of it; I suspect they don't even know about it. Two government members are speaking on this—so no consultation, a review which the sector hadn't even seen that was the basis of the decision, very short time frames, and two people on the government side getting up to speak on it. There are 12 or 13 members on this side speaking on it. But that's not unusual. Following this we will do the Social Services Legislation Amendment (Housing Affordability) Bill—an incredibly important issue—and there are no government speakers. On the Fair Work Amendment (Family and Domestic Violence Leave) Bill, there is one. So they're not exactly into their own work at the moment—certainly not in this chamber. They're off doing heaven knows what, but they're certainly not in here to make the case for this bill.

        If this is such an important bill that it needed to be pushed through in this kind of time frame—it's the most significant change in 45 years and, according to the government, it's going to result in an extra 8,000 cases going through every year—you'd think that some of them would be in here actually speaking about it and explaining it, because the criticism of it that has come from outside of this place is overwhelming. The speeches that are made by this side of the House also make a number of extremely valid points. I would expect that a government that was proud of this bill would have people prepared to speak on it and prepared to argue it.

        I would like to hear the arguments that the government makes for pushing this through at this kind of pace and for making this extraordinary change. I would like to hear the argument that says that a removal of expertise in the Family Court system provides better outcomes for families and for children. I would like to hear members on the government side actually make that case. I would like to hear how you get 8,000 extra cases cleared without additional funding. I would like to actually hear that. I would like to hear how, rather than put extra money into the Family Court system so that it can function properly, you wear it down until it starts to break and then you abolish it. I'd like to hear the government members make a case for that, because it's very hard to see when what you essentially have is very little consultation with the community, rapid decision-making, unreasonable speed and pushing it through the House when the Senate can't consider it for several months anyway.

        It's a very strange position that we find ourselves in on this side of the House today, looking at government legislation that the government itself isn't prepared to defend. We won't support this. I look forward to seeing the results of the Senate inquiry. I look forward to reading the report when it finally comes down in March, and then we'll see what is needed in the Family Court.

        6:42 pm

        Photo of Cathy O'TooleCathy O'Toole (Herbert, Australian Labor Party) Share this | | Hansard source

        I am luckier than many in this place to speak with some understanding of the negative impact of this bill. I say so because my sister Janice Mayes is a family law barrister in Townsville. In speaking with her I have become very aware of the processes and procedures that affect the family law court. I am aware of how busy the family law court is and the pressure it is under in regional Australia because of the conversations I have had with my sister. I am aware how detrimental these changes will be for family law judges, barristers, solicitors and, importantly, the families themselves because of the LNP government's bill and what this means on the ground, all thanks to the skill my sister has as a family law barrister. In due respect to my sister, I will provide an open and honest account of the government's changes to a system that is already under massive pressure.

        At the heart of this bill are vulnerable people and, particularly, in most cases, children. The question must be asked: are these changes in the best interests of vulnerable families and children? Efficiencies that harm people, especially children, are not efficiencies. In fact, it is simply a cost-shifting exercise. And, possibly, the cost shifting will go to the health budget, and in particular the mental health budget, for years to come when we consider that many of the people negatively impacted by these changes are children.

        The government should own up to what they are doing here. They are in effect abolishing the Family Court, a legacy of the Whitlam government. Even worse, they are abolishing the Family Court without even bothering to ask the families in the system for their point of view. It is absolute arrogance. These two bills run for more than 500 pages. If passed this will implement the most radical change to the family law system since the Family Law Act in 1975. The bills will alter the current structure of the courts. They don't merge the two courts. There will still be two distinct divisions. The Family Court will become division 1 of the new Federal Circuit and Family Court of Australia and the Federal Circuit Court will become division 2 of the new FCFC. Family Court judges will remain judges of the division 1 court and Federal Court judges will remain judges of the division 2 court.

        The LNP are trying to hide what they are doing by not being open and honest about these changes. The Attorney-General has stated publicly that he will not be appointing or replacing any Family Court judges, essentially killing the family law court by stealth. This is a radical reform. Moreover, the Appeals Division of the Family Court will be abolished immediately. Appeals will be moved to the Federal Court. Only appeals from the soon-to-be-extinct division 1 would be heard by three judges. All appeals from division 2 would be heard by a single judge.

        Let's be very clear about this: the government wants to hand this function over to a court that has never handled family law before. These are huge and fundamental reforms and fly directly in the face of the purpose for which the family law courts were created in the first place. The Family Court of Australia was set up in 1975 as a specialist court, with specialist judges, to resolve the most complex of family legal disputes. It was a Whitlam Labor government policy and reform. The Family Court of Australia is a superior court of record. When the Family Law Bill was progressing through the parliament back in 1974, it was also sent to a Senate committee. That committee made significant recommendations, including a recommendation to establish the Family Court of Australia. It also made a recommendation about the way in which Family Court judges would be appointed. The committee recommended that appointees must be, 'by reason of training, experience and personality, suitable to deal with matters of family law'. Nearly all of the committee's recommendations were given effect, including these two examples. Section 22 of the Family Law Act, which is still in operation, gave effect to what has become the essential feature of the Family Court: specialist judges. The Senate committee considered that the creation of a specialist court would:

        … put Australia in the forefront of family law reform and … ensure that other facilities and remedies provided in the Bill can have effective implementation.

        The Australian government, more than 50 years ago, recognised the unique issues and specialist skills needed to address and work in family law issues, so why is the current LNP Morrison government ignoring this? Are the government so out of touch that they do not understand that one of the most complex areas of law is family law, and, in being one of the most complex areas, it requires experts in family law to understand and comprehend the unique and individual issues presented to its court?

        Family law deals with people at their most vulnerable. They are often in a distressed state and they need and deserve relevant and appropriate expertise. Yes, there are serious problems with the Family Court at present. There are unacceptable delays and backlogs, which are adding to the pain of those caught up in the system. These backlogs are due to inadequate funding of the court system, inadequate funding for legal assistance services and the failure of the former Attorney-General, George Brandis, to appoint replacements for judges as they retired. These are failures by an LNP government, not failures of the court system.

        This year, Federal Circuit Court judge Joe Harman blamed the severe court delays affecting families on the shrinking number of judges. According to a report in The Australian:

        Federal Circuit Court judge Joe Harman told his court at Parramatta, in Sydney's west, the number of judges had dropped from five to four, and at one point was down to "effectively two".

        This has contributed to a blowout in waiting times for litigants to three years. His Honour's eloquent judgement read:

        It is well known that the delays before this court and, in particular, this registry, are severe with great disadvantage, particularly in parenting proceedings, occasioned to parties who wait three years or more for a determination of their business.

        It continued:

        Some part of that delay may well be connected with an absence of resources. Certainly, the number of judges in this registry depleted between 2014 and 2015. The registry, in 2014, was staffed by five judges. The registry now has four judges although having dropped, at one point, to effectively two judges.

        This is clearly a scathing review of the current LNP government and their handling of family law. The option is there for the government to appoint more judges to deal with the large volume of matters before the family law court, but instead of the government providing more support to these courts, instead of the government listening to the experts and acting on what is needed to address these issues, the government says that abolishing the court entirely is the solution. This will only increase waiting times, add pressure to judges and magistrates, and lose the specialists and experts in the family law court.

        If the government does not understand the importance and the complexity of the matters before the family law court, then clearly they have not done their homework, because the only evidence, reason or excuse the government is using regarding these radical changes is a report that it commissioned from consultancy PwC, which took six weeks to do a desktop review—hardly thorough evidence. Family law judges, barristers and solicitors are going to just laugh at the part included in the six-week review report which outlines an equivalent level of complexity between the Family Court and the Federal Circuit Court. Anyone who has one iota of understanding of the courts will know how laughable and ridiculous that notion truly is.

        I know what many lawyers, barristers and judges are thinking in listening to this speech and seeing the reforms the LNP government are suggesting. They are asking: why? Why is this happening? The Senate committee into this bill is coming to Townsville in the middle of December, so why is the bill being presented here today? The simple answer is because of the dirty deals being done with One Nation. That's right. The government are agreeing to lose a specialist court, to lose specialist judges, to create longer waiting times and to create more havoc for distressed families during a very difficult time in their life, all to do backroom deals with One Nation. The LNP government are in such chaos that sneaky deals are being done to the detriment of hardworking Australians. Until February 2017, the One Nation website included a policy which said, 'The Family Law Courts will be abolished and replaced with a Family Tribunal.' Here lies the real reason why these radical changes are being rushed. It certainly raises the question.

        There is an election to be had and backroom deals to be done before the election. These dodgy deals lack transparency and fail the fair go and pub tests. All around, they stink and are rotten to the core. It appears this LNP government is prepared to turn its back on families during the most difficult and stressful time in their lives, all for some dodgy backroom agreement, as it may appear. The LNP government is demonstrating to the Australian people that they are no longer working in the best interests of Australians; they are working for themselves.

        Earlier this year I spent a full day in the family law court in Townsville. I wanted to better understand the processes, procedures and complexities. I wanted to ensure that when bills relating to the family law court are presented to the parliament I, as a lay person with no legal background, knew what these changes would mean to vulnerable families on the ground. From what I saw over that day, I know wholeheartedly that these changes will negatively impact on my community. At the invitation of Judge Coker, I spent a full day listening to interim hearings regarding matters before the family law court. I witnessed an incredibly professional and caring approach to what is in fact a very complex and distressing environment. I was surprised at the number of people who present to the court to self-represent or who are unrepresented. This takes much more of the judges' and courts' time. I witnessed a very effective court process where procedural fairness was delivered to all parties. I also witnessed a strong focus on the needs of powerless children who are, sadly, caught up in this complicated process. What I also witnessed is how incredibly underfunded and under-resourced the family law courts are.

        I am deeply concerned about the amendments in this bill. The approach does guarantee that a negative impact will be had on family law and regional Australians. The LNP government are ignoring key stakeholders to rush this bill through. The government has not bothered to talk to the people affected and the many stakeholder groups associated with the family law system every day—the family groups, the registrars, the legal assistance services, the lawyers, the barristers and the judges. The Law Council of Australia have said how deeply concerned they are by the complete lack of consultation. The Australian Bar Association have also outlined their serious concerns. Today I outlined my serious and genuine concerns, as well of those in my community. But, importantly, I am very concerned about the motivation behind this bill as presented today.

        I cannot and will not support a bill in this place where due process and consultation have not occurred. In the current form, as this bill is presented, it would essentially put an end to the Family Law Court and specialist practitioners. From speaking with the Townsville legal community and knowing the detrimental effects this bill will cause, I cannot support this bill.

        6:55 pm

        Photo of Rebekha SharkieRebekha Sharkie (Mayo, Centre Alliance) Share this | | Hansard source

        Before I discuss the Federal Circuit and Family Court of Australia Bill 2018 in detail, I want to make it clear that, while Centre Alliance will support the passage of this bill through the House, that should not be interpreted as an acceptance or approval of the proposed reforms. My Senate colleagues and I have not yet formed a position on these bills, but we accept without reservation that the need for careful and considered reform of the family law system is needed. I say again that our support today should not be read as an endorsement for these reforms but rather as an acknowledgment of the importance of the Senate committee process. Our Senate colleagues fought hard to ensure the committee could conduct a thorough investigation of the bills, unfettered by arbitrary reporting deadlines initially proposed by the government. We make no apologies for disrupting the government's proposed timeline. These bills will impact on everyday families, and we need to satisfy ourselves that the reform is required and that it is indeed appropriate. Having campaigned long and hard for a proper process of scrutiny, we will now closely monitor the submissions to the inquiry, the evidence adduced during the public hearings and any recommendations of the committee.

        In that regard, these bills are no different from any others that we consider as a party, but family law disputes are unlike any other form of litigation. These disputes are not a result of commercial failures, questionable taxation practices or criminal misadventure. These disputes are the consequences of abandoned plans for a life shared, and at the centre are individuals struggling to come to terms with the breakdown of their family unit and all of the emotional, financial and logistical complications that flow from that. These are families at their most vulnerable, and because of that we owe it to them to ensure that the family law system is working as efficiently and as effectively as possible.

        Given the deeply personal nature of the disputes, it is unlikely that any family court system can win the praise and approval of the parties subject to its rulings, but to prolong a family's journey through the family court system only serves to further inflame the conflict. Delay may be costly and frustrating for adults, but the continued exposure to conflict can have a profound and lasting impact on children—particularly young children. And we know that that is happening now. We know that too many families are left waiting for their matter to be heard and determined by a judge with the appropriate skill and that these delays are causing much harm to many Australian families. In recognition of the challenges facing those who rely on and work in the family law system, the former Attorney-General directed the Australian Law Reform Commission to undertake the first comprehensive review of the family law system since its inception in 1975. The review was welcomed by the legal profession, the judiciary and those who work in the family violence space. That report is due to be completed in April 2019.

        I've also made a point to move beyond the legal sphere and talk at length with my constituents who have firsthand experience of family law litigation. Divorce does not discriminate. I spoke with men and women, both young and old, and many of them shared the same concerns: costs, delays and conflict. The government says that this package of bills will significantly reduce the delays experienced by Australian families, which in turn will help to reduce the costs incurred by parties. It is intended that structural reform will achieve improved case management efficiencies, resulting in an additional 8,305 matters being resolved each year. The veracity of that claim is yet to be tested.

        There are a number of proposed changes, but I want to address two points—namely, the future of the appellate function of the Family Court and the relationship between the Family Court and the Federal Circuit Court. First, appeals from the Federal Circuit Court and the Family Court are currently heard by specialist appeal judges, who sit on the full court of the Family Court. The bill will in effect remove the appellate function of the Family Court, with appeals to be dealt with by the single judge of the Federal Court instead. It has been suggested that there is a real and significant risk that such a measure could lead to an erosion of the specialist knowledge developed by the court over many decades. This specialist knowledge goes beyond the legal reasoning that is to be expected of a superior court of record and extends to the unique understanding of family violence and how it permeates every aspect of a case.

        Second, and in broader terms, the Family Court and the Federal Circuit Court would become division 1 and division 2 of the proposed new Federal Circuit and Family Court of Australia, the FCFCA, to create a single point of entry for parties looking to commence proceedings. The Attorney-General has indicated that further appointments to the division 1 court, currently known as the Family Court, are unlikely, with the practical effect being that, as Family Court judges retire, the Family Court will eventually cease to exist.

        There are many vocal critics of the bill, including current and former judges, who say that too much weight has been given to efficiency statistics alone, without having regard to the complex nature of the disputes, the current resourcing constraints or the quality of justice delivered. For example, the International Framework for Court Excellence assesses a court on a broad range of indicators—quality, fairness, impartiality, independence of decision-making, competence, transparency, accessibility, timeliness and certainty—yet the reports commissioned by the government, in particular the 2018 PricewaterhouseCoopers report, focused almost entirely on efficiency, being the rate of disposals.

        Any serious restructure or reform of the family law courts should be the product of evidence based policy. The primary purpose of such a policy must be to improve the experience and outcome for parties rather than simply as a way for government to save money. This is a significant reform and one that should not be undertaken lightly. I can think of no other court that interacts with all sections of our society on such a regular basis or on such intimate terms. Without proper considerations, any possible repercussions from the loss of a superior specialist court restructure may not be known until the Family Court is barely operational or no longer exists. In our view, the proper consideration will occur through the Senate committee process, and, for that reason, we support the passage of the bill in this House and wait for the outcome of the Senate committee. Thank you.

        7:02 pm

        Photo of Luke HowarthLuke Howarth (Petrie, Liberal Party) Share this | | Hansard source

        The Family Court system very much needs a major overhaul. I support the Federal Circuit and Family Court of Australia Bill 2018. It is a step in the right direction. Those who go through divorce or separation will often tell you that it is the hardest and most stressful and frustrating time in their lives. The issue facing our courts today is that people are being referred to either the Federal Circuit Court or the Family Court of Australia. Having two court systems isn't working.

        Currently there are many cases that are heard in the wrong court. It is wasting our courts' resources and, most importantly, the mums and dads of Australia's time and money, and affecting their wellbeing. The wait time for the family law system and Federal Circuit Court has increased by a third, blowing the wait time out to over 15 months. According to come of my constituents, their first mention, and then it's mention after mention after mention—it can take between three to six months before each one before the matter is listed for trial. I've had constituents come in and say it has taken over five years to finalise, which is incredibly long.

        The Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018 before the House today aims to unite the two courts, with one governing chief justice. This will make it simpler for families and lawyers to navigate the Family Court system, reducing stress and financial pressure. Of course, this may not fix all of the issues faced by the families and constituents that come to see me, but it is a step in the right direction to fix many of the concerns that have been raised.

        Constituents have contacted me over the years and they have had all sorts of issues. I've had men in my office saying that they want to suicide, just in tears. I've had grandparents in my office saying how terrible it is that they can no longer see their grandchildren and that their son or daughter is under significant financial stress and emotional stress. I've had women in my office as well who have been in DV situations and who say they haven't actually been believed when they've gone to the court. Why is that? I've had other constituents in my office who have actually told me that when they went to their lawyer the first thing the lawyer told them they should do is to take out a DVO against their partner, and that has created the issue for the previous constituent who came to see me and said that they weren't believed. The whole thing is an absolute mess, and it's one of the biggest issues that people come to talk to me about on a regular basis.

        I know we have a lot of lawyers and legal people in the parliament here. I'm not a lawyer, but this issue is a real concern. In the five years that I've been here in this place, I've continued to talk to our government, our attorneys-general and others about how we fix the Family Court system, because whatever is currently working isn't working well.

        What we hear from those opposite is that all they want is the status quo, 'Let's not make any changes; let's not support this bill.' That isn't a solution at all. People have spoken to me about their desire for a royal commission into the family courts too. They have spoken to me about that many times. I know we already have a couple of royal commissions going on in relation to banking and aged care, but that doesn't necessarily give an excuse for not having another one if it's a major issue that can't be resolved.

        The federal Attorney-General, Christian Porter, has put up this bill. He has a lot of experience in this area and I trust what he has to say. I think this is a step in the right direction, and I call on the parliament to support it and not to continue to delay and delay. This has been going on for years. If the system needs to be reviewed and rebuilt to restore justice and hope, and to protect children as well from the devastating and lifelong trauma involved with this, then let's do it. There are just so many issues that I want to get on record, to say to my constituents that I've spoken about this and been listening, and that I'm definitely passing this on to the parliament here.

        There has been consultation. Will this bill help? Yes, I believe it will. It will streamline the way matters are heard. There are instances of cases starting in the wrong court and appeals being heard by three judges of the Family Court. They will now be heard by one judge in the Federal Court, freeing up two other judges to get more of the backlog done. There are parliamentarians who have spoken with barristers and with Federal Circuit Court judges. They've said that these steps are a good thing. So, for every member of the opposition who has said, 'Oh well, there hasn't been enough consultation,' there has been consultation. I've spoken to a number of members on my own side, as well as to the Attorney-General, about that consultation being done.

        The Federal Circuit Court and the Family Court operate under different rules of law, and cases are often referred from one to the other, which draws out the process. That adds considerable cost and stress to families. The Attorney-General has advised that these changes will finalise an additional 3,000 cases every year and eliminate 35,000 cases being referred to the wrong court. That sounds like a step in the right direction to me.

        It's time to rewrite, rebuild and restore a system that protects children, strengthens families and ensures that cases are being dealt with in an efficient and timely manner. We heard all sorts of accusations from the member for Herbert a minute ago, who wanted to make this about politics. That's what she did—she wanted to make it about politics. Every member in this place—it doesn't matter whether they sit on the opposition or the government side—would know the number of people who come before them to talk about the Family Court and some of the failures with it.

        I call upon those sitting opposite to support the bill. By reforming Australia's family law system we'll reduce the stress on families and help to reduce the lifelong mental consequences for those involved. I am proud to stand here and support this bill today.

        7:09 pm

        Photo of Terri ButlerTerri Butler (Griffith, Australian Labor Party, Shadow Minister for Young Australians and Youth Affairs) Share this | | Hansard source

        I want to take issue with something the member for Petrie just said. He said that the opposition is calling for the status quo in relation to family law, and that's just not the case. We have at the table the member for Corangamite, who, along with the member for Newcastle, led a bipartisan process looking at reform of family law, particularly for people who are victims and survivors of family violence. That bipartisan process that the member for Corangamite and the member for Newcastle undertook was excellent. They did great work together in a bipartisan or, in fact, non-partisan way—because the Standing Committee on Social Policy and Legal Affairs has crossbenchers on it as well. That committee report looked at a range of ways that family law could be improved for victims and survivors of family violence. So it's just not the case that the opposition have a position of keeping the status quo when it comes to family law. We certainly don't.

        In fact, I was the shadow parliamentary secretary in relation to domestic violence at the last election. We announced a suite of policies, the most important of which, in my view, at the time was family law reform to protect victims of violence from being personally cross-examined by their abusers. We did that. I think it was a very sensible policy position to take. It reflected a recommendation made by the Productivity Commission in 2014. We have been calling on the government since that report and throughout this term to implement this measure. We did it in a way that would include, with the policy announcement, some $43 million worth of additional legal aid funding because, if someone can't cross-examine personally, you can't deny them natural justice. The parties should then have lawyers to do the cross-examination. They should have people who have ethical obligations to the court and who can be disciplined if they don't conduct themselves ethically to do the questioning for them. It is a very different proposition to the abuser personally grilling the victim or survivor of domestic violence throughout the course of the case. We were very proud to make that announcement.

        I know that the government has, this year, in recent sitting weeks, brought forward its own cross-examination law reform legislation in relation to family law. It is something that we welcome, but I have to say that we are concerned about the absence of additional legal aid funding for the parties in that situation. But it was a step in the right direction. It's an example of a situation where all parties have acknowledged the need for law reform in relation to family law.

        You certainly can't stop there. One of the other announcements that we took to the last federal election was on appointing more judges. I'm very concerned for all judges in the Federal Circuit Court—not about them but for them. They're asked to do a massive amount of work in a variety of disciplines. They might have an industrial law matter. They might have a human rights law matter. They might have a matter of immigration, bankruptcy or, of course, family law. Some of them do specialise, and that's a great thing. But, even in those situations where you're seeing judges in that court trying to do this work, even those who are doing mostly or exclusively family law, they still have a lot of impediments to being able to move things through quickly. Some of them can have hundreds of cases on their dockets. When judges aren't replaced after they retire, that puts a greater workload on existing judges. And I am aware that a large proportion of the people who appear before them are unrepresented. Of course, people have a right to appear unrepresented if they can't afford lawyers, but that does tend to slow things down a little bit because you're dealing with people for whom it is an unfamiliar environment. Weird forms, difficult rules and hard-to-understand requirements mean that people struggle to come to grips with what they're doing in the Federal Circuit Court when they're unrepresented.

        Of course, there are discrepancies in power in the courts when one party is able to afford expensive lawyers and the other party isn't. I've got a constituent in my electorate whose daughter is in constant family law battles because her ex is himself a lawyer, has plenty of money and has many friends. It's really the kids who suffer when they have these protracted, drawn-out applications and directions hearings which are, whether intended or not, bleeding her dry of money as she puts up with this constant, repeated use of legal practice and court forms to delay, obstruct and obfuscate the real issues.

        It is not the case that all is well in Federal Circuit Court land. Of course it's not. As I said, it is not a reflection on any judges or any judge's professional conduct. They, though, face structural and resource based impediments to being able to run things in a quick way. There are structural access-to-justice issues that affect parties before the Federal Circuit Court in family law proceedings. If the government wants to look at what can be done, I would suggest the bipartisan report of the Standing Committee on Social Policy and Legal Affairs, led by the member for Corangamite and the member for Newcastle, would be a really good place for the government to start. I'd also suggest that looking at the understaffing of the courts is really important. Of course, that means making sure we have enough judges, and not just enough judges in the cities but also enough judges who can service the Federal Circuit Court obligations in regions and in non-metropolitan areas.

        In my view, it's also important that judges become a little more diverse. We have had a historical problem with women being under-represented amongst the judiciary in the Federal Circuit Court. That, of course, can be improved. Similarly, it being a generalist jurisdiction, judges can be taken from any discipline. They might have been a barrister or a solicitor, but they might have been practising in commercial law or something entirely unrelated to family law. I was a lawyer for a long time, but I wouldn't purport to be able to understand family law. It's never something I practised in; it was never something that I sought to involve myself in. I can imagine that, for someone who goes onto the bench, it's a massive responsibility to then have to pick up and understand family law. It would be very daunting. I congratulate the judges who are doing a good job, of course, but it would be useful to continue to make sure that there are people with family law backgrounds when they are in practice, before they go into the judiciary, represented amongst the Federal Circuit Court. You don't need to merge the Family Court with the Federal Circuit Court to make that happen. In fact, one of the risks we're concerned about with the merger is that you might end up losing speciality and expertise in relation to family law through the failure to replace Family Court judges with senior judges with a family law background. It is something that we do think is concerning.

        There must be a good representation of judges with family law experience on the Federal Circuit Court. Similarly, we need our judges to have a better understanding of the dynamics of family violence. If you've been a lawyer in private practice for a long time and then you go onto the bench, you don't necessarily have the cutting-edge knowledge of the dynamics of domestic violence. We have a great national organisation in this country, Australia's National Research Organisation for Women's Safety—ANROWS. I think there would be a great opportunity for judges to keep their non-legal knowledge of family violence and what we know about family violence up to date if they had the time to do that, if they had the opportunity to do that. But with crushing workloads and unrepresented litigants, and a failure to come to grips with access to justice issues, that is a pretty big ask of judges. So if we could deal with the issue of judicial workloads, if we could deal with the issue of judicial expertise prior to going into the judiciary and if we could build up those links between those in the research and social sectors and judges and other court officials then that would help to make the court a better place for people who are victims and survivors of family violence, and also a better place for everyone.

        Of course, it's never going to be wonderful going to the Family Court. It's the sort of place you only go after a family breakdown. It's already a difficult time and, by definition, if you're in a protracted legal battle in the Federal Circuit Court or the Family Court of Australia then you have been unable to reach agreement with your former partner. These are tough cases—tough, emotional, personal cases—mostly involving children. It's never going to be an easy thing to make the experience of going to that court a good one. But the problems of access to justice—the unlevel playing field between people who can afford expensive lawyers and people who can't, the difficulties of being a self-represented litigant in that court, or an unrepresented litigant in any court—all of those things can make a difference.

        I also wanted to say that I think it's really great that the Family Court of Australia and the Federal Circuit Court worked on family violence principles a few years ago. The last time I looked, those principles were out of date. Sorry, the principles were not out of date. That's not really an accurate way of describing it. The principles were unrevised. It would be great to see some work going into revising those principles and keeping them up to date with current knowledge.

        The courts also had a family violence action plan, which is out of date—it has expired—so of course it would be really wonderful to see the courts continuing to work on their action plan in relation to responding to family violence. But we have to remember that, for all of these things that we ask the courts to do, we as a parliament do need to make sure that they're adequately resourced to be able to do them. I would think those things would be a fairly rich field of options for a government to look at if it were looking for ways to make family law work better for everyone—especially people with particular vulnerabilities such as victims and survivors of family violence, whether as partners or as children of a relationship.

        We do have concerns about the prospect of the abolition of the Family Court of Australia. It is the court that deals with the more complex family law issues—the more complex law or the more complex situations. They are longer trials. They take more intensive work. And so it is the case that cases take longer in the Family Court of Australia than in the Federal Circuit Court, but that's because the lower court handles the matters that can be dealt with more promptly, more efficiently, more expeditiously. So we are quite worried about what this will mean for the ability of the court to deal with those complex matters. You don't want to end up making things worse and more expensive because expertise leaches away and there is not the availability of a specialist jurisdiction. You actually don't want that to cause greater cost to the parties instead of what this is intended to do, which is reduce costs or at least make the proceedings more efficient. So we are concerned about that.

        We will look forward, of course, to making sure that stakeholders get an opportunity to have some feedback, some input into the Senate process. You'd be aware that most of the stakeholders reacted very negatively towards this proposal—some very vehemently and very negatively. I saw the Women's Legal Service on the south side of Brisbane soon after the proposal was made public. This was not quite in my electorate; it was in the electorate of Moreton. They were very concerned about what they saw as the abolition of the Family Court, and I'm sure you would be aware of some concerns raised by the Law Council of Australia and others.

        There must be an opportunity for adequate consultation. I understand that the government at first tried to restrict the time given for submissions to the Senate process to just three weeks. The bills are nearly 500 pages long, so a three-week submission process is just not fair to stakeholders. It's not appropriate for something so detailed. So I'm pleased that there's now a 15 April 2019 reporting date that must allow for consultation to occur with stakeholders. Stakeholders have much greater expertise than, frankly, anyone in this chamber right now, with the possible exception of the member for Blair, in terms of the way the courts and family law work, so we do need their input in relation to this bill, and the government really needs to do its homework in terms of that stakeholder engagement. I suspect that, if the government does continue to talk with women's legal services, family violence prevention organisations, lawyer groups, law consumer groups and people who are currently involved in litigation themselves or who have got experience, they will find that there is a great appetite in the community for reform in family law. I think it's fair to say there's a great appetite across this parliament for reform in family law.

        So we're not in a position where we don't want to see reform in relation to family law, but this reform seems not to be directed towards the problems that have been most clearly articulated to us by stakeholders. It seems to be trying to solve a different problem. The real problems are the processes of the courts, the resources of the courts, the ability of judges to keep themselves up to date in relation to family violence dynamics and thinking more broadly and, of course, all of all the access-to-justice issues that are forcing people to be self-represented, which leads to greater inefficiency but, more importantly, to really distressing experiences for people in the family law system. It needs to be improved and, if we work together, we can find ways to improve it. We look forward to the Senate process being reported upon.

        7:24 pm

        Photo of Lisa ChestersLisa Chesters (Bendigo, Australian Labor Party, Shadow Assistant Minister for Workplace Relations) Share this | | Hansard source

        This is just another example of the government not listening to key stakeholders in the sector, most importantly our legal fraternity. The criticism of what the government is trying to do in the Federal Circuit and Family Court of Australia Bill 2018 has been substantially reported in the media, even in regional areas like Bendigo, my own home town. As others have outlined, this bill, which basically abolishes the Family Court—which is a legacy of the Whitlam era—gets away from those founding principles of the Family Court, which include a focus on the children and what's in the best interests of the children.

        Nobody is denying that these matters are complex. It is heartbreaking as an MP to have meetings with constituents who are frustrated by delays; who are heartbroken about family breakdown; who may not have seen their kids for many, many months—sometimes years—who are caught in the system. But we would be doing them a disservice by saying that this bill will fix their problems. We would be doing them a disservice by making a decision based upon statistics and saving money as opposed to best practice and law.

        It is disappointing. I share the concerns of the legal community who say: 'Just wait. There is a major review going on into this very area that will hand down its report in March 2019.' Why is the government pushing forward with this? Why are they so arrogant and out of touch with the people who are helping to try and do this work? For a long time there has been call for reform but not this kind of reform.

        I believe that the government is being incredibly ambitious when they say that this will help families. A lot of the families that I know who have been to Family Court have complex issues. Putting aside the people who might have a horrible divorce and are going through that process, there are lots of people—vulnerable families—who are caught up in the legal system that need wraparound services. There are cases of DV. There are cases of theft. There are cases of quite complex social structure issues that are going on within the family unit. They need wraparound services and support. By saying that they'll be able to fast track their issues through court, I don't believe that will actually help those families in many ways.

        There's a real challenge when it comes to access to justice. Many in the legal fraternity, particularly in my part of the world, are really sceptical of any reform that has been put forward by this government when it comes to the Family Court, because of the way in which this government has repeatedly gone after community legal services. From the 2014 budget onwards we have continued to fight for renewing the funding—well short of what's actually needed for the sector. Our community legal centres work very closely with both these courts to help people where they can. In my part of the world, which is Loddon Mallee, basically their entire budget goes towards supporting people in the Family Court space, because they just don't have the resources to help outside of that.

        Other community legal centres have been able to assist people when it comes to Fair Work Australia and the Federal Court, or they have been able to assist them in other elements of federal law. But in regional communities like Bendigo community legal services generally focus specifically on this area. What they're saying is: 'Don't push ahead with this reform. Don't abolish. Let's work together. Let's wait. Let's consult properly. Let's actually wait for the review to come out and make some recommendations.'

        There needs to be bold reform here but not this reform. It needs to be done in a way which is inclusive, is constructive and will deliver better outcomes for families—making sure that we help relieve some of the very complex associated problems.

        I know many people that work within the system and one of the issues that they say has been really frustrating has been the lack of appointment of judges. That is blowing out waiting times. What we haven't seen from this government is any kind of focus on how we reinvest in these courts to make sure that we get better outcomes for people, that people's cases are heard in time.

        It is a stark contrast to what we are seeing in Victoria by the Labor government, who during the recent state election campaign announced $152 million investment into Bendigo to build a new law court facility. We're an old town. We have one of the oldest buildings in the country where they still practice law. It has not been updated. When I've been into those facilities and— (Time expired)