Monday, 30 November 2020
Federal Circuit and Family Court of Australia Bill 2019, Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019; Second Reading
The original question was that this bill be now read a second time. To this the honourable member for Isaacs has moved as an amendment that all words after 'That' be omitted with a view to substituting other words. If it suits the House, I'll state the question in the form that the words proposed to be omitted stand part of the question.
I'm pleased to be able to continue the comments I made earlier on the Federal Circuit and Family Court of Australia Bill 2019. Among the most heartbreaking stories we MPs hear in our offices are from those going through the agonies of a Family Court matter. The process is brutal for so many partners and their children. There are many issues that get raised with me, and I'm going to focus on those that are most relevant to this legislation that the government has put forward. I support the amendment moved by our shadow Attorney-General.
The time it takes to have a court resolution, which typically comes only after a long time of conflict and heartache, is simply appalling. The average amount of time it's taking for a case to be heard in the Family Court is 18.6 months from the date the matter is filed to the date on which the trial commences. In the Federal Circuit Court, the average is 17.5 months. In some cases, it's taking more than two years from the date of a judgement being reserved to the date on which the judgement's finally delivered. These are delays that impact profoundly on the life of every single person within those families and on their ability to move forward.
Parramatta court has one of the longer wait times for court-appointed family consultants to produce family reports, and of course that's the critical document providing an independent assessment of issues in a case. Those are the reports that help judges make life-changing decisions about the arrangements for children. The main focus of all those reports is the child: what is in the best interests of the child? For a report in the Federal Circuit Court at Parramatta, the wait is eight months, and in the Family Court it's six months. This adds further delays. They're beaten by the Sydney courts, which have slightly longer delays. So for people living in the Blue Mountains and Hawkesbury there is no choice but to wait.
I think every person in this chamber accepts that there are serious problems in the Family Court at the moment. The main cause of those problems isn't a secret. The Australian Law Reform Commission found:
… the family law system has been deprived of resources to such an extent that it cannot deliver the quality of justice expected of a country like Australia, and to whose family law system other countries once looked and tried to emulate.
Over the last seven years, what we have seen with the problems of the Australian family law system is a story of absolute neglect by those opposite. The system has been neglected by Prime Minister Tony Abbott, neglected by Prime Minister Malcolm Turnbull and neglected by Prime Minister Scott Morrison. For a start, the Family Court and Federal Circuit Court judges haven't been replaced in any sort of timely manner as they left. There's been no increase in funding despite the increasing demand. There's been review after review, with dozens of sensible recommendations, and those have not been applied. It's all been ignored. It's all been neglected. The gutting of community legal centres and legal aid hasn't helped either. So here we are. Instead of working to fix the family law system the government decides to restructure the Family Court and the Federal Circuit Court in a way that all the experts say will make what is already a bad situation even worse for Australian families and, as we should be putting first here, Australian children.
I want to state very clearly that what we see the Prime Minister and the Attorney-General doing here with these bills is essentially to seek to abolish the Family Court as a specialist and standalone court. This court system is a very proud Whitlam legacy. Like most of the great social reforms that have occurred in Australia, everything from Medicare to a world-leading superannuation system to providing free legal services to people in need, the Family Court of Australia has been a long-lasting and fundamental reform. We know now, though, that it needs to get better.
The Family Law Act 1975 brought about two major changes. The first was no-fault divorce and the second was the establishment of a family court. Let's be clear, it is a specialist multidisciplinary court—not specialist judges but a specialist court system—for the resolution of family disputes. Of course, there was huge debate on when those changes were made. History shows there were 28 sitting hours in the debate on that bill. There were many disagreements and much debate across both sides. The members of that House, 45 years ago, took it seriously. It's very disappointing to see how few members opposite are interested in speaking on these reforms today. There are plenty of people on our side who want to talk about this very important issue but very, very few opposite. You have to wonder if people even know what they're going to be voting for when the bells ring.
To the detail of the legislation: I suppose we should be thankful that the Morrison government isn't trying to reinstitute fault based divorce—that's the upside. But what it is proposing to do, by undoing the second of those major changes that the Family Law Act introduced, is combine the Federal Circuit Court and the Family Court into one court with two divisions, and that court would be called the Federal Circuit and Family Court of Australia. The current Family Court will become Division 1 and the current Federal Circuit Court will become Division 2 if this legislation passes. Both of them would operate under the leadership of a single Chief Justice and a Deputy Chief Justice, with a single set of rules and a single point of entry. The Appeals Division of the Family Court isn't being replaced by anything. Instead, all Division 1 judges would be able to hear appeals, either as a single judge or as part of a full court.
When the government originally proposed the merger in the last parliament, the current Attorney-General said he would stop appointing new judges to Division 1 as current judges retired, which would have gradually abolished the Family Court over time. He's backed away from that position and promised to keep appointing them, but nothing in this bill guarantees the continued existence of Division 1. The Attorney-General made his intentions for this merger very clear in the last parliament, and now we're meant to assume that he has changed his view as he says, 'Trust me.' I'm sorry; this side does not trust what those opposite say. We look at what you do. Those opposite very rarely can be trusted to do the things they say.
Even if this bill is amended to guarantee the continued existence of Division 1, that doesn't address the fundamental problem with this bill, which is that instead of increasing the specialisation in the family law system, which is what has been recommended by review after review, the Morrison government is watering it down. It shouldn't be a surprise, but it is a disappointment that this will profoundly harm Australian families, and in particular children, at what is probably their greatest time of need. This bill robs the Family Court of its essential distinguishing feature, and it collapses the Family Court into what is already one of the busiest, most poorly resourced and overburdened courts, the Federal Circuit Court.
If you're one of the six Federal Court judges at Parramatta trying to manage the current caseload for Western Sydney, which includes families in my electorate of Macquarie, you might be one of the three judges with 400 to 500 cases on your docket. All we're going to do, as the feedback from experts has demonstrated, is create longer waits, poorer decisions, and more delays and anguish for families already going through horrible experiences.
I want to talk about specialisation. If anything, the need for specialisation in this court has grown. When Whitlam established the family law court, he talked about a court with interrelated, co-located services and resources. Specialisation doesn't mean specialist judges; it's this whole system that operates around them. It was about creating an environment that would have regard to what Whitlam described as the 'human problems' of couples and families, not just their legal rights. For vulnerable children and families who need the family court system, they need one that is not only efficient but also safe and sensitive to their particular needs and vulnerabilities. That specialised understanding is paramount, but that's one of the things we're going to lose.
You'd expect that any decision about changing a system that has served us for so many years would be based on sound evidence. You'd expect that the government would have consulted widely. That has not happened. The Morrison government claims that the merger has been informed by independent reviews and inquiries over a decade. The only problem is that none of the reports listed on the Attorney-General's website as the source of the evidence even recommends this sort of radical reform. Not one of those reports even considered this sort of reform. In fact, only one of the five reports that is on the website recommended restructuring the Family Court and Federal Circuit Court, and it recommended an entirely different model which would have maintained a standalone specialist family law court.
I should also point out that, more recently, the interim report of the Joint Select Committee on Australia's Family Law System—the so-called 'Hanson family law inquiry'—listed almost 70 reviews of the family law system, and not a single one of these reviews had ever recommended that the family courts be structured in the way the government is proposing. So please don't stand there and tell us that this is based on expert recommendations and advice. This government, this Prime Minister and the Attorney-General have ignored all of the experts and the reviews. The only thing being cited is the findings of a six-week desktop review of data by two accountants from PricewaterhouseCoopers. Imagine that! You are making the most profound changes to the family court system in more than 40 years on the basis of a desktop review by two accountants. I fear the consequences that this will have for families. I urge them to reach out to me as we go through this process to find out what sorts of consequences it has. I hope the government then listens to those consequences and reconsiders the decisions that it has made.
In the time that I have remaining, I want to go to some of the experts who have spoken about this and put on the record their comments and findings about the proposal. There has been no meaningful consultation with the users of the family law system—Australian families. There's been nothing with the legal profession or other family specialists. Other than the Chief Justice, the government didn't even consult the judges of the Family Court, which is just extraordinary. If he'd bothered to listen, the Attorney-General would have heard from the Law Council of Australia, which undertook the most comprehensive landmark report on the family law system last year. Their advice was the opposite of what is happening here. They advised that a strengthened standalone specialist family law court with an increase in capacity to deal with family violence specialisation was the way forward. We've also got more than 110 stakeholders—ranging from women's legal services, community legal services, Aboriginal and Torres Strait Islander legal services, child protection advocates, disability services—all writing to the Attorney-General asking him—begging him—to abandon this proposal. They've been ignored.
I want to finish with the words of the very first Chief Justice of the Family Court of Australia, Elizabeth Evatt AC, who said that the proposed merger will lead to undesirable outcomes for children and families. She says:
Merging the Family Court into a generalist court will undermine the integrity and the structural specialisation of the Family Court.
This should not be happening.
I rise to speak on the Federal Circuit and Family Court of Australia Bill 2019. Almost by definition, people who are coming before the family law courts in Australia have had a relationship break down. They've had their hopes for the future, the sort of family life they wanted to have, the sort of relationships they wanted to have sometimes not be fulfilled and other times be smashed—sometimes literally smashed, by domestic violence, and often smashed by the consequences of job loss, of cultural and religious difficulties within a relationship, of a community where they couldn't find support to get through difficulties. And people who are accessing the parens patriae jurisdiction of the Family Court by definition have such a difficult situation with a child—and the child has such a difficult situation about rights, often to do with decisions about their health—that they need a court to assist them through it.
The family law jurisdiction is a place of social policy as well as a place of law, because it's about people's lives; not just their legal rights. As the great Labor Prime Minister Gough Whitlam said in November 1974, when speaking in the House of Representatives about the transformative Family Law Bill:
The Family Court will, of course, determine legal rights, which it is bound to do as a court, but it will do much more than that.
He put it this way: it's a court that will 'have regard to their human problems, not just their legal rights'.
More recently, the Hon. Alastair Nicholson AO RFD QC—the second Chief Justice of the Family Court, serving in that position between 1988 and 2004, and a man of intellect and experience—said, when he was making comments about the absolute unsuitability of this piece of legislation to pass:
Many involve the determination of important issues relating to children, including their rights and need for protection, not only from individuals, but also from government in its myriad forms. Many also involve problems of family violence and the effects of it upon the parties and their children.
The increasing number of cases in which issues of family violence and child abuse are raised has led to an even greater need today for family law jurisdiction to be vested exclusively in specialised judges who can give their full attention to the needs of family law clients without being diverted to exercise other unrelated jurisdictions. The current bill—
the bill we are debating today in this place—
undermines this principle, is not in the public interest and should not be enacted.
It is astounding that in the face of those comments, let alone the some 110 stakeholders who oppose this legislation—this reheated legislation—the current Attorney-General and all of the members of the government on that side of the chamber want to push this legislation through. This is not about ideology; this is about the lives of vulnerable children, and it's about the lives of all of our friends and family. There can't be a person in this place who doesn't know someone who has had a marriage or significant relationship break down and had to go through the Family Court system. Surely, there can't be a person in this place who doesn't understand how important that system is to the lives of people who are going through, often, trauma that they never thought they would have to experience.
We know it in my community. We are incredibly fortunate in my community, in Dunkley, to have the Peninsula Community Legal Centre, the amazing lawyers that work there, the incomparable Jackie Galloway who runs the centre, the support staff and the partnerships that PCLC has made. PCLC looks after the most disadvantaged and marginalised in our community, as community legal centres do across our country. They look after people who otherwise fall through the gaps, who can't afford private lawyers. Despite the best intentions of the family law system, of those who devised it and those who are its custodians, it is not often a user-friendly place, and people need lawyers to get through. Places like PCLC look after people who would otherwise fall through the gaps because they can't afford private lawyers and they don't qualify for legal aid.
More people would qualify for legal aid if federal governments—this federal government—would put more money into the legal aid system. They could represent more people going through the trauma of a marriage breakdown and having to deal with sorting out child custody arrangements, sometimes when they fear that their child's welfare, let alone life, is in danger as a result of the access of their estranged partner. Peninsula Community Legal Centre's clients are low-income earners. About 75 per cent of their clients have no or low incomes, and the most common legal problem faced by clients of PCLC is family law. Fifty-four per cent of their clients experience family law problems and more than a third of those clients experience family violence. We know that not only is Australia in an ongoing epidemic of family violence but also COVID-19 has exacerbated it.
Family law and family violence problems in my community that are looked after by PCLC are often complicated by the risk of homelessness, welfare concerns for children, disabilities or histories of substance abuse. These are complicated people with complicated lives who deserve a system that is specialised in looking after their needs and lawyers who are specialised in looking after their needs. PCLC, led by Jackie Galloway, are so concerned about the consequences of this piece of legislation that they were a signatory, in November last year, to an open letter to the Attorney-General along with—I haven't counted them—tens and tens and tens of people working in the family law system. It said the government's proposal to merge the Family Court and the Federal Circuit Court is wrong.
Reforms should strengthen a system, not lead to the diminution of specialisation. The government's proposed reforms, this legislation, will lead to the loss of a standalone specialist superior Family Court. Notwithstanding the talking points the Attorney-General has given to the backbenchers of the government saying that it won't, this bill will lead to the loss of a specialised family law court. It will lead to a loss of services for some of the most vulnerable of people in our community and it will do a disservice to what has, before this, been a proud legacy of the legal system in Australia.
There is no doubt that there are problems that can be fixed in the family law system. It is not inconsistent to stand here and be proud of our family law system and, at the same time, acknowledge that there are issues that need to be fixed. Some of those issues stem from something, one would think, as simple as properly funding the system, which this government has failed to do—budget after budget after budget. Some of those problems arise from the changes in society, from the increased prevalence and awareness of domestic violence and the need for the system to adapt to deal with that. But none of the problems in the family law system arise because we have a specialised family law court, and they won't be solved by merging it with the Federal Circuit Court full of people, some of whom have limited to no legal experience in the first place, of whom are mostly not specialists in family law. There's a reason people specialise in something. It's so they can give the best advice, the best judgement and the best outcome possible. This government doesn't like experts in a range of fields; we know that. But expertise is important. It means something. And we will lose that if this legislation goes through.
As PCLC and the other signatories to the 11 November 2019 open letter to the Attorney-General said:
We understand and support having a single entry point to the family courts and common rules so the family law system is easier for families to navigate.
They go on in the next paragraph to say:
… this can be done without abandoning the benefits otherwise available to children and families from a properly resourced and specialised court system.
The entire family law sector opposes this legislation, and it is pure hubris and arrogance of the Attorney-General and those on that side of the parliament to say that, somehow or other, they know better.
The briefing note published by the Law Council of Australia demolishes all of the speaking points that we've heard from the very few coalition members of parliament who are actually speaking on this legislation, which in itself says something. Here are the myths and misconceptions: everyone in the system has known for years it needs to be reformed, but no-one has able to agree on the best way. In the family law system, 110 stakeholders agree the merger is not the solution and oppose the bill because it will 'put families at risk'. This is a government that talks over and over again about the importance of protecting vulnerable children, and here they are putting forward legislation that the Law Council of Australia says will 'put families at risk'. They support the Family Court 2.0 model proposed by the New South Wales Bar Association. There are other options out there.
The second misconception put forward by the government is that this merger has been informed by independent inquiries over a decade. No, it hasn't. Inquiry after inquiry has done the opposite of saying that the courts should be merged. A desktop review by an accounting firm is no replacement for the evidence given to inquiries by people who have worked in the system and people who have had their marriages and their relationships dealt with through the system—people who are actually experts in the system.
The Law Council of Australia, anticipating the speaking points that would be used in the debate in the chamber today, have said that misconception No. 3—that the merger proposal will not abolish the Family Court—is wrong. The Attorney-General might have tweaked this version of the legislation from the last one and said, 'No, I won't follow on with that idea that we will stop appointing judges to division 1.' No-one believes what he says. Everyone is concerned that the outcome of this legislation is to abolish the Family Court. It won't increase efficiencies or reduce delays in the system. It won't save money. It will cost money, and it could well cost lives.
I want to respond to something that the member for Fisher said about the Lighthouse Project, which is about specialised family law court systems for domestic violence, and remind the member for Fisher and this chamber that that legislation should have gone through the parliament in February. Nine months later, we are still waiting for that pilot project to start, because the government didn't push it.
On behalf of my community—the Peninsula Community Legal Centre led by Jackie Galloway, every single organisation that is involved in the family law system and the men, women and children who rely on that system for a fair and decent outcome for one of the most horrific times in their lives—I oppose this legislation, and I join the voices of everyone else who is asking the government and the Attorney-General to put aside ego, put aside a belief that they know more than others, listen to what the community is saying to them and withdraw this legislation.
I stand here to speak on the Federal Circuit and Family Court of Australia Bill 2019 as a bit of a veteran of the Family Court. I think it's quite well known that I'm onto my third husband now. This one's a keeper though! In all seriousness, I have had the experience of having to go through the Family Court under some very trying circumstances. I currently sit as a member of the Joint Select Committee on Australia's Family Law System, of which you, Mr Deputy Speaker Andrews, are chair. I don't want to speak on your behalf, Deputy Speaker, but I think everybody on that committee has had moments where we absolutely despair at some of the stories that we are hearing about the experiences that people are having in the Family Court system as it currently is, regardless of which parent it is or whether they have children. The experiences of people going through the family law system at the moment really do warrant some special attention. There is no doubt that the system absolutely does need reform.
But this is not the kind of reform that the system needs. Indeed, the member for Isaacs very eloquently earlier today gave us the background on the family law court, its inception and the purpose for which it was developed in the 1970s. That purpose was a response to and a recognition of the need to have a specialised family court to deal with issues of family separation, particularly with regard to the interests of children but also to the interests of parties, in a situation where a marriage irreconcilably breaks down and where they have to go to court. And let's not forget that not everyone ends up in the Family Court; it's a small number of cases overall that end up in the Family Court.
So the history of the Family Court and the intent of the Family Court, I believe, are worth noting. But they are not only worth noting; they are worth saving. Absolutely they are worth saving. The expectation of a family law system to deliver the outcomes that the Whitlam government had as a vision of this specialist family law court, I believe, need to be reaffirmed and recommitted to.
Effectively, however, this legislation does away with the family law court altogether. It does away with the specialised court for family law matters. It really is the culmination of successive years of decimation of the Australian family law system. Over the last seven years, the system has been undermined by absolute neglect: neglect by a government that was led by Tony Abbott, neglect by a government that was led by Malcolm Turnbull and now neglect by a government currently led by this Prime Minister. And the response that we've got from this government is to simply introduce legislation to do away with the Family Court altogether, merging it with the Federal Circuit Court. It is a response that, as previous members from this side have pointed out, is completely unsupported by the empirical evidence, by any of the expert organisations in the field or, indeed, by people who are going through the system.
Of all the submissions that the joint select committee on family law has looked at, none of them have said, 'Abolish the Family Court.' It is not mentioned once in the interim report from this committee, and it has not been mentioned in various reports and various reviews of the family law system. Even the suggestion of abolishing the Family Court is not one that has come from within the sector, it is not one that has come from the people who have experience with the Family Court and it is not even one that has come from any government or parliamentary inquiry into the Family Court. It appears that it is merely a figment of this Attorney-General's imagination and an outcome this Attorney-General seems intent on achieving, and he's on his own. Nobody out there—none of the organisations, nobody involved in the Family Court system—is backing that outcome.
The family law system over the last seven years has completely been decimated by this government. There are ways to fix it, but this is not the way to fix it. Here is what this bill does: it doesn't fix the huge workloads that judges have. It doesn't fix the desperate need for more resources. It doesn't fix any of the issues that have been outlined in the interim report from the joint select committee on Australian family law. It doesn't fix any of those. What it does do, effectively, is abolish the standalone specialist Family Court as we know it, collapsing it into another court that is already one of the busiest, most under-resourced and overburdened courts: the Federal Circuit Court. In doing so, it harms vulnerable children and families in need of specialist family law assistance.
The families that end up at the family law court—I'll tell us this from experience—didn't get there because we managed to work things out amicably and figure it out amongst ourselves. We got there because of particular circumstances. In many cases, domestic violence is involved. I've always been in awe of people who can end a relationship and remain friends—those people that end up going to each other's wedding and doing all of that. I've never been one of those people. And let me tell you, when a family ends up in the family law court, it's because they have reached a stage where every form of mediation has broken down and they are at an acute stage of needing that assistance.
The supposed merger that will ultimately lead to the abolishment of the family law court will also result in increased cost, time and stress for families and for children. It will place further stress on Federal Circuit Court judges, who are already struggling under humongous workloads. It will fail to alleviate fundamental problems plaguing the family law system. Speakers before me on this side, as well as the shadow Attorney-General, the member for Isaacs, have very clearly stated what those problems are, and they very clearly come down to one issue: the issue of resourcing. Overburdened judges with huge case loads resulting in incredibly long waiting times are the heart of the problem. Instead of addressing that problem, the Attorney-General proposes instead to do away with the court altogether. It's not rocket science here—problem, solution. Finally, one of the things that this bill does in proposing a merger is fail to address the risk of family violence for any of the families that fall through the cracks.
The Law Council has developed a very comprehensive briefing note, and I note that members before me have referred to this briefing note. They are very much opposed to the merger of the Family Court, but they're not alone. In fact, there are more than 110 stakeholders who oppose this merger for the various reasons that I've just outlined. When you have 110 different stakeholders who work in the system—who intimately know the system, who work with clients, who work with families, who work with victims of family violence—say that they oppose a merger, they oppose this bill and they oppose this move by the Attorney-General, why on earth would you persist?
One of the jobs that we have here is to listen—to listen to people, to listen to experts, to take the advice and to listen to what Australians want—and not to thumb our noses at the experts and thumb our noses at the stakeholders and say: 'No, no, I'm sorry. I know better.' I'm sorry, the Attorney-General does not know better than the Law Council and 110 other stakeholders, who have very clearly articulated not that they oppose this bill for no reason but that they oppose this bill for this reason: because it will not deliver the kind of reform that is needed to make the Australian family law system workable. What it will do is exacerbate already trying and stressful conditions for families by merging the court into the Federal Circuit Court, where judges there are already dealing with astronomical case loads and astronomical workloads.
I'm not going to speak much more about this, because I know that there are many more of my colleagues on this side who want to speak about this matter and why we, along with 110 other stakeholders, oppose this bill, but I point out the stark contrast between the number of people on the Labor side who are standing up to speak on this bill, standing up as a voice for their communities, standing up as a voice for the families and the children and the predominantly women escaping domestic and family violence who will be impacted by this bill, and compare that number to the meagre number of—what was it?—two speakers from the government side. There are two speakers on this bill from the government side. I think that speaks volumes. I think that says a lot about just how much this government is willing to listen to experts and willing to listen to those people who are impacted by the changes proposed by this arrogant Attorney-General who refuses to listen to advice, refuses to heed the evidence and is just following his own whim and his own outcome for a sector that he obviously knows very little about.
I rise with many of my colleagues to speak on the Federal Circuit and Family Court of Australia Bill 2019 and the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019. I think what this government is proposing through this legislation is the most significant change to the Family Court system since it was first established in 1975. For this reason, this legislation needs to be very carefully considered and carefully thought out. I think this move by the Attorney-General is ideological. I think it's been poorly thought out. I think it's an act of bastardry, and I'm totally opposed to it. I have always believed in science and evidence, and listening to the experts, and I think this Attorney-General has done exactly the opposite.
These bills, which are almost 500 pages in length and make amendments to countless other bills, will not, as far as I can see, improve the family law system, and in fact will very likely make things worse. I say that with some experience. I consider myself a stakeholder in this argument. In my 40 years as a paediatrician, I have had a lot of involvement with families and indeed with the Family Court system. What I have learnt is that families are incredibly complex. In dealing with families, particularly within the legal system, one needs to listen to the experts, and that is exactly what this government has not done.
In the last parliament and in this parliament I have been a member of the House of Representatives Standing Committee on Social Policy and Legal Affairs. I had the opportunity in the last parliament to take part in a very extensive inquiry into the Family Court system in Australia that considered many aspects of the family law system as well as the Family Court system. As part of this inquiry, the standing committee held a number of hearings all over Australia. We spoke to countless stakeholders. I must say, some of the evidence that we were given was incredibly harrowing. We visited different courts across the land. Our committee, through its investigations, uncovered some truly disturbing aspects of our judicial system, and found that our legal system in terms of the Family Court system is definitely in need of reform and is definitely in need of proper funding.
You will understand, Mr Deputy Speaker Kevin Andrews, that Labor wants to ensure that this legislation is carefully considered and looked over with a fine toothcomb because of the implications. These bills put forth by the government seek to combine the Federal Circuit Court and the Family Court into one court, establishing the new Federal Circuit and Family Court of Australia. This effort to streamline and further compact our justice system brings the two courts into a single entity, having both covered under one umbrella. This means the 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.
What we did learn in our inquiry is that the Family Court system, the family law system and dealing with families require experts in the field. Unfortunately, this legislation ignores that. The two amalgamated entities will undertake the same roles and functions as they currently do, but the Attorney-General has expressed an intention not to appoint new judges to the FCFC division as they retire. This is the division that, under this legislation, will replace the existing Family Court. What this means, in not so many words, is that this legislation will amount to a gradual abolition of the Family Court over time and a gradual abolition of any concept of expertise in dealing with Family Court matters. These bills will result in the work of the Family Court being absorbed into the Federal Circuit Court.
The Morrison government should come clean and own up to what it is doing here. Through these bills, the government is trying to abolish the Family Court—one of the great legacies of the Whitlam government. When this legislation was first brought before the House some years ago, it appeared as though the government was trying to do this under a cloak of secrecy. Disgracefully, it appears as though those opposite haven't even bothered to consult with the families currently in the system or the experts dealing with family law. They are seeking to get rid of the Family Court and haven't bothered to consider the families who have used it in the past and are using it now.
My role on the previously mentioned 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 definitely in need of reform. It is undeniable that the Family Court presently is in need of increased funding and significant changes. We've heard repeatedly that issues such as backlogs and unacceptable delays in the court system increase the risk of family violence to children and predominantly to mothers caught up in the system. The reality is that the Abbott-Turnbull-Morrison government is at least partly to blame for this by underfunding and not understanding the role of the Family Court. You won't hear those opposite admitting to this truth but all the experts say this.
The supreme peak body of the legal system in Australia, the Law Council, is totally opposed to this amalgamation. The government has not funded the court appropriately and the backlogs have increased, and their failure to adequately fund legal assistance services and their failure to adequately supervise and understand the role, for example, of court appointed children's solicitors had led to multiple problems and some disastrous outcomes.
The government has botched all due process in this legislation. They've failed to consult the broader community. They've failed to give time to groups of experts presenting to the government and explaining their recommendations. They have led to, I feel, a really retrograde step in the family law system. It's worth noting that the inquiry of which I was a part in the last parliament made 33 recommendations for the government to improve our family law system. It's worth noting that not one of those 33 recommendations has been accepted by the government. Not one of those recommendations talked about amalgamating the Family Court into the Federal Circuit Court. The government has not adequately explained their reasons for ignoring those recommendations. The government has failed to act on a vast number of recommendations that would improve the system and make better outcomes for families.
It's not simple. We admit that. We understand that. This legislation is somehow being presented as a way of simplifying a system that is, of course, complex because of the very nature of families. As I've mentioned, I've been dealing with families all my working life, and families are complex. They're not easy to deal with sometimes. There's often conflict when families break down, and that conflict can lead to some poor outcomes. What we need to do is listen to the experts as much as we have done in the pandemic—Australia's had a good response to the pandemic because we've listened to the experts. The family law system is the same. We should listen to the experts and do what they suggest is best for the family law system in Australia.
At the present time, we know, the majority of cases are being heard in the Federal Circuit Court. All the evidence that we've obtained indicated it's far better if the court has expert judges, expert family assessors, expert solicitors and expert court attendants that have learnt to deal with family law on an ongoing basis. What the current Attorney-General is agreeing to do with this legislation is hand over all legal matters pertaining to family law to the generalist Federal Circuit Court. All the available evidence suggests this will lead to worse outcomes, not better outcomes.
Many matters that are presently handled in the Federal Circuit Court are those cases which are very complex and are therefore typically dealt with in the Family Court. This court is appropriately presided over by personnel who are equipped to deal with complex Family Court matters—they are specialist judges with the appropriate level of expertise required to hear such cases. It's because of the complex nature of these select cases that matters that are referred to the Family Court can take long time to resolve. The specialist skill and detailed consideration that is required to hear such cases, often involving children, 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 required to consider complex family law cases in detail. I would say, as a paediatrician, it's also very important that specialist children's court appointed solicitors are properly trained in family law and are properly trained in their responsibilities to deal with the wishes, wants and needs of the children involved in family law. I'm very worried about what will happen to the children's interests in these situations if the matters are all heard by a generalist Federal Circuit Court. It appears to be mere semantics to the government, however. With a swipe of a pen, they can approve the abolition of a crucial, established and well-regarded court system with its institutional knowledge and capabilities.
I will just go back very briefly to the government's failure to undertake the appropriate level of consultation. This legislation, as I've mentioned, is very significant and a major change. The Liberal-National government should have at least attempted to get some input from the wider community and relevant stakeholders. They have handled this whole debate and the development of their legislation very poorly. I can only feel that this is ideological. They have not bothered to pretend to engage with the people and groups that are in the family law system every day. They've neglected the family groups, the registrars, the legal assistance services, the lawyers and the judges. They didn't want any oversight, they didn't want to have to consult and they certainly didn't want any scrutiny. This is evident through 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.
We are firmly in favour of adequate consultation, especially on such significant matters, and I think anyone involved in the Family Court would understand this and agree with it. The issues that are presently plaguing our judicial system should be addressed, but the government cannot hope to do this without reaching out to stakeholders. Instead they are merely abolishing the Family Court. This is a tragedy that is evolving. It is a shame. It is ideological. It is something that we should all be ashamed of. I'm firmly of the opinion that all stakeholders, whether they're in favour of the changes or not, should get the opportunity to have their say on these vitally important matters. To me, the government's failure here demonstrates their laziness and their ideology. Rather than actively engaging with the broader community, hearing people's experiences in the family courts and having appropriate discussions with the experts, they originally sought to rush this legislation through. Rather than actually trying to solve the underlying problems, the government appeared to be attempting to brush the issues under the carpet and hoping they would go away.
The Attorney-General and his out-of-touch government can pretend all they like that adequate consultation has been undertaken, but the evidence certainly says otherwise, as do the expert groups. This is complex legislation that takes around 500 pages to outline, with amendments to 120 other acts, and is effectively axing an essential institution, yet it seems as though this government thinks it's okay to consult with just two people. That's right: it appears as though the government's original consultations were limited merely to the Chief Justice of the Family Court and the Chief Justice of the Federal Circuit Court. This style of government is like a toddler having a temper tantrum. As a paediatrician, I have witnessed many of those, but this one takes the cake. Make no mistake about it: that is what the government is doing here. Rather than dealing with the issues facing the Family Court, they've just suggested wiping it. In an ideological, haphazard manner, they choose simply to close the whole institution down.
I've already mentioned that as a member of the Standing Committee on Social Policy and Legal Affairs I was part of an inquiry that looked into the family law courts. This inquiry was eye-opening and reinforced what I believed, and it's an absolute tragedy that the government ignored it. I've had a great deal of exposure to the legal system—the Family Court system in particular—and I would not deny that the issues are very complex. The inquiry undertaken by the standing committee uncovered a number of problems associated with the legal system and, indeed, with the Family Court, but our recommendations would have improved it markedly. The inquiry proved that the difficulties facing many Australian families are due to underresourcing. This government has got this bill wrong from the start to the finish. They should do the right thing now and listen to those with everyday experiences in the family law system before they inevitably make matters worse through such a poor approach to addressing this crisis.
I'm happy to speak today on the Federal Circuit and Family Court of Australia Bill 2019 and the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019. Two years ago almost to the day, I spoke on legislation introduced into the 45th Parliament that was broadly the same as the two bills currently before the House. Two years ago Labor didn't support these bills, and Labor still doesn't support these bills.
So what's changed in the last two years? For one, the Australian Law Reform Commission has delivered its comprehensive review into the family law system. When the ALRC review was commissioned by the Attorney-General at the time, George Brandis, he described the review as 'the first comprehensive review of the family law system since the commencement of the Family Law Act in 1976'. Did the ALRC review recommend merging the courts, as these bills intend? No. The ALRC didn't recommend anything remotely like the reform that these bills will implement if they are passed.
Since I last spoke on these bills, the Joint Select Committee on Australia's Family Law System was appointed and asked to inquire and report on a wide range of issues relating to the family law system in Australia. I'm a member of that committee very ably chaired by the member for Menzies, the previous Deputy Speaker. Has the committee tabled a final report? No. The committee did table an interim report, and that majority interim report contained no recommendations. Labor members of that committee tabled a dissenting report, which did make recommendations. One of those recommendations was to not proceed with the Federal Circuit and Family Court of Australia Bill. Labor members made that recommendation because of evidence heard by the committee about the dangers of proceeding with this very reform.
… the proposed merger of the Family Court and the Federal Court is likely to undermine the integrity of the Family Court and lead to undesirable outcomes for the parties.
The Attorney-General won't wait for the final recommendations of the joint select committee. He won't wait for the evidence given to that committee about the merger to be considered and recommendations made. He is charging ahead with his ill-conceived plan to abolish the Family Court as a specialist and standalone superior court.
The Family Court of Australia is one of the great legacies of Gough Whitlam. The establishment of a specialist court whose sole purpose is to hear family law matters was a distinguishing feature of those groundbreaking reforms in 1975. In 1974 the Senate Standing Committee on Constitutional and Legal Affairs said the Family Court would be essential to give substance to key aspects of the Family Law Act. Anyone who spends time in family courts will quickly realise that, by necessity, those courts function quite differently from other general law courts. The matters dealt with in the family courts are unique to their jurisdiction. They make decisions based on the law but, often, getting to that determination involves a delicate analysis of facts and emotions and, in most cases, other complexities like family violence, mental health issues and drug and alcohol issues. It is quite different from every other area of the law. It is why many lawyers choose to practise exclusively in family law or don't practise in that area at all. It is an area of law that doesn't suit everyone. It is a specialist area of the law that needs a specialist court.
In contrast, the Federal Circuit Court is a generalist court. It hears the less complex family law matters, if there is such a thing, but it also hears a great many migration matters and many general federal law matters. In the last year the Federal Circuit Court of Australia has had 6,555 applications filed in migration law and 3,778 applications filed in general federal law. The most recent annual report of the Federal Circuit Court says there is a 'growing number of applications in areas of general federal law' including 'an increased number of applications filed in the fair work jurisdiction' and a 'sharp increase in migration filings', which the report says is a 'pressing issue for the court'. The annual report goes on to warn about the increased filings in migration law. It says:
Filings continue to grow at an unprecedented rate and this growth is placing increasing pressure on judicial resources.
Yet these bills will effectively abolish the standalone specialist Family Court and squash it into an already overstretched and under-resourced generalist court.
This is not reform. This is sabotage. It is so absurd that yesterday afternoon there was a joint media release issued from the most respected legal bodies in Australia, including the Law Council of Australia, Community Legal Centres Australia, who were at the frontline, the National Aboriginal and Torres Strait Islander Legal Services and Women's Legal Services Australia along with the first Chief Justice of the Family Court and the second Chief Justice of the Family Court. The media release was scathing about this proposed reform from the Attorney-General. Former Chief Justice the Hon. Elizabeth Evatt AC said this in the media release:
The increasing number of cases in which issues of family violence and child abuse are raised has led to an even greater need today for family law jurisdiction to be vested exclusively in specialised judges who can give their full attention to the needs of family law clients without being diverted to exercise other unrelated jurisdictions. The current bill undermines this principle, is not in the public interest and should not be enacted.
It is unbelievable that Government would propose the dissolution of a Federal Superior Court in this fashion without the most careful and searching Public Inquiry and without carrying out significant research and without consulting the many experts in this field.
The National Aboriginal and Torres Strait Islander Legal Services say this bill will 'disproportionately impact the most vulnerable, including Aboriginal and Torres Strait Islander children and families who need the most support'. So these bills are friendless. They're as lonely as a broken heart. They're like the last Tasmanian tiger, Benjamin. Remember that footage of him walking around a cage in the Hobart Zoo? The last thylacine—that's what these bills are. They're completely friendless.
So why is the Attorney-General so intent on pushing this reform through? That's a very good question. His media release, just 10 days ago, said the legislation would create one set of forms; one set of procedures, rules and practice management styles; and a single entry point. Let's just take these one at a time. The current Chief Justice, in his year in review contained in the recent Family Court of Australia annual report, details some projects currently being undertaken by the court itself—ones that don't require legislation. One of these initiatives is the harmonisation of the notice of risk and registrar delegations. The Chief Justice says this initiative is 'a precursor to formal rules harmonisation', which I will get to in a minute. The courts themselves have already redesigned each of the forms used for risk notification into a comprehensive notice to be called the 'notice of child abuse, family violence or risk'. It will be mandatory to file this notice with every initiating application response and application for consent orders seeking orders under part VII of the Family Law Act. The application forms in both courts are currently identical. There is a box at the top for you to tick which court you are filing the application in. That's the only difference. This bill is not needed to harmonise the forms of both courts.
The second reason the Attorney-General has given—to create one set of procedures, rules and practice management styles—has already been addressed by the courts themselves. The Chief Justice, in his annual report, says:
The second area being harmonised and expanded as a priority is the rules that delegate judicial power to registrars in the family law jurisdiction.
Don't get me wrong—registrars do great work and let judges get on with their important job. The Chief Justice goes on to say this about the initiative:
This will allow registrars … to provide greater support to judges by assisting with case management work and free up judicial time so that judges can focus on determining the most complex matters and hearing trials.
That's a sensible reform—one that I support—but one that does not require the passing of this legislation. The Chief Justice also details an initiative to reconcile case management procedures in family law across the two courts. In January, the Chief Justice issued the first joint practice direction, 'Core Principles in the Case Management of Family Law Matters'. That practice direction, which the courts and their users are required to adhere to right now, did not then and does not now require the passing of these bills.
The Chief Justice also shared in the annual report the work of the joint rules harmonisation working group, which has been progressing the harmonisation of the Family Court rules and the Federal Circuit Court rules over the past 12 months. The working group's efforts have produced a complete draft of the harmonised rules, which has already been distributed to all judges for consultation and will then be distributed to the profession and other stakeholders for external consultation in the second half of 2020—which, according to my watch, is about now. That's how far along this process that will result in one set of rules over both courts is. And, I stress, this did not require the passing of these bills.
The only other point the Attorney-General made in his press release was that advocacy for the need for these bills was for a single point of entry. As I've said previously, the application process for filing in either the Family Court or the Federal Circuit Court requires the same form, and the applicant simply ticks a box as to which court they're filing in. I would suggest, after speaking with practitioners, that in most cases this is actually done by guesswork. Matters are routinely moved between both courts. For instance, if an application is filed in the Federal Circuit Court but is actually complex, it will then be moved up to the Family Court. A single point of entry where the registry determines which court the application should be filed in makes sense, but it doesn't require the merging of the two courts.
So far, out of the Attorney-General's shopping list of reasons why these bills need to be passed, none require the courts to merge or this legislation to be passed. The Attorney-General claims that 8,000 additional cases could be resolved each year—a noble aim—as a result of efficiencies delivered through the restructure. This reference is from the desktop review conducted by PricewaterhouseCoopers back in 2018. We know a couple of things about that PwC review. We know it was conducted over a period of six weeks, it didn't consider detailed or broader reform opportunities and it did not consider revised budgetary allocations or reform opportunities within general law. One of the partners of PwC gave evidence to the Senate Legal and Constitutional Affairs Legislation Committee and said about their recommendation for reform:
… we recommended in the report that the potential impacts of all opportunities identified be explored further to fully understand their impacts, including through further data capture and analysis.
The partner also told the committee:
Our focus of the report was very clearly on operational data; it didn't consider detailed reform opportunities.
In fact, the report says:
Where there is likely a divergence in operational changes proposed by this Review and subsequently by the ALRC, advice should be sought from court stakeholders to understand where and how opportunities could be implemented in practice and which would bring about the greatest positive outcomes. Assessment of those opportunities, informed by detailed analysis, should underpin decision-making.
Of course, the ALRC did not recommend the merging of the two courts. The PwC report does not provide any credible economic foundation for the merger of the Family Court and the Federal Circuit Court.
There have been 67 inquiries and reports into the family law system since 1974. None of those 67—not one—has recommended the reform contained in these bills. There have been 67 inquiries, reviews and academic studies and none have recommended the reforms that Attorney-General Porter is attempting to inflict on Australia's Family Court system with these bills. There's a reason none of those 67 reports have recommended this reform. It is because it is bad policy. We know that. Lawyers know that. Frontline legal services know that. Former judges know that. And families using the courts will find that out very quickly if these reforms are implemented. Someone who is accessing the courts regularly for her clients, Ms K, a family lawyer with a remote practice based in, let's say, South-East Queensland, has told me: 'The ongoing delivery of specialist services to children and families requires a specialist court, and that we already have.' She's not alone in that opinion. Former chief justices, the Law Council of Australia, National Aboriginal and Torres Strait Islander Legal Services, Community Legal Centres of Australia, Women's Legal Services Australia and 110 stakeholders have all publicly called on this parliament to vote against these merger bills. They say that the passing of these bills will increase costs, increase delay and increase stress for families.
These bills should be ripped up and a proper process of reform should commence, one in which stakeholders who know the courts best should be consulted. Credible evidence should be assessed and proper reform designed for these important courts and the families who rely on them. Perhaps waiting for the Joint Select Committee on Australia's Family Law System, chaired by the member for Menzies, would be a good start.
So I do not recommend supporting this fundamentally flawed legislation, but I do support the second reading amendment moved by the member for Isaacs.
I rise today to speak on the Federal Circuit and Family Court of Australia Bill and the associated consequential amendments bill. These bills seek to unify the administrative structure of the Family Court of Australia and the Federal Circuit Court of Australia to create a Federal Circuit and Family Court of Australia comprising Division 1, which would be a continuation of the Family Court, and Division 2, which would be a continuation of the Federal Circuit Court.
Much has been said about this legislation, and there's nothing particularly good that can be said about this legislation. It's a merger of two overstretched courts without substantial additional resources to support them. It can't even be described as a bandaid solution because I don't think it even counts as a bandaid. I strongly oppose this merger. The courts are overrun, and judges are overwhelmed. Many are taking mental health leave and some are physically collapsing. Those who leave are often not replaced. We have parties who are distressed and who are attending the courts to seek an early resolution of issues that go to the heart of their sense of self, of their family unit, of their relationship with their children or of their ability to house themselves and meet their bills, and they're often told they have to wait months to get before a judicial officer. Instead of responding to the experts and implementing some changes and amendments that would actually help the system, this legislation really is not going to address any of that. The Senate Legal and Constitutional Affairs Legislation Committee supported the implementation of this bill and, in response to that—that was a highly bipartisan approach—the President of the Law Council of Australia said:
The report on the merger by Government Senators is entirely unsatisfactory because it does not engage in any meaningful way with concerns raised by more than 110 stakeholders who work in the family law system and witness daily, the impacts on children.
The family law and legal community more broadly are united in their doubt that these changes will achieve their stated objective. The Attorney-General's Department explained that the legislation's primary purpose is to improve justice outcomes for Australian families and make the federal law court simpler and easier for families to access. But the Law Council, the Australian Women Against Violence Alliance, the Queensland Law Society, the Community and Public Sector Union, Community Legal Centres Australia and the New South Wales Bar Association, amongst so many others, questioned whether these bills would achieve these objectives. The National Aboriginal and Torres Strait Islander Legal Services instead indicated the bills would not address the problems of delays and inefficiencies in the family law system and should be rejected.
The argument has been mostly based, it appears, on a six-week desktop review of potential efficiencies conducted by PwC. Is this really what it's come down to—potential efficiencies that will impact the lives of so many people that have to engage with the family law system? They're distressed. Their emotional distress is being brought down to 'potential efficiencies' by some pen-pushers at PwC. In 2018, the authors of the report appeared before the Senate committee, and their claimed deficiencies were absolutely dismantled by the Senate committee questions. Even the authors of the report ultimately walked away from the numbers. The desktop review lasted only six weeks. It didn't interview any lawyers or families with experience of the family court system, and the headline efficiencies are not supported by evidence and did not result from meaningful engagement with those who know and use the system.
The principle of a single point of entry is something that is worthy of discussion, but many have argued that that's not necessarily what's going to be achieved with this bill. And, if the price of a single point of entry is losing the specialisation of the Family Court, that is absolutely the wrong direction. The court's annual report shows that the current caseload is unbelievably stretched. I must say that, before joining this place, as a family law barrister, I experienced firsthand that caseload. I know what it's like to turn up to court with a client and wait for hours, and have a judge, completely overwhelmed by their caseload and the numbers of files before them, simply tell clients that they're very sorry, but they will have to come back, often in two to three months time, with their issues completely unresolved. There was additional funding provided in this year's budget, but the funding won't translate into a meaningful reduction in the strain on the system unless we make meaningful amendments to the system. And, in fact, these bills will exacerbate the problem. According to the Family Court's 2019-20 annual report, 21,054 applications were filed in 2019-20, which was the highest number of filings in five years. The Family Court's annual report confirmed that there continues to be a backlog of more than a year's worth of cases, with more final orders applications pending at the close of this year than were finalised within the financial year. The wait is getting longer. The Federal Circuit Court disposed of 62 per cent of final order applications within 12 months, falling significantly short of its target of 90 per cent, for the second year in a row.
The Family Court warned that the impacts of COVID-19 will continue to be felt by the system, litigants and judges in the year to come. Hearings that were scheduled months in advance to occur in 2020 are now being cancelled by email and rescheduled, with some final hearing dates now not being available until 2022. Just stop for a moment and think about that: a party going to court to assist with resolving an incredibly sensitive issue is being told they will wait two more years before even getting a chance to argue their case. Proceeding with the amended merger bill at a time when the Federal Circuit Court is already struggling due to chronic under-resourcing and underfunding to manage its family law load, alongside a crushing and growing migration workload, is reckless, and it will put both litigants and judges at significant risk.
The Productivity Commission 2020 Report on government services revealed that, between 2012 and the close of 2019, the backlog of all pending non-appeal applications in the Family Court grew by 34 per cent, while the backlog of all pending applications in the Federal Circuit Court grew by 63 per cent. The Law Council has argued that, while the increased legal assistance funding provided by the National Legal Assistance Partnership announced in June this year is certainly welcome, the funding contained in this year's budget is insufficient to address the significant unmet need in the system and the courts, and a one-off injection cannot rectify a decade of chronic under-resourcing.
We need to be clear what COVID-19 has done to this system. The number of urgent applications filed over four weeks in March and April alone increased by 39 per cent in the Family Court and 23 per cent in the Federal Circuit Court. The courts told the merger inquiry hearing on 6 November that, during the COVID-19 pandemic, urgent family law application filing had increased by 142 per cent in the Family Court and 63 per cent in the Federal Circuit Court. As of 6 November 2020, two in three Federal Circuit Court judges have more than 300 matters on their dockets, 27 judges have more than 400 cases on their dockets and five judges have more than 500. One judge has 659 cases. In the Family Court, two-thirds of judges have more than 300 cases on their dockets and five judges have more than 500 cases. To put this into perspective, the 2017 House inquiry into the better family law system recommended reducing docket sizes to something like 100 cases per judge to significantly reduce delays. This means we need a significant increase in the number of judicial appointments. What we really need the government to do is increase the number of appointments—the number of judge positions available. It's not about just filling vacancies, because we know the existing number of positions is inadequate.
… the proposed merger of the Family Court and the Federal Court is likely to undermine the integrity of the Family Court and lead to undesirable outcomes for the parties. It is inconsistent with the original aims of the Family Court, which was established as a specialist Court.
She also said:
With increasing numbers of cases in which issues of family violence and child abuse are raised, there is an even greater need today for family law jurisdiction to be vested exclusively in specialised judges who do not exercise any unrelated jurisdiction.
… the passage of the Family Law Act 1975 (Cth) and the setting up of the Family Court was some of the most significant social legislation ever to be passed by the Federal Parliament.
He said, 'We should be proud of that, instead of trying to dismantle it.' He also said:
What those proposing this merger do not seem to understand is that family law is complex and nuanced, and it is not to be judged by the output by numbers of cases as if the Courts are sausage machines. Throughput is important, but so is the quality of the decisions made. Cases can be extremely complex and require specialist knowledge of the type that has always been available in the Family Court, which has provided leadership in the proper interpretation and principles to be applied by other courts with family law jurisdiction.
We're actually the envy of so many other countries. The Family Court is the court that's been envied throughout the common law world, and its judgements have often been cited with approval by the courts of many other countries, such as New Zealand, the UK, Canada, the USA and others. So its significance as the only specialist family court set up as a superior court of record, particularly that of its appeal division, cannot be overemphasised. The former justices have joined more than 110 stakeholders on the front line, urging the parliament to vote against the merger bill, scrap it, go back and come back with some good legislation. This merger will only increase costs, delay and stress for families.
The Family Court and the Federal Circuit Court are really distressing places. I've appeared as a counsel for both mothers and fathers. I can't begin to convey the distress parties experience at being told that it will take months from filing to get before a judge for a decision. The practical aspect of this means the party might go without contact with their child for an extended period of time until allegations can be properly heard and assessed. It means the party may remain in serious financial difficulty and may even find themselves homeless until their case can properly be assessed. That's not acceptable, and this bill doesn't remedy that at all.
These issues impact every electorate. In Warringah we are the same. The problems of the family law system reach everywhere. A domestic violence pop-up shelter was set up in March with the onset of COVID-19. That shelter is housing 70 women and children who would otherwise be suffering or homeless. The Family Court and Federal Circuit Court are dealing with complex issues and they require the support of more specialised counselling services and also of specialised courts to deal with the issues. The Family Court is the only court that can support such complexity, and it needs to be staffed with specialists qualified to deal with the issues at the highest possible standard of care.
The Australian Law Reform Commission in May 2017 made a number of recommendations. The report was delivered on March 2019 and included 60 recommendations which would go a long way towards addressing the reform required in the family law system. Yet the government has still not responded to the ALRC recommendations that would improve the family law system. This merger was outside the scope of the inquiry, but we still have silence from the government on the ALRC recommendations. That's not acceptable. During the family law inquiry that I have been part of this year, we've heard from so many parties who have been let down by the system. If we genuinely want to address the problems, we must start with the recommendations of the ALRC. The Law Council president, Pauline Wright, said:
No amendment to the bill can cure what remains a flawed and dangerous proposal without evidentiary foundation.
There is no doubt we need reform in the family law system, but the merger is the wrong move. Lawyers, judges and families are united in their opposition. We need to help the courts better service distressed families, we need specialisation of professionals and we need to make sure that it is properly resourced and funded. We need more legal aid in the system so both parties to disputes can have access to assistance. We need more counselling for men and women. We need more funding for specialist judges and experts. So I urge the government: Please, this is a system that is a highly distressing court system. Everyday Australians are impacted by what happens in the family law system, and it actually needs proper structural assistance, not a merger and a shortcut.
I'm please to follow the member for Warringah, who has practised in this area and has very eloquently laid out not only the stresses on the family court system but the problems with this bill. Ultimately, what we should start from is what is going to protect children and families best, and the strongest protection for children, for families and for survivors of family and domestic violence is to maintain and strengthen a standalone specialist family law court involving a holistic specialist system of collaborative, culturally safe, co-located services and resources. This was the intention when the Family Court was created. The Family Court model is unique and, as we have heard from previous speakers, has been held up as a model of best practice internationally. Others look to the family court system that we have. Since being established some 45 years ago, by the Whitlam government, the Family Court of Australia has operated as the standalone specialist court.
But the radical and misconceived reforms in the Federal Circuit and Family Court of Australia Bill 2019 and the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019 would effectively put an end to that. Instead of working to fix the family law system, the government remains determined to restructure the Family Court and the Federal Circuit Court in a way that will make a bad situation worse for Australian families, including vulnerable children. The government's deeply flawed proposal is based on nothing more than a six-week desktop review performed by some consultants. The government's proposed abolition of the Family Court as a standalone specialist family court has been almost universally condemned, particularly by key stakeholders from NATSILS, the Law Council of Australia, the New South Wales Bar Association, women's legal services, community legal centres and advocates for the safety of women and children.
What families need now and what they look to the parliament to provide is safety, security and as much certainty as possible during the pandemic period but also beyond. At the core of so many of the issues confronted by the system is a chronic and sustained lack of proper funding and resources for the Family Court as well as the Federal Circuit Court. This failure on the government's part includes a failure to appoint and maintain sufficient and appropriately experienced judicial officers and associated staff, and insufficient funding to maintain the counselling and assessment services previously provided by the courts. As a result, there are judges who have dockets—case loads—of over 600. That is a failure on the government's part, and the Family Court itself should not be punished for the government's failures. Failing to strengthen the system has produced unacceptable delays as well as costs that directly impact on the accessibility and quality of justice.
Unlike the merger proposal, the Family Court 2.0 model that's favoured by key stakeholders proposes a straightforward lift and shift of the Federal Circuit Court's family law jurisdiction and judges into a new lower division within a standalone specialist Family Court. Family Court judges would be in division 1 of the Family Court of Australia, and Federal Circuit Court judges who are hearing family law matters would move across to division 2 of the Family Court of Australia. This model has been in force for many years in the Attorney's own state of Western Australia, and this system was also recommended by the 2008 Semple report and has been endorsed by stakeholders including the Law Council of Australia, Women's Legal Services Australia and the former Chief Justice Elizabeth Evatt AC. Unlike the governments merger proposal, the Family Court 2.0 model would have the significant advantage of promoting safety for children and adults by preserving access to services of a specialist family court. An increase in specialisation in family law and family violence law will increase the safety of children and adult victims-survivors of family violence, and this is particularly the case for groups that are disproportionately impacted in the family law and family violence systems, including Aboriginal and Torres Strait Islander First Nations people.
The need for increased and culturally safe specialisation of courts to improve decisions and outcomes for families is supported by the evidence of the many inquiries into the family law system. The point needs to be made and stressed that there is a remarkable lack of support and friends for this bill, in large part because it's not based on the evidence. It was based on a six-week desktop review to pursue ends that one can only think are ideological ends that the government already had. As a result, almost all of the submissions to the inquiry into this bill oppose it and propose alternatives such as the Family Court 2.0 system, which integrates both a judge level and a Circuit Court component. That kind of model would produce exactly what Australians clearly expect of their legal system: a single specialist family court to address the needs of the country's families within an integrated system of collaborative, culturally safe and responsive support services.
The alarming prevalence of family violence in the system makes specialisation critical to promote safe engagement for survivors with the courts and our justice system from the time a matter is filed, through appropriate triage and active case management to expedited resolution, all the while providing culturally safe wraparound services. A specialist Family Court must not be destroyed based on a mirage that this will fix problems which, in reality, require more resources and holistic reform. So far, as I've said before, what we know is that failing to strengthen the system has produced unacceptable delays and costs that directly impact on the accessibility and quality of justice.
In June 2020, the Australian government committed to increase funding of legal assistance services as part of the National Legal Assistance Partnership, but, whilst that funding is welcome and desperately needed, it is not sufficient to meet current need or to comprehensively address two decades of significant underfunding and cumulative shortfalls in funding from numerous governments. Increased ongoing and adequate funding through the National Legal Assistance Partnership must be a priority for the Australian government to ensure that the legal assistance sector can meet the demands placed on it in times of crisis and beyond.
I say to the House that this bill should not pass, and the government should instead properly consider not only resourcing the existing Family Court but also better alternatives such as the Family Court 2.0 model that has been put forward and is preferred by stakeholders. The government should also commit to at least an additional $310 million a year in funding for legal assistance providers—as identified by the Law Council, to make up for the shortfall caused by successive cuts to Aboriginal and Torres Strait Islander legal services, community legal centres, women's legal services and legal aid commissions. Substantial funding must also be made available to the social and support services that families and survivors of family and domestic violence require. Finally, and critically, the government must properly provide the required public money to allow the Family Court and the Federal Circuit Court to appoint and maintain sufficient numbers of appropriately experienced judicial officers and other staff that they may require to provide sufficient culturally safe, wraparound and responsive support for parties before the court.
In summary, this bill has no support and obtained no support during the inquiry process because it is a deeply flawed bill that cannot be fixed by amendments. The proposal underpinning it—to abolish a specialist standalone family court—is fundamentally misconceived. The answer is to properly resource the Family Court that we've got and consider the alternatives, like the Family Court 2.0 model, that have been put forward. It will be devastating for thousands and thousands of families around this country if this bill passes and if the Family Court is abolished, as this government wants to do, based on no evidence at all—nothing more than an ideological bent that is going to hurt families and children.
I rise to express sincere concerns about this bill, which I intend to oppose. Subsuming our standalone specialist Family Court into one of the busiest court administrations in this nation will do more harm than good. Any reform should strengthen a system, not diminish specialisation, especially when that system is designed to support families and children through some of the most difficult times in their lives. Justice must be timely, and in the case of the Family Court the delays are well known. But justice is not and should not be obsessed with achieving speed and efficiency dividends.
These reforms will strip back tailored systems and corporate knowledge that have taken decades to develop—everything from specialist staff who can identify and intervene in family violence to tailored procedures for vulnerable children giving evidence as witnesses. It's no secret that the Family Court faces workload and resourcing challenges, but so does the Federal Circuit Court, which also struggles to manage a caseload of less complex family matters alongside numerous other areas of law, including migration, bankruptcy and workplace law. A pen stroke to merge the two does not solve either of these problems.
When this proposal was announced back in May 2018, a broad coalition of law councils, bar associations and community legal centres across the nation flatly opposed it, including the Hume Riverina Community Legal Service in my electorate of Indi, and the Victorian law council. Even after consultation and the committee process over in the Senate, this coalition of stakeholders still opposed these reforms. Why? Because there is no evidence base for it and because there are better ways to achieve progress that are not as blunt as this bill, such as the Family Court 2.0 model.
As an independent, I am committed to evaluating each and every bill that passes through this place on its individual merits. Among other questions I ask myself are these ones: does this bill have a robust evidence base? Is this bill founded on principles of good governance? Does it serve the people it's intended to serve? I am sorry to say that this bill fails to answer many of those questions.
This proposal has been pulled out of thin air following a six-week desktop review this government commissioned via a private consulting firm. Even the final report from that private consulting firm did not endorse this proposal. In 2019, the Australian Law Reform Commission completed a landmark report on the family law system which included 60 recommendations for reform. The ALRC consulted with hundreds of stakeholders and carefully considered the family law system in Australia and its future. Nowhere in that report is the notion of merging these two courts entertained.
We should be doing all we can to respond to the family violence crisis in Australia. It's a well-known fact that the majority of matters lodged in family courts involve allegations of family violence. More than 30 per cent of people who seek help from community legal centres experience family violence. Dismantling our specialist Family Court model would be a retrograde step and put those at risk of family violence in greater peril.
The family law system remains woefully underfunded. We should be investing in proper resourcing and reform that has vision, not trying to drag and drop our way out of this crisis. We should be investing in reforms like those recommended by the ALRC—which the government has been slow to respond to—such as simplifying children's orders, improving access to family counselling and consultants, and supporting wraparound family law pathway networks the build in community health and domestic violence services. That's what we should be doing. This is not a bill I can support. We must not destroy our specialist Family Court based on a false belief that a merger will fix it or, even worse, bury the challenges that confront it.
I rise today to speak on the Federal Circuit and Family Court of Australia Bill 2019 and the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019. I want to echo the words of my friend and colleague the member for Isaacs, who has outlined just how bad this bill is. Through this bill the government is seeking to abolish the Family Court as a specialist and standalone superior court. The Family Court of Australia is a proud Whitlam legacy. Like most of the great social reforms that have occurred in Australia, from Medicare to our world-leading superannuation system to free legal assistance services for Australians in need, the Family Court of Australia is an institution that has served our nation admirably.
The Family Law Act 1975 instituted two major changes: it established the Family Court of Australia, a specialist multidisciplinary court for the resolution of family disputes; and it instituted no-fault divorce. Thankfully, the Morrison government is not proposing to reinstitute fault based divorce, but what it is proposing to do is to undo the other of the major changes introduced by the Family Law Act, which was the establishment of the Family Court of Australia as a specialist superior court. This would be a profoundly retrograde step which would harm Australian families and, in particular, children at their time of greatest need.
Like thousands of other families, I myself have been through the trauma of divorce. I did so with four kids in tow, all enduring the pain of that process, and it is very painful for some of us, perhaps even for most of us. I can't tell you how I appreciated the knowledge and skill of the specialists in the Family Court, who saw through the posturing and bluster; who managed the insults and the accusations; who sidestepped the blaming and the shaming, the anger and the pleading; and were not fazed by tears, not to mention managing to forge and land a fair and reasonable legal outcome. So you see specialisation does not just mean specialist judges.
The Whitlam government's vision of a specialist Family Law Court was of a court with interrelated co-located services and resources. It was about creating an environment that would have regard to what Whitlam described as 'the human problems' of couples and families and not just their legal rights. And that was exactly my experience.
The realisation of that vision has never been more important, especially for vulnerable children and families, who need a family court system that is not only efficient but also safe and sensitive to their particular needs and vulnerabilities. Everyone accepts that there are serious problems in the Family Court at present. The main cause of those problems, though, is not a mystery. As the Australian Law Reform Commission found, the family law system has been deprived of resources to such an extent that it cannot deliver the quality of justice expected of a country like Australia, to whose family law system other countries once looked and tried to emulate.
Over the last seven years, the story of the Australian family law system has been a story of neglect, neglect and more neglect. Family Court and Federal Circuit Court judges have not been replaced in a timely manner. Funding has not increased in response to increasing demand, and review after review, including many dozens of sensible and measured recommendations, has been ignored. The evidence from experts that this merger proposal will increase cost, increase time and increase stress for families and children and place further stress on Federal Circuit Court judges is particularly alarming. It makes a complete mockery of the government's claim that this bill will streamline services and make it easier for families going through this trauma.
The Senate Legal and Constitutional Affairs Committee heard evidence the average number of cases across all Federal Circuit Court judges is 337 at present—I repeat, an average of 337 cases per judge. For contested family law matters in the Family Court, it is currently taking on average 18.6 months from the date a matter is filed to the date on which the trial commences. In the Federal Circuit Court the average is 17.5 months. In some cases it is taking over two years from the date of a judgement being reserved to the date on which the judgement is finally delivered. In some Federal Circuit Court and Family Court registries it's taking on average 12 months for court appointed family consultants to produce family reports. A family report is an absolutely critical document that provides an independent assessment of issues in a case. Those reports help judges to make life-changing decisions about arrangements for children, noting that the main focus of a family report is the best interests of the kids.
These sorts of delays are not merely statistics. In its landmark 2019 report on the family law system, which the government has so far ignored, the Australian Law Reform Commission referred to a number of concerns associated with the present delays in the Family Court system, including the potential for children and parents to spend long periods living in limbo waiting for trial; the safety risks to parties and children arising from delayed resolution of disputes that involve protective concerns, including contributing to homelessness; the scope for delay and uncertainty to exacerbate conflict; and the potential for clients to consent to outcomes that fall short of the security and protection a court order can provide. Instead of working to fix the family law system, the government remains determined to restructure the Family Court and the Federal Circuit Court in a way that will make a bad situation worse for Australian families. You would expect that such a radical reform would be based on sound evidence and you would expect that the government would have consulted widely. It's not, and the government didn't.
The Morrison government claims that the proposed merger has been informed by independent reviews and inquiries over a decade. The Attorney-General's Department website lists five reports under the heading 'The evidence base for the reforms'. The only problem with that is that none of the reports listed on the website actually recommended these radical reforms—none! None of those reports even considered these reforms being proposed. In fact, the only one of the five reports that recommended restructuring the Family Court recommended an entirely different model which would have maintained a standalone specialist family law court.
The Attorney-General and the Morrison government have ignored all of this. Instead, in their efforts to promote these bills, the Attorney-General continues to cite the findings of a six-week desktop review of data by two accountants from PricewaterhouseCoopers. Imagine that: making the biggest change to the Family Court system in over 40 years on the basis of a short desktop review by two accountants—a review, by the way, that has been widely panned and thoroughly discredited. The Attorney-General did not undertake any meaningful consultation in relation to his proposal to effectively abolish the Family Court. There was no meaningful consultation with the legal profession or with other family specialists like counsellors or child psychologists. There was no consultation with users of the Australian law system—Australian families. Other than with the Chief Justice, the government did not even consult with the judges of the Family Court. The arrogance of the government is breathtaking.
This government's proposed abolition of the Family Court as a standalone specialist court is not merely friendless; it has been almost universally condemned. One hundred and ten stakeholders ranging from the Law Council of Australia to Women's Legal Services, Community Legal Centres, Aboriginal and Torres Strait Islander Legal Services, child protection advocates and disability services right across Australia have written to the Attorney-General asking him to abandon this proposal. They've been ignored. Those 110 individuals and organisations oppose this proposal because they believe that it will harm vulnerable children and families in need of specialist family law assistance. They think these bills will increase, rather than decrease, cost, time and stress for families and children in the law system; place further stressors on the Federal Circuit Court judges, who are already struggling under unsafe, unsustainable and unconscionable workloads; and, importantly, fail to address any of the fundamental problems plaguing the family law system, including the risk of family violence survivors falling through the cracks.
The president of the Law Council of Australia, Pauline Wright, has said:
There must be an increase not a decrease in specialisation in family law and violence issues. This is critical for the safety of children and victims of family violence.
The National Aboriginal and Torres Strait Islander Legal Services—which, I might say, are housed in my electorate—have said that the proposed merger:
… will disproportionately impact the most vulnerable including Aboriginal and Torres Strait Islander children and families who need the most support.
… … …
From our experience, as Aboriginal organisations, we say that mainstreaming does not achieve efficiency or better outcomes for our people and that specialisation in the law is important and it works. Our main call is for more specialisation and more resourcing into the cultural competence of the family court system. The introduction of specialist Aboriginal Courts in the family law system has seen an increase in Aboriginal participation. We implore the Parliament to do the right thing by our communities and reject this bill which does not address the root causes of these problems. We fear, in the middle of this global pandemic, the bill will exacerbate the issues that our communities are facing.
But, in his smug arrogance, the Attorney-General has dismissed these concerns with a wave of his hand. I genuinely don't understand how anyone could support these bills. I don't understand what it seeks to achieve. It will hurt traumatised kids at a time when they need support. The Attorney-General should withdraw these bills and simply concentrate on fixing the family law courts.
The Federal Circuit and Family Court of Australia Bill 2019, and the accompanying bill, the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019, is bad legislation. It's bad legislation, which is why Labor will oppose it. It's not thought through, it's not based upon evidence, it's not based upon any proper community consultation, it is, once again, an example of spin over substance from a government looking for a reason for its ongoing existence. The fact is that there are problems with the functioning of the family law system. This abolition of the Family Court of Australia, which is what it is, will do nothing to solve the problem—it will make it worse. It is regressive, it's not thought out and it's another example of a government that, in so many of its actions, has detrimental impacts on women in Australia in particular. This legislation will have a detrimental impact on women and children, particularly vulnerable women and children. It should be opposed.
The Family Court of Australia is a proud Labor legacy. It was one of the reforms of the Whitlam Government that was so important. It was a reform of a system that seems archaic today—that families that had breakdowns had to provide some form of evidence in a way that was often humiliating—that exposed families to the sort of difficulties that added to the pain of family breakdowns. In particular, it was a reform that was aimed at looking after women in our society. It was one that was subject to considerable debate. Indeed, nearly half of the then House of Representatives participated in that debate. A total of 59 members spoke on the Family Law Bill 1974. That's because that was a time when both sides of parliament were engaged in reform. What we have today is a government that bowls up legislation without putting forward an argument for it and isn't even prepared to defend it. The speaking list today is an example of that, whereby the government seeks to abolish a fundamental part of our legal system without even presenting an argument—just a couple of speakers from government members; a token effort. It is a government that isn't even prepared to defend its legacy.
The Family Law Act was important for two major changes. It instituted no-fault divorce as well as establishing the Family Court of Australia. Why did it do this? Because when it comes to this form of law, it does require that level of expertise, that knowledge, that comes from a specialist multidisciplinary court for the resolution of family disputes. It was a process which created an institution—the Family Court of Australia—which has served Australia well.
By contrast, what we have here is the product—after eight years and into its eighth year of neglect—of issues, of cuts, of a failure to appoint appropriate judicial members, of a failure to properly examine reform across the board. It is a story of neglect, neglect and more neglect—neglect by the Liberal government led by Tony Abbott, then neglect by the Liberal government led by Malcolm Turnbull and then neglect by the current Liberal government led by Scott Morrison.
What's the solution to the problem? 'We'll just abolish it. We'll just abolish the court.' It is quite extraordinary that they've come up with that. Of course, they will say that what they are doing is restructuring the Family Court and the Federal Circuit Court.
This is a government which, as we've seen, is dominated by the need to have spin out there. When the Prime Minister had to choose who would be with him during his period in quarantine, it wasn't the head of the Department of the Prime Minister and Cabinet. It wasn't his chief of staff or his key economic adviser. It was his photographer, for staged shots in the Lodge. It said it all about the nature of this government. Today we saw that the hollowman has become a hologram, literally, in the parliament in the way that he deals with these issues. This isn't leadership. There's been no proper debate out there.
I say to the members opposite: in your electorates, what process have you been through to consult your community on the Family Court being abolished—under the guise of an amalgamation, of course. What these bills will do is, effectively, abolish the Family Court as a specialist and standalone superior court. Over 110 individuals and organisations, including family lawyers, former and current judges and child protection advocates from across Australia, have asked the Morrison government to abandon this proposal. But the Morrison government of course refuses to listen. Instead the Attorney-General and the Prime Minister are arrogantly pursuing these harmful reforms.
We on this side do accept that there are serious problems of funding and other issues for the Family Court to deal with. The main cause of those problems isn't a mystery. There has been examination of it. The Australian Law Reform Commission, in its landmark report on the family law system, found that it has:
… been deprived of resources to such an extent that it cannot deliver the quality of justice expected of a country like Australia, and to whose family law system other countries once looked and tried to emulate.
There was a time when we were ahead of the world, and now, increasingly, we are falling behind. And this will just push us further behind.
Just as it has ignored the family law system, the Morrison government has ignored the commission's report. Despite handing down the biggest spending budget in Australian history and a record deficit the likes of which we have never seen—$1 trillion of debt—it refuses to provide the family law system with adequate resources. Because of the pressure that this creates in families, by definition, if they are going before a court undergoing some difficulties, these issues can be very difficult to deal with. What these short-sighted cuts do and what this miserly approach does is push the need for increased funding somewhere else—into, if things can't be resolved, health issues and into issues such as, particularly, the need for security and safety of women and children. It is a very short-sighted approach.
We on this side of the House don't say that the family law system doesn't need to change, but our priority is to put in place the right changes that will genuinely assist families in need. Men, women, children and families need that assistance. That's why we're opposing this legislation—because it is an example of a government that, by the time they get to the next election, will be struggling to find a reason for existence. There they've been for three terms, with no big economic reforms. They have managed to produce $1 trillion of debt, $100 billion in new spending and no reform as part of any of that—no economic reform whatsoever in the budget that we saw just one month ago, but no social policy reform of any substance either.
We on this side of the House are proud of our record, when in government, of making reforms that make a difference to people's lives and social policy we can look towards, like paid parental leave that we did during our last time in office. Good social policy reform also has economic benefits, a bit like our childcare benefit that we announced as the centrepiece of our budget reply. This government, looking for a reason for existence, just comes up with cuts and short-sighted proposals that will drag Australia back, not move it forward.
That's why this legislation is deserving of defeat in this chamber and that's why the government needs to go back to the drawing board and come up with a policy that truly is in the interests of families. I support the amendment moved by my colleague the shadow Attorney-General and urge parliament to support that amendment and then oppose the legislation.
I rise tonight to speak on what can only be considered one of the most bizarre pieces of legislation that I've seen in my time in this House. In this merger the government should stand up and own what it's trying to do, not hide behind a cover. Come out and be upfront with the Australian people. The government wants to abolish the Family Court as a specialised and standalone court dealing with some of the most difficult and important matters for families going through times of trouble.
From the outset, I want to say no-one thinks that the Family Court is perfect. But this incompetent government response is to say, 'Let's just abolish it.' Rather than fix it, rather than listen to experts, rather than go out and consult with people and find out what the issues are and how to address them, the government says: 'We'll just abolish it. We'll just tuck it away.' That's not helpful to many people in the seat of McEwan who find themselves dealing with family law matters, particularly during a family breakdown.
Family law has changed significantly over the last few decades. In the past, in the pre-no-fault divorce days, a spouse had to show that the other party was at fault, to have a divorce issued. That meant proving adultery, desertion, habitual drunkenness, imprisonment or insanity, for example. Thankfully, because of the Whitlam government, those days are gone. I'm glad the Attorney-General has the good sense to reaffirm his commitment to no-fault divorce, which is an unusually rational decision from the embattled minister.
The bill seeks to undo much of the groundwork that supports the Australian justice system. When the Family Law Act was passed it represented one of the great legal achievements of Australia's recent history. The Family Court was everything that family law experts said was needed. It's an essential feature that deals with family law matters, particularly those that are fraught with emotion, hurt, outrage and even violence. But Prime Minister Whitlam wanted a court that could employ all means available to it—counselling services, psychologists, welfare support officers and legal advisers, things that help families feel supported during tough times. Specialisation is not just specialist judges. The Whitlam government's vision of a specialist family law court was of a court with interrelated services and, particularly, resources. It was about creating an environment that would have regard to what Whitlam described as the human problems of couples and families, not just their legal rights.
It's clear that there are some people who feel the Family Court hasn't lived up to its potential. Whether dealing with custodial matters or issues of divorce, the court is not seen to be delivering the results the public expect of it. The government's only response to this is to abolish the court. That's not only short-sighted but cruel and completely conflicts with evidence given to the government. The problem is that, if the government cared about improving the lives of Australians appearing before the Family Court, they might have listened to the countless legal bodies and family councils that said a merger of the Family Court and the Federal Circuit Court was the wrong approach.
The Attorney-General did not undertake any meaningful consultation on his proposal to effectively remove the Family Court. He did not speak with families who have been through the courts; he did not speak with child psychologists; and, most importantly, he did not consult with the legal profession at large. If he had, he would have heard clearly from the 110 individuals and organisations that oppose this bill because they know that it will harm vulnerable children and families in need of specialist law and assistance. It will increase costs, time and stress for families in the family law system. It will place further stresses on the Federal Circuit Court judges who are already buckling under an obscene workload which gives rise to severe stress and mental and health struggles. And it fails to address any of the fundamental issues which people might have with the family law system. Both the first and the second chief justices of the Family Court have said that this proposed merger fails to understand that family law is complex and nuanced and that the quality of decisions will suffer if the merger goes ahead.
So, with almost unanimous opposition to this proposed merger, we have to ask: what evidence are the government making their decision on? As it turns out, they are basing their decision not on any advice from legal professionals but on a six-week desktop review by two accountants at PricewaterhouseCoopers—a desktop review to deliver the government the answer it wanted to its questions. So let's be straight. The government is overturning Australia's entire Family Court system because of the justification of two accountants in a six-week review, which, rightly, has been widely panned and totally discredited. It's so typical of the government: a private review of a public resource, with a meaningless report used as a slim and cynical justification to cut, merge or abolish systems. The arrogance of this government is breathtaking.
As I said, we know there are problems with the family law courts at the moment, and the main cause of those problems is not a mystery. The Australian Law Reform Commission found:
… the family law system has been deprived of resources to such an extent that it cannot deliver the quality of justice expected of a country like Australia, and to whose family law system other countries once looked and tried to emulate.
The government's actions are like poking holes in the bottom of a ship and then saying, 'Oh, why's it sinking?' Over the past seven years, the story of the Australian family law system has been one of neglect, neglect and more neglect: neglect by the Liberal government led by Tony Abbott; neglect by the Liberal government led by Malcolm Turnbull; and now, in the third stage, neglect by the current Liberal government, led by Scott Morrison. Family Court and Federal Circuit Court judges have not been replaced in a timely matter. Funding has not increased in response to increasing demand and review after review—including many dozens of sensible and measured recommendations that have all been ignored.
But, instead of working to fix the family law system, the government remains determined to restructure the Family Court and Federal Circuit Court in a way that will make a bad situation worse for Australian families, including vulnerable children. The evidence from the experts is that this merger will increase costs, will increase time and will increase stress for families and children and place further stress on Federal Circuit Court judges. This is alarming. This merger will not lead to the just, quick and cheap resolution of family law disputes. Instead it's going to make matters worse for families like those living in McEwen who have been caught up in long-running, costly and emotionally devastating family law disputes.
The under-resourcing of the Family Court and Federal Circuit Court systems has had severe consequences for the backlog. The Senate Legal and Constitutional Affairs Legislation Committee, which inquired into this bill, heard evidence that two Federal Circuit Court judges, one in the Brisbane registry and one in the Wollongong registry, had over 600 cases on their dockets—600 cases for each of those judges at the same time. Three other judges had between 500 and 600 cases, and 21 had between 400 and 500. At the moment, the average number of cases for Federal Circuit Court judges is 337. We just have to consider what that means per judge—the time and energy needed to get this done in a timely manner to help people who are in a vulnerable state. It lacks any logic that the government thinks a merger is going to assist this workload.
Meanwhile, contested family law matters in the family law court are currently taking, on average, 18½ months from the date the matter is filed to the date the trial commences. In the Federal Circuit Court the average is 17½ months. This is an outrage. It is something the government should have been working to fix rather than tearing down. But that is the hallmark of this government. Tearing down and stopping are their key mantras.
In some cases it takes over two years from the date of the judgement being reserved to the date on which the judgement is finally delivered. This has serious consequences for all those involved in the family law system. It has consequences for the judges, who are buckling under the immense pressure to hear too many cases and produce too many judgements. I myself know that the workload that has been put on judges and magistrates across this nation is crippling them and impacting severely on their mental health. When looking at legislation like this we need to consider the emotional, mental and physical outcomes for judges.
There are consequences for the families before the court. They suffer from uncertainty and resentment over how long the process takes. It's cheap and easy to attack them, but the reality is that the reason we have problems and are going through this situation is that this government made a conscious decision not to fund the courts properly and give them the proper resources. This has done nothing but cause increased pain and heartache for families who are going through the process.
The bottom line is that this government's proposal will not fix the systemic problems that have occurred under its watch. We have a justice system that is crying out for help, resourcing, staffing and the support they need to do the work that everyone in this building finds so important. But what is the government's response? The government's response is simple: make it harder and more expensive for families, most of whom are already going through the worst period of their lives with a family breakdown and the problems that causes.
This is rotten legislation from a rotten government. We should not support this. Anyone on the government side with a conscience would definitely reconsider their position on this and advocate on behalf of Australian families who are going through a family breakdown. They would support them and give the courts the resources they need to do their job properly and efficiently. We should look after Australians, not leave them in limbo to get angry about decisions that are beyond their control. I urge government members to dig deep—somewhere they have a conscience—find their conscience and use it to oppose this legislation.
Most Australians don't commit criminal offences. Most Australians don't get injured at work. Most Australians don't have car accidents. Most Australians aren't sued as debtors. Most Australians as creditors don't sue other people. But Australians en masse—one in three marriages that break up, and in second and third marriages it's as high as 50 per cent and in de facto and common law arrangements it's even higher—are affected by what happens in our family law and child support systems. The Federal Circuit and Family Court of Australia Bill 2019 and the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019 will impact upon them in a way other bills we debate in this chamber do not.
The history of this legislation displays once again the strong ideological position of the conservative parties in this country. There are some issues that really divide the major political parties. For decades the coalition opposed Medicare and they only reluctantly accepted it when Australians from Toombul to Toorak eventually accepted Medicare as socialised medicine in this country. Industrial relations remains a thorn for those opposite. Every time they get an opportunity, they will pass legislation that will impact upon the right of workers to organise. Another issue is superannuation. We saw that recently with the announcements. They've got legislated increases in the superannuation guarantee, but they've never seen a pause they didn't like with respect to the increase in the superannuation guarantee.
Another schism is the family law system. It wasn't that long ago that our grandparents and great-grandparents had to go to state courts and had to prove, blame, fault to get a divorce. In the 19th century, and even earlier, people didn't have a legal responsibility at law to provide for their children, and it took legislative intervention—for example, the poor laws in 1601 in England—for that to happen. It was only legislation to provide for ongoing child support and the Family Law Act which made it clear that parents have parental responsibility obligations to support their children.
The Family Law Act came in against much opposition from conservative forces in this country. Sure, in 1959, Sir Garfield Barwick, the then Attorney-General, brought forward the Matrimonial Causes Act to make this come under a federal jurisdiction. But there were still fault divorces. Private eyes and private investigators, when I was practising as a lawyer, still would say that that was one of their main sources of income. It took the foresight and the intelligence of then Prime Minister Gough Whitlam and his minister Lionel Murphy to bring in the family law system against the objection of the conservative forces in this country.
I'll speak on no-fault divorce. Divorce's only ground has been, since 1976 in this country, irretrievable breakdown of marriage evidenced by people living separately for a duration of 12 months, that being the test that the consortium vitae, the partnership of life between a man and a woman, had broken down. It took Labor governments—and, indeed, state governments—to extend the jurisdiction of the family law system to do things like bring in de facto relationships and same sex relationships and to extend the rights that you see in section 79(4) and section 75(2) of the Family Law Act for property settlement to cover other people. Ex-nuptial children and de facto relationship children were brought into the system so that family courts could make decisions in the best interests of children guided by the Family Law Act so that those children would not be neglected.
The family law system is not perfect. I know it. I practised for nearly 25 years as a family lawyer. I was an accredited family law specialist since the mid-nineties and practised in the jurisdiction—everything from the Full Court of the Family Court to the High Court to the local Magistrates Court, where I was involved in domestic and family violence cases. I know the system is not perfect, but the coalition parties in this country in the last three terms have done everything they can to stymy the system. This legislation is about diminishing, dismantling and destroying the Family Court system in this country, and it will impact men, women and children adversely. They know it, but they can't take off their ideological blinkers. They just cannot do it. It's like superannuation, it's like Medicare and it's like industrial relations.
The Family Court system in this country is not perfect, but it's a heck of a lot better than in other countries, and it's better than it was before Labor won the election in 1972 and in 1974 and then brought in the legislation in 1975, which was promulgated and established in 1976. I regret seeing the wigs, the gowns and the robing. I recall that, when I first started practising as an articled law clerk, the judge sat there in a suit and a tie opposite us and that we sat there at tables. I liked the informal basis for that. I saw changes in years to come which meant a more formal structure. But also there was need to be flexible in the system.
We saw a situation where the most egregious domestic and family violence and child sexual abuse cases were dealt with in a Magellan list. We saw the improvements there as a result of that. We saw, for example, improvements in dealing with the system by establishing a Federal Magistrates Court, which has become the Federal Circuit Court. We saw an expansion of that jurisdiction so that simple cases could be dealt with more expeditiously. But, if you don't appoint enough judges, if you defund community legal centres, if you don't fund legal aid as you're supposed to and if you don't fund the ATSILSs as they need to be funded, you'll have some consequences. This is what this government has done, whether it's been under Prime Minister Abbott, Prime Minister Turnbull or Prime Minister Morrison. It doesn't matter; they still have the ideological blinkers on. This particular bill is about dismantling, destroying and diminishing the family law system in this country, and it will have an adverse impact.
The coalition parties had chances. They made some mistakes, by the way, in John Howard's day. What they did was to create a presumption of equal shared parental responsibility and then lead people to believe that it was equal time. The consequence of that was devastating because it raised expectations and dashed them. I saw it again and again and again in the many, many thousands of cases I did. They then prescribed the jurisdiction for federal magistrates and judges to make it more difficult, with hierarchies of presumption between primary obligations, primary considerations and secondary obligations. They fiddled around the edges and made it more difficult and more challenging. But that's not the most egregious thing they did. The most egregious thing they've done since that time is not listen to people. They haven't listened to the 110 individuals and organisations that have pleaded with them not to do what they're doing. A desktop review from a couple of accountants at PwC is really not good enough. Listen to the voices of the former chief justices of the Family Court, as my colleagues have again and again talked about today.
The fact that the coalition parties over there cannot bring themselves to really own this is shown by the fact that, if you look at the lists of speakers today and tonight, you can barely see one of their members. They rolled out the poor old member for Fisher. I don't mind the member for Fisher. He's not a bad sort of bloke. I don't mind him. But he's never even practised in the area. He said that in his speech today. He was a barrister, but he didn't practise in the area. He had no idea what he was talking about, sadly, because he never practised at all in the area, and he talks about how the family law system is to operate. Look at what they're doing in this legislation. They're diminishing. They have simply failed again and again when given the opportunity to take this legislation off the table. The Attorney-General, in a stubborn, pig-headed way, will not do so. The public wants him to do so.
The government could attend to the problems in this jurisdiction. We've seen evidence—and some of my colleagues have referred to it—about how many hundreds and hundreds of cases judges in the system are dealing with. That was the evidence that came through in the inquiry, in the dissenting Labor report that we put in. Do you know what that is? That's not enough resources. That's what the Australian Law Reform Commission said. You under-resourced the system. You've underfunded it. You haven't appointed enough judges. I've had barristers and solicitors from my home state of Queensland, where I was the senior partner of a Brisbane CBD law firm, tell me again and again that there have been vacancies for judges in Brisbane and elsewhere, and they haven't appointed them. They might promote someone up to the appeals division without promoting someone on the ground. You don't promote, you don't have enough resources and you also take away things like funding. It's ridiculous that you have to wait such a long time to get a family report. You know why? Because there's not enough funding in the system to do it. You need those independent children's lawyers, those independent representatives, to act in those difficult family law cases.
You would think, when you listen to those opposite—and, sadly, to some people in our community—that all of these cases get to trial. The fact is that only about five per cent of cases where people have actually instituted proceedings ever get to a final hearing. I did more consent orders and binding financial agreements at interim hearings or after family reports were prepared than cases ever got to a final hearing. I did a lot more final hearings than ever went to the Full Court of the Family Court or even to the High Court. Most people settle their cases. Most Australians want to act in the best interests of their children and provide financial support for them. Most Australians do the right thing. They do. But there are the ones that are complaining again and again. Some people think that the Family Court system's biased against one gender. It is not. When you look at the legislation, the Family Law Act makes it very clear that it takes into consideration the best interests of children, and it takes a whole range of factors into consideration as well. Children have a right to know and be cared for by both parents, regardless of their marital status, and by other people who are significant to their care, welfare and development—grandparents and uncles and aunties and other people who are going to contribute and help them in their lives.
I urge the government to think about this legislation: think about what you're doing. This is not an academic exercise. This is not affecting that person who might be charged with a criminal offence, that debtor or that creditor or that person who might have been injured at work. In our lives and in this place, there would be many people who went through the family law system. You might have friends and relatives who have. You would have—many of them have. This legislation is going to adversely impact them and their children, and your children and your children's children. This is a very consequential bill that will impact for years and years to come.
If they dismantle the Family Court system as we know it, what will they next do in a situation of child support? In child support, we had to rely on the case of Mee & Ferguson in the Family Court system and the legislative changes that were necessary before the Child Support (Assessment) Act and Child Support (Registration and Collection) Act were brought in in the late 1980s. That improved the payment of child support, but it had to be almost a very strong legal compulsion. You still had the rights for people to seek reviews if they wanted to, internally as well as on to the tribunals and courts if they needed to, under section 117 of the Child Support (Assessment) Act. Those rights were still there. But until those legislative interventions people weren't paying enough child support, which meant all of us were paying more social security payments to people because people, whether male or female, mums or dads, weren't paying the way for their own children. They weren't.
So, if you pass legislation today that dismantles the Family Court system in this country, there will be consequences. There will be consequences for children. What happens then to those children? What happens to those individuals who are going through this system? How long will it take before they get justice? It will be longer; it will not be shorter. There'll be less access to financial support and legal aid. The legal aid system has already been dismantled by those opposite. That was one of the first acts they did. When the shadow Attorney-General was the Attorney-General in this country and I was the parliamentary secretary—what they now call assistant minister—in our last budget we put extra money, about $40 million, to Aboriginal and Torres Strait Islander legal aid, community legal centres et cetera. The first act of this government was to dismantle the legal aid system and that funding and rip it away from places like the Taylor Street Community Legal Service centre up there in Hervey Bay. Don't do this. Don't pass this legislation. This will have terrible consequences for families across this country. Just don't do it.
I commend the member for Blair for his contribution. It was a fine contribution, and I echo many of the sentiments that he made in this place. I rise to speak on this Federal Circuit and Family Court of Australia Bill 2019, and I do so stating from the outset that we, in Labor, wholeheartedly oppose this bill. I also support the member for Isaacs on his second reading amendment to this bill.
It is a reflection on this Morrison government, the emptiness of this Morrison government, that it would put forward a reform such as this. This is a significant reform that is going to affect the lives of thousands and thousands of Australians. This is a dramatic reform and one where stakeholders and experts in the area of family law have not just politely requested but pleaded with the government to stop and reflect on what these changes the government is putting forward will mean to ordinary Australians. Of course, this government, when implementing a reform as significant as this, does not even have the heart to get its members to come up and defend it. Barely any of them stood up to talk about and to defend this reform to the Family Court of Australia. Barely any of them bothered to get up and defend this action by the Attorney-General, because on that side of the House either they don't care enough about the lives of the Australians that they are going to affect by implementing this reform or they don't believe in their own legislation. I don't know which one is sadder, but it is evident that this government is willing to throw out one of the most important institutions in this country, one that tackles some of the most complex and difficult problems that face Australians.
Family problems are complicated. Families are complicated. Australian families are complicated. And it is not right for politicians to insert ourselves into the middle of their families. It is appropriate that, if in the event it's needed, there are channels and courts to deal with it, as the previous member, the member for Blair, outlined. We on this side of the House absolutely appreciate that the system is not perfect. It's not perfect. There are things that are going wrong in the Family Court. There is a huge waiting list. But the way to fix that waiting list is not to amalgamate the Family Court and to take away the expertise and the focus and the experience that comes with having a specific Family Court of Australia and to amalgamate it with the Federal Circuit Court. The way to fix it is to actually resource it properly: provide it with the funding and the resources and maybe even—call me crazy!—appoint a judge once or twice. But the Attorney-General seems to be absolutely stubborn in his approach to this court. He has refrained and refused to support the court and to give it the resources and infrastructure and the personnel and appointees that it so desperately needs.
Here's some history: those opposite do not even bother to speak on their own legislation, which is stock standard in this place; there are not many bills that this government introduces that government MPs bother to stand up on. But, for one as important as this, you'd have thought at least some of them would have stood up and acknowledged the significance and maybe even defended the reforms, but that seems to be a step too far for the members opposite. So many reforms—so many great reforms—in this country were not implemented by a lethargic and stagnant government like this; they were implemented by a Labor government keen not to waste their time in office and keen to implement the reforms required to help make Australian lives and Australian livelihoods better. So, in 1974, when the Whitlam government introduced the Family Law Act, it was debated in this place. It was debated, and almost half of the members of this place and in the other place down the road spoke on this bill. They spent 28 sitting hours debating the bill. It wasn't a reform that was ignored. They didn't throw in one or two MPs and then sit down. The number of Australians affected by this court was reflected by the number of MPs willing to stand up and say why it was important. But, for the life of me, I'm yet to hear one single reason why this government thinks this idea is a worthy one.
Going on this idea of acknowledging the fact that there is backlog that needs to be addressed, this government didn't listen to the Australian Law Reform Commission. In 2019, the Australian Law Reform Commission did a comprehensive report on the family law system. They made 60 recommendations. One of the key recommendations and key findings was:
… the family law system has been deprived of resources to such an extent that it cannot deliver the quality of justice expected of a country like Australia, and to whose family law system other countries once looked and tried to emulate.
In other words, the Australian Law Reform Commission pointed out the most obvious problem with the Family Court. It is not that there isn't some amalgamation required or some watering down of the specialisation of the judges and of the appointees in the court; it's the fact that the court has been neglected, and it has been neglected by consecutive governments—the Abbott government, the Turnbull government and now the Morrison government.
Instead of listening to the Law Reform Commission's report, what this government did was commission PwC to put forward a different proposal. PwC basically had a chik-chak look at it over six weeks, came back and put forward these recommendations. But it flies in the face of experts, former judges, the Law Reform Commission and the general public. Everyone is saying to the government, 'Please don't do this.' This is going to hurt Australian families. This is going to impact on ordinary Australians' access to a court that they need to sort out internal family disputes. This is going to hurt ordinary Australians who have everyday problems in their lives and in their families. Things go wrong in families, and that's devastating, but it's also important that people have the mechanisms through which to move on. The dilution of this court is going to affect those families who are seeking that avenue to improve, and to get on with, their lives.
So we say clearly to this government: you don't need to do this. Making it harder for Australians to access the Family Court is not a legacy that you're going to look back on and be proud of. You're not going to be proud to look back and say: 'Instead of listening to experts and listening to those who specialise in, and spend their days and lives dedicated to, the family law system in Australia, we just did our own thing, and nobody even bothered to turn up and defend it. We just rushed through these changes to the Family Court of Australia. Quite frankly, none of our members care enough to bother to come into this place and talk about them, but we're just going to do it anyway.' You don't need to do it. Certainly, I would say to those in the other place that you don't need to pass this bill. This bill does not need to be passed.
The Family Court does tend to deal with those from vulnerable and lower socioeconomic backgrounds. Sadly, because of the extra stresses on those families, they find themselves before the Family Court at a higher rate. To amalgamate this court—to dilute it and to merge it—is to make it more difficult for those families and especially for those kids, and it will reduce the standard of hearings. The government does not need to do that.
I spoke of all of those who have opposed this legislation. One of the latest thorough investigations into this was done in the Australian Senate, and, of course, the Labor senators issued a dissenting report. One of the things they said was that this bit of reform by the government has been almost universally condemned, that the number of submissions by experts outlining the harm that this potential merger would do was immense and that, in contrast, there was no evidence that the reforms before us today are actually going to fix the issues that the Family Court have.
After reducing the resources and failing to appoint judges, this government has decided to introduce the legislation that is before the House today. What a good government would do is to stand in this place and say: 'Yes, there are issues in the Family Court and we haven't given it the resources that it needs, but we're keen to get this right. We're keen to make sure that Australian kids and Australian families have the resources to deal with the complex family needs of Australians.' A good government would get up in this place and say: 'Here are the ways in which we're going to make this better and fairer for Australians. Here are the ways that we're going to improve it and consult and work with those in the industry and those who are experts in this. What we're going to do is make sure that our duties and the duty of the Attorney-General, the highest law officer in the land, are not neglected. We will make sure that for every vacancy we are going to hunt down the best candidates so that the court is filled with competent and dedicated people to make this work.' That's what a good government would do. That's what the reforms that are needed would look like. Instead, like the typical Abbott-Turnbull-Morrison government, they come in this place and waste government. They waste what good government could be. They are content on that side of the House with putting forward legislation that is not, at its heart, going to improve the lives of Australians. In their stubbornness against the experts, they are using government to ram through bills that this country does not need.
I wonder how many people on that side of the House are entirely comfortable with the Attorney-General and his approach of not funding the Family Court, not investing in the future of the court, not resourcing it adequately, ignoring the experts and ignoring the retired judges who have come out of retirement in order to make their point—rather, the Attorney-General's approach is to go off a short review conducted by a large accounting firm. We actually don't know, because, as with so many bills in this place, the government MPs have not even bothered to turn up to this debate and defend this reform, which is a real tragedy given the significance of it, the harm it's going do to Australian families and the impact it's going to have on Australian lives. We oppose this bill and we support the second reading amendment put forward by the member for Isaacs.
There are a few things that families need when there's been a family breakdown and where the parents or, in cases where there are not children, the couple who are dissolving their marriage cannot agree on the resolution of that dissolution. There are a few things that they need and, of course, chief amongst those is a system that is responsive to their needs in which they have access to justice. If someone is in a marriage breakdown, particularly where there are children involved, sometimes the reason that resolution can't be reached between the parties without the need of external assistance can be that people are just unreasonable. But in a lot of cases that's not the source of the lack of private resolution. In a lot of cases there's a difference in power, in status or in financial means. In a lot of cases there are genuine reasons why external assistance through the court system is needed. In a substantial proportion of those cases that are disputed, family and domestic violence is a feature. This is an issue that was raised by the former Chief Justice of the Family Court and has been a hallmark of a number of the inquiries in relation to family law in this country—the fact that a large proportion, not a majority but a large minority, of cases that are disputed, that are unable to be resolved between the parties, have family violence as a feature.
Another thing that families need as well as access to justice is a system that is responsive to and understands the dynamics of family and domestic violence. What they have at the moment is not meeting those needs; it is not. Cases are delayed. The court system is difficult to navigate. It is expensive. It is under-resourced. A feature of the under-resourcing is that judges, who are only human, don't necessarily have the time that they would perhaps like to have to devote themselves to updating their knowledge in relation to family and domestic violence dynamics, because this is a field that is evolving all the time. There is always new research in relation to understanding family and domestic violence. That's the situation at the moment.
These bills, the Federal Circuit and Family Court of Australia Bill 2019 and the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019, don't address those problems. They don't address the lack of access to justice or the need for improved information within the system about family and domestic violence dynamics; they do not. Instead, they do something that no stakeholder of any significance supports; they collapse the Family Court into the Federal Circuit Court. The Law Council of Australia has said:
… the merger would abolish the existing specialist, stand-alone, multi-disciplinary Family Court system dedicated exclusively to family law matters … What currently exists as a stand-alone, superior court ecosystem would be collapsed into a division of an inferior, generalist, over-worked and under-resourced Federal Circuit Court, to the detriment of families' wellbeing. The Federal Circuit Court already struggles to manage the workload of less complex family matters alongside nine other diverse areas including migration and workplace law.
This is not in the interests of families or judges. That's from the Law Council of Australia. That is a succinct description—and I hope members opposite consider that when they think about their vote on these bills—of what this legislation does.
I might say it is important that the Law Council says this is not in the interests of families or judges. It is important to recognise the immense pressure and burdens on judges of the Family Court and judges of the Federal Circuit Court. The judges in the Federal Circuit Court have massive workloads. The people before them are often unrepresented. They are appearing in things like bankruptcy matters; immigration matters—they are unrepresented in immigration matters, often not having English as a first language; discrimination matters under human rights legislation; and, of course, family law matters. And these judges have huge numbers of cases on their dockets. If you think about this, there are a couple of judges of the Federal Circuit Court who have more than 600 individual cases on their dockets alone, there are a few who have got 500 to 600 cases and then you've got 21 judges of the Federal Circuit Court in this country who have between 400 and 500 cases on their dockets. And the average is 337 cases per judge. An immense workload of cases, diverse areas of law, often unrepresented litigants—it is no wonder that Federal Circuit Court judges are facing incredible stress and pressure. We have seen some of the pressure and some of the stress manifest recently, including in my home state of Queensland.
This government could be addressing that problem. They could be saying, 'Instead of trying to collapse the Family Court into the Federal Circuit Court, we should be addressing the access-to-justice problems that come with overworked, under-resourced court systems, and we could be addressing the impact that that has on judges as well.' In fact, the Productivity Commission, about six years ago, released a substantive report in relation to access to justice in this country. The government could be revisiting that report to consider what further steps could be taken, consistent with the recommendations in that report, in relation to access to justice for both family law and all other forms of federal law, particularly.
The government could also be turning to the Australian Law Reform Commission report into family law that came out last year. It's a report they are completely ignoring, if this bill is anything to go on. It clearly laid out something in the order of 60 recommendations to this government about what they could do to improve family law. They could also look, because of the nexus between family and domestic violence in family law, to the excellent and bipartisan work done by the House Standing Committee on Social Policy and Legal Affairs, under the leadership of now Senator Sarah Henderson and our member for Newcastle, Sharon Claydon MP. They are people who are able to work together to find opportunities for bipartisanship on reforms that could serve the interests of women—who are generally the victims and survivors of family and domestic violence—and their children, and of all parties before the Federal Circuit Court or the Family Court of Australia, in relation to family and domestic violence.
They could revisit that piece of excellent work, which also produced so many recommendations. There's been Law Reform Commission work on family violence. There's been a Senate inquiry on family violence. There are so many pieces of work laying out for this government a very clear set of recommendations about what they can do to make things better for people, particularly people who are facing family and domestic violence and—on top of the danger and the injury and the humiliation of the violence—having to go through the retraumatisation that occurs when you then have to litigate because the ex-partner is using the tools at that person's disposal to cause them further harm, as is often the case.
We have some excellent community legal centres in this country. Women's Legal Service Queensland in Brisbane is one of them. They speak out for victims and survivors of family and domestic violence, and a lot of their work is in relation to family law. Women's Legal Service Queensland opposes these changes, as do so many other stakeholders. In fact, the Law Council of Australia says that more than 110 stakeholders in the family law system agree that the merger is not the solution and they oppose the bill because it will put families at risk. The government's bill is putting families at risk. They're putting families at risk. What's worse, as the member for Macnamara said, not only are they putting families at risk they're not even willing to defend their reasoning for doing that.
Where are they? Why is the chamber virtually empty of coalition MPs? Are they ashamed of the legislation? They should be. Is that why they're not here to defend it? Is that why the speaking list is so bereft of government MPs willing to at least explain why they would support this policy, this bill, instead of standing up for and speaking out on what is needed to be done to protect vulnerable people, particularly women and children, through this country, in relation to family and domestic violence? Is that what the problem is? They should be here. They ought be here to explain to the people of Australia why they support this bill, but they're not.
Labor's speakers are here because we have grave concerns about this bill and we oppose it. We call on those who support families to oppose it as well. If the bill reaches the other place, we call on the senators to think very carefully about the impact their vote might have on families in this country, particularly vulnerable families, particularly families facing violence, particularly in a situation where there are big differences in power between the partners who are separating. I do call on them to think very carefully about this bill. It ought not be supported, and I ask that people oppose the legislation.
( I rise to join my Labor colleagues in opposition to this bill and in support of the second reading amendment moved by the shadow Attorney-General, the member for Isaacs. In thinking about this legislation and the excellent contributions of my colleagues on this side of the House, I have also been thinking of that great Australian historian, Manning Clark, who saw our history as a contest. He saw it as a contest between 'enlargers' and reactionaries—he called them 'straighteners'—and I think we see that echoed in this debate. I think it is important that we reflect on its significance because Australia has been, in so many ways, an exemplar to the rest of the world when it has come to social policy—economic policy too, but particularly social policy. Indeed, when our Federation first began, we often saw Australia described as the 'world's social laboratory' over initiatives like the aged pension, where we led the world. That's been a tradition which has characterised the work of Manning Clarke's enlargers, who we would see as being the people who've made up Labor governments—and the social movements that have supported them—for the last 120-odd years.
When I think about enlargers in the context of Australian history, obviously the figure of Gough Whitlam looms very, very large—literally and figuratively. Gough Whitlam was a great enlarger, a great Australian and a great reforming Prime Minister. The reforms of his all-too-short government have done so much to characterise what is so good about modern Australia: our place in the world, how we have ordered our society. In so many ways he was a reformer—from that iconic image of him and Vincent Lingiari that's in the National Portrait Gallery to his sense of our future as a trading nation, if we look at other debates that are on foot now—ripping apart 23 years of stultification under conservative governments, governments of straighteners, to replace them with a sense of what we could be: a much more equal society. Of all of those social reforms, the Family Law Act is both enduring and fundamental. It is a signature reform. It is also a cornerstone, I think, of both a more equal and a more caring society.
We have seen that in the last 45 years in establishing two critical frameworks for how we manage family law. Firstly, the provision of no-fault divorce. It is impossible—perhaps for many of us here—to understand what life was like for many people before there was no-fault divorce. It has transformed society, recognising that relationships are, of course, formed between human beings with all their fallibilities and vulnerabilities. This goes to the second pillar of the Family Law Act, which was to put in place the family law court—a specialist court to understand those vulnerabilities, those challenges, and to put in place all the mechanisms to see disputes, or other issues between families and those involving children, dealt with appropriately. These reforms have transformed lives for the better. They've transformed our society for the better too. We should not treat them lightly. Unfortunately, the legislation that is before the House does that. It treats these reforms, and the lives that they have shaped, too lightly.
I want to go back to this sense of how reform is made and how it is resisted, because the reform journey clearly isn't complete. We are not as prosperous or as equal as we should or could be as a society. That continues to be the responsibility of government and it will be the work of an Albanese Labor government. We will keep fighting for the reforms that have been achieved against those reactionary forces in this parliament and in our society who seek to push back against them. We don't believe that our reformist history is written. I think about the bold commitments the leader of the Labor Party made in his budget reply speech, building on this tradition from the aged pension to the NDIS with reforms flagged around early learning and child care—which would be signature social and economic reforms that are all too overdue—and, of course, also to do the work that was asked of us—all of us in this place—by the Statement From the Heart, to complete this parliament and complete our constitution.
In terms of the bills that are before the House, I want to touch upon a couple of questions that go to both process and substance. Both are important here. They underscore the characterisation of this government not so much as straighteners but as out and out reactionaries. I have before me a letter dated 29 November which is signed by number of very significant bodies: the Law Council of Australia, Women's Legal Services Australia, NATSILS—the National Aboriginal and Torres Strait Islander Legal Services—and Community Legal Centres Australia. It's a short letter, but it's a very powerful one that demands the attention, I believe, of every member of this House and all those in the other place, should the legislation make its way there.
First and foremost are the contributions of Elizabeth Evatt and Alastair Nicholson, the first and second Chief Justices of the Family Court. The Hon. Elizabeth Evatt AC, in talking about her strong view that the merger would lead to undesirable outcomes for children and families, said:
The Family Court was designed purposely as a world-leading, specialist, stand-alone Court to deal only with family law matters, with the support of a dedicated multi-disciplinary team of counsellors and mediators. Its stand-alone nature is one its greatest attributes, providing protections for vulnerable people in need of family law assistance.
She goes on to talk about how merging this court with all those critical features would undermine both its integrity and the structural specialisation of the court. She says:
The impact of losing this institutional specialisation is not properly understood, and has been downplayed.
This is a really critical warning.
My friend and colleague the member for Griffith raised this issue in referring members opposite to the Australian Law Reform Commission's very significant report handed down only last year. It's a significant report containing 60 recommendations. It's a significant report which identified significant challenges in our family law system, largely linked to chronic underinvestment—not a matter these bills will deal with, not a matter the government has responded to and not a matter the present Attorney-General seems concerned about. This is a really big bit of work, a substantive bit of work, looking at the challenge that is before Australia's government when it comes to having a family law system and the judicial infrastructure that supports it and that does justice to the needs of all Australian families—the partners, their children and their particular vulnerabilities, as many of my colleagues touched upon.
This is incredibly complicated and incredibly important. For all of us who have entered into marriages or lifelong partnerships, it's the most important decision we make. Having a specialised justice system that deals with that and deals with the most important people in most of our lives, our children—for those of us who are fortunate enough to have them—gives them the support that they need. These are fundamentally important things. I am sure every member of this place agrees with that. That is why it is so astonishing that we haven't seen a proper debate in this place and we haven't seen a proper or, indeed, any evidence of any consideration of the Australian Law Reform Commission's report.
This takes me back to the warning of the Hon. Elizabeth Evatt. The impact of losing this structure, she says, is not properly understood. I think members opposite should reflect and ask themselves this question: do I properly understand the implications of the change that is before the House? If they can't answer that—frankly, they should be answering that not to their conscience but in words that appear in Hansard tomorrow—they should vote against these bills. They should vote against these bills because the case has not been made. Indeed, more than that, the case against acting in this manner is incredibly persuasive.
I talked about particular vulnerabilities, to note an additional concern, and I know this is another concern that unites all members of this place. Evatt goes on to say:
The increasing number of cases in which issues of family violence and child abuse are raised has led to an even greater need today for family law jurisdiction to be vested exclusively in specialised judges who can give their full attention to the needs of family law clients without being diverted to exercise other unrelated jurisdictions. The current bill undermines this principle, is not in the public interest and should not be enacted.
This is a very, very serious warning. Before I came to this place, I practised as a lawyer. I did not practise in the area of family law, and I don't presume to have any speciality in this area. But I worked alongside many colleagues who did, and I understand how important it was for them to be specialist practitioners within a specialist jurisdiction. They understood that they could build confidence in their clients, particularly those clients with vulnerabilities, in a system that was designed to meet their needs, not the more adversarial needs of our common law courts more generally. I think this is something that we should reflect on.
I think about how public policy should be made. Really there are two issues that should inform those of us in this place when we consider legislation, particularly significant legislation like this. Firstly, we should look at the evidence—and there is no evidence supporting these bills. We should also try to give voice to the experience of those most affected by the bills. I will refer to some of those things, but I want to make a brief reflection on the basis of the understanding I have from organisations and community law centres in my electorate and around it. They all speak with one voice. They do not support these bills. They see the bills as undermining the vital work they do in protecting vulnerable children and in protecting victims-survivors. These are matters again that members opposite, members on the government benches, should give serious consideration to before they cast their vote.
I have spoken about the contribution of Elizabeth Evatt. I want to also now touch on the contribution of her successor, the Hon. Alastair Nicholson, the second chief justice. He expressly endorses her remarks and her view. He said:
It is unbelievable that Government would propose the dissolution of a Federal Superior Court in this fashion without the most careful and searching Public Inquiry and without carrying out significant research and without consulting the many experts in this field.
This is again a very striking contribution from someone who should be listened to. He asks a very fundamental question. This is fundamentally important legislation. It would interfere with a cornerstone of not just our legal framework but how our society has been operating. It is being done without recourse to expertise, without recourse to public submissions and without recourse to any of the processes that should underpin significant reform. This is not how our society is enlarged—far from it. This is an exercise of unthinking reactionary nature.
These two chief justices are far from alone, as I think my comments have indicated. There is an open letter signed by 110 stakeholders. These 110 people deal every day with the challenges that present themselves in the family law system and all its complexities. These people are of one mind, as we on this side of the House are. These are retrograde changes. This is flawed legislation. It's unclear what it emerges from, because all the ordinary processes of government would lead the Attorney-General and members opposite to a very different set of conclusions.
Pauline Wright says, 'This is a terrible gamble with the lives of children and families.' I say again 'a terrible gamble with the lives of children and families'. In this place we differ on so many things—how we see the world and the role of government—but I'm sure none of us want to be seen as gambling with the lives of children and families. Yet that is precisely what anyone supporting these proposals would be doing. They would be supporting a massive leap into the unknown. It's not even that. This leap is more than inadvisable; it is profoundly wrong and profoundly unacceptable.
The comments I have referred to are echoed by so many more. Indeed, the dissenting report of Labor senators sets out this story well in short terms. They use the same word three times—neglect, neglect, neglect. That is the record of this government entering into its eighth year. It doesn't have an answer to the problems in the family law system so it seeks to do something to compound the problems. What we need is a government that will enlarge—not this government.
Through the Federal Circuit and Family Court of Australia Bill 2019 and the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019, the government seeks to abolish or dissolve the Family Court. That is a massive change to our judicial architecture. It's a change that affects the administration of a particularly important area of law. It's not a change that should be made lightly, particularly when you consider, as the member for Scullin has just pointed out, the very serious concerns that have been raised by expert stakeholders. You can't be more of an expert than former chief justices of the Family Court, the Law Council of Australia, the Australian Law Reform Commission and so on. They've raised very, very serious concerns.
If you are going to come along at the very end of a difficult year and make such a radical change to longstanding judicial architecture in such a critical area, you'd want to do so on a pretty careful and substantial basis. Yet, as we've seen so often this year, bills like this come along and seek to make radical change—I think, in this case, to perpetrate a kind of vandalism upon the way things have worked, and worked quite well, in this country for a long period of time—without any convincing argument being made for that change. There's no convincing argument in the material. The Attorney-General hasn't been able to advance any convincing argument, and we're not seeing any convincing argument in this place.
I'll be prepared to accept a different view if someone in the government wants to point to who exactly on that side of the parliament has come in here and taken stock of the abolition and dissolution of the Family Court of Australia and explain exactly why that's going to occur in the shadow of Christmas 2020. I haven't seen a single member of the government come in and make that argument, and that should be cause for concern. I don't know what parliament is for if it's not for us, on behalf of the people we represent in the best interests of Australia, to look closely at these kinds propositions—to examine them carefully, and, in debate, flesh out exactly what the basis for making such a radical and far-reaching change is and whether or not there are any wrinkles or barnacles on what is proposed to be launched. I don't think you'd have to look too closely at this to see those kinds of barnacles.
Australian society has had the benefit of its Family Court and its exclusive focus on family law since the reforms of the Whitlam government. All of us will have had some experience of the importance of family law matters either in our own lives or in the lives of our extended families and close friends and certainly through our work as representatives. I don't think you could be a representative in this place for more than a month or two before you would hear from someone in your community who is going through a family law matter. They are by their nature very difficult. They stem from the instability, conflict and disagreements that sometimes are part of even the closest of human relationships. So having something supportive in place to allow those conflicts to be considered and resolved—mediated or dealt with in another way that allows the people in those relationships to move on to something different in a way that is orderly and safe and considerate for men, women and anyone who's part of a partnership, particularly for children—is so important. It's so important that that part of our legal system and our judicial system is of the highest quality, and yet what's being proposed here is the abolition of what has been a foundation stone, institutionally, of that area of law.
The reforms of the Whitlam government—institutions like the Family Court—have without doubt made a contribution to better dispute resolution in families and to fairer outcomes, I would say, especially for women; to less conflict; and, in many cases, to much safer and healthier outcomes for children. I had reason to go back and look at what Prime Minister Whitlam said in 1974: 'The essence of family courts is that they will be helping courts. That's what they're designed to do.' He said:
The Family Court will, of course, determine legal rights, which it is bound to do as a court, but it will do much more than that. Here will be a court, the expressly stated purpose of which is to provide help, encouragement and counselling to parties with marital problems, and to have regard to their human problems, not just their legal rights. Parties will not be driven to the court by their own despair as a last resort; they will be encouraged to come to the welfare and counselling staff of the court whenever they have a matrimonial problem, even if they are not contemplating proceedings of any kind. This help would also be available after divorce proceedings, and this would, as I have already indicated, be of great importance where there were young children.
That vision of the Family Court and related family law reforms has been part of Australian life now for 40 years. It was part of my life as a young person. My parents parted ways when I was five—my brother was three and my sister was one. I've had some experience of going through those processes. I know that they're difficult, but I also know that the system we have in Australia, particularly since those reforms, has meant that those processes, that hurt and those kinds of disputes and complicated matters that need to be resolved at least have a framework and structure through which that can occur, which is much better than the kind of law of the jungle that would prevail otherwise.
No-one would say that the existing system is perfect, of course it's not—there isn't any system that's perfect—and there are always ways in which reform can be considered, but you have to ensure that the reform that you're thinking about actually addresses the problems that exist. There is nothing in any of the evidence that suggests that abolishing or dissolving the Family Court will deal with some of the problems that have identified, such as delay. None of the five reports listed on the Attorney-General's website as informing this bill actually recommend the change that the government is making. When the Joint Select Committee on Australia's Family Law System provided its interim report, it referred to 70 separate reviews that were germane to the issue of the good function of family law and the Family Court. Not one of the 70 recommended the abolition or dissolution of the Family Court and the other changes that are contained in this bill.
So to the extent that there's a need for reform or improvement in relation to things like delay or harmonisation of administrative and procedural matters—great; get on with it!—that's what the Attorney-General should have been doing in some of the previous seven years. But there's nothing in the abolition of the Family Court itself which will address those problems. In many areas this government bowl along, often at the last minute, doing considerable harm to the way things have worked reasonably well, and certainly better than under their administration, without attending to what clearly are the real problems. Often those real problems have a similar thread or theme. In this case, when it comes to Australian family law, the Australian Law Reform Commission found:
One of the key issues with the way that the system works at the moment is that it has been under-resourced. It has been defunded. A defining feature of this government is the art of the self-fulfilling prophecy. Starve an institution of resources, and then if it underperforms, use that as a basis to chop it down, as a basis to knock it over. We've seen the same thing in the area of the environment. The government looks at delays when it comes to environmental decision-making and then sees that as a reason to cut green tape and weaken protections for our environment, when it has cut 40 per cent in funding to the department of the environment, a cut that perfectly coincides with the period in which the delay has increased. We see the same thing here. The Australian Law Reform Commission makes it plain that the chief problem is under-resourcing of the system as it stands, not any structural or institutional problem, and yet following that path of ignoring and neglecting, as the member for Scullin pointed out—neglect is another theme of this government, unfortunately—in turn becomes the basis for doing further radical harm.
Back in my local government days, you'd occasionally have people who would have a building with some sort of heritage quality that they wanted to demolish altogether. We on the council would tell them—I think quite rightly—'No, this has significant community heritage. You own the property, and in that sense you are a custodian of that heritage going forward. You need to look after it.' So what they would bloody-mindedly do, in some cases, is just leave the property to get worse and worse over time. In some cases they seemed to partially redo the roof so that there was a fair bit of rain coming in, and various other things.
An opposition member: Demolition by neglect.
Exactly—demolition by neglect. And that's one of the ways in which this government, sadly, has worked, rather than focusing on systemic issues that can be improved, that can improve delays in the family law system and through the Family Court. Reviews have identified ways in which that can occur: through the timely provision of relevant reports, through proper resourcing and through the timely appointment of judicial officers. Those are how you address problems of delay. Those are how you improve administrative procedural consistency. Coming along and saying, 'Guess what: it's worked very well for 40 years, but we are going to abolish the Family Court,' when not a single member of the government will come here and make that argument, is really astonishing.
A government member interjecting—
I don't know. I'm told that there have been a few, but there must have been very, very few. When you don't have—
A government member interjecting—
The member for Fisher—there you go. There was one. Sorry. There's apparently been one, and there could have been more! We're going to abolish the Family Court of Australia, and the government has managed to turn out one or possibly two members to make that argument. On the Attorney-General's website, there are no reports that make this recommendation. In the 70 reviews referred to in the interim report of the Joint Select Committee on Australia's Family Law System, there's no reference to or recommendation of this. Two government speakers have come in and made the argument.
Is there any opposition? There is, yes! There is a bit of opposition. I have already talked about the Australian Law Reform Commission. I have already talked about previous heads of the Family Court. No fewer than 110 stakeholders made submissions in opposition to what's being proposed. As the member for Scullin said, the second Chief Justice of the Family Court said:
It is unbelievable that Government would propose the dissolution of a Federal Superior Court in this fashion without the most careful and searching Public Inquiry …
It is unbelievable! The Law Council of Australia said that the proposed merger 'is a terrible gamble with the lives of children and families'. Community Legal Centres Australia said:
… moving away from a specialist family court model would be a retrograde step and expose survivors of family violence to unnecessary risk.
These are not trifling matters; these go to the very core of a government's responsibility to keep people safe. I don't know if we ever get told anything more vehemently by those on the government side than that the No. 1 priority and the No. 1 responsibility of government is to keep people safe. This is a change that the Law Council of Australia describes as 'a terrible gamble with the lives of children and families'. The National Aboriginal and Torres Strait Islander Legal Services said it 'will disproportionately impact the most vulnerable, including Aboriginal and Torres Strait Islander children'. That is what the government is proposing to do—without any basis, not connected to any of the existing problems that they might get on with and address, not on the foundation of any evidence or any decent analysis, in the shadow of Christmas, with one or two people who are prepared to come up and say something good about it. It is not the way to make radical, harmful change to Australia's family law system (Time expired)
I rise today in the midst of the nation's focus on the 16 Days of Activism against Gender-based Violence to speak on these bills which frankly do nothing—well, worse than nothing—in terms of protecting women and children escaping violence. They potentially make the situation far worse. It is to the great shame of this parliament that these bills—the Federal Circuit and Family Court of Australia Bill 2019 and the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019—are before this House during these 16 days of activism in particular but it would be a shame at any time, quite frankly. I rise to strongly support the amendment moved by the shadow Attorney-General.
It is almost two years ago to the day that I stood in this place and discussed the terrible impacts that the government's bills to merge the Family Court of Australia and the Federal Circuit Court into a single generalised court would have. It was a damaging plan then and it was thoroughly condemned by the community and by legal stakeholders alike. It was completely unjustified. There was no modelling. There was no white paper. There was next to zero stakeholder engagement. Indeed, there was only a six-week desktop review of operational data by two accountants at PricewaterhouseCoopers. From this, the government proposed a drastic restructure that would solve none of the very real pressures that our family law system faces. Indeed, it would create a great deal more problems than it proposed to fix. Those bills were not only friendless; they were despised, and there was widespread relief when they died a natural death upon the expiry of the 45th Parliament.
Yet here we are with restructured but tragically unimproved bills. They would essentially abolish the Family Court of Australia and thus diminish the important role of a specialist court in helping people through family disputes. The Law Council of Australia was spot on when it responded to the reintroduction of these flawed bills by saying:
Legislation merging the specialist Family Court into a single generalist court will not alleviate the fundamental problems plaguing the family law system, including the risk of victims of family violence falling through the cracks.
If passed, these bills would drive the most radical changes to Australia's family law system since its inception in the 1970s under the Whitlam government. Family courts need to be able to respond to any number of very specific and complex issues, which can include drug use, crime, domestic and family violence, and mental health issues. This is a specialist area that demands specialist skills, abilities and services. But this reckless plan from the Morrison Liberal government would essentially abolish the standalone, specialist Family Court, which has been operating now for almost half a century—a court which plays a critical role in supporting those in need of specialist family law assistance, particularly in cases where there is family and domestic violence.
Make no mistake, this matters. The consequences of reducing our courts' capacity to respond to family and domestic violence are incredibly serious indeed. One woman is killed in Australia by a partner or ex-partner every single week. Already in 2020, 45 Australian women have been killed violently. We know that the post-separation period is one of the most dangerous times for women and children fleeing family violence. This means that the courts are absolute ground zero for domestic violence cases. This is confirmed by the fact that at least 70 per cent of matters brought before the Family Court involve family violence. As AWAVA said in its submission to the Senate inquiry on this bill:
With such prevalence of family violence matters in courts, family violence can be described as "the core business of the family court."
This is heartbreaking, but tragically it is true. It is also true that if the Morrison government diminishes how our courts respond to domestic violence, it will put vulnerable lives at risk. This is shameful, it is arrogant, it is dangerous and it mustn't proceed. I urge the government members to vote against this legislation, to reconsider their position. It's not too late.
Of course there are massive issues in our courts; no-one is disputing that. However, many issues stem from the chronic underfunding and under-resourcing of the courts following seven years of conservative governments in this country running them down. Judges have as many as 600 cases on their dockets and families are being forced to wait for a year, or even two, for their cases to be resolved in this profoundly overstretched system. This legacy of years of neglect under consecutive Liberal governments is clear, but this bill will go nowhere near solving those problems. Indeed, if it proceeds, this bill will only throw the courts into further chaos and reduce our capacity to protect and support vulnerable Australians.
Given these very serious risks, it is no surprise that more than 110 family law experts banded together to pen an open letter which calls on this government to abandon this legislation once and for all. The letter actually urges that we go in the opposite direction and increase the level of specialisation in family law and family violence, not dilute and diminish it. The Law Council of Australia's president, Arthur Moses SC, also spoke out on the impacts of this plan, saying:
This misstep will harm families. For more than 40 years, the Family Court has been a premier legal institution, a specialist superior court admired by other family law jurisdictions around the world for its innovative management of the most complex and difficult family law matters. The Bill, will not produce efficiencies, reduce delays, or deliver anything of real value. Nor will they reduce complexity or legal costs in the family law system. In fact, it could make the system worse.
That's not the Labor Party saying that; that is the president of the Law Council of Australia. This opinion is reflected in my local community, where there is grave concern about the implications of this bill proceeding. Most recently, I was contacted by Ms Alison Roberts, a family law practitioner of more than 14 years experience, who told me, 'For the families of Newcastle and the surrounding areas, this bill is a disaster and will have widespread impacts for the very vulnerable children and families.'
When any legislation prompts such unified and vehement condemnation from those that know, it behoves a government to listen. But not this government. Instead, it's doubling down by progressing this dangerous plan through the parliament today. What makes it worse is that the government absolutely knows how serious the problem is, but it is choosing to do nothing about it. In 2017, this government commissioned the Australian Law Reform Commission to conduct a comprehensive review of the system. The government said at the time that it wanted to ensure that it meets the needs of families and effectively supports vulnerable people in cases where there is family violence or child abuse. Despite this, the government didn't even bother to wait for this important review to report before ploughing on with this senseless piece of legislation to essentially abolish the Family Court of Australia. The arrogance and recklessness of this pre-emptive action is truly breathtaking, and it is shameful. It certainly comes as no surprise to me that only one government member was prepared to defend this legislation today.
Since these bills were first tabled, the ALRC has released its landmark report. Its findings are shocking, but, again, it's not surprising—certainly not to those with experience of the family law system. The report shines a light on the tragic consequences of starving our courts of resources year on year on year. It describes Australia's family law system as being:
… deprived of resources to such an extent that it cannot deliver the quality of justice expected of a country like Australia, and to whose family law system other countries once looked and tried to emulate.
What a scathing comment to make.
The ALRC findings are mirrored in virtually every conversation I have had with my local legal community members in Newcastle on this matter. They tell me of a chronically underfunded system. They speak of the lengthy delays in replacing judges. They say that matters are taking up to four years to resolve, with families waiting up to a year for family reports—the critical documents that provide an independent assessment of their cases—to be made. They tell me of their worry and concern for our judges, who are each carrying a workload of 1½ judges by themselves. And they tell me of constituents falling through the cracks, thrust into personal danger or stuck in limbo while their family situations deteriorate. This cannot go on.
The ALRC report included 60 recommendations to address many of these grave systemic issues, but, in a continuation of its usual contempt for expert advice and a belligerent refusal to listen to the facts, the Morrison Liberal government hasn't even bothered to respond. Instead, it has come up with this drastic and completely unjustified restructure.
It has also ignored many of the other 12 significant reviews into the family law system which have been undertaken since 2009. I had the honour of deputy chairing one of these inquiries in 2017 for the Social Policy and Legal Affairs Committee. We looked at what we needed to do in order to create a better family law system that would support and protect those affected by family violence. The inquiry arrived at 33 recommendations, most of which the government has been told again and again, and most of which they have shamefully still done absolutely nothing about.
There is one recommendation that I'd particularly like to draw to the House's attention today, and that's the removal of the presumption of shared equal parental responsibility. This is one of the most commented-on pieces of necessary reform in the family law system. I am currently deputy chairing for the same committee another inquiry into family, domestic and sexual violence in Australia. Whilst the focus of that inquiry is not on the family law system, people continue to raise this issue around the need to abolish the presumption of shared equal parental responsibility. Indeed, there is significant evidence that this presumption is leading to inappropriate and sometimes downright dangerous parental arrangements. But we can do something about this. It has widespread support in the sector, and it could be done tomorrow and it wouldn't cost a cent. Protecting women and children must be absolutely central to the mission of our family courts and, indeed, our social services system. I urge the government to give serious consideration to removing this presumption as a matter of priority, so I again call on the government to support the private member's bill that sits before this parliament to do just that—remove that presumption.
Just returning briefly to the bills before us today, it's clear that these bills would diminish our family law system and, in doing so, would literally put the lives of vulnerable families on the line. The Morrison government needs to scrap this plan immediately. Again, I note not a single inquiry has backed the legislation that sits before this parliament tonight—not a single one—and not a single person. This legislation is friendless and it must be scrapped.
The prime objective of us coming to this place is to do no harm. You would think whatever laws we make in this place should do no harm. When you have an army of very experienced, very well-versed experts in the community—lawyers, specialists, advocates, family and community workers—all united, telling you that the Federal Circuit and Family Court of Australia Bill 2019, and the accompanying bill, the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019, is a bad bill and should not pass this House, you really should listen. And you really should listen especially when there is no counterpoint. Where are the advocates for this bill? Where's big business? Where are the economists? Where are those in the community saying that this bill is a good idea for the families and children of Australia? That's what the Family Court is all about—protecting families and protecting children. There's nobody that I can see in this country who's said this bill is a good idea, that we should abolish the Family Court and subsume it into another model and lose the specialisation which makes it a world leader.
We all know that the Family Court has problems. It would be silly to say otherwise. But those problems stem from resourcing. We know from experts—we've got the member for Warringah, who used to work in the Family Court as a barrister—from around the country telling us what the problem is: it's resourcing. We have evidence to Senate committees of judges and the case loads they are under. It's absolutely staggering. The Senate legal and constitutional affairs committee, which inquired into the bill, heard evidence that two Federal Circuit Court judges—and this is the court that the government want to send the Family Court to by increasing the workload by creating another division in the Federal Circuit Court: one in the Brisbane registry and one in Wollongong—have got over 600 cases on their dockets. There are 600 cases for each judge at the same time. Three other judges have between 500 and 600 cases, and 21 have between 400 and 500. That's evidence to a Senate committee. It's not made up. It's not some wild claim. It's evidence. It's testimony. It's real.
That's the workload judges are under now, yet this government is doing nothing about resourcing the problem. Instead, it's trying to do this cheap fix—and based on what? Based on listening to a report done in six weeks on desktop computers by a couple of accountants, a report that has been discredited because the findings it came up with were not sound. That's what they're basing this major, massive change on. I won't call it a reform. I know those opposite like to call it a reform. It's not a reform; it's destruction. They're basing it on a report by two accountants who are not experts in the field and have no working knowledge of how things work. They came to some sort of conclusion that the Federal Court was more efficient because the Family Court took longer with cases. There was no regard for the level of complexity involved in Family Court matters. And that's what this government is basing this entire bill on. That's the justification to try to save a bit of money in a system that is already chronically underfunded. It's an absolute disgrace.
The fact is the Attorney-General should own up to what he is seeking to do with these bills. The government is seeking to abolish the Family Court as a specialist and standalone superior court, and it is purely ideological. The Liberal Party has never liked the Family Court since Whitlam instituted it. It has never liked it and has always wanted to get rid of it in some form or another, even going back to Daryl Williams, the former Liberal AG in the Howard years. The Family Court's always been in their sights. They have an ideological opposition to it. I'm not sure where it stems from, but it's there. It's real. Look at this quote from Gough Whitlam:
The essence of the Family Courts is that they will be helping courts. Judges will be specially and carefully selected for their suitability for the work of the court. There will be attached to the court a specialist staff …
He goes on to say there are various other experts and helpers. He adds:
These courts will therefore be very different from the courts that presently exercise family law jurisdiction.The Family Court will, of course, determine legal rights, which it is bound to do as a court, but it will do much more than that: Here will be a court, the expressly stated purpose of which is to provide help, encouragement and counselling to parties with marital problems, and to have regard to their human problems, not just their legal rights.
When I look at what's been occurring in recent years, with our social services, I see it all as part of the same pattern, the dehumanisation of government, the dehumanisation of social services. We've got complete automation of what's come to be known as robodebt. We've got the destaffing of Centrelink and the directives to pensioners and old people and the disabled to go online. Don't seek personal service at the counter. Don't seek human assistance. Do it yourself online, on a computer. It's inhuman. It's dehumanising. We've got issues with veterans trying to deal with the Department of Veterans' Affairs. It's a completely dehumanising the experience.
It's all part of the same pattern. The government is dehumanising social and human services in this nation. They're taking compassion, being human, out of the equation, all just to save a few bucks. It's very disappointing, and no-one is standing to support it. I think we've had two members from the government stand and support this legislation. Mr Wallace and, I believe, Ms Martin are the only two I know who have spoken to the bill. Where is the overwhelming support for this bill from the government benches? Where's the ringing endorsement from those opposite of what this is seeking to achieve? Are you so timid, on that side, so cowed by the Attorney-General, that you're not willing to come into this place and state why this bill should go forward? You're just doing as you're told, like good little soldiers. You'll come in for the vote and that's it.
It's not the way this nation should be run, completely dehumanising this legislation. It's a terrible path to go down, to, effectively, abolish the Family Court in this nation. The Family Court was meant to be more than just about exercising legal rights. It should be about putting human compassion back into the system.
I stand to oppose the Federal Circuit and Family Court of Australia Bill 2019. This bill, this reckless plan, should be thrown out. It is based on a six-week desktop review by two accountants, with no consultation with the communities and families who need it most. The Morrison government should own up to what they are seeking to do with these bills. They are seeking to use this legislation to abolish the Family Court as a specialist and standalone superior court. The Family Court of Australia is a proud Whitlam legacy, like most of the great social reforms that have occurred in Australia. From Medicare to our world-leading superannuation system, to free legal assistance services for Australians in need, the Family Court of Australia is an institution that has served our nation admirably.
The Family Law Act 1975 instituted two major changes. It instituted no-fault divorce and it established the Family Court of Australia, a specialist multidisciplinary court for the resolution of family disputes. When the family law bill was debated in the House of Representatives—over 45 years ago—nearly half the House, a total of 59 members, made speeches. The House spent 28 sitting hours debating that bill. There was disagreement. There was debate. But across the political spectrum members of the House took the reform seriously. Australian families deserve no less. How many people on the other side of the House have spoken on these bills today—one, two? Do Liberal backbenchers even know what they're voting for? Do they care? Do they understand what this will mean for families facing separation and divorce?
In 1974 the Senate Standing Committee on Constitutional and Legal Affairs, which had been tasked with reviewing the Family Law Bill 1974, said that the Family Court would be essential to give substance to key aspects of the Family Law Act. The essential distinguishing feature of the Family Court is that it only deals with family law matters. These bills would rob the Family Court of its essential distinguishing feature by collapsing it into one of Australia's busiest, most poorly resourced and overburdened courts—the Federal Circuit Court. In other words, these bills would abolish the Family Court of Australia.
Specialisation is so important, because family law matters are not like other matters that generalist courts tend to deal with. If anything, the need for a specialist Family Court has only become more pronounced over time. As the Australian Law Reform Commission noted in its landmark 2019 report on the family law system—a report the government commissioned but has completely ignored—the Whitlam government could not have foreseen the growth in the incidence and awareness of family violence and child abuse since 1975. Specialisation does not just mean specialist judges. The Whitlam government's vision of a specialist family law court was of a court with interrelated co-located services and resources. It was about creating an environment that had regard to what Whitlam described as the human problems of couples and families, not just their legal rights. The realisation of that vision has never been more important, especially for vulnerable children and families who need a Family Court system that is not only efficient but also safe and sensitive to their particular needs and vulnerabilities.
Everyone accepts that there are serious problems in the Family Court at present. As the Australian Law Reform Commission found:
But, instead of working to address this fundamental problem and fix the family law system, the government remains determined to restructure the Family Court and the Federal Circuit Court in a way that will make a bad situation worse for Australian families, including vulnerable children.
In brief summary, the government's bills would combine the Federal Circuit Court and the Family Court into one court with two divisions. That court would be called the Federal Circuit and Family Court of Australia. The current Family Court of Australia would become Division 1, while the current Federal Circuit Court of Australia would become Division 2. Both divisions would operate under the leadership of a single chief justice and deputy chief justice, with a single set of rules and a single point of entry. When the government originally proposed this merger in the 45th Parliament, the current Attorney-General said that he would stop appointing new judges to Division 1 as they retire. This would obviously amount to a gradual abolition of Division 1 over time. The Attorney-General has now backed away from that position and promised to keep appointing judges to Division 1. But nothing in the bills would guarantee the continued existence of Division 1. The Attorney-General made his intentions for this merger very clear in the last parliament, but now this Attorney-General says, 'Trust me.' Even if the bills were amended to guarantee the continued existence of Division 1, that would not address the fundamental problem with these bills.
With that said, instead of increasing specialisation in the Family Court the Morrison government is going to water it down to effectively abolish it. We will see families who rely on the court doing it tough. It is time these bills were thrown out. It is time for this parliament to listen to families and make the decision to throw these bills out. This reckless plan must go.