Tuesday, 1 December 2020
Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019; Second Reading
In speaking to this legislation, I speak in support of the amendment moved by the member for Isaacs. In his address to the House on the matter he articulated why this legislation, 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, should be opposed. This legislation merges the Family Court of Australia with the Federal Circuit Court. It is a move that, in my view, and in the view of many others, makes no sense at all. It is a move that has been poorly thought through with questionable community consultation and, not surprisingly, it has been widely opposed. Indeed, it is difficult to understand the rationale for the merger. It is even more difficult to see how the merger will lead to greater efficiencies and improvements to the court system, which, as other speakers have already highlighted, is already under stress.
Not surprisingly, only one coalition member attempted to defend this legislation in the House. If the legislation is, indeed, in the public interest, why are government members not prepared to come into the chamber and to defend the legislation, particularly in the face of so much opposition to it. When legislation is non-controversial it quite often flies through this House, but when it is controversial it is important that members come into the chamber and either defend or oppose it and state their grounds for doing so, yet we have seen almost none of that from the government. This leads me to conclude that the government simply cannot justify this legislation and wants to ram it through for its own ideological purposes. I can only conclude that one of those purposes is that it's a backdoor attempt to cut costs in the long term, and, whilst the government will argue that they are putting more money into the court system right here and now, the reality is that over a long period of time I suspect that it is another cost-cutting measure by this government. It will be a cost-cutting measure that will be paid dearly for by struggling families, by children and by people in domestic violence situations—people who are already vulnerable. These are people who are already in a crisis or a very stressful situation and who need the intervention of a court system that unfortunately right now is itself under stress.
We have heard statistics by members who have spoken in this debate of judges with case loads of some 337 cases and hearing waiting times of some 18 months. I can only imagine the stress to those families that are waiting for 18 months to have their matters heard by a court. Going to court for any person is always a stressful matter, regardless of what the issue is, but particularly for family matters the stress, I suspect, is much greater. To then have to wait months and months to have your hearing would be something that I believe would unduly add to the stress for those families.
The Law Council refers to some Federal Circuit Court judges also having more than 600 cases in their dockets. Again, waiting times are 18 months to two years, and, again, for those parties to those court cases it's totally unreasonable.
It's been pointed out that there have been 110 stakeholders, all with expertise in this matter, that have opposed the court mergers. When I look through the list of those parties who have made submissions, I note the expertise that they have. These are people that understand the court system well and understand what needs to be done to improve it. Therefore, they are in a very good position to pass judgement as to whether this is a good move or not.
I want to summarise one of the statements put out by the Law Council of Australia. It highlights six matters with respect to why this merger should be opposed. They are: (1) it will abolish the standalone specialist Family Court as we know it and collapse it into one of the busiest, under-resourced, overburdened, lower level Federal Circuit Courts; (2) it will harm vulnerable children and families in need of specialist family law assistance; (3) it will increase cost, time and stress for families and children; (4) it will place further stress on Federal Circuit Court judges already struggling under unsafe workloads; (5) it will fail to alleviate the fundamental problems plaguing the family law system; and (6) it will fail to address the risk of family violence victims falling through the cracks. The statement goes on to say, 'The strongest protection for children, families and survivors of family violence is to maintain and strengthen a standalone specialist family law court involving a holistic specialist system of interrelated, co-located services and resources as was intended when the Family Court was created.'
If the Law Council of Australia makes those statements, we should take note of them. The Law Council is the body that deals with these matters on a daily basis and listens to its own members and so on. These are the experts in making judgements about what should and should not work within the court system. Yet it's clear that this government is totally ignoring those serious matters being raised by the Law Council of Australia.
In a dissenting Senate report, Labor senators articulated in 25 clear and concise statements why this legislation should be opposed. I want to quote one statement, at paragraph 12 of the report. It says:
The government's proposed abolition of the Family Court as a stand-alone specialist family court is not merely friendless. It has been almost universally condemned.
This highlights the fact. Why is the government proceeding with this merger and why is it ignoring the voices of so many out there who are telling the government it is the wrong thing to do?
I note that this legislation has been on the table for nearly two years. I think it was first brought in in 2018, then it lapsed, then it was brought in again about a year ago and now, a year later, we are finally debating it. It tells me that the government knows it is introducing legislation that will not achieve the objectives it claims it will, legislation that is widely opposed, and is somewhat nervous about it. The fact that we are now dealing with it almost two years later suggests to me that the government knows full well this legislation should not be passed; nevertheless, it wants to push it through.
Forty-five years ago the standalone Family Court was established because of the specialist nature of the matters dealt with in family courts. In his second reading speech, the minister said:
… there is widespread recognition that the current structural arrangements in the courts are simply not working to the benefit of Australian families.
Of course those arrangements are not working to the benefit of families. We have waiting times of 18 months to two years, we have case loads for judges of around 337, on average, and we have a system that is not supported sufficiently by the government and is underfunded. The system is under stress. That is why it is not working properly. It's not because of the structure of the courts themselves. Rather than fiddling around the edges trying to amalgamate the two courts, it is high time the government addressed the real issue of under-resourcing and underfunding. That would resolve the problems the minister himself referred to in his second reading speech on this matter.
On that issue, the Australian Law Reform Commission's statement—and this is a statement that has been quoted by other speakers, but I believe it's important enough to requote it—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.
If other countries once looked to Australia's system and tried to emulate it, it tells me that it is a system that has been looked at as a model for the rest of the world. It tells me that the model itself is the correct model, and so therefore, if we have the correct model that other countries and other jurisdictions are trying to emulate, why are we wanting to change it? And, indeed, to whose system are we looking to change it to? I saw no reference in the minister's second reading speech to any other country that has a similar system to what is being proposed and that works better than the one we currently have. So why are we wanting to move from a good system that has been looked at by other jurisdictions to a system that has not been tried anywhere else, to my knowledge?
The ability of courts to function properly directly impacts on their ability to deliver justice. Judges are also real people, and workloads and work pressures undoubtedly affect their ability to do their job, and yet their job matters so much to the people that appear before them. The first Chief Justice of the Family Court of Australia, Elizabeth Evatt AC, and the second Chief Justice, the Hon. Alastair Nicholson, who both understand the workings of the Family Court as well as anyone else, have criticised the proposed merger. Both former Chief Justices would be in the best position possible to know how the courts function, how they can be improved and what changes are necessary. This legislation is not what they recommend. Again, if we are not prepared to listen to the people that were part of the system, that oversaw the system and that would understand the system as well as anybody else in this country, then on whose advice are we making the changes that are being proposed? Indeed, it is quite an insult to those people with that level of expertise to suggest to them that they don't know what they are talking about by ignoring their submissions and their comments on this legislation. These are people who were part of the system for years and years and possibly the people who put it together and brought to us the very arrangements we currently have.
In closing, I make this point: the standalone Family Court was a Whitlam Labor government initiative, as so many other speakers on this side of the House have already pointed out. It was an initiative that recognised the unique and specialised nature of the court's functions and the sensitive family matters that the court had to deal with. I can think of very few other matters that would be as sensitive as Family Court matters, matters that deal with family separations and the stresses that go with all of that, often matters that include domestic violence and, most importantly, matters that deal with the best interests of children.
Children are the innocent parties in all of these matters, and the whole intent of the system is ultimately to ensure that those innocent parties are looked after as best as possible. It requires a court that has specialists and people with expertise attached to it, a process that is unique and a process that focuses on that very issue. That is what was put in place around 45 years ago. For all the faults that others might have about it—and, indeed, that have been highlighted over some of the inquiries—the reality is that it's a system that has worked well. Yes, it is a system that is under stress right now, and, yes, it is a system that needs additional support. But it doesn't need to be changed to get that additional support. What it needs is a government that is committed to a process that has been tried and proven—a process that has been looked at by outside jurisdictions in an endeavour to copy it and a process that has served this country well for 45 years and will do so into the future if the government is prepared to support the system we currently have, and that's why this legislation should be opposed.
I rise to speak on the Federal Circuit and Family Court of Australia Bill 2019 with an uncomfortable feeling of deja vu. It has become a characteristic of modern conservatism epitomised by those opposite to trash the institutions that serve our society. It used to be the case that conservatives were the defenders of institutions in our society. It used to be the case that conservatives were the defenders of moderation and proper process and carefully stepping through significant changes in our society. That's not what we've seen in recent times from conservatives in Australia and abroad. This bill really epitomises this trend.
The effect of this bill would be to abolish the Family Court as a specialist standalone court in Australia. This coup de grace for the Family Court comes after seven years of neglect for the Family Court under first the Abbott government and then the Turnbull government and now the Morrison government. They've under-resourced the Family Court and failed to make the judicial appointments necessary for the court to expediently deal with its case load. Nobody disagrees that the family law system isn't functioning effectively in Australia at the moment. There is a need for change. What there is not a need for is the radical destruction of an institution, represented by the bill before this House. That's what we're talking about here. We're not talking about the acts of a conservative government; we're talking about the acts of a radical government. This is vandalism, not conservatism. I have to say it gives me a very strange feeling as a progressive member of parliament, usually someone who is an advocate of change for the betterment of the nation, to consistently be forced to defend the strength of our institutions in society. It would be great if we saw those opposite taking this course as well.
Frankly, the need for a standalone specialist Family Court in the 45 years since it was established has never been greater than today—the member for Isaacs, the shadow Attorney-General, has made that case compellingly in his contribution to this debate—and I want to dwell very briefly on why this is. Family law is a specialist area of law but, more so, it deals with a very special cohort of people appearing in litigation. We're not talking about corporations arguing about things with well-resourced in-house legal counsels and barristers. We're talking about families confronting family breakdown. We're talking about vulnerable Australians. In the 45 years since the establishment of the Family Court, we've come to far better understand the particular vulnerability of two groups within this cohort: the victims of family violence and the victims of child sexual abuse. Dealing with these matters requires not just expertise in law, in the subject matter, but also experience and understanding into the nature of these abhorrent behaviours and how to proceed in a legal system in a way that protects the victims of these horrible crimes.
The Family Court, as I said, is not perfect in dealing with these issues, but a standalone specialist court is far better equipped to deal with this than a Federal Circuit Court dealing with the full gamut of issues appearing before the Federal Court. Corporate insolvency, bankruptcies, tax litigation: all these things do not deserve to be wound up together with family breakdown and the litigants going into family law issues. There is great reason to tread carefully in reform in this area, but the bill before the House is a travesty of process. There's nothing conservative about the way that this bill has been developed. The bill represents fundamental structural changes that have not been recommended anywhere by any substantive process. The 2019 Australian Law Reform Commission inquiry into this issue, a landmark inquiry that the government has since ignored, did not recommend this. Indeed, there are five separate reports that are claimed by the government as the supporting evidence—as arguments for the radical vandalism represented in the bill before the House today—and which they describe as the evidence base for these reforms. Five separate reports are listed on the Attorney-General's website, but none of the reports recommend these radical changes. In fact, none of these reports even considered structural changes of this kind. These changes were cooked up in the mind of the Attorney-General and then brought into this House for debate.
And what kind of a debate are we having in the House at the moment? When the Family Court was established 45 years ago, we had a debate in this chamber that went for 28 hours. There was robust discussion and debate between both sides of the House about what were very significant changes at a time of very significant change during the Whitlam government: the establishment of no-fault divorce at the same time as the establishment of the Family Court. Members engaged in a very substantive discussion about this. Where are the members opposite engaged in the discussion about the radical change contained in this bill? They're completely absent. Only one member of the coalition government proposing these radical changes has come into this chamber in order to defend them: the member for Fisher, who I do acknowledge has a long interest in these issues and engages in these issues frequently. But he's alone. There's no-one else, and that should tell you something. This is a radical act of vandalism against one of the institutions in our legal system that have best served some of the most vulnerable people in our community, and one member of the government fronts up to explain it. This is no way to do change in our society.
This travesty of a process might be why this bill is utterly friendless. Of the 110 stakeholders that have engaged with the government on this bill, 110 are opposed to these changes. These stakeholders are the people at the coalface. These are the people on the front lines of the family law system, and they are unanimous in their view that, yes, change is needed, yes, the system needs to be better resourced and, yes, the system is not serving people that engage with it as well as it should but, no, the abolition of a standalone specialist Family Court is not the answer. Look at the gamut of people and organisations opposing this bill: the Law Council of Australia, the women's legal services, community legal centres, Aboriginal and Torres Strait Islander legal centres, child protection advocates and disability services. From across Australia, they've written to the Attorney-General asking him to think again, to withdraw this act of radical vandalism, to act as a true conservative would and to step cautiously into these very significant changes. Those 110 individuals and organisations oppose this bill because there are real-life consequences from this bill. Australian families, and particularly the victims of family violence and child abuse, will be the ones that will pay the price for the vandalism of this bill.
The 110 stakeholders who have made submissions to the Attorney-General asking him to change course have made it clear that they believe that this bill, the destruction of a standalone specialist Family Court, will harm vulnerable children and families in need of specialist family law assistance. It will increase rather than decrease the cost, time and stress for families and children in the family law system—the very purpose of this bill. It will place further stresses on the Federal Circuit Court judges who are already struggling under unsafe, unsustainable and unconscionable workloads. Some of the case loads in the dockets around the country are just mind-boggling, but it's not a consequence of the structure of the Family Court; it's a consequence of seven years of neglect of the Family Court by those opposite—of under-resourcing and failing to make judicial appointments.
It's the two-card trick from the conservatives these days: undermine government institutions, under-resource them, kneecap them, stop them from being able to be effective in serving the purposes for which they were established and then have the chutzpah to point at them and say, 'Look, they're broken; they're not working, and we need to destroy them.' We, on this side of the House, don't fall for it. We know that the need for a specialist and standalone Family Court is stronger than ever before, because of the greater understanding we have today of family violence, child sexual abuse and the need to protect those vulnerable cohorts. We get that.
Finally, those 110 organisations that are asking the Attorney-General to think again have made it clear that this bill fails to address any of the fundamental problems plaguing the family law system, including the risk of family violence survivors falling through the cracks. It's worth dwelling a little bit on some of the specific quotes from some of these organisations about what these consequences are. Community Legal Centres Australia said of this bill:
… moving away from a specialist family court model would be a retrograde step and expose survivors of family violence to unnecessary risk.
Women's Legal Services Australia said its opposition of the bill is:
… centred on ensuring the safety and best interests of the child and the safety of adult victim-survivors of family violence in family law proceedings.
The President of the Law Council of Australia, Pauline Wright, said this bill:
… would result in the effective abolition of the Family Court of Australia, a respected, specialised and focused court dealing with family law issues. The 2019 merger bills, if passed, would also mean that Australian families and children will have to compete for the resourcing and hearing time with all federal matters—that is, other matters like migration bankruptcy and those sorts of things that the Federal Circuit Courts and the Federal Courts deal with. 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.
I ask those opposite to stop, to pause, to listen and to not be gulled by the arrogance of this Attorney-General—an incompetent Attorney-General whose time in the role has been characterised by one debacle after the other. Now is the time to stop and pause and listen to the tidal wave of opposition to this bill from those who will be affected by it.
It's completely unacceptable that an act of vandalism like this bill can be brought through this parliament with only one member of the government willing to speak for it. Why bother to be elected to this parliament? Front up. This is a substantial change that will affect not only one of the most important legal institutions in this country but also one of the core institutions of our society: the family unit. But those opposite have nothing to say about it. They won't speak in support; they won't oppose it. They have got nothing to say and nothing to contribute. They're happy to outsource their judgement to the Attorney-General. Well, good luck to them.
This bill, after this debate, will presumably head up to the Senate for debate there. I implore the crossbench in the Senate to exercise their brains in a way that the coalition have not on this bill—that government members have not. I implore them to listen: listen to everybody in the legal community and to advocates for victims of family violence and child sexual abuse who are begging this government to listen, to stop and to take a different path. Surely there is no cause more deserving of a little bit of judicious reflection than family violence and child sexual abuse. Those opposite, particularly the home affairs minister, like to thump the dispatch box when talking about these issues. They like to make these issues into binary issues: whether you are for victims of child sexual abuse and family violence or against them. I say to those opposite: this is a bill that many advocates and victims of family violence and child sexual abuse say will have a very negative impact on the people that they represent. Take the time to listen. Pause, withdraw this bill and develop a new path that protects these most vulnerable people and our family law system. And rediscover your conservative roots. It's getting a bit tiring being a progressive—being the only people willing to stand up in this parliament and defend the institutions of this country.
We need to start by recognising the importance of the family law system to the wellbeing and safety of children and families, and the role that the Family Court has played over the years since its inception in 1975 under the Whitlam government—and, when we look at major reforms in this country, they're always under a Labor government. Whether it's Medicare, whether it's the Family Court system or whether it's the NDIS, it's always a Labor government that produces the big reforms that benefit the country. Again, in those important reforms to the family law system in 1975, the focus was on the wellbeing and safety of families across the nation. That was the purpose of the Family Law Act in 1975, when the Family Court of Australia was produced under the Whitlam government.
But what we've seen in the last seven years is seven years of neglect by this coalition government. The family law system, we know, is in a state of unprecedented crisis. We know that, if you really want to intervene in this area and make it better, you need to fund it properly. We've seen funding go backwards, despite the number of cases that are going before the family courts. We need to ensure that we protect families, as I said, and especially children. If the Federal Circuit and Family Court of Australia Bill 2019 and the cognate bill are passed, they will cause further harm to vulnerable children and families, and that is the concern that we all should have here. We know that, if these bills pass—and it's been said by many speakers on this side—it will cause harm to the families and children who are in need of specialist family law assistance. That's exactly what the federal Family Court of Australia is; it's the specialist court for these particular things.
We on this side have been calling, and again I will call, for the government to withdraw this damaging bill and instead get to work on things that will actually help Australian families in a time of need—for example, by responding to the 60 recommendations of the Australian Law Reform Commission's landmark 2019 review of the family law system. That would be a start. That would be a good beginning that we would all be happy to support, knowing that it would enhance the system. The government need to increase resources to the Family Court of Australia and the Federal Circuit Court in order to reduce case backlogs, in order to reduce the waiting times and the frustration that go with that and in order to finalise never-ending cases and end the stress that that causes families.
If the government want to do something to ensure that it operates smoothly, increase the resources. Increase the funding. Increase the resources to the legal assistance services that provide vital help to vulnerable families at a time of particular crisis and stress, including legal aid commissions, family violence prevention legal services, Aboriginal and Torres Strait Islander legal services, women's legal services and other community legal centres. We've seen diminishing resources for all of these services over the last seven years. Most importantly, the government should be consulting people, experts, to progress meaningful reforms—meaningful reforms—to improve the experience of all people using the family law system.
We know that the bill that that was put before the parliament for those reforms in 1975 was opposed by the then opposition. There were arguments and debates. We know that there's always been resistance from those opposite to improving our family law system, especially the Family Court, which is a standalone specialist and superior court. Prior to the Family Law Act, there were 14 grounds for granting a divorce. They included things like adultery, desertion, habitual drunkenness and imprisonment. Insanity was one of them. To get a divorce, a spouse had to prove the other party was at fault. All this did was ensure there was plenty of work for private investigators around the place. None of us want to see us go back to that. I'm not saying the bill does that, but through diminishing the court system—by chipping away at it, bit by bit—we could end up in that same position in years to come if we're not all vigilant, in this place, about ensuring that this Family Court is resourced properly. That's what this government should do. If they want to enhance the system, if they want to make it better, if they want to streamline it, they should resource it, fund it and ensure that the judiciary, judges, are appointed in a timely fashion. They should do the things that actually help people.
When the Family Law Bill 1974 was debated in the House of Representatives over 45 years ago, nearly half the House spoke on it. Fifty-nine members made speeches. The House spent nearly a month—a month—debating it. There was disagreement; there were different views and different arguments, but the House showed a real interest in it, on both sides: those who opposed it and those who supported it. But today we see hardly anyone from the other side speaking on this important change that's being proposed. It's such an important change, such a serious change, to the legal system of our country. Yet no-one on the other side wants to come up and argue the points, debate it or tell us why they think it will improve the system. There have only been a handful of people. It's a contrast to the seriousness that was given to this bill 45 years ago by the then opposition, the Liberal Party. If you want to make these changes, come into this House, debate them, tell us your views, tell us why this change will enhance the community. None of that is happening.
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. They commissioned it, they went through with it, but they have ignored this report on the family law system.
There is no way that the Whitlam government, back in 1974-75, would have foreseen the growth in the incidence—and awareness—of family violence and child abuse. Case numbers have grown, obviously, and there are longer lists. But specialisation does not just mean specialist judges. The Whitlam government's vision of a specialist 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 back then described as the 'human problems'. We're talking about the human problems—of couples, families and children—not just the legal rights. That's what it was specialised for. The realisation of that vision has never been more important than today, especially for vulnerable children and for families who need the Family Court system. Not only do they need it to be efficient; they need it to be safe for and sensitive to their particular needs and vulnerabilities. What this bill will do, if it is successful and goes through this place, is diminish those things, those absolutely essential things, that were at the forefront for the MPs of the day who were producing this law in 1975. It was to be efficient but also—and this is very important—safe for and sensitive to those with particular needs and vulnerabilities. They're the people who will be hurt most by this bill.
Everyone accepts that there are problems in the Family Court at present. We have constituents that come and see us regularly and we know there are issues. But if you really want to fix it, it's not a mystery, it's not rocket science. 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.
That is really important because we need the system to be efficient, but to make it efficient it has to be resourced, and that's the area that this government has absolutely forgotten about. This is an area, like many other areas, this government claimed that they don't know anything about. It's not rocket science. Everyone accepts that there are problems with waiting times, et cetera—but if you want to fix it, that's the way to do it.
Over the last seven years, the story of the Australian family law system has been a story of neglect, neglect and more neglect—neglect by this government, led by Tony Abbott to begin with, then neglect by the Malcolm Turnbull Liberal government, and neglect by this current government led by Prime Minister Scott Morrison. This is what the report says: 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, have all been ignored. When you have increasing demand, nearly doubling over the last 10 to 15 years, and review after review saying you have to resource it to keep up with that demand, and those resources aren't put the to the system, well, of course we're going to have problems. But this is not the way to fix it. This bill does nothing to fix those issues. The government should be working really hard to fix the family law system, but instead the government remains determined to talk about restructuring the Family Court and the Federal Circuit Court in a way that will make a bad situation an even worse situation for the most vulnerable Australian families, including vulnerable children. This bill does nothing to fix the problems that exist. Those problems are about making appointments in a timely fashion and ensuring that resources are put in to keep up with the demand that is required.
Deputy Speaker, you'd also expect that such radical reform by this government would be based on good evidence, good advice and research. You'd expect that the government would have consulted widely, but it hasn't. The Morrison government claims that the proposed merger has been informed by independent reviews and inquiries over a decade. The evidence base for the reforms is not there. The only problem with these inquiries is that none of the reports listed on the website recommended these radical reforms. All these reports and investigations were done, but not one actually recommends these reforms. So why is the government pushing ahead with this particular bill? None of the reports even considered that these reforms would better the system. In fact, the only one of the five reports that recommended restructuring the Family Court and Federal Circuit Court recommended an entirely different model from the one that's being proposed today—an entirely different model.
We should go back to the vision of those MPs in this House, 45 years ago, that spoke about enhancing the system, making it simpler and protecting vulnerable families and vulnerable children. This bill will only take us backwards; it is not going to take us forwards. If we're not all vigilant about this particular bill, then the chipping away of the Family Court system through this bill and maybe another one next year and maybe another one the year after, will diminish the entire system and we could see ourselves back in the position that we were in 45 years ago, where the only ones making money are the private investigators.
I rise to oppose this bill, the Federal Circuit and Family Court of Australia Bill 2019, and the accompanying bill, the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019. These bills propose one of the most sizable structural reforms to the court system, merging the Federal Circuit Court and the Family Court. The government should own up to what they are seeking to do with these bills. They are seeking to abolish the Family Court as a specialist standalone superior court. The Family Court of Australia is a proud Whitlam legacy like most of the great social reforms that have occurred in Australia, from Medicare to our world-leading superannuation system to free legal assistance services for Australians in need. The Family Court of Australia is an institution that has served our nation admirably.
The Family Law Act 1975 instituted two major changes. Firstly, it instituted no-fault divorce. Secondly, it established the Family Court of Australia, a specialist multidisciplinary court, for the resolution of family disputes. When the Family Law Bill 1974 was debated in the House of Representatives over 45 years ago, nearly half the House—a total of 59 members—made speeches. The House spent 28 sitting hours debating that bill. There was disagreement. There was debate. But across the political spectrum members of the House took the reform seriously. Australian families deserved no less. By contrast, how many people on the other side of the House are going to speak on these bills today? Do Liberal backbenchers even know what they are voting for, and do they care?
Prior to the Family Law Act, the Matrimonial Causes Act 1959 set up 14 grounds for the grant of a divorce, including adultery, desertion, habitual drunkenness, imprisonment and insanity. To get a divorce a spouse had to prove the other party was at fault. Private investigators did very well out of divorce law as it existed prior to the Family Law Act, but since the commencement of the act in January 1976 the only ground for divorce in Australia has been that the marriage has broken down irretrievably. This can be established if the court is satisfied that the parties have lived separately and apart for a continuous period of 12 months. Neither party has to prove that the other person is at fault.
As Gough Whitlam said on 19 May 1975:
Let us keep in mind that marriage is essentially a human relationship between 2 people. It takes 2 people to make a marriage but it takes only one to break it. Idealists might wish that it were otherwise, but it is not. It is time society acknowledged that simple fact. We have no right to condemn 2 people to live together in misery and suffering for a moment longer than necessary. Ultimately the only test of a marriage is whether both parties agree to maintain it. If one party is unwilling to maintain it the marriage has broken down. I do not believe any reasonable person would suggest that 12 months is not sufficient time to prove that a marriage has broken down.
The Family Court system is an important mechanism through which we can protect individuals experiencing family and domestic violence. We know that many matters which pass through the Family Court relate to or involve family violence. According to Women's Legal Services Australia, 50 per cent of Family Court matters involve domestic violence and child abuse. We also note the Family Court is a specialist court, with specialist judges and specialist staff, which works to resolve some of the most complex and, I would add, highly emotional and often traumatic matters. The Family Court with its staff and resources is best placed to manage these types of cases.
We all acknowledge the major challenges confronting the Family Court—in particular, the lengthy court wait times, delays and backlogs—in resolving family law disputes. According to the Australian Law Council, parties are waiting up to three years in the Family Court to finalise cases involving family violence. Of course this is unacceptable. Justice delayed is justice denied. Nor is it acceptable, however, that we replace one evil with another. Some community groups, such as Women's Legal Services Australia, have also expressed serious concerns, particularly in relation to how this message may impact the lives and safety of individuals experiencing family or domestic violence. Indeed, the Federal Circuit Court does deal with a large proportion of family law matters. However, the reality is that the Federal Circuit Court is a generalist court; it's charged with dealing with the more simple, straightforward and less complex family law matters. The more complex matters are considered by the Family Court.
Family law matters are inherently complex, as I said. They are highly emotional, deeply personal and often traumatic. Family Court Justice Diana Bryant said that family violence features in a high proportion of contested cases—something like 41 per cent. As I mentioned earlier, Women's Legal Services Australia says 50 per cent of Family Court matters involve violence. According to Miranda Kaye and Jane Wangmann of the University of Technology Sydney, these matters often involve concerns about substance abuse, mental health, parenting capacity and, of course, family and domestic violence. They have written, 'It is disappointing the new court appears to be merely an expansion of the generalist Federal Circuit Court at the cost of destroying the more specialist Family Court of Australia.' They also write, 'One of the requirements for appointment to this court is that a judge must have the expertise to be considered a suitable person to deal with matters of family law.' The most difficult and complex cases are saved for specialist judges with appropriate experience. This is, ultimately, why the Family Court matters do take longer to resolve. That complexity is only compounded by the presence of family or domestic violence. The specialist nature of the Family Court means that it has an important role to play in protecting individuals experiencing family violence. Former Family Court Justice Diana Bryant says:
I can say that I have spent my whole career—40 years—in family law. I think I have a reasonable knowledge of all those areas gained over that time, but I am still learning and it's not something you can pick up in five minutes. I think having specialised judges is important.
Wendy Kayler-Thomson of the Law Council said:
It would be disastrous to have a trial judge who has not had any family law experience and then to have a single judge on appeal also having no family law experience.
What is clear from these cases is that they—both legal as well as domestic violence advocates—are seriously concerned that this measure will end specialist expertise within the Family Court.
The government also wants to abolish the specialist appeals division of the Family Court and transfer this responsibility to the Federal Court. Beyond concerns expressed about the constitutional validity of this, there is also the concern about the most complex cases, those which reach the appeals stage, being heard by the Federal Court. When I think of the complexity of the cases of family and domestic violence which we hear enter our courts and of the pain and trauma of having to relive these experiences, I want to make sure—and I think we would all want to ensure—that the judge or the justice presiding over the case is trained, skilled and experienced to take on this case. The Australian Bar Association has expressed concern about not only the loss of the specialist capabilities that the Family Court brings but also the adequacy of funding and resourcing of the court.
A big part of the conversation around backlogs and delays comes down to resourcing. Our courts are under-resourced, legal assistance services are under-resourced and this government has failed to appoint replacements for a number of judges who have retired. Labor has had much to say about the funding of legal services in the context of family violence matters.
The Morrison government's proposal to effectively abolish the Family Court of Australia as a standalone specialist court is friendless, but it has many opponents. No fewer than 110 stakeholders, ranging from the Law Council of Australia to Women's Legal Services Australia, Community Legal Centres Australia, National Aboriginal and Torres Strait Islander Legal Services, child protection advocates and disability services from across Australia, have written to the Attorney-General to ask him to abandon this proposal. The Attorney-General has ignored their pleas. These 110 individuals and organisations oppose this proposal because they believe that it will harm vulnerable children and families in need of specialist family law assistance; increase rather than decrease cost, time and stress for families and children in the family law system; place further stresses on Federal Circuit Court judges who are struggling under unsafe, unsustainable and unconscionable workloads; and, finally, fail to address any of the fundamental problems plaguing the family law system, including the risk of family violence survivors falling through the cracks.
In the time that I have left, let me just read into the Hansard some of those objections. The very first Chief Justice of the Family Court of Australia, someone I know personally, the Hon. Elizabeth Evatt AC, has said:
The proposed merger of the Family Court and the Federal Circuit Court … will lead to undesirable outcomes for children and families.
… … …
Merging the Family Court into a generalist court will undermine the integrity and the structural specialisation of the Family Court. The impact of losing this institutional specialisation is not properly understood, and has been downplayed
It is unbelievable that Government would propose the dissolution of a Federal Superior Court in this fashion without the most careful and searching Public Inquiry and without carrying out significant research and without consulting the many experts in this field.
Cases can be extremely complex and require specialist knowledge of the type that has always been available in the Family Court, which has provided leadership in the proper interpretation and principles to be applied by other courts with family law jurisdiction.
The President of the Law Council of Australia, Pauline Wright, has said of the proposed merger:
It would result in the effective abolition of the Family Court of Australia, a respected, specialised and focused court dealing with family law issues.
National Aboriginal and Torres Strait Islander Legal Services said:
… the bill "will disproportionately impact the most vulnerable including Aboriginal and Torres Strait Islander children and families who need the most support".
The Attorney-General has shown his arrogance by dismissing these concerns with a wave of his hand, in the face of overwhelming opposition from family law experts across the country, instead of working with experienced practitioners and experts to improve the family law system for the benefit of Australian families. The Morrison government has instead decided to let everything rest on the findings of a discredited six-week desktop review by two accountants. Australian families deserve better, and the Labor Party, as I said, will be opposing this legislation vigorously.
I know that in this place it's all about politics and sometimes—or often—about ideology when bills are put forward and when policies are pushed forward by the government. That plays a big part in it. This is a political place. We are political representatives. But sometimes it becomes a little bit bewildering why a government would insist on certain changes when it's quite clear, based on what's before them, the damage that it would cause. It's actually bewildering to me. What is the reason behind what they are trying to do with the Federal Circuit and Family Court of Australia Bill and the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill?
They should own up to what they're seeking to do, which is basically abolish the Family Court as a specialist and standalone superior court. Why? Is it ideological? Is it because the Family Court of Australia is a proud legacy of the Whitlam Government? Is that what it is? Is it simply the same old, tired ideological fight that the Liberal Party often plays and has played for decades? Whether it's any of the great social reforms that have been put in place by Labor governments in the past; whether it's Medicare, which they never agreed with and always try to tear down; whether it's superannuation, which they're trying to tear down now right before us; whether it's free legal aid and assistance; or, in this case, the Family Court of Australia, an institution that since being put in place and being established has actually served our nation admirably—what is the reason? Can it be something else beyond ideology or pure political game playing? I can't see it if it's there. That's why I'm bewildered.
We know that the Family Law Act 1975 instituted two major changes: it instituted no-fault divorce and it established the Family Court of Australia, that specialist multidisciplinary court for the resolution of family disputes. The Family Law Bill 1974, back then, was debated in this House over 45 years ago and nearly half the House—a total of 59 members—made speeches. The House spent 28 sitting hours debating that bill. It was a clear and open debate with reasoning put forward and arguments put forward in the best traditions of our parliamentary democracy. Of course there was disagreement within that debate, as there would be, as there should be—we represent different views in this place. But, right across the political spectrum, members of this House took those reforms seriously, whether they were in government or in opposition, obviously. Exactly what Australian families deserved and still deserve today were the reforms that the members in this place debated all those years ago, yet today, this week—what have we got?—we've got a handful of speakers from the government benches on this bill. Sorry, how many?
Two speakers, I hear from the member for Fremantle. Maybe we might get a third if they're so ashamed of watching the current—I wouldn't even call it a debate, it is a one-sided expose—exposure of what is a pathetic ideological attempt to tear down something that has been so successful in the Australian legal system. Do the Liberal backbenchers even care? Do they even know what they're voting for? Have they even looked at the bill and what it means? Because, really, if they'd done their homework, they would understand that this bill proposes to undo what was the second of those major changes that was introduced in that Family Law Act 45 years ago, which was the establishment of the Family Court of Australia as a specialist superior court.
I will say, as other speakers have said on this side, that such a change would be a profound and catastrophic step backwards. It will harm Australian families and, in particular, it will harm children. And my bewilderment at this bill extends to not really understanding why, beyond the ideology and the political point-scoring, members on the other side, who are part of this debate—their party was, at least, all those years ago—could not see the damage that would be done. They do not even have a conscience to think about the damage that would be done to families and children in Australia.
What makes the court so essential to our legal system is the very specialisation which they're trying to rip away and tear down. Family law matters are not like any other matters. We know how deeply complex they can become. Of course other elements of the law are complex, but, in the family law space, the complexity also has a deep level of trauma and emotion, and serious consideration has to be given to those elements that require the specialisation to deal with them. These are matters that generalist courts don't tend to deal with because they don't have that expertise. They don't have the child psychologist. They don't have the lawyers and the court officials who have experience in these areas of law and the complexity of that law. The parties to family law matters are not like parties the generalist courts tend to deal with.
While some of the sentiments sound somewhat outdated in 2020, I think it's probably true to say that few said it better than the great Gough Whitlam, former Prime Minister, when he argued in favour of the establishment of specialised family courts back in November 1974. He spoke in this House—well, over the water in the old House—and he said the following:
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, notably marriage counsellors and welfare officers, to assist the parties at any stage—and even independently of any proceedings. 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. 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's the difference—that vision that Gough, the former Prime Minister, had. It went beyond the ideological; it was about help, it was about assistance, it was about empathy—something completely lacking on the government benches. It is about an understanding of the need for specialised staff to deal with complex, emotional, traumatic and very specialised legal problems and human problems. The sense of humanity, just from that quote from former Prime Minister Gough Whitlam, tells you everything you need to know about the intention and the motivation for the reform that was debated in this House 45 years ago with respect to the Family Law Act.
If anything, the need for a specialist Family Court has only become more pronounced over the decades, as the Australian Law Reform Commission noted in its landmark 2019 report on the family law system—a report that the government commissioned but has completely ignored. The Whitlam government obviously could not have foreseen the growth, the incidence, the additional reporting and awareness that we as a society have around issues of family violence and child abuse that have occurred since 1975. Specialisation does not mean just 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 those human problems that he described with such a degree of empathy in this place—the empathy to understand the needs of families, of couples and their children; not just their legal rights. There was a genuine care about people's emotional wellbeing and their mental state. They wouldn't have called it that back then, but that's what it was. It was a degree of kindness that was demonstrated in this place that was translated from a bill into an act of law. This government wants to tear that down and rip it apart. It wants to rip away the empathy, the regard for others, the care and the specialisation that come with the Family Court. The realisation of the vision that occurred has never been more important, especially for the vulnerable children and families who need that Family Court system, a system that has been not only efficient but also safe and sensitive to the particular needs and vulnerabilities of people who are suffering from those issues.
Everyone accepts that there are serious problems in the Family Court at present. I don't think there's a denial of that. 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.
In other words, the government have run it down, cut its funding and depleted its resources. It's not good enough to want to tear down a system and a court with specialised staff who deal with those human problems. No, they have to go further than that. They just want to run it down as well, even before they chop it.
What they've put forward in this bill has no evidence. There's no evidence base. There was no consultation with stakeholder groups. The claim was that the reforms were informed by a series of independent reviews and inquiries over a decade, and on the Attorney-General's website he listed five reports under the heading 'The evidence base for the reforms'. The only problem with that is that none of those reports listed on the website recommended any of these reforms that the government are suggesting—none. None of those reports even considered the so-called reforms that they're suggesting. Only one of those reports hinted at restructuring the Family Court, but it recommended a different model which would have maintained a standalone specialist family law court. So did the Attorney-General pull it out of thin air? Did he just decide some afternoon: 'You know what? We don't really like what Whitlam did. We don't like what Labor's done in the past, so we're not only going to go after superannuation and all of the other great social reforms that Labor governments have put in place but also go after the Family Court. We don't care what it will mean for families and children'?
All of the stakeholder groups that matter—and, as previous speakers have alluded to, there are over 110—have stated what they thought about this, whether it was the Law Council of Australia, women's legal services, community legal centres, Aboriginal and Torres Strait Islander legal services, child protection advocates or disability services from across Australia. They all wrote to the Attorney-General, and they were ignored. What they said, in summary, was that these changes will harm vulnerable children and families in need of specialist family law assistance; increase rather than decrease cost, time and stress for families and children in the family law system; place further stresses on Federal Circuit Court judges who are struggling already under unsafe, unsustainable and unconscionable workloads; and fail to address any of the fundamental problems plaguing the family law system, which basically arise from the depletion of resources that I mentioned earlier, including the risk of family violence survivors falling through the cracks. That's what they said. That's what they put to the Attorney-General, who ignored them. These are the very people who dedicate their lives and work to help others in this space, and in his arrogance the Attorney-General dismissed those concerns.
In the face of overwhelming opposition from family law experts across this country, instead of taking note of their lived experience as practitioners and understanding the needs of those experts to improve the family law system for the benefit of Australian families, the Morrison government has instead decided to bet everything on the findings of a discredited six-week desktop review by a couple of accountants. That was what it referred to as their so-called evidence base. That's not the way to do law. This government doesn't understand that it's not just about ideology and politics. What was done here 45 years ago was a testament to the best of this House. These changes are catastrophic and will impact so many children and families, and we oppose them.
It was only a couple of weeks back when the Prime Minister said, 'There's no greater thing that breaks my heart than a family breakdown.' I don't doubt for one moment the sincerity of the Prime Minister's words, but, unfortunately, the gap between what the Prime Minister says and what he does is huge, and it's having a devastating impact on families. The coalition's callous, bloody-minded decision to shut down the Family Court system, with virtually no consultation, will leave families to fend for themselves as they deal with the catastrophe of a family breakdown.
Any divorce lawyer will tell you that when a relationship ends people are often at their worst. The mix of volatile emotions, financial stress and the unexpected reality of co-parenting in separate homes is enough to test even the most resilient person. Too often when couples separate it's the children who suffer the most. Too often mothers find themselves in situations of real, and sometimes mortal, danger. Too often fathers are faced with a sense of insurmountable loss. Even without such extremes, the complexity of family law is bewildering and anxiety-inducing for the vast majority of families.
For 45 years the institution that is the Family Court of Australia has been there serving not just as an arbitrator of complex disputes but as a vital point of contact for wraparound services for families who need help. The key point here is that those services operate hand in hand with the legal proceedings. In this sense the Family Court is unique. They must be expert in not only family law but also family violence and intricate financial arrangements. In other words, being a family law judge is a highly specialised role within what is already a highly specialised profession.
Now we're not saying it's perfect. Anyone who's been through the system will say clearly it is not. The system has been swamped. Judges everywhere are struggling to deal with the overwhelming case numbers and ever-increasing complexity of the cases brought before them. I've had numerous conversations with Family Court lawyers in my area of the Illawarra. They talk about backlogs, the insufficient premises in which the court operates and the stress on the system. Lawyer Lorelle Longbottom has said that you can have a mum who has been a victim of family violence perpetrated by the other party, typically the father, so there's this huge history of family violence. They sit together in a complex, tense environment. The courtrooms are too small. There are not enough judges. The case load is going up and up.
It's not unsurprising in these stressful circumstances that you have altercations. The pressure is high, the consequences are immense and too often children are the victims. I'm informed that the registry service for Wollongong, Shellharbour, Kiama and the Shoalhaven also draws from the southern Sydney, Macarthur and Wollondilly regions as well as south down to Batemans Bay. Technically they're supposed to service a little over 400,000 people, but in reality they can be servicing twice as many.
You could lodge a matter in the court today and not have a final hearing for 2½ years. That's 2½ years with issues of custody and 2½ years with issues of property. All of the incumbent conflict that goes with that is unresolved and in many cases spiralling out of control. The answer to this problem is more resources for the Family Court—more judges and more registry staff—making this court more available.