House debates

Tuesday, 1 December 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

4:20 pm

Photo of Llew O'BrienLlew O'Brien (Wide Bay, National Party) Share this | | Hansard source

The question is that the words proposed to be omitted stand part of the question.

Photo of Tanya PlibersekTanya Plibersek (Sydney, Australian Labor Party, Shadow Minister for Education and Training) Share this | | Hansard source

This legislation is designed to combine the Family Court and the Federal Circuit Court into a single entity. Its effect is to abolish the Family Court as a standalone institution.

Of all marriages in Australia, a relatively small proportion end in divorce. For most of those marriages that end in divorce, the couple works out between themselves their financial settlement and arrangements regarding the children. I think in most cases, despite the sadness of the marriage ending, people understand their responsibilities to one another and their responsibilities to their children and try and come to an arrangement, which, of course, may not make everybody happy but is at least civil.

A small proportion of marriages that end in divorce end up in the Family Court, and the reason they end up in the Family Court is that there's something more complex about the divorce. In some cases, one member of the couple may be unable to compromise or the financial settlement is complex for some reason. In other cases—and these are the ones I am particularly worried about and, I believe, many others are particularly worried about—there is a history of domestic violence in the relationship, which means that any arrangements are fraught with danger, most often for the mother and often for the children. So it is absolutely vital that, in these circumstances, we have people hearing the case and assisting in the court who understand the dynamics of domestic violence in relationships.

That's the reason that we oppose this bill. We are opposing the bill because specialised family courts, run by people who understand the cycle and the dynamics of domestic violence, are absolutely critical to keeping women and children safe. They create an environment that is focused on the best interests of children and on keeping victims of violence safe—on the human needs of all those who enter into them. That's what the evidence tells us.

Mr Deputy Speaker O'Brien, I commend to you and others in this place an excellent opinion piece written by the journalist Jenna Price in today's Sydney Morning Herald about just how dangerous this proposed merger of the Family Court and the Federal Circuit Court is. Jenna Price points out that this move is opposed by everyone who knows what they are talking about when it comes to family law and when it comes to domestic violence: the Law Council, women's legal services, community legal centres, Aboriginal and Torres Strait Islander legal services and family violence legal services. Jenna Price goes on to quote a former Chief Justice of the Family Court, Elizabeth Evatt, a very distinguished jurist, who said:

We were a team with a single mission to help families in trouble … Merging would be a disaster. Australia should be proud of the Family Court and it should receive adequate resources.

Jenna Price also quotes former Chief Justice Alastair Nicholson, another jurist who has served this country with distinction. Former Chief Justice Alastair Nicholson said:

You will end up with circuit judges who don't have any family law expertise and are quite likely to misunderstand the system.

We know too that, in contrast to what the federal government is proposing, states are moving to more specialist domestic violence services in their court systems. If you look at state systems, particularly as they deal with apprehended violence orders, they are moving to more specialist knowledge. In Queensland, I went to the Southport Specialist Domestic and Family Violence Court a few years ago. When it was evaluated in 2017, the evaluation found that this approach of a specialist domestic violence court provided:

… strong collaborative relationships between the court, domestic violence services, police prosecutors and duty lawyers …

This 'resulted in improved coordination of matters and services'. It found higher 'ratings of satisfaction and perceived procedural justness of the process reported by victims compared to the comparison court' and higher 'levels of self-reported understanding of court outcomes for both victims and perpetrators compared to the comparison court'. There is absolutely no reason for us at a federal level to be moving away from specialised court processes and specialised courts when all of the evidence, both federally and at a state level, is that more specialist services are preferable.

It troubles me so deeply that we hear horrific stories, again and again, of victims of domestic violence, like Hannah Clarke and her three beautiful children, like Luke Batty and like Olga and her two beautiful children. We hear these stories again and again, and we have a vigil in front of the parliament. I've been to more than one of these candlelight vigils. We all ask each other, 'What can we possibly do to reduce this terrible toll that domestic violence is taking on our women and children?' yet what we should be doing is not a mystery. It's not a mystery that walking away from specialist services like this makes the situation worse, not better.

We saw also just last year the government cut funding to the National Family Violence Prevention and Legal Services Forum, the peak body representing Indigenous survivors of domestic violence. This year the money that was set aside for respectful relationships education in our schools was cut from $2.8 million to $1.36 million—more than halved.

Again and again, we hear of stories at our universities and even in this place of sexual harassment and sexual violence. The cut to respectful relationships funding comes at the same time as we have a survey that has found that one in three men think that punching or hitting your wife doesn't count as domestic violence, and 42 per cent of young men were found to think this in the recent survey. How can it be that we're actually cutting funding for respectful relationship programs at a time when two out of five young men don't think it's a problem to use physical violence in interpersonal relationships?

I can't reconcile this outpouring of grief when something monstrous happens in our community with this baffling unwillingness to follow the evidence on what keeps people safe. We need more support for education on respectful relationships, not less. We need more specialist services, not fewer.

The government is correct to point out that the backlog in Family Court cases is a problem. It is a problem because the longer these cases drag on the more likely it is that conflict will escalate and that violence will ensue. It is a problem. You don't fix the problem by abolishing the court. One of the big mistakes made during the Howard government years was to abolish the funding for specialist counselling in the Family Court. If that specialist counselling can defuse the situation and help the parties come to an arrangement between themselves, of course that is a good step forward.

Recently a group of colleagues and I spoke to the terrific author Jess Hill, who wrote a wonderful book called See What You Made Me Do, which has been a bestseller and has won multiple awards. We ask ourselves the question: How can this happen? How can these acts of violence occur in our midst? Jess Hill, in her book, endeavours to explain how this can occur. In a terrific article that was written by Madonna King in Good Weekend about Hannah Clarke and her children, Jess Hill says, 'There is no other form of torture that is permissible under law in Australia.' She says that in relation to coercive control.

In her book, Jess Hill writes about coercive control:

A victim's most frightening experiences may never be recorded by police or understood by a judge. That's because domestic abuse is a terrifying language that develops slowly and is spoken only by the people involved. Victims may feel breathless from a sideways look, a sarcastic tone or a stony silence, because these are the signals to which they have become hyper-attuned …

Hannah Clarke said more than once that her husband was not usually physically violent towards her, but he controlled every element of her life. He was listening to her phone calls, he was reading her messages, he was stalking her on social media and he was turning up unannounced after the relationship broke up. He was controlling what she wore, what she ate and who she was friends with.

Coercive control is subtle, but it is devastating. The idea that a court that doesn't have specialist understanding of domestic violence could ever understand elements such as coercive control is just fanciful. So, instead of moving to better protect victims of violence like Hannah Clarke and her children, by destroying a specialist Family Court and by losing the expertise of the people who are highly trained to recognise and deal with domestic violence we are actually making life more dangerous for people in this situation—people like Hannah Clarke and Olga Edwards and their children. It really is not enough to hold vigils, to give speeches and to say how horrified we are by these acts of extreme violence, of domestic terrorism, when, when we are given the chance to make life safer for the victims of this sort of domestic terrorism, we in fact do the opposite. We need to make sure that our court systems are more responsive to victims of domestic violence, not less responsive, as this proposal would do. Labor opposes this bill for good reason.

4:35 pm

Photo of Julie OwensJulie Owens (Parramatta, Australian Labor Party) Share this | | Hansard source

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, attempt to implement a really, really bad idea: the effective merging of the Federal Circuit Court and the Family Court into one court, effectively abolishing the specialist court that works with families through one of the worst times of their lives, the court that works with couples that are desperately trying to work out how they are both going to live with their children and each other, are separating property and are already emotionally invested in one of the worst times of their lives. These bills make that situation worse by abolishing the very place that specialises in dealing with those cases.

You'd expect, given that this government is always talking about following the evidence—evidence based this and evidence based that—that there would actually be an evidential basis for this. You'd expect that there'd be inquiries and reports that actually backed up this really odd idea, which is no less than to abolish the Australian Family Court. Yet, when you look, that's not what you find. The Morrison government claimed that the proposed merger had 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'. But, when you look at the reports, none of them recommend this. None of these reports even considered these reforms. These reforms just seem to have come out of the blue. With all of the inquiries into the Family Court system, all of the experts around the country and all of the people who work in it, this one came out of the blue. The idea that you'd abolish the court—not work to improve it, not give it more resources and not help it overcome its extraordinary backlog due to those lack of resources but abolish it altogether—came out of the blue. Only one of the five reports recommended restructuring the Family Court and the Federal Circuit Court, and it recommended something completely different, which would have maintained that specialist Family Court as a standalone entity.

So there is no evidence, no consultation and no report that actually recommends this, except a short report by two accountants from PwC who did a desktop review of the two courts and decided that merging them was a good idea. For a start, those two accountants made a series of heroic assumptions, including that there was an equivalent level of complexity between the matters in the Federal Circuit Court and those in the Family Court, and clearly that's not true. Nobody who has anything to do with the Family Court or who has walked past a Family Court location or spoken to a person who's been involved in the Family Court would actually believe that. These two accountants did not have any special skills in Family Court matters, yet it is their recommendations which this government has taken up.

After that, the proposal not only has no friends but has enemies. Virtually every single expert in this field has come out against this proposal. No fewer than 110 stakeholders—ranging from the Law Council of Australia to women's legal services, community legal services, Aboriginal and Torres Strait Islander legal services, child protection advocates and disability advocates from across Australia—have written to the Attorney-General asking him to abandon this foolish plan, which has not been thought through and comes not from experts but from two people who did a six-week desktop review and have no experience in the field, even though, for many, many families in Australia who end up in divorce, this is a crucial part of the solution-making for families in extreme crisis.

This proposal is opposed by 110 individuals because they believe it will harm vulnerable children and families in need of specialist family law assistance, increase rather than decrease the 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 fail to address any of the fundamental problems plaguing the family law system, including the risk of family violence survivors falling through the cracks. No less than the very first Chief Justice of the Family Court of Australia, Elizabeth Evatt, has said:

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

These are absolutely clear statements from virtually every specialist. The President of the Law Council of Australia has said of the proposed merger:

It would result in the effective abolition of the Family Court … The … 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 … 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.

You can't get clearer statements than these that this abolition of the Family Court will lead to greater risk for children. You can't get a clearer statement than that. On the advice of two accountants with no experience in family law, in a desktop review over six weeks, suddenly this government thinks those two accountants know more than all the people who have spent their lives working with family violence, with family break-up, in the best interests of children. It is astonishing that this conservative government that is supposed to have this admiration for institutions, that is supposed to understand the value of them, is breaking one apart because two accountants said it was a good idea. It is absolutely astonishing. 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.

The Law Council of Australia said the proposed merger is 'a terrible gamble with the lives of children and families'.

That's what we're debating here in this House today. That's what we're debating, except we're not debating it. I want you to think about what would have happened when Gough Whitlam introduced into the parliament the bill to establish the Family Court in 1974 if no government members had got up and spoken for it. Can you imagine if 25 members of the opposition had got up and spoken against it and not one government speaker thought it was a good enough idea to support it? That's what we've got here. When Whitlam introduced that bill there were 28 hours spent debating the bill. Fifty-nine members on both sides spoke on it. I looked at the speakers list this morning. I look at the speakers list every day. I know you won't be able to see it, and I can't hold it up, because it's a prop, but quite often we see a lot of speakers on our side and not many speakers on their side. That's quite common. The government doesn't seem to have a lot of members of parliament who actually want to get up and support the government in its bills. But for this one, there are virtually none. I understand maybe there was one. I have heard a rumour there might have been two. Two?

Opposition Member:

An opposition member interjecting

Photo of Julie OwensJulie Owens (Parramatta, Australian Labor Party) Share this | | Hansard source

One. Is that counting the minister or not?

An opposition member interjecting

Two, counting the minister. The minister has to do it, so we will discount that one. One member has voluntarily got up and spoken on this bill, the bill that is going to abolish the Family Court, against the advice of the entire legal profession, on the advice of two accountants who know nothing about family law, and there's one member of the government who actually thinks it is worth getting up and speaking in favour of it—one. I don't blame them, by the way, because there is not much that they could say about it. Once they said two accountants thought it was a good idea, there'd be nothing else, because everything else that has been written about this says it puts children at risk. It increases the risk to children. Children's safety is being put at risk by this bill. So it's not surprising they're not getting up and talking about it. It is really not surprising. It is absolutely disgraceful, really, that they can sit on the government bench and not be interested in something as important as this is to children and families at the worst time of their life.

Nobody says there aren't problems with the Family Court at present, because there are. There are real problems with the Family Court. The main cause of the problem isn't a mystery at all. It's really clear. 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, in particular, the story of the Australian family law system has been a story of neglect, with the Abbott government, the Turnbull government—I get their order wrong; is it Abbott, Turnbull, Morrison?—and the Morrison government. It's been a story of neglect. In the Parramatta court, for example, we have fewer judges now than we had in 2008. I got up and made a speech in this House in 2016, way back then, when the queues and delays in the Parramatta Family Court were getting so long that judges were saying cases introduced in 2016 would not get a result until 2018 or 2019. When judges on stress leave—not surprisingly—had not been replaced, I got up and spoke.

We have fewer judges now than we did in 2008. After Sydney, Brisbane and Melbourne, we are next: the Family Court of Parramatta has the most cases. We are the fourth in terms of workload. We have eight judges—six in the Federal Court and two in the Family Court. We have delays of six to eight months for a family assessment. Even for a family assessment it can now take six months—or eight months for a family report by a family consultant, which forms the basis of many cases. It's an eight-month wait there, and that's before it even gets before a judge.

This is extraordinary. We have men and women and their children, trying to rebuild their lives, waiting years for an outcome. A one-year-old can be three or four before the decision is final. A 10-year-old goes through puberty before the decision is final. Can you imagine the additional strain this places on a family, the permanent damage it does to that relationship? What I know about this is that when two people have a child, they're connected for the rest of their lives. That connection is permanent. We as a nation want those connections to be healthy. We want children to be raised with both parents. We want them to have access if there isn't violence involved. We want it to work. We want parents to have a relationship, because they need that if they're going to raise their children well in a safe and secure environment.

It means parents can't make decisions about the school their child goes to or where they live—all the practical operational matters that families have to go through when they separate and try to figure out how to have two households with one child or two households with two children who move. They're incredibly complex matters. There's so much stress, so much anger, so much rage, so much hurt.

This incredible under-resourcing of the Family Court—for years—has made that worse. What do we get now? Now we get an Attorney-General who makes the extraordinary statement that, because the Family Court's struggling, he's not going to give the extra money in the budget to the Family Court until after it's abolished, until after it's merged. He says, 'Why would you give money to a system that's failing?' It's failing because you didn't give it money. It's failing because the government didn't properly resource it. There aren't enough judges. There aren't enough specialists. They've cut funding to legal aid. They've cut funding to community legal centres. They've cut the very structures that support families outside of the courts. The number of people going to the courts is growing year by year by year.

I'm going to come back to Parramatta, because it's really quite interesting. It is the fourth largest, but it also serves right out to New South Wales, right across the Blue Mountains out to the Central Tablelands. It has all of Western Sydney, across the Blue Mountains, into regional New South Wales. That's the area that it serves. And it has fewer judges now than it did in 2008.

If you look at population growth, you'll see that Western Sydney is one of the fastest-growing regions in the country. Western Sydney will take an enormous number of people. There is development going on everywhere and there are new families moving in everywhere. Ask anybody in Western Sydney who has to commute what's happening in Western Sydney and they'll tell you about the number of people moving in, and the Parramatta court has fewer judges now than it did in 2008.

This legislation is going to make things worse. According to the experts in this area, this legislation is going to put children at greater risk. Just think about that. All the people on the government benches who aren't bothering to speak about this legislation should think about that. They should come in here and explain themselves. They should come in here and explain how, on the advice of two accountants with no experience, they're going to put children at greater risk.

4:50 pm

Photo of Alex HawkeAlex Hawke (Mitchell, Liberal Party, Minister for International Development and the Pacific) Share this | | Hansard source

I thank members for their contribution to this important debate. The Federal Circuit Court and Family Court of Australia Bill 2019 and the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019 bring together the Federal Circuit Court of Australia and the Family Court of Australia. The main bill brings together the Family Court of Australia and the Federal Circuit Court of Australia, which will be known as the Federal Circuit and Family Court of Australia. The legislation provides a consistent federal family law court structure designed to make it as easy as possible for Australian families to get on with their lives. The consequential amendments bill will facilitate the transition for court users from the Family Court of Australia and the Federal Circuit Court of Australia to the new FCFC on the commencement of the provisions.

The FCFC will have common, streamlined processes and procedures that operate consistently and will provide the significant benefit of creating a single point of entry into the federal family law courts. This will make an enormous difference to Australian families. It will be a simpler, more efficient, more effective and more accessible court for Australian families to resolve their matters with as little complexity as possible.

It is unfortunate that so much of the debate on these bills focused on mischaracterisation of the bills and the current system. The bills do not abolish the Family Court. Judges appointed to the Family Court and the Federal Circuit Court will continue their appointments. It is important to put in context the work of the two courts. The reality of the existing family law system is that the Federal Circuit Court already deals with close to 90 per cent of family law matters. When it comes specifically to final orders made, the FCC resolved almost 16,000 matters just in the last financial year and the Family Court resolved around 2,400 matters over the same period.

There are approximately 40 judges at the Federal Circuit Court who hear only family law matters. The average FCC judge hearing family law matters has, on average, 25 years of experience in family law. These judges have experience with matters involving families with complex needs. The unfortunate reality is that they have experience dealing with matters involving family violence.

There have also been suggestions that the Family Court provides some greater level of service to families than the Federal Circuit Court. However, the CEO of the Federal Circuit Court and the Family Court told the recent Senate committee inquiry:

… there have been some suggestions of a difference in wraparound services provided to each of the Family Court and the FCC. What is meant by this term is somewhat unclear. However, for the avoidance of doubt, the court's internal family law services are shared between the courts. This includes registrar resources, family counsellors and registry staff.

Members opposite have also suggested that there has been no engagement with stakeholders and the sector on this reform. This is a strange criticism for a bill that was first introduced in August 2018 and which has been subject to two separate Senate committee inquiries—one which lasted 18 months and the other which lasted almost a year. The proposed reforms have been developed in close consultation with the federal courts, including the heads of jurisdiction. Exposure drafts of the 2018 bills were provided to the Law Council of Australia and the Australian Bar Association for review and comment. Prior to reintroducing the bills the Attorney-General addressed the judges of both courts and held a roundtable with key stakeholders. The original bills had been developed and informed by a number of substantial inquiries over the last decade including the 2008 Semple review, a 2014 KPMG review, a 2015 EY report, the 2017 House of Representatives Standing Committee on Social Policy and Legal Affairs inquiry and, most recently, a 2018 PwC report.

That the government has considered the views of stakeholders is evidenced by the amendments made to the current versions of the bills. To address some of the concerns identified by stakeholders, the government made several changes to the package as it was before the last parliament. The government will no longer create a family law appeals division in the Federal Court. The bill instead preserves the existing Family Court's appellate jurisdiction within the FCFC Division 1. The government has also agreed to set a floor of judges by regulation, to be set at 25 judges, which was the number previously recommended in the Semple report.

The bill marks real change for Australian families seeking to navigate a family law system at a stressful time in their lives. The structural failings of the current split family law system are widely agreed, and continuing to do nothing to fix the problem is not an option. Reform of any longstanding structural problem is challenging, but the proposed reforms are the least radical path to ending, for thousands of Australian families, the unnecessary confusion, costs and delays that have arisen by virtue of the current split system. I commend this bill to the House.

Photo of Tony SmithTony Smith (Speaker) Share this | | Hansard source

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. So the immediate question before the House is that the words proposed to be omitted stand part of the question.

5:05 pm

Photo of Tony SmithTony Smith (Speaker) Share this | | Hansard source

The question now is that this bill be read a second time.