House debates

Thursday, 18 February 2021


Federal Circuit and Family Court of Australia Bill 2019; Consideration of Senate Message

10:00 am

Photo of Mark CoultonMark Coulton (Parkes, Deputy-Speaker, Minister for Regional Health, Regional Communications and Local Government) Share this | | Hansard source

I move:

That the amendments be agreed to.

Photo of Mark DreyfusMark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | | Hansard source

On 24 June 1999 former Liberal Attorney-General Daryl Williams QC stood up in this place and introduced a bill to establish the Federal Magistrates Court, which is now known as the Federal Circuit Court. That name change, in fact, occurred when I was the Attorney-General in 2013, at the same time as a change that our government then decided on, which was that from that time, in April 2013, the former magistrates of the Federal Magistrates Court would be called judges and their court was to be called the Federal Circuit Court.

Back in 1999, when the Federal Magistrates Court was established by the Howard government, Attorney-General Daryl Williams told this House that the new Federal Magistrates Court, which would be tasked with hearing less complex family law matters, was the answer to the problem of delays in the Family Court. The Attorney-General in the Howard government described the new court as:

… an exciting new development, which will provide a cost effective means of helping to ease current delays and enable more effective use of expensive judicial resources. It will provide a more user-friendly option for parties to less complex matters and should also allow the Federal Court and the Family Court to concentrate on more complex cases.

According to the Howard government, the establishment of a new court to exercise concurrent jurisdiction with the Family Court was the solution to the problem of delays in the family law system. Family law experts disagreed, but Mr Howard and his Attorney-General thought that they knew better.

Twenty years after Daryl Williams introduced the Federal Magistrates Court bill, the current Attorney-General stood up in this place and, with a straight face, blamed the problem of delays on the family law system on the 'split federal family law court system'. In other words, the current Attorney-General said that the system established by the Liberal government 20 years earlier is the reason why Australian families are facing such significant court delays. So, according to the Liberals under Mr Howard 20 years ago, the creation of a split federal family law court system was the answer to the problem of delays. Now, according to the Liberals under the member for Cook, the existence of a split federal family law court system is the reason, and apparently the only reason, for delays! The truth is, when it comes to the family law system, you can't trust the Liberals.

Everyone accepts that there are serious problems in the Family Court at present. The main cause of those problems is not a mystery. As the Australian Law Reform Commission found:

… the family law system has been deprived of resources to such an extent that it cannot deliver the quality of justice expected of a country like Australia, and to whose family law system other countries once looked and tried to emulate.

Just keep in mind that the Australian Law Reform Commission reported this in 2019, after the longest review of the family law system since its creation in 1975—the review was commissioned by Attorney-General Brandis, commissioned by this government—to this government. That's what its review said. This government has yet to even respond to the 60 or so recommendations of the Australian Law Reform Commission. 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 the Liberal government led by Tony Abbott, neglect by the Liberal government led by Malcolm Turnbull and neglect by the current Liberal government led by the member for Cook. But, instead of working to fix the family law system, the government remains determined to restructure the Family Court and the Federal Circuit Court in a way that will make a bad situation worse for Australian families, including vulnerable children. (Extension of time granted) The government's claim is that the merger will help reduce delays and backlogs in these two courts by creating a single point of entry for federal family law matters, ensuring the development of common rules of court, forms, practices and procedures and streamlining the family law appeals pathway. As it happens, the creation of a single point of entry and the development of common rules, forms, practices and procedures is widely supported. It's widely supported by lawyers who work in the family law system, by counsellors who work in the family law system and by family violence services who participate in the family law system. But all of these things can be, and are being, achieved without any legislative change. It is up to judges to make the rules for their courts. It is up to judges to determine whether there should be a single point of entry for more than one court. All of those things can be, and are being, achieved by the judges of the Family Court of Australia, who are doing excellent work, and by the judges of the Federal Circuit Court of Australia, who are also doing excellent work, and those changes are occurring without the need for a bill, let alone this bill, which is not needed for a single point of entry and is not needed to achieve common rules.

I would like to take a moment to commend the Chief Justice of the Family Court and the Federal Circuit Court, the Hon. Will Alstergren, for the work that he has done in relation to these matters, and I commend the work that the judges of both courts have been doing on those matters. I would like to commend the Chief Justice of the Family Court and the judges of both courts for the methodical and consultative way in which they've been going about that work. I'm hopeful that the creation of a single point of entry and the development of common rules, forms, practices and procedures will make a meaningful difference to the experience of those thousands and thousands of Australians who use these courts every year.

But make no mistake: to the extent that those measures will reduce costs or delays for Australian families, it will have nothing to do with the bill that has come back to the House from the Senate. It will have nothing to do with the Morrison government. The measures that I have described—a single point of entry and common rules, practices and procedures between these two courts—are in the process of being implemented now. They will be implemented whether or not this bill passes today.

This is a terrible bill. It is a terrible betrayal of Australian families by a government of wreckers. The government has not listened to the clear statements made by over 150 people and organisations who work in the Family Court and work in the family law system. The government has not listened to statements made by former chief justices of the Family Court of Australia condemning this effective abolition of the Family Court of Australia, the court established as a specialised court for family law by the Whitlam government which has served Australians so well for more than 40 years.

The government has not listened to the voices of women's legal services, to the voices of community legal centres and to the voices of family violence services who have told the government with a unanimous voice for years now that this merger, this effective abolition, of the Family Court of Australia will do no good and may, in fact, do harm. It's a shameful act by this government, and a particularly shameful aspect of the passage of this bill through the Senate last night is that the government seems to have—

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

The member for Isaacs's time has concluded. I call the member for Isaacs.

Photo of Mark DreyfusMark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | | Hansard source

A particularly shameful aspect of the passage of this bill through the Senate last night is that the government has not acted as the government of Australia. It has not acted nationally. It's done some kind of deal for one state to get an additional number of judges and registrars. The delays in the Family Court and the Federal Circuit Court are national. The massive work overload being experienced, in particular by judges of the Federal Circuit Court and in particular by those judges of the Federal Circuit Court who sit in single-judge registries, has got to the stage where some judges are dealing with a case load of 600 current cases. It's hard to even imagine how a judge would be able to cope with that kind of workload or do justice to the families coming before that judge.

None of that is going to be fixed by this bill. What would fix it, or go some distance to fixing it, is not just the measures that I've already described of the single point of entry, which is already happening, and the common rules, which are already happening, but actual increases of resources for both the Federal Circuit Court and the Family Court. That's what the government ought to have been doing. That's what the government has been told now for years.

For nearly eight years this government has been in power and it has stopped its ears to the cries of those who are experiencing these delays in the Family Court. It has turned its back on all of the sound advice that it's received from former judges, from practitioners and from the Australian Law Reform Commission, and instead it is pretending that there's some kind of fix in the effective abolition of the Family Court of Australia. It's a shameful day and it's a great disappointment to me and everyone in the Australian Labor Party that the government has proceeded down this course.

10:12 am

Photo of Adam BandtAdam Bandt (Melbourne, Australian Greens) Share this | | Hansard source

The Liberal government's abolition of the Family Court will hurt women and will hurt children. The Family Court was established specifically to protect the people before it, particularly children, families and the survivors of family and domestic violence. It did this by creating for the first time in this country a standalone specialist family law court working in a system of collaborative, culturally safe and co-located services.

The model that the Family Court operates under is unique and has been held up as a model of best practice internationally. But the radical and misconceived changes in the bill, even as amended, are going to effectively put an end to a specialist standalone Family Court in this country. The thing is that there's no-one in support of this bill outside of this parliament. The people who work in the sector and the people who support people who go through the Family Court all oppose this bill. They oppose it because they know that it is the end of a standalone court designed to deal with some of the most significant incidents that people will ever face in their lives. The issues that the Family Court deals with are some of the most personal and most difficult that people will ever face in their lives. Not only can they be incredibly complicated and personal but they can also deal with some of the most fundamental questions, including those that have been occupying this parliament in recent times—namely, how do we as a society ensure that children and women are protected when there is domestic and family violence? That is what the Family Court was set up for.

When the people who participate in the Family Court system and the people who use the Family Court system all say, 'Don't abolish the court,' you have to ask: why is the government proceeding with it? Well, I'll tell you whose support this might have: Senator Pauline Hanson and One Nation. So the government are quite happy to listen to One Nation when it says, 'We would like you to please abolish the Family Court,' but they won't listen to everyone else who actually now has to deal with the effect of the abolition of the Family Court.

You will find, I suspect, agreement across the parliament that there are things in the Family Court system that could be done better. But the root cause of that is not the Family Court itself. The root cause of that, in many respects, is a systemic and systematic underresourcing of the court over many, many years. The simple fact is that there are judges in the Family Court who are dealing with case loads in their hundreds. They are being forced to push people's hearings further and further back in a way that no doubt frustrates and hurts the people who are involved and who are going through that court. But that's because the government has underresourced it.

The only thing the government can point to to say that this is the fix is a desktop review that was done by some consultants, which says there are some potential efficiency savings. Well, do you know what? If you're after efficiency savings, you don't actually need legislation to do it. A lot of the changes that could be made could be dealt with by increased resourcing, and if there's a need for some restructuring you don't need legislation to do it. If you did want to restructure, you would have a serious look at the model that does have support among the community, which is the Family Court 2.0 model. There is an alternative model out there that would have the broad support of the community. But the government's not listening to people who use the Family Court. The government's not listening to women and children. The government is doing what One Nation has asked it to do.

This is a very significantly distressing day. This week of all weeks, for the government to be abolishing a court that is designed to protect women and children is reprehensible. This will change Australian society for the worse. This bill, even with the amendments, should not be supported.

10:17 am

Photo of Graham PerrettGraham Perrett (Moreton, Australian Labor Party, Shadow Assistant Minister for Education) Share this | | Hansard source

This is a very sad day for families in Australia, as the previous speakers have indicated. The bills back before the House today—the Federal Circuit and Family Court of Australia Bill 2019 and the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019—will abolish the Family Court. There is no doubt about that. The Family Court is a specialist court specifically designed to resolve the most complex legal family disputes and it is a superior court of record, a great Labor legacy that the Liberals will destroy today.

All those on the other side of the House who say there will be no loss of specialty in the new Federal Circuit and Family Court of Australia have clearly never had anything to do with family law at the coalface. There's no argument that the family law system is broken and desperately needs fixing—no argument at all. But if you neglect a system for seven years and you don't replace retiring judges when we know 40 years in advance that they're going to retire—it took a year and a half for a judge in the Sydney registry to be replaced and a year for a Brisbane judge to be replaced when they knew decades before that there was a certain date—and you don't resource the system appropriately and it's stretched to the limit and has difficult outcomes, then it's going to break.

These bills before the House will provide more resources for only one state, South Australia. I have nothing against South Australia and I'm not badmouthing any South Australians, but they're the 30 pieces of silver necessary to get these bills passed through the Senate. The government is completely ignoring the seven other states and territories. What about the families in Queensland, New South Wales, Victoria, the ACT, the Northern Territory, Western Australia and Tasmania?

Don't they deserve that their family law matters are dealt with in a timely way? There are no resources for the shunned seven other parts of Australia but these bills will decrease the minimum amount of Family Court judges in the whole of Australia. There will be fewer specialist judges who will be able to determine the disputes of vulnerable families. The bills are collapsing a standalone specialist court into a general court. That court hears matters as diverse as migration, industrial relations, bankruptcy and intellectual property—completely different to family law. Anyone who has ever practised family law—and I see the member for Blair here—or spent time listening to family lawyers, as I've done for the last five years or so, will know that family lawyers are driven to that area of law. They're driven to it because they have particular skills—a calling almost—and there's a particular culture in family courts so that families are always safer. Collapsing the new Family Court structure into the general Federal Circuit Court will see Division 2 judges jumping from hearing family law matters to migration matters to any other jurisdictions in the court. It would be like asking one of us to spend two days a week as a members of the House of Representatives and to then have three days over there in the Senate—working out whatever they do over there!—which has different procedures and a different culture. But that is what these bills will do; they'll be asking Division 2 judges to jump all around.

Rather than listen to the experts who work in family law, who represent vulnerable litigants in family law, the Morrison government has completely ignored their pleas to reject the model in these bills and to instead implement the model first called for by the Semple review back in 2008 and, more recently, by the New South Wales Bar Association. This is a model that would preserve the standalone specialist Family Court and improve the specialisation of the family law system by moving Federal Circuit Court judges who hear family law matter into a lower division of the Family Court—a standalone specialist court with unique procedures and a culture that would protect families and children. There are good things happening. I commend the Chief Justice for initiatives like the Lighthouse Project, the single point of entry and many other initiatives—all things that are happening now irrespective of the bill before us that will get rid of the Family Court.

The government has ignored the experts and relied on a desktop review,—they've clasped at it like a drowning man with a straw—to abolish the Family Court and decrease specialisation for families. It will be a shameful legacy for Prime Minister Morrison. It will be a shameful legacy for Attorney-General Porter. It is a betrayal of Australian families, and the bill and its amendment should not be supported.

10:22 am

Photo of Anthony AlbaneseAnthony Albanese (Grayndler, Australian Labor Party, Leader of the Opposition) Share this | | Hansard source

I want to begin with a quote from 1974:

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 … 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 …

So spoke Gough Whitlam when supporting the introduction of the Family Court. The introduction of the Family Court in 1974 was a part of the modernising of Australia after all of that frozen-in-time Menzies era where we fell behind the rest of the world. The election of the Whitlam government modernised Australia. Part of that modernisation was about treating women properly by moving incredible acts through the parliament—of which this was just one—to recognise that we needed to change our laws to reflect the changes that had occurred in society and the standards that had occurred in society. This was a time before no-fault divorce when you had extraordinary problems and impacts, particularly on women and children. This is a reform that has made an enormous difference to the quality of life for people.

Family break-ups can be really difficult. They require some form of specialised assessment and, where there's a need for legal intervention, they require compassion. They require experience and consideration built up over a period of time, which you get with a specialised court process. That's why we have various lawyers who are specialists in family law. But what we're saying with this legislation is that none of that's necessary. We'll just turn back the clock. We'll roll the Family Court, with all its specialist staff and resources, into the Federal Circuit Court, one of the most overburdened courts that there is.

This is a government that is anything but conservative. Conservatives support institutions in society. This mob undermine institutions in society. We see it every day, with the shutting down of debates in this parliament and with their failure to respect this democratic institution. We see it with the way that the Senate dealt with this bill last night, curtailing proper debate by ramming it through after, frankly, a shameful deal with some of the crossbenchers. It's a shameful deal that leaves all states except for one without any appropriate resources. This is the Australian parliament. We make laws for Australia. This legislation does not do that.

True to form, of course, this government hasn't listened to any expert advice. Over 150 family law experts, ranging from the Law Council of Australia to Women's Legal Services Australia, community legal centres, Aboriginal and Torres Strait Islander legal services, child protection advocates and disability services right across Australia, called on the government to abandon this proposal. The Family Court is far from perfect. It's been under-resourced. There haven't been enough people appointed to it under this government. The government starves the institution, undermines it and then gets rid of it. This is a terrible, destructive and negative move from a government that is defined by what it's against rather than what it's for. (Time expired)

10:27 am

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

I feel really fortunate that I haven't personally had to go through a Family Court experience, because the most distressing calls I get in my electorate office are from people who have been through that process—from mothers, from fathers and from grandparents. The group I don't hear from as much is the children, but we in this place all know that it's the children who are going to be the biggest losers out of the consequences of this terrible decision to roll a specialist court, one that was established to have specific skills and expertise, into a system that deals with a multitude of other matters. The federal circuit courts are dealing with a huge array of matters. I have friends who are judges in the system, and I know the variety of matters and the burden that they already carry.

On this side of parliament, I think we are just shocked that this government has shown so little respect for the advice it's received from a multitude of bodies—from judges themselves, from child welfare experts and from anybody who has had anything to do with the court system. No-one thinks that the court doesn't need reform, but it doesn't need reform to get rid of it. It needs reform to strengthen it. More than anything, it needs a lesser load for judges to carry. We could extrapolate that across the entire system, because we have seen so many judges not being replaced.

When we think about the Family Court, one of the things that I think about is the responsibility those judges carry. One of my very earliest memories of understanding what the Family Court was about was to do with the death of the person I knew as Aunty Pearl. This was one of the terrible attacks on Family Court judges that occurred in Sydney. It was the uncle of one of my very close friends who was the target, and it was Aunty Pearl, his wife, who died. My friend Karen Catalano carried that, and that's a horrible way to start to understand that Family Court matters can be really lethal. So, for me, there's always been a huge amount of respect and awe for the responsibility that Family Court judges carry. I think this sort of decision says to those judges: 'You are not special. We don't respect what you do. We don't think it carries any additional weight.' Yet anyone who's had anything to do with the Family Court knows the burden of responsibility that those judges carry. It is extremely short-sighted of this government to be making a decision that gets rid of that court. In fact, I know I'm going to get emails about this in my office.

Some people will say, 'Well, something had to change,' but they'll say: 'Was this really the change that was needed? How is it going to help people get a better decision? How will it help them have a less traumatic experience of what is already an awful situation for a family to find itself in?' You don't end up at the Family Court because everything has gone really well. You end up there because of a series of really difficult situations. What we see on this side is that it is people that are most affected; it's kids who are most affected, and this will have a lasting legacy for those children. I don't think it's going too far to say that people will look back at this decision in future years and express absolute disgust that a government saw fit to remove an institution that for so many decades has provided not a perfect outcome for families but a way of getting some sort of resolution.

What we should be seeing is an improvement to that court—support. I know that means money, but, my goodness, an investment in this process can transform lives and make a huge difference to how families together move on from the already awful experience of divorce and family breakdown. I know I'm not going to be the only one on this side who feels disgust—that is the only word that comes to mind. We have put up extraordinarily reasonable arguments, but so have the experts in this field. If you won't listen to us, you should have at least been listening to the experts, who counselled at every step against taking this path.

10:32 am

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

Whilst I am frequently disappointed by the Morrison Liberal government, today marks a terrifying moment for most Australian women and their families in Australia. The notion that we would even be debating the potential abolition of the Family Court of Australia is not just terrifying; it is unthinkable for the consequences that it will have for our society. I have served in this parliament on a number of committees around family law. Indeed, during the last parliament I was part of the House of Representatives review of the family law system and the experience that people surviving domestic violence have of that family law system. It shouldn't surprise people that most of the cases that are before our family law courts now involve family violence. The statistics are that more than 50 per cent of cases before the Family Court and some 70 per cent of matters before the Federal Circuit Court in Australia involve allegations of family violence.

So the notion that we would abolish courts that seek to specialise in dealing with matters of family violence, that try to ensure the safety of women and children in these situations, is really unthinkable. Indeed, it is an example of this government continuing their do-nothing approach. For years, they have had recommendations—not just from the previous House of Representatives committees that I've deputy-chaired at times; they actually commissioned the Australian Law Reform Commission to undertake a review of the family law courts. Rather than wait for those reviews and reflect on and consider those reviews, the government have jumped to a remedy that can be nothing more—is nothing more—than a sop to One Nation and now a lone-ranger South Australian senator, who was paid handsomely perhaps for his cooperation in getting this bill through the Senate.

But it's deeper than that. It's more than a political sop; it's an indictment of this government, which fails day after day to deliver any genuine reform to ensure the safety of women and children in this nation. It fails, continuously, to address these issues. In this parliament, we've seen ample evidence this week of these shortcomings. We've seen the fact that one woman is murdered every week in this nation at the hands of an intimate partner, that all of our legal matters are clogged up with hearings around family violence. When is this government going to take that seriously? When is it going to properly resource our family courts in order to ensure they can provide safety for women and children? When are we going to see a system that puts children at the centre of our law?

I am sick of standing in this parliament and asking—pleading—for the government to take note of serious inquiries that have been conducted. These have been bipartisan recommendations from this parliament to ensure that children are at the centre of our thinking when it comes to family law matters. You cannot have judges with 600 cases on their dockets and expect them to be doing well. You cannot have family law court writers who are not properly qualified and the best and at the top of their game if you do not resource your courts to take these matters seriously. You cannot have retired judges not being replaced in a timely manner. These are matters that this government has known about for years.

This is a terrifying prospect for Australian women and children. How dare you continue to ignore the pleas of this parliament and Australian women everywhere! (Time expired)

10:37 am

Photo of Shayne NeumannShayne Neumann (Blair, Australian Labor Party, Shadow Minister for Veterans' Affairs and Defence Personnel) Share this | | Hansard source

Most Australians are not charged with criminal offences. Most Australians don't have car accidents and are not injured at work. Most Australians don't get involved in civil disputes involving the Supreme Court or the District Court. But, in a situation where one in three marriages break up and more than one in two second marriages break up, most Australians have the need to avail themselves of good legal advice when it comes to family law and child support.

What this government is doing is listening to One Nation and not the Law Council of Australia. This is a reactionary, retrograde step that's consistent with the policy and position of the conservative parties to the time of Whitlam and Murphy. When the Family Court system was brought into this country, it was world's best practice and followed across the world. What this government is doing is going back to the days of the Matrimonial Causes Act, Garfield Barwick and the Menzies era. It's not looking at the progress of this country and what's happened since.

Do they want private investigators now to look at what happened in terms of a family break-up? That's the sort of mentality of this government. I practised in this jurisdiction for 25 years before I was elected in 2007. I was an accredited specialist in family law, and, I did tens of thousands of cases in this jurisdiction. I know there are issues in this jurisdiction; I know there are sometimes judges and magistrates and problems in this jurisdiction, but you can't defund the system and then blame the system. That's what this government has done again and again. I can't believe the number of lawyers I know in Queensland, where I practised, who have approached me and said: 'Can you do something about the fact that we haven't got enough judges in the jurisdiction in Brisbane. And, while you're there, Shayne, how about you think about Sydney or Melbourne and elsewhere?' What's happened here is that not a dollar extra will go into any other state or territory other than South Australia—talk about 30 pieces of silver. This is simply wrong.

When the Howard government was in, they passed legislation that wasn't in the best interests of children either. They weren't focusing on making sure that kids have a right to know and be cared for by both parents, regardless of their marital status, or on protecting children. They brought in a primary and secondary consideration, part 7 of the Family Law Act. This government has done everything they possibly can to undermine the system. Every conservative government has done that—constantly filing against the system and, from time to time, appointing people on the bench who don't have much experience in this area. I can recall speaking to one particular person on the bench at one time, having to explain what a statement of financial circumstances was. I explained how the child support system was applied and operated. Every lawyer who practised in this jurisdiction would have stories like that.

This government is getting rid of that specialist jurisdiction and having a general jurisdiction. You can see that, if you're an experienced family lawyer. The tragedy is about 40 per cent of our people are going in there—because they don't fund legal aid properly—self-represented. Every experienced lawyer would have seen the challenge that it brings. They would have also seen lawyers and people on the bench who aren't experienced in the jurisdiction. This is very complex legislation. It's legislation as complex as the Income Tax Assessment Act and also the Corporations Law. You need specialist judges and specialist jurisdiction. That's why the states and territories have accredited specialisation when it comes to legal training in this area. To become an accredited specialist and to practise in the area at that level, you need to study very hard and pass exams and do everything you possibly can to get there—almost the same way you do when you're a doctor and you specialise. What's this government going do? Roll it into one, have a general practice and expect judges and the lawyers who practise in this area to understand the sensitivities of dealing with someone who is a victim of domestic and family violence. It will not work. It's ideological. It's obsessive, and this government continues to do it. It's on display here today.

Lionel Murphy and Gough Whitlam were ahead of the curve. Labor has consistently supported the family law system in this country. We've consistently been on the side of progression and progressiveness. This government is on the side of reaction and conservatism. Women and children will suffer as a result of this decision today. They should hang their heads in shame. There'll be consequences to their constituents for decades to come, because of this decision. This is one of the worst decisions this government has ever made. They should hang their heads in shame. They should support the system and keep the legislation in place and fund the system properly.

10:43 am

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

For a number of years, in my previous life, I was the Minister for Community Services in New South Wales. I know how important the Family Court system is. It is important because of the reasons that you have heard previous speakers mention; I won't repeat them. It is important for women and children who are escaping family violence and trauma. The Family Court system is an important mechanism through which we can protect individuals, women and children, experiencing family and domestic violence. We know that many matters which pass through the Family Court relate to or involve violence. We also know that the Family Court is a specialist court and that is the beauty of it—a specialist court with specialist judges and specialist staff that understand the issues that the Family Court deal with. It works to resolve some of the most complex and difficult situations for, I would add, highly emotional and often traumatic matters.

The specialist nature of the court means it has an important role to play in protecting individuals experiencing family violence. The Family Court with the staff and resources are best placed to manage these types of cases. But does this government care and take that into consideration? Clearly it does not. Indeed, the Family Court is confronted with major challenges, in particular, lengthy court wait times, delays and backlogs in resolving family law disputes. The experts have consistently said that the abolition of the Family Court is not the answer to the problems the court faces. That is so important.

Everyone that I have spoken to, everyone that's commented on this that has an expertise in the area has said that this is not the way to deal with these issues. Outright concern and opposition to this bill have been expressed by 150 experts and members of the community. That is 150 stakeholders from the Law Council of Australia to women's legal services, community legal centres, Aboriginal and Torres Strait Islander legal services, child protection advocates and disability services from right across Australia. In fact, it will impact vulnerable children and families.

It has not been helped by the fact that, as the Australian Law Reform Commission report found, Australia's 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 past seven years under the Liberal government, Family Court and Federal Circuit Court judges have not been replaced in a timely manner. The government has continued to ignore, time and again, reviews and recommendations, as outlined by the member for Newcastle, including the review of the Australian Law Reform Commission. The government stubbornly remains determined to merge the courts and abolish the Family Court. The need for specialist family courts is more important than ever before. Its creation by the Whitlam government, as outlined by the previous speaker, has led to a greater awareness of family and domestic violence. Necessarily, it has seen an increase in its use and demand for its services.

Former Family Court Chief Justice Diana Bryant said:

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 a disaster to have trial judges who have not had any family law experience let loose here'. What is clear from those in this space, both legal and domestic violence advocates, is that they are seriously concerned that this measure will end specialist expertise within the Family Court.

I say again: these matters are complex. They need expertise. They need attention, and the way to fix the issues within the Family Court is not by merging it, as this government is about to do.

10:48 am

Photo of Zali SteggallZali Steggall (Warringah, Independent) Share this | | Hansard source

It's a very disappointing day to have to stand up and see the Federal Circuit and Family Court of Australia Bill 2019 come back to this House with the Senate having passed it with these amendments. Let's be really clear: this is not a good outcome for the most vulnerable in our society when there is a breakdown of their family relationship and they find themselves having to resort to the courts. This merger of the Family Court and the Federal Circuit Court is so disappointing. The government has completely failed to listen to the Law Council and 155 stakeholder groups, including 13 retired judges, who oppose this bill.

The specialised Family Court has been the envy of many countries around the world. I've had the pleasure of practising as a barrister in that jurisdiction and I know its challenges. I certainly know it needs assistance and, mostly, it needs resources. What it doesn't need is to be abolished and merged into the Federal Circuit Court.

What's been interesting is the justification that we've heard from the government, but also from fellow crossbenchers in the Senate, as to why they have supported it. I think it is motivated by personal experience, I would say a personal vendetta against an experience in that court, that will now impact millions of people's lives in how they have recourse to justice. I think there is an inability to recognise the experience of those who had some 40-plus years of experience, believing their own view is somehow more informed than so many people who have practised.

The amendment before the House today is that there be at least 25 judges. Let's be really clear about the situation at the moment. I contacted the Law Council before coming down to the chamber. There are currently 32 judges, excluding Western Australia, which is also excluded in this amendment. The amendment says we'll have at least 25. Let's be clear about what we're doing here: we're going backwards. We're going to have fewer judges than we currently have. The data shows that what they need is not a reduction in judges; what they need is seven additional judges, one per jurisdiction, to make a significant difference to the time delays in the process through the system. Currently, there are eight positions not filled, so it's clear there has been a withholding and a delay in appointments for political motivations to get this bill and this merger happening in this place. We have 10 judges due for retirement next year. This jurisdiction is facing a very real, immediate loss of skill and ability to hear matters.

We've heard a lot of people in this place talk about the delays in the system. The delays are huge. It's incredibly distressing for people taking such personal matters to the court. They are at their wit's end, and because of either parenting or property matters, they cannot resolve it. They need some attention but instead they get delays because the system is underfunded and under-resourced. What this amendment does, let's be really clear, is provide for fewer services, not more. This is not a streamlining or an efficiency.

Where has this merger come from? This merger has come from a six-week desktop review of potential efficiencies conducted by PwC. It was done in 2018. The authors of the report appeared before the Senate committee, and all of their claimed efficiencies were dismantled in the Senate committee. Even the authors of the report walked away from the numbers because the desktop review only lasted six weeks and they did not interview lawyers or families with experience in the Family Court system or practitioners in the system. What we have here is a dismantling and a merger of the Family Court against the expert advice of all those who have practised in this jurisdiction and to the detriment of so many people that rely on this system to resolve disputes. It's very disappointing to see this. This is politically motivated and not in the best interests of Australian people.

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

The question is that the amendments be agreed to.