Murray Watt (Queensland, Australian Labor Party, Shadow Minister for Northern Australia) Share this | Hansard source

The Family Court of Australia is a proud Labor legacy. It shares that in common with most of the great social reforms that have occurred in Australia, like Medicare, our world-leading superannuation system, the antidiscrimination law framework and the provision of free legal assistance services to Australians in need. These reforms have something else in common, and that is that the Liberal Party never misses an opportunity to attack or undermine them. The Liberals are always looking for ways to undermine Medicare and the principle of universal health care in Australia, even as they pretend to support it. The Liberals are always looking for opportunities to attack superannuation. Look no further than the Morrison government's policy to force Australians to raid their retirement savings, in the middle of a global pandemic, to make ends meet. One doesn't have to look far for examples of the Liberal Party attacking the legal assistance sector or seeking to water down Australia's antidiscrimination laws. The Labor Party is the party of doing. The Liberal Party is the party of wrecking. That brings me to the bills before the Senate 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.

The Family Court was established by the Family Law Act 1975. That act instituted two major and complementary changes: it instituted no-fault divorce and it established the Family Court of Australia, a specialist, multidisciplinary court for the resolution of family disputes. In 1974 the Senate Standing Committee on Constitutional and Legal Affairs, which had been tasked with reviewing the family law bill, said that the Family Court would be 'essential to give substance' to key aspects of the Family Law Act, including no-fault divorce. Shortly after the passage of the Family Law Act, the then Labor Attorney-General Kep Enderby wrote:

In public discussion of the Family Law Act, most of the attention has understandably, and quite properly, focused on the ground of divorce and, to a lesser extent, the maintenance provisions. While not underrating the magnitude of the reforms to the divorce and maintenance laws, I feel sure that, in time, the provision for the establishment of Family Courts will come to be seen as a reform of equal importance.

Kep Enderby was right: the Family Court's essential distinguishing feature is that it deals only with family law matters. This bill would rob the Family Court of it essential distinguishing feature by collapsing it into one of Australia's busiest, most poorly resourced and most overburdened courts, the Federal Circuit Court.

The reason why specialisation is so important is that family law matters are not like other matters that generalist courts tend to deal with. The parties to family law matters are not like the parties that generalist courts tend to deal with. As Gough Whitlam said in 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. 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.

The Whitlam government's vision of a specialist family court was of a court with interrelated co-located services and resources. It was not just about specialist judges; it was about creating an environment that would have regard to what Whitlam described as the 'human problems' of couples and families, including children, and not just their legal rights. I observe that anyone who has been near a building of the Family Court will have seen that efforts are often made, even in the design of those courts, to ensure that they have an inclusive atmosphere to address the very real emotional issues that family law matters stir up in participants of those proceedings. The realisation of that vision has never been more important, especially for vulnerable children and families who need a family court system that is not only efficient but also safe and sensitive to their needs and vulnerabilities. The bills before the Senate today are fundamentally at odds with the vision of the Whitlam government, and that is because this government's radical proposal to merge the Family Court and the Federal Circuit Court is fundamentally at odds with the principle of specialisation. You don't have to take Labor's word for it; just ask the experts.

The experts say that these bills will exacerbate many of the problems in the family law system and address none of them. The very first Chief Justice of the Family Court, Elizabeth Evatt AC, has warned:

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.

The increasing number of cases in which issues of family violence and child abuse are raised has led to an even greater need today for family law jurisdiction to be vested exclusively in specialised judges who can give their full attention to the needs of family law clients without being diverted to exercise other unrelated jurisdictions. The current bill undermines this principle, is not in the public interest and should not be enacted.

Alastair Nicholson, the second Chief Justice of the Family Court, who served in that position between 1988 and 2004, has expressed disbelief about the government's proposal. It is worth quoting him in full, and I urge those opposite and, indeed, those on the crossbench, to take note of his remarks. Mr Nicholson has said:

It is unbelievable that Government would propose the dissolution of a Federal Superior Court in this fashion without the most careful and searching Public Inquiry and without carrying out significant research and without consulting the many experts in this field.

I am firmly of the view that the passage of the Family Law Act 1975 … and the setting up of the Family Court was some of the most significant social legislation ever to be passed by the Federal Parliament.

What those proposing this merger do not seem to understand is that family law is complex and nuanced, and it is not to be judged by the output by numbers of cases as if the Courts are sausage machines. Throughput is important, but so is the quality of the decisions made.

Cases can be extremely complex and require specialist knowledge of the type that has always been available in the Family Court, which has provided leadership in the proper interpretation and principles to be applied by other courts with family law jurisdiction.

Many involve the determination of important issues relating to children, including their rights and need for protection, not only from individuals, but also from government in its myriad forms. Many also involve problems of family violence and the effects of it upon the parties and their children. Others involve extremely complicated property disputes either alone or combined with the above issues and requiring other important specialist levels of legal knowledge, whilst understanding the important family issues that may be affected by the decision.

The Family Court is a Court that has been envied throughout the common law world and its judgments have often been cited with approval by the courts of many countries including New Zealand, UK, Canada, the USA and others. Its significance as the only specialist Family Court set up as a superior Court of Record and particularly that of its Appeal Division cannot be over emphasised.

It is not just former chief justices who are opposed to this proposal. Over 110 family law experts ranging from the Law Council of Australia to Women's Legal Services, Community Legal Centres, Aboriginal and Torres Strait Islander Legal Services, child protection advocates and Disability Services from across Australia have called on the government to abandon this proposal. That is a pretty solid effort to unite that many different groups against a piece of legislation.

The President of the Law Council of Australia, Pauline Wright, has said that the proposed merger 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 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.

Family law experts have tried to engage constructively with the Morrison government on this bill. They have even offered an alternative proposal to restructure the Family Court and Federal Circuit Court. Under that alternative proposal, which has been described by the New South Wales Bar Association as 'Family Court of Australia 2.0', firstly, a specialist and standalone family court would be retained; secondly, judicial officers who currently hear family law matters in the Federal Circuit Court would be relocated into a second lower division within the Family Court; and, thirdly, the Federal Circuit Court would continue to exist in its current form, except that it would only hear general law matters. Appeals from that court would continue to be heard by the Federal Court. In other words, unlike the government's proposed merger, the alternative proposal would mean increased specialisation in the family law system.

The Family Court of Australia 2.0 model warrants careful consideration. Instead, it has been ignored completely by the Morrison government. Given what is at stake for Australian families, including children and some of the most vulnerable adults in the country, that is nothing short of a disgrace. None of this is to say that our current family law system is perfect, but abolishing the Family Court is the wrong solution. After seven years of neglect under the Liberals, there is no doubt that the family law system is in crisis. For contested family law matters in the Family Court, it is currently taking on average 19.9 months from the date a matter is filed to the date on which the trial even commences. In the Federal Circuit Court, the average is 17.8 months and, even after trials come to an end, Australian families are having to wait many months for judgements to be delivered. These sorts of delays are not mere statistics.

In the Australian Law Reform Commission's landmark 2019 report on the family law system, which the government has so far ignored, the commission referred to a number of concerns associated with the present delays in the Family Court system, including: the potential for children and parents to spend long periods living in limbo while waiting for trial; the safety risks to parties and children arising from delayed resolution of disputes that involve protective concerns, including contributing to homelessness; the scope for delay and uncertainty to exacerbate conflict; and the potential for clients to consent to outcomes that fall short of the security and protection a court order could provide.

Having deprived the family law system of resources for seven years, the Prime Minister and his Attorney-General claim that these bills will fix the mess they have presided over. The Morrison government claims that merging the Family Court and the Federal Circuit Court will reduce delays and backlogs by creating a single point of entry for federal family law matters, ensuring the development of common rules of court, forms, practices and procedures. But, like so much else with this government, this justification does not withstand even the slightest degree of scrutiny. The creation of a single point of entry and the development of common rules, forms, practices and procedures across the Family Court and the Federal Circuit Court is widely supported, and all of those things can be and are being achieved without these bills. The Attorney-General knows this and the Prime Minister knows this. They do not care.

The Morrison government claims that the proposed merger has been informed by independent reviews and inquiries over a decade. The Attorney-General's Department website lists five reports under the heading 'The evidence base for the reforms'. The only problem with that is that none of the reports listed on the website recommended these radical reforms—none. The evidence base for the reforms, according to the Attorney-General's Department website, is blank. None of those reports even considered these reforms. In fact, the only one of the five reports that recommended restructuring the Family Court and Federal Circuit Court recommended the alternative proposal I referred to earlier—an entirely different model that would have maintained a standalone family law court.

The Attorney-General and the Morrison government ignore all of this. The arrogance of this government is breathtaking. Australian families deserve so much better than this. Labor will oppose this bad law. I move:

Omit all words after "that", insert:

", the bill be referred to the Legal and Constitutional Affairs Legislation Committee for further consideration, including examination in detail of the alternative 'Family Court 2.0' model proposed by the NSW Bar Association in 2018 and also recommended by the 2008 Future Governance Options for Federal Family Law Courts in Australia Report by Mr Des Semple (the Semple Report) and endorsed by a large number of stakeholders, which would relocate judicial officers hearing family law matters and the family law jurisdiction of the Federal Circuit Court into a second division within the Family Court, with a reporting date of no earlier than 20 May 2022."