Wednesday, 17 February 2021
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
Three days ago the President of the Law Society of Tasmania went to the media warning that the federal government's failure to appoint another judge to hear Family Court cases in Tasmania is leading to delays and angst for families. He said that one judge in Launceston was doing the work of two judges after a judge retired last November. This means that Tasmania is left with one specialist judge tackling difficult issues including family violence, child abuse and mental health. When the President of the Law Society made this comment, the Attorney-General Christian Porter refused to say if or when the appointment was likely. This scenario is playing out all around Australia and it's been playing out that way for many years now. The family law system in this country is in crisis. It is buckling under so much work that some judges are dealing with more than 600 cases and there is a glacial parade of desperate and troubled people.
The court is being starved of resources, and, in some Federal Circuit Court and Family Court registries, it is taking, on average, 12 months for court appointed family consultants to produce family reports. A family report is a critical document that provides an independent assessment of issues in a case. Those reports help judges to make life-changing decisions about arrangements for children. If anything, the need for a specialist Family Court has become more pronounced over time. As the Australian Law Reform Commission noted in a report the government commissioned but then completely ignored, the Whitlam government, which established the court, could not have foreseen the growth in the incidence and awareness of family violence and child abuse since 1975. Yet the Morrison government persist in refusing to own up to what they are seeking to do with this legislation. They are seeking to abolish the Family Court as a specialist and standalone superior court. This would be a profoundly retrograde step. It would harm Australian families and, in particular, children at their time of greatest need.
On this side of the chamber, we view the Family Law Act 1975, which established the principle of no-fault divorce and established the Family Court of Australia, as part of the 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. That distinguishing feature of specialisation is so important, because family law matters are not like any 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. They are often very, very vulnerable.
Vulnerable children and families need a family court system that is not only efficient but also safe and sensitive to their particular needs and vulnerabilities. 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 for what Gough Whitlam described as the human problems of couples and families, not just their legal rights. This legislation would rob the Family Court of that essential distinguishing feature by merging it into one of Australia's busiest, most poorly resourced and most overloaded courts, the Federal Circuit Court. To be frank, that's just crazy. It's senseless and it's also a friendless idea. But don't get me wrong—there are serious problems in the Family Court at present, but the main cause of those problems is no 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.
And it's getting worse. Over seven years of Liberal governments under Tony Abbott, Malcolm Turnbull and now Mr Scott Morrison, right around the country Family Court judges have not been replaced in a timely manner. In response to increasing demand, the court has been starved of funds, and review after review, making considered and measured recommendations, has been ignored. Who is suffering in all this? Apart from dangerously overburdened court and support staff and judges, it's the families and it's children in crisis situations: children experiencing trauma, children who deserve the best service and support that we can provide for them in times of huge anxiety. This government's disgraceful level of neglect in letting these children down so badly should be a cause of national shame. Yet our Attorney-General, Mr Porter, persists in defying logic, ignoring those in crisis and need, relentlessly refusing to appoint judges and provide adequate resources and, with no evidence that it will improve the situation, pushing on with his agenda to collapse the court into the Federal Circuit Court in a way that will make a bad situation worse for Australian families, including vulnerable children.
I will summarise the intent of this legislation. It will combine the Federal Circuit Court and Family Court into one court with two divisions. That court would be called the Federal Circuit and Family Court of Australia. Both divisions would operate under the leadership of a single Chief Justice and a Deputy Chief Justice, with a single set of rules and a single point of entry. The Appeal Division of the Family Court would not be replaced with anything. Instead, all Division 1 judges would be able to hear appeals either as a single judge or as part of a full court. A number of other consequential amendments will be made.
When the government originally proposed this merger, in the 45th Parliament, the current Attorney-General said that he would stop appointing new judges to Division 1 as they retire. That would obviously amount to a gradual abolition of Division 1—that is, the Family Court of Australia—over time. The Attorney-General has now backed away from that position and promised to keep appointing judges to Division 1. But there's nothing in this bill that would guarantee the continued existence of Division 1. The Attorney-General made his intentions for this merger very clear in the last parliament, yet now the Attorney-General says, 'Trust me.' All the while, judges are retiring and new appointments are not being made to the Family Court, as we have so recently seen in Tasmania.
Even if the bill were amended to guarantee the continued existence of Division 1, that would not address the fundamental problem with this bill, which is that, instead of increasing specialisation in the family law system, the Morrison government is going to water it down by effectively abolishing the Family Court. Some would argue that Mr Porter is trying to kill off our specialist family court by stealth, but he has made his intention clear over two parliaments. As I've said, his intention is friendless. In fact, it has an overwhelming number of highly credentialled and respected opponents. This is a list of just some of them. There are no less 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 services from across Australia, who have written to the Attorney-General to ask to abandon this proposal, and they have all been ignored.
These opponents to the proposal have stated that it would harm vulnerable children and families in need of specialist law assistance; that it would increase rather than decrease the cost, time and stress for families and children in the family law system; that it would place further stresses on Federal Circuit Court judges, who are struggling under unsafe, unsustainable and unconscionable workloads; and that it would fail to address any of the fundamental problems plaguing the family law system, including the risk of family violence survivors simply falling through the cracks.
The very first Chief Justice of the Family Court of Australia, 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.
Ms Evatt has also warned:
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.
The Hon. Alastair Nicholson AO, RFD, QC, the second Chief Justice of the Family Court, who served in that position between 1988 and 2004, has fully supported Ms Evatt's remarks. Mr Nicholson has also 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.
… … …
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.
He went on to say:
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 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. 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.
The Law Council of Australia has also said that the proposed merger:
… is a terrible gamble with the lives of children and families.
Communities Legal Centres Australia has said:
… moving away from a specialist Family Court model would be a retrograde step and expose survivors of family violence to an unnecessary risk.
Women's Legal Services Australia has said its opposition to the proposed merger is:
… centred on the safety and best interests of the child and the safety of adult victim-survivors of family violence in family law proceedings.
The National Aboriginal and Torres Strait Islander Legal Services has said that the proposed merger:
… will disproportionately impact the most vulnerable including Aboriginal and Torres Strait Islander children and families who need the most support.
The list of statements in opposition to this legislation from those who know this system well, those who have daily experience with it, those who deserve our respect and those who should be listened to, goes on and on and on. The absolute arrogance of this Attorney-General, Mr Christian Porter, in dismissing these concerns is breathtaking. He's beyond listened and beyond reasoned, and he is blindly followed by those opposite, who should be seeking to question his reasoning and his blind determination to make this move. Australian families deserve better; Australian children deserve better. Those opposite intend to smugly stand by while the vision of this human centred court, so profoundly important to our country and to Australian families, is desecrated and abandoned.
As the experts have made clear, this merger proposal will do nothing to address delays in the family court system. There's nothing in this legislation that will increase the number of judges, registrars and other court staff. There's nothing in this legislation that will force the Attorney-General to do his job—even something as basic as appointing a new judge as vacancies are created. And these bills will do absolutely nothing to help Australian families.