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
I rise today to speak on 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. These bills will seek to abolish the independent Family Court of Australia. It's a proud legacy of the Whitlam government. Instead of honouring that legacy and properly investing in it, this government seeks to replace it with a Frankenstein amalgam of the Federal Circuit Court and a rump of a court dealing with family law matters. Reform is needed. A new approach to family law is needed. But this legislation will only increase the problems currently experienced in the family law system. We need to improve efficiency in the family law system. We need to increase auxiliary services for families in need, caught up in the need for the services of the family law system. We need to ensure that specialist services are there for children and women fleeing violence.
These bills follow a clear pattern for this Liberal government and its two predecessors in undermining a public institution, running that public institution into the ground and then clamouring for reform to fix the very mess that they themselves have made. The Whitlam government set up the Family Court as part of a suite of reforms, including no-fault divorce, that revolutionised the family law system in Australia. When introducing the family law bill to establish the courts, Mr Whitlam remarked:
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.
Mr Whitlam went on to say:
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.
What a visionary statement, and what a practical, authentic response to the challenges that face us as human beings in our relationships with one another. There is none of that vision in what this government is advancing. The Whitlam reform was passed to give better access to justice to women and children across Australia, and to support a system that would work in a conciliatory manner to sensitively decide the personal matters of Australians. The auxiliary services that it provided will be further cut and diluted by these bills and the proposed amalgamation.
In 2019 the Australian Law Reform Commission completed a report on the family law system in Australia. They made their inquiry, and it was an extensive, highly consultative one. They made over 60 recommendations for reform. They noted that the family law system in Australia:
… 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.
They roundly condemn what this government and its withdrawal of resource capacity has done to the Family Court. The Australian Law Reform Commission did not make the recommendation to amalgamate the Federal Circuit Court and the government did not even bother responding to that very important report—60 recommendations ignored by the government, and they come up with a recommendation that was not in that very august report.
The government, instead, bases the major reform that they're proposing on nothing more than a six-week desktop review by two PricewaterhouseCoopers accountants. Even that doesn't endorse this drastic proposal. In a response to the Senate committee inquiry into the bills, PwC said they were told not to even consider detailed reform as part of their report. The Attorney-General's website cites five reports as the basis for this reform, yet not even one—not a single one—of the five reports that it claims it bases this legislation on considered, let alone recommended, the drastic change that the government is seeking to push forward with these bills today. Only one report recommended restructuring the Family Court, but in a way that would still leave a standalone, specialist family law court. The interim report of the Joint Select Committee on Australia's Family Law System, initiated by Senator Hanson, also noted that among the 70 reviews into the family law system in Australia since 1974, not one—not one!—has recommended that family law courts be structured in the way that the government is now seeking to make happen.
The bill even prejudges the work of Senator Hanson's committee inquiry, which is not due to report until next week. You would think, if the government actually valued the work of that committee, which has been travelling around Australia hearing evidence, advanced by Senator Hanson herself, it could have paused the biggest reform in the family law system in 40 years to hear the recommendations of her committee, to give some semblance of respect to the work of the senators who have been travelling around the country and to give some sense of hearing the testimony, which was, in many cases, traumatic for witnesses to deliver. But, instead, the government is advancing with this particular massive reform not recommended anywhere and is ignoring the finalising of that very important report. It's profoundly disrespectful to Senator Hanson and the committee not to wait that one week to hear the report the committee has spent years preparing.
Anyone who has been involved with the Family Court will have an opinion on this, and I'm sure they won't land where the government has landed. The question is: is there really any point, is there really any effectiveness, in jamming two different court systems together? It's not going to decrease the lengthy process times. Do we think that removing specialist services like child issue report writers will lead to more truthful and more lasting resolutions to matters? Do we think that further disruption to the Family Court will decrease the escalating distrust and anguish that many in the system are currently feeling? Can we trust this Prime Minister on this issue? We all know he's much vaunted as a family man; he cares about his family. Well, that may be the case but he doesn't seem to care about yours.
This abysmal state of affairs is solely the result of the successive Abbott, Turnbull and Morrison governments gutting the funding of all aspects of the family law system. Matters have ground to a halt. I've heard anecdotally that matters in Sydney will now take 2½ years to be fully heard. I come from a great state but it's burdened with the trauma of these delays that are impacting family life, impacting children and impacting children's learning at school. If you're in Newcastle, it will take 18 months. Where a full report into an abuse would take one month, so denuded of resources is this entire system that it now takes four to five months to get a report, and this is despite divorce rates dropping nationwide to their lowest level since no-fault divorce was introduced. This is not an issue of the institution being broken; this is an issue of the resourcing being completely underdone.
Family courts deal with matters of child welfare, they deal with sensitive matters of family breakdown, and they need the appropriate resources to serve the needs of Australians. We've seen a degradation of public services across our country in the last 7½ years by this government at scale that's absolutely breathtaking. People pay their taxes to ensure that, when they need them, public services are there and operating in an efficient way. How will reducing services help anguished mothers, fathers and children? How will cutting funding to the bone for child report writers help inform the courts on sensitive matters of child abuse and violence?
The primary goal of the family law courts in Australia is to work in the interests of the child. Can anyone really kid themselves into believing this bill, as constructed by the government, will be in the best interests of the children of Australia? This bill will only compound the government's neglect of the family law system; it will make a bad situation worse.
The bill, if passed, will do the following things. It will combine the Federal Circuit Court and Family Court into one court with two divisions, and that court will be called the Federal Circuit and Family Court of Australia. The current Family Court of Australia would become Division 1, while the current Federal Circuit Court of Australia would become Division 2. 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. Let me just say that again. 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. And, of course, there are a number of other consequential amendments that will be made.
In the last parliament, the Attorney-General refused to commit to replacing Division 1 judges as they retire, amounting to a gradual abolition of the specialised Family Court. Due to public pressure, he's now committed to appointing judges to Division 1, though there is nothing in this government's bill that would actually guarantee this.
There are 110 stakeholders, among them Aboriginal and Torres Strait Islander legal services, community legal centres, women's legal services, child protection advocates and disability service providers across Australia, who have formed a chorus of opposition to this bill. And I trust their voices. I trust their lived experience. I trust advocates for people who find themselves in a family crisis that engages them with the courts. Those families have the support of those community service agents who are walking the walk with them—because this government, as much it bleats about its care, is always missing when the work has to be done. When the hard work has to be done, they're missing in action. Those great advocates believe this reform proposed by the government will increase bills, time and stress for families in the system. The advocates I trust say that this bill will remove specialist family law support services for vulnerable children and families; it will increase the unsustainable workloads of Circuit Court judges, who, on average, have 337 matters on their dockets; and it will ignore the major systemic issues of chronic underfunding and victims falling through the cracks.
The family law system is a proud monument of the Australian legal system, and Christian Porter and Scott Morrison want to run a bulldozer over it. Once they have crushed this institution, it will be very difficult to put it back together in any way. The government bill is friendless, recommended by no independent report. It will devastate the most vulnerable in our community, it prejudges a year-long report into the family law system by a week and it is rushed in at a point when the government clearly thinks it has the numbers in this place to push this incredible level of reform through. Like all Morrison government initiatives, this bill is a facade. It cloaks the hollowing-out of a proud and vital public institution in the gilded glamour of reform. It speaks to the sheer arrogance of the Prime Minister, Mr Morrison, who ignores the interests of vulnerable Australian families in order to chalk up at least one policy win this week in an otherwise barren agenda. This bill is a wrecking ball through our legal system, and I urge all senators to reject it.