Senate debates

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

11:38 am

Photo of Nick McKimNick McKim (Tasmania, Australian Greens) Share this | Hansard source

As has been made abundantly clear by previous speakers from the Australian Greens, we will not be supporting this legislation. 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 cover an area where large numbers of Australian people are directly impacted by the decisions that we in this place make, and we have to get this right. In this case, the government has not only not got it right; it's got it badly and tragically wrong.

The sad thing is that it's Australian families, Australian people, who are interacting with Australia's family law system who are going to pay the price for the terrible mistake that this Senate is about to make, thanks to Senator Patrick deciding to support this legislation and therefore give the government the numbers for it to be passed by this chamber. Those Australians who are going to pay the price for this terrible mistake are Australians who are already dealing with significant challenges in their lives—challenges like the breakdowns of their relationships and challenges like decisions over custody of children subsequent to the breakdown of a relationship. Those things are difficult enough to deal with of themselves and they can be highly traumatising to people, but for those matters to be dealt with by people in a system that will be reformed in the way that this legislation seeks to reform our family law system will make it even harder for people who are interacting with that family law system.

I might add: these so-called reforms follow a classic Liberal-National party strategy where they starve an institution of resources—and undoubtedly our family law system has been starved of resources through successive Liberal-National governments in this country. When those massively reduced resources start to bite on the effectiveness of an institution, whether it be our Family Court system or whether it be an institution like the ABC, the government comes out and says: 'See! We've got to do something because the organisation's not running properly.' Well, Earth to the LNP: it's not running properly because you deliberately starved it of resources. That's why it's not running properly. That's the major reason it's not running properly.

No-one is going to get up and argue that our current family law system and the courts that are involved in our family law system are running perfectly. Of course they're not. Anything that humans set up is going to run imperfectly, and the challenge for people in our place and people who work in those institutions is to try to continually improve them. I'll talk a bit later in my contribution about how the Australian Greens believe that we could actually improve the way our family law system works. But, let me be abundantly clear about this, the proposals that are currently before the Senate are not the way to make improvements, and ultimately they will make our family law system more difficult to interact with, they will make it more complicated and they will mean that Australians who are interacting with our family law system will be significantly disadvantaged.

The Australian Greens approach this legislation with the principle that the strongest protection for children, for families and for survivors of family and domestic violence is to maintain and strengthen a standalone specialist family law court involving a holistic specialist system of collaborative, culturally safe, timely, co-located services and resources. And, in general terms, that was the intention when the Family Court was created.

The Greens believe that significant changes to the family law system, like the ones proposed in these bills, should meet a basic test—that is, they must strengthen the system, move it to being a person focused system, ensure that it is a trauma informed system, ensure that it is a collaborative system, ensure that it delivers outcomes in a timely way, ensure that it is a holistic system and, very importantly, ensure it is a culturally safe system because there are people in this country from a massive range of cultural backgrounds who interact with our family law system.

We have to make sure that it is culturally safe and appropriate for people from a range of cultures, whether they are our First Nations people—and remember that they were here for many tens of thousands of years before white people even arrived—or more recent arrivals from around the planet who come from places where families and family law systems are differently conceived than they are in this place. It has to be a culturally safe system that reflects the diversity of the cultural backgrounds of those who interact with it.

The tests that the Australian Greens propose are not met by these bills. It's not just the Australian Greens saying that these bills are undesirable; more than 110 stakeholders and interested parties of the family law system agree that the merger proposed in these bills is not the solution and they oppose this legislation because it will put families at risk. It's important to say that a significant number of those stakeholders prefer the Family Court 2.0 model proposed by the New South Wales Bar Association. Unlike the merger proposal that's currently before this chamber, the Family Court 2.0 model proposes a straightforward lift and shift of the Federal Circuit Court's family law jurisdiction and judges into a new lower division within the standalone specialist Family Court. Family Court judges would be in Division 1 of the Family Court of Australia and Federal Circuit Court judges who are hearing family law matters would move across to Division 2 of the Family Court of Australia.

Interestingly, this model has been in place for many years in the Attorney-General's own state of Western Australia. This system was also recommended by the 2008 Semple report and has been endorsed by stakeholders, including the Law Council of Australia, Women's Legal Services Australia and former chief justice Elizabeth Evatt AC. Unlike the government's dangerous and fatally flawed merger proposal, the Family Court 2.0 model would have the significant advantage of promoting safety for children and adults by preserving access to services of a specialist family court. An increase in specialisation in family law and family violence will increase the safety of children and adult victims and survivors of family violence. This is particularly the case for groups that are disproportionately impacted in the family law and family violence systems, including Aboriginal and Torres Strait Islander people.

The need for increased and culturally safe specialisation of courts to improve decisions and outcomes for families is supported by the evidence of the multiple inquiries there have been over a number of years into the family law system. The Family Court 2.0 model proposed by the New South Wales Bar Association would actually produce what Australians have consistently said they want from their family law system—a single specialist family court to address the needs of the country's families within an integrated system of collaborative, culturally safe, responsive and timely support services.

We absolutely do not support this legislation being passed. We're extremely disappointed that Senator Patrick has caved on this issue. The government moved with indecent haste to bring these bills on once it believed it had the numbers in this place, even to the extent that the inquiry it stitched up with One Nation into Australia's law system hasn't reported yet. Let's make no mistake, that inquiry was stitched up between the LNP and One Nation as an exercise by the LNP in stakeholder relationships with One Nation and now they're burning One Nation and all the work that has been done in that inquiry by moving pre-emptively before that inquiry has had the capacity and time to report. So we're not going to support this legislation. We believe the government should withdraw it, and we believe the government should move forward in a consultative and collaborative way around the development of an alternative like the Family Court 2.0 system, which is actually supported and preferred by almost all stakeholders in this area.

I mentioned the starving of funding that this government has engaged in over many years in regard to our family law system. Something else that the Australian Greens are calling on the government to do is properly fund the system. The delays that we all know about in the family law system—because we've had submission after submission after submission about those delays—are unconscionable. To say to Australians that, in some circumstances, you have to wait for two or three years before your matter can be addressed through the family law system—well, we are dealing with real people, who are living real lives. They have real families, they have real children and they have real challenges in their lives. It is incredibly traumatic to go through a relationship breakdown or family break-up—losing access to your child. These things are traumatising in themselves. People don't need another layer of trauma put onto their shoulders in the form of having to wait for years before the family law system can actually address their issue.

The government needs to commit at least another $310 million a year in funding for legal assistance providers, as identified by the Law Council, to make up for the shortfall of successive cuts that have been faced by a range of organisations inside our family law system and also by organisations—like Aboriginal and Torres Strait Islander Legal Service, community legal centres, women's legal services and legal aid commissions—who actually support people who are engaged with our family law system. We also need to make sure that substantial funding increases are made available to the social and support services that families and survivors of family and domestic violence require.

The government needs to far better resource the community legal sector. I'll make the point again that, over a number of years in this place, the government has slashed funding to the community legal sector, and the government needs to properly resource our family law system. The Australian Greens hold dear the principle of access to justice. Your capacity to access our justice system—whether it be the criminal justice system, the civil justice system or our family law system—should not be determined by the thickness of your wallet or the size of your bank balance. It shouldn't be determined by those things. But, tragically, too often it is determined by those things.

So these bills are a terrible, terrible mistake, and it is the Australians who are interacting with the family law system—who, in almost all cases, are already traumatised by events that they've been through—who are going to pay the price for this government's terrible mistake. I urge the government to reconsider. I urge the government to listen to the stakeholders who work in this system every day. I urge the government to think rationally about the impact that these bills will have on ordinary Australians going about their day-to-day lives with the significant challenges that they are facing. Withdraw this legislation, and let's work collaboratively to come up with a better approach.


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