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'd like to start with a tale of two family law reforms. The first reform was promised by the government in their first Women's Economic Security Statement. I remind you that that was back in 2018. It's a relatively simple proposal, and it would make dividing super assets easier and fairer. It's supported by lawyers, by academics and by women's groups. The government promised, back in 2018, that they would have this reform up and running by July 2020—last year. Where do you think that reform's up to? Nowhere. It hasn't been debated in this parliament. It's been eight months after that system was due to have commenced, and the government hasn't even drafted legislation for consultation. Why? When we asked about it in Senate estimates, we were told by officials that this was not a priority for the government.
Let's go to the second reform. That's a proposal, the one before us, to abolish the specialist Family Court, and it's contained in this legislation. It's a reform that is opposed by lawyers, by judges, by experts and by the users of the family law system. It has been recommended by precisely no inquiries and no policy process, and the government seems willing to commit endless resources to make this happen. We should remember this the next time the government tells us that something is too hard, because in this case the government seems willing to punch through community opposition, through policy advice and through the objections of experts to say nothing to the cost and disruption caused by the change like the one they're proposing. Nothing is quite as powerful as this government just deciding that it wants to do something.
Why is the government so committed to abolishing a specialist family law court? I suspect, at least in part, it is because the family law system is one of Prime Minister Whitlam's great legacies. The family law reforms undertaken by the Whitlam government improved the lives of millions of Australians. The introduction of no-fault divorce freed men and women who had otherwise been trapped in marriages that were unhappy or worse. The creation of a specialist family law court was an essential part of this vision. It promised the delivery of a type of justice in a different type of court to that which had been previously available. In speaking about the bill back in November of '74, Prime Minister Whitlam told the other place:
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 … 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 … 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.
There is no denying that more needs to be done to make the family law court live up to that vision. Too many men, women and children have been left feeling let down by a system that is increasingly difficult and expensive to navigate, but the answer is not to abolish the specialist family law court and fold it into one of the busiest and most overworked courts, the Federal Circuit Court.
At the start of this year, there was one federal circuit court with over 600 cases on its docket. There are more than 25 judges across the country with more than 400 cases each. We know that men and women across the country are hurt by lengthy delays in contested family law court hearings, and delays hurt children most of all. The Australian Law Reform Commission referred to a number of concerns associated with the present delays in the family law 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. But the answer to these shortcomings isn't to have matters like this jostling for space alongside hundreds of migration and other matters on the docket of already overworked Federal Circuit Court judges. As experts have made clear, this merger will do nothing to address delays. In fact the evidence from the experts, which the government should listen to, is that this merger proposal will increase cost, time and stress for families and for children.
We know that the first step to a better-functioning family law system is to invest in it. 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.
A specialist family law court is important because family law matters are very different. The parties to family law matters are not like the parties that generalist courts tend to deal with—they are far less legally sophisticated than commercial parties. It will often be the first time that either party has been in a courtroom. These people are more vulnerable and are in the midst of the most stressful and emotionally difficult period of their lives. Abolishing the specialisation of the Family Law Court is not the right response to this challenge. The President of the Law Council said: 'This is a terrible gamble with the lives of children and families.' Community Legal Centres Australia said:
… moving away from a specialist family court model would be a retrograde step and expose survivors of family violence to unnecessary risk.
Women's Legal Services Australia has opposed the merger on the basis of:
… ensuring the safety and best interests of the child and the safety of adult victim-survivors of family violence in family law proceedings.
NATSILS have said that the merger will:
… disproportionately impact the most vulnerable including Aboriginal and Torres Strait Islander children and families who need the most support.
When I was in the Northern Rivers last week, the family workers who are working with women and children subjected to violence were horrified that this appears to be the law reform priority that is highest in precedence for this government.
The government has tried to defend this bill by saying that it will reduce delays and backlogs in these two courts by creating a single point of entry for family law matters, by developing common rules of court, by enhancing judicial appointment criteria and by streamlining appeals. All of these are worthy aims; not one of them requires this bill to be implemented. The Chief Justice of the Family Court told a Senate committee last year that all of this could be achieved without legislative change and certainly without abolishing the specialist Family Court. In fact, if the government were looking for ways to improve the experience of families, they could do a lot worse than look at the recommendations of the 2019 Australian Law Reform Commission report, which has been sitting forlorn, unloved and unattended-to on the Attorney-General's desk for years. It was sitting there while Senator Hanson's inquiry was pursued—another misplaced priority.
The Family Court itself hasn't been sitting still. It has initiated a project to allow early determination of family violence matters. It initiated a COVID list that has allowed matters to be held virtually and has helped to improve accessibility for users.
There's another thing the government should do. At the start of my remarks, I mentioned a super-splitting proposal that the government promised would be in place by July last year. It hasn't been progressed because it's not a priority for them right now. Failures like this have consequences, as I'll explain. There is a separate program which is designed to divert people away from lengthy and costly divorce hearings. Instead parties may go to mediation where a more amicable settlement can be reached more quickly and more cheaply. Separation is never easy but this makes it quicker and cheaper to divide assets and reach a compromise that both parties can live with. But there's a problem: it turns out that proceeding with mediation around property settlements requires both parties to trust that all of the information they need to fairly divide property at mediation is on the table, and that requires the super reform that the government has been sitting on, which would allow the ATO to provide that information directly into the process.
The government's failure to deliver on its promise—the promise that it made back in 2019—to have this super reform in place by July last year is stopping families from being able to mediate their family law disputes. The Women's Legal Service has written to the Attorney-General about this. They have briefed the Minister for Women. But here we are, years later, and there is no action. This was a concrete plan. It was developed on the basis of evidence. It was supported by experts and family advocates. It would make family law proceedings fairer and easier for men and for women. And there is no progress on this at all by the government and no sign, no indication, of when it will be progressed. The minister has said, 'As soon as practicable,' or some other such diversion. But, as the minister and her officials told us at estimates last year, I guess it is just not a priority for the government.