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

12:05 pm

Photo of Tony SheldonTony Sheldon (NSW, Australian Labor Party) Share this | Hansard source

These related bills, 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, are an abuse. They are an abuse, in that the government's reckless agenda, an agenda that seeks to overturn almost 50 years of specialised legal practices, is wrapped up in a fake notion of reform. It ignores the experts and it ignores the voices of everyday Australians. This government must own up to what they're really seeking to do here: abolish the Family Court, a proud and lasting legacy of the Whitlam government. When it was put to the floor back in 1974, debate on the Family Law Bill lasted 28 sitting hours spread over six days. It was important. There were disagreements, there was debate, and lasting momentous change was made.

The Family Court is a Labor legacy, an Australian legacy, a parliamentary legacy—one that I'm very proud of. It's one that Labor is proud to defend in this chamber. The Family Court of Australia is a single standalone court, one with real knowledge, real expertise and real understanding of the delicacies and importance of matters before it. Family law is not like any other aspect of law. It's emotionally charged. Judgements have real, deep repercussions. There's no doubt that in some areas it does require reform. But, instead of a scalpel, of course the government is using a sledgehammer. This 500-page bill is the most significant change to the Family Court since it was established almost 50 years ago. As my colleague Senator Lambie rightly pointed out in this chamber moments ago, this bill has gone from being a lawyer's picnic to a lawyer's banquet. Like most of the legislation this government puts to the Senate, it is legislation that is not reliant on research, not reliant on the advice of experts, not reliant on the voices of everyday Australians. It is legislation based on a six-week desktop review conducted by a pair of accountant from PwC and a host of other consulting firms.

What will this legislation do? It will effectively abolish the Family Court by merging it into the Federal Circuit Court, a single court with two divisions. It will abolish the appeals division of the Family Court, so, instead of a scalpel, there will be a sledgehammer. As I've said, there is no doubt that the family law is in need of reform. As the Australian Law Reform Commission noted only two years ago in a report on the family law system, no-one could have foreseen the growth in the incidence and awareness of family violence or child abuse—none of us here. These are twin plagues within the fabric of Australian society. Without a court that can specialise in these incidents and that can see them day in and day out—a court that contains the interrelated, co-located services and resources that families in distress are desperately in need of, dealing with not just the legal issues but the human issues—we will not provide the care and support that families in distress need.

Whitlam envisaged the Family Court in this way: a court that deals with people not as legal matters but as human beings. The realisation of Whitlam's vision has never been more important. The vulnerable children and families of Australia need a court that is not only efficient but also safe and sensitive to their needs, to their vulnerabilities.

What did the Australian Law Reform Commission find in its report? It 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.

Those damning words are a product of years of neglect. Under Tony Abbott, there was neglect. Under Malcolm Turnbull, there was neglect. Under Scott Morrison, there is further neglect and a failure to act appropriately. There have been eight years of Liberal neglect.

It is outright vandalism that judges in both the Family Court and Federal Circuit Court have not been replaced in a timely manner. Funding has been frozen despite review after review highlighting the increasing demand for Family Court services. In a classic move by the Liberal Party, they pick a service they want to undermine, that they want to underfund, they ignore calls to support it, let it wither on the vine overwhelmed by demand and under-resourced, and the response is always the same—a reckless attack dressed up as reform.

This government is ploughing ahead with a sledgehammer to this court, to its purpose and to its role. This bill will make a number of changes to the courts. It will combine the Federal Circuit Court and Family Court into one court with two divisions. 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 deputy chief justice with a single set of rules and a single point of entry. The Appeal Division of the Family Court will be abolished and replaced with nothing. Instead, all Division 1 judges will be able to hear appeals either as a single judge or as part of a full court.

When this new structure was first proposed in the 45th Parliament, the current Attorney-General said it would stop appointing new judges to Division 1 as they retire. This would effectively lead to the abolition of a division—the division of the Family Law Court of Australia, slowly but surely under this government. Those opposite may be trying to back away from this now but we know his tactics. We know he'll pursue his ideological pursuit relentlessly, ongoing. This is just a tactical step back whilst he continues to pursue that position of not replacing experienced, knowledgeable judges, people who have the expertise and the capacity to deal what is often for many people human drama and human pressure in their lives. As I say, this ideological pursuit will be pursued relentlessly.

Some might ask why this government is so hell-bent on this proposal? It must have some great evidence up its sleeve to proceed with the abolition of an institution like the Family Court. As my colleague Senator Ayres highlighted earlier, the Morrison government has claimed this proposed merger is informed by 'independent reviews and inquiries lasting over a decade'. The Attorney-General's website lists five reports under the heading 'The evidence base for the reforms' yet not a single one of the reports listed recommends this bill—none of them, not even one of them! None of these reports consider anything as radical as what is contained in this 500-page bill. Is this how legislation is conducted in this country in important areas that affect so many people in our country and will affect so many into the future?

It has even relied on a hollow, fake report. They're just outright citing evidence that has nothing to do with the bill. The interim report published by the Joint Select Committee into Family Law says that 70 reviews of the family law system have been undertaken since the court was established. Not a single one of these reviews calls for anything like what the Attorney-General is proposing—not a single one. This is a bit like the science of climate change: despite all the evidence saying one thing, the government are focusing on minuscule pieces of evidence to confirm their predetermined view, a prejudged view, that doesn't have any relationship to the evidence that was provided by so many experts. They're resting their entire 500-page bill on a six-week review of data by PricewaterhouseCoopers. Well, you get what you pay for, don't you! It was a desktop review conducted in the space of a little more than a month. Isn't that pathetic on a matter that is so important to so many of us in this country! It was one six-week desktop review against 70 comprehensive reviews, none of which recommended this bill.

Maybe the government has consulted on this bill. The senators present would be surprised to hear there has not been any meaningful consultation, of course, in relation to what would be the most significant change to the Family Court in its history. There was no consultation with legal professionals, with family specialists or with counsellors or children's psychologists. It's just simply outrageous to hear there was not consultation with a single judge who sits on the Family Court—the absolute arrogance of the Attorney-General and this government! They believe they know so much better than the people who have dedicated their lives and careers to making the Family Court work.

Since the government chose to ignore the judges of the court, as they have many of my fellow senators, let me quote a few of the things these judges have said about the government's proposal. These are the experts, the people who have been dealing with these matters for such a long period time—people like Elizabeth Evatt AC, the very first Chief Justice of the Family Court of Australia—who have criticised the proposed merger. She warns us:

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—

I repeat: '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.

She goes on to say:

The current bill undermines this principle, is not in the public interest and should not be enacted.

Then there is the Hon. Alastair Nicholson, who, from 1988 to 2004, was the second Chief Justice of the Family Court. Now, what did he have to say? He said:

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.

I think that's just so telling. The judge said the court should not be judged by output, by simply a number of cases, as if the court is a sausage machine.

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 resourcing and hearing time with all federal matters—that is, other matters like migration, bankruptcy and those sorts of things that the Federal Circuit Court 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 the victims of family violence.

The National Aboriginal and Torres Strait Islander Legal Services said those that oppose the bill— (Time expired)


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