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
Courts are daunting places. There's a secret code when you go to them that no-one tells you about. There are specialised rules that even some of the lawyers have a hard time figuring out. They are adversarial places and they are incredibly difficult to navigate if you're going through a family breakdown or, worse, going through a family breakdown that involves family violence. I know lawyers get a bit of a bad rap, particularly in this place, but I decided to go back to university when I was a bit older and study law, and my motivation for doing that was that I had spent a week with a friend in the court system throughout the time of a hearing, and it occurred to me that the system had not been built by women or for women experiencing sexual and family violence and that, to understand and to change the systems, we needed to get more involved in that conversation.
There have been steps taken by state governments and federal governments over time to build specialised courts, including the Family Court, to deal with the very difficult experience that families have when they go through a breakdown and family violence is involved. But 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, is a backward step, because it abolishes the Family Court of Australia and it means that we will no longer have a specialist standalone family court.
In other parts of the country—in Queensland, I know—we're actually creating more specialised domestic violence courts, but the government want to go in the other direction. They say right now that there are two separate courts—the specialist Family Court of Australia and the non-specialist Federal Circuit Court—and they both hear family law matters. The government claim that this merger will help reduce delays and backlogs in these two courts, by creating a single point of entry for family law matters. The creation of a single point of entry, though, and the development of common rules, forms, practices and procedures—making these courts easier to navigate for women and for family members that come to them—are being done and can be done without legislative change. You do not have to take my word for it. The Chief Justice of the Family Court told the Senate committee last year that all of those changes can be achieved without legislative amendment.
So what is this really about? Why is this government pushing ahead with a merger which abolishes the Family Court of Australia?
You can understand that Labor is very defensive of the Family Court and of all of the reforms that were introduced in 1975 that made the lives of families, particularly women, better. The Family Court was established as the dedicated legal forum for resolution of family law matters through the Family Law Act 1975—a proud Whitlam government legacy. It was formed to provide a less adversarial forum for the resolution of cases concerning family law. It was structured to foster an informal, supportive atmosphere with proceedings based on the notion that family law matters should be perceived as matters of interpersonal relationships rather than morality. The Family Court's resolutions were to be informed with input from the social science experts, social workers and in-house counselling, and were services structured into the court. These features were designed to move administration of family law away from a model which primarily sought to assign blame in interpersonal relationships.
The Family Court continues to function as a specialised court right now, but this government wants to get rid of it. In passing the Family Law Act 1975, the Whitlam government ushered in a major change to divorce law as well. Before the passage of this legislation, a marriage could only be dissolved if one party could prove that the other was at fault in the marriage breakdown. Matrimonial offences such as adultery, cruelty or desertion had to be proven before divorce could even be allowed. These things, according to Whitlam, were symptoms rather than causes of marriage breakdown. In introducing no-fault divorce, Whitlam argued that the process also reduced the chance of the parties having any sort of workable relationship after the divorce and that this was against the interests of children that the couple might have. It was the first instance where the interests of the children were being considered as the primary reason, purpose, for the family law system.
There was vocal opposition to this reform at the time. Some argued that it would increase marriage breakdown and relationship instability, while others argued that it would encourage promiscuity and destroy the institution of marriage—haven't we heard that before! The law abolished the requirement for blame to be assigned and in doing so made sure that many women in violent relationships would be able to leave.
The family law system is in crisis right now, but this bill will not fix it. In Cairns and Townsville, the North Queensland Women's Legal Service provides an amazing service to women living in regional Queensland, and I meet with them regularly. The first time I met with them I thought there would be a range of issues that they wanted to discuss, but the No. 1 thing that Kate and her hardworking team wanted to talk to me about was this government's proposed merger of the Federal Court system, because they feared it would mean more delays, more increased costs and less justice for women in the family law system.
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. We know the delays are there. A family report is an absolutely critical document that provides an independent assessment of issues in a case, and those reports help judges to make life-changing decisions about arrangements for children. The average waiting times for the production of family reports in Cairns are up to three months, and, in Townsville, they're also up to three months.
The Law Reform Commission spoke specifically about the importance of family consultants and the need to ensure that family reports were produced as quickly as possible. It is essential for all those involved in family law proceedings, but particularly for children, that family reports are thorough and prepared as quickly as possible so as to avoid delay of any attempts at settlement or ultimate adjudication of the matter. These family reports are essential, but the delays in producing them are impacting heavily on families and children across the country. It's completely unacceptable. This legislation won't fix those delays; resourcing will fix those delays. But this government is not in the practice of producing the resources that the family law system needs. In producing this merger legislation, they're actually creating more work for fewer judges.
There has been no evidence yet to support these changes. Instead, after giving their firsthand experience on this matter to the government, the overwhelming evidence from stakeholders—who work hard and slug it out in this system day in, day out—is that this is not the way to go and that what is required is for the family court system to be specialised even further.
Some of the other speakers, particularly Labor senators, have spoken today about the sham consultation process that this government undertook to justify this change. But we know that no fewer than 110 stakeholders, ranging from the Law Council of Australia to women's legal services, community legal centres, Aboriginal and Torres Strait Islander legal services, child protection advocates and disability services from across Australia have written to the Attorney-General asking him to abandon this proposal. But they have been ignored. Some of the most vulnerable people in our society and the people that act for them every day have just been completely and utterly ignored by this government. Those letters and these pleas made clear that these changes will harm vulnerable children, increase rather than decrease costs, place further stress on the Federal Circuit Court and fail to address any of the fundamental problems plaguing the family law system, including the risk of family violence survivors falling through the cracks.
You really have to wonder what the government's motivation is to bring in legislation like this and to undo years of progress. It occurred to me that this has been one of Senator Hanson's and One Nation's pursuits for some time, as is well known. And, because it is central to One Nation's pursuits, it is now central to this government. This government needs to own the platform that they have given the One Nation senator to devalue the Family Court. I want to read a speech that Senator Hanson gave on this matter. These are the comments that this government must own. In characterising the family court system, she described it as:
… feminists who relish the toxic anti-men rhetoric and jaded partners who will stop at nothing to use their separation and the court system to crush their rivals, including unfounded claims of domestic violence.
Really—that's what this government is supporting? She goes on to say:
How many in this chamber … have actually experienced domestic violence? Those ar e questions that we need to ask … People feel pain and anger. There are suicides, murders, the murders of children …
Labor will always stand up on this side of the chamber against comments like these. I want to make it clear: the family court system is in crisis because of this government, but there is never ever an excuse for family violence. Nobody is 'pushed' to commit family violence by the delays in the system that this government has created. It is not a justification, and this government and these ministers must own these comments. Twelve months on from the murder of Hannah Clarke and her children in Queensland, this government is taking our family law system backwards. The Queensland government today announced changes to introduce coercive control as a crime in Queensland. But this government is teaming up with One Nation, with those horrible comments, and taking us backwards.
Well, Senator Hanson, I have experienced domestic violence, my family has experienced domestic violence, and I stand with every victim of family violence today, to call out this government's nasty processes—that they will put politics before people and that they will do deals with crossbenchers to get this legislation through this week, instead of waiting and listening to the people that it actually impacts. That's what this government stands for.