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
The first Chief Justice of the Family Court of Australia, the Hon, Elizabeth Evatt AC, has warned:
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 who can give their full attention to the needs of family law clients without being diverted to exercise other unrelated jurisdictions. The current bill undermines this principle, is not in the public interest and should not be enacted.
The second Chief Justice of the Family Court, the Hon. Alastair Nicholson AO, RFD, QC, who served in that position for 16 years from 1988, backed up Ms Evatt's arguments, noting:
It is unbelievable that Government would propose the dissolution of a Federal Superior Court in this fashion without the most careful and searching Public Inquiry and without carrying out significant research and without consulting the many experts in this field.
That's the Hon. Alastair Nicholson, one of the most experienced people in this jurisdiction. He went on to say:
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.
The National Aboriginal and Torres Strait Islander Legal Services noted these bills will:
… disproportionately impact the most vulnerable including Aboriginal and Torres Strait Islander children and families who need the most support.
Pauline Wright, the President of the Law Council of Australia, said the Family Court is 'a respected, specialised and focused court dealing with family law issues', before she posited that its abolition would mean:
Australian families and children will have to compete for the 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 Court 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 victims of family violence.
The Law Council of Australia, Community Legal Centres Australia and Women's Legal Services Australia have variously said that these bills are a 'terrible gamble with the lives of children and families', that they are 'a retrograde step', that they will 'expose survivors of family violence to unnecessary risk' and that the focus of the government should be on 'ensuring the safety and best interests of the child and the safety of adult victims-survivors of family violence in family law proceedings'.
Despite the government's protestations, there is no real rationale for these bills. Currently, there are two separate courts, a specialist Family Court of Australia and the non-specialist Federal Circuit Court of Australia, that hear family law matters in Australia. The government is claiming that these bills will help reduce delays and backlogs in these two courts by creating a single point of entry for federal family law matters. Frankly, this is nonsense. The people I have quoted are of the opinion that the delays are a direct result of actions by this government. It is a government that is causing unacceptable delays in the family court system—delays caused by the starvation of funding, delays caused by the refusal of new appointments and delays caused by wilfully ignoring numerous sensible expert reviews. Average waiting times for the production of a family report by a family consultant have blown out. As at 12 March 2020, it was 11 months and six-to-nine months respectively for the Federal Circuit Court and the Family Court in Sydney, it was 7.5 months and five-to-seven months respectively in Melbourne, and it was 4.25 months for each court in Hobart.
The Morrison government and what they are doing here today is only part of the problem. This goes back seven years. It spans three Liberal governments and a series of deliberate measures to undermine the family court system. As the experts have made clear, this merger proposal will do nothing to address delays in the family court system. There's nothing in this bill that will increase the number of judges, registrars and other court staff. There's nothing in this bill that will force the Attorney-General to do his job, even something as basic as appointing new judges as vacancies are created. There's nothing in this bill that will help Australian families. There is nothing in this bill that will help the most vulnerable in our society.