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

9:31 am

Photo of Kimberley KitchingKimberley Kitching (Victoria, Australian Labor Party, Deputy Manager of Opposition Business in the Senate) Share this | Hansard source

I rise to speak on 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. Labor is proud to have established a standalone specialist family court under the Whitlam government. Today we stand here to defend its ongoing existence. These bills threaten the existence of a specialist family court in Australia and so should be opposed. Together these bills represent the most significant reform of the Family Court since its creation in 1975.

What these bills seek to do is combine the Federal Circuit Court and the Family Court into one court with two divisions. That court would then be called the Federal Circuit and Family Court of Australia. The current Family Court of Australia would become Federal Circuit and Family Court of Australia (Division 1), while the Federal Circuit Court of Australia would become the Federal Circuit and Family Court of Australia (Division 2). Like the courts that they would be replacing, the Division 1 court would deal exclusively with family law matters, including the most complex matters, while the Division 2 court would deal with family law and other federal law matters. 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 appeals division of the Family Court would not be replaced with anything. Instead, all Division 1 judges would be able to hear appeals either as a single judge or as part of a full court.

The proposal to merge these courts is not based on any consultation with Australian families or family law experts. Instead, it is based on an inadequate review from PwC that cites evidence from other reports put together not by experts in this area but rather by bean counters at Ernst & Young and KPMG. Rather than a merger or amalgamation of courts, the evidence actually points to the need for a specialist family court to be more pronounced and better resourced. The Australian Law Reform Commission noted, in its 2019 report on the family law system, that, when the court was established, it could not have been foreseen that it would be seeing the level or growth in incidents of family violence and child abuse that it does now. But, as we know, it is typical of this government to commission an expert review only to then completely ignore it and allow it to collect dust on the top shelf.

The realisation of Whitlam's vision of a specialist family law court with interrelated co-located services and resources was about creating a structure that could deal not just with the legal rights of those appearing before it but also with their unique human problems. Finally realising this vision, not backing away from it, has never been more important than now. Vulnerable children and families need a system that is not only efficient but also safe and sensitive to their particular needs and vulnerabilities.

This is not to say that there are not problems with the Family Court as it exists today. There are. The Australian Law Reform Commission report that I previously mentioned notes that the 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.

We recently heard the word 'neglect' used in relation to the aged-care sector when the royal commission released its interim report. But this is not the only area that this government has neglected. Under this government, the Federal Court and family courts have been wilfully neglected—first by the Abbott government, then by the Turnbull government and now by the Morrison government. They have starved them of funding, sat on new appointments and ignored a stream of sensible reviews that flagged problems along the way. A cynic might think that all of this has been a deliberate effort of systematic deterioration in order to justify the courts' merger. This government has ignored any opportunity to fix the family law system and instead is pursuing its ill-advised structure that is sure to make an already bad situation worse.

There has been next to no consultation on these bills, at least not in any meaningful sense—no consultation with legal professionals; no consultation with counsellors or psychologists, especially those working with children; and no consultation with family specialists or families with experience of the system, not to mention the already mentioned dismissal of numerous expert reports, including that from the Australian Law Reform Commission. And, apart from the Chief Justice, the government did not even consult with the judges of the Family Court. The government are not interested in implementing evidence based policy. Instead, they are pursuing ideological pet projects, even when they put the health, safety and wellbeing of Australian families at risk.

These bills have a list of opponents longer than a month of Sundays. More than 100 different stakeholders, from the Law Council of Australia to various community legal centres, Aboriginal and Torres Strait Islander legal services, child protection advocates, disability services and women's legal services have all written to the Attorney-General and asked him to abandon his plans as outlined in these bills. He has ignored their expert advice.

The government have ignored their advice that the abolition of the Family Court will harm already vulnerable children and families in need of specialist family law assistance. They have ignored the advice that the abolition of the Family Court will place further stresses on Federal Circuit Court judges, who are struggling under unsafe, unsustainable and unconscionable workloads. They have ignored their advice that the abolition of the Family Court will increase, rather than decrease, cost, time and stress for families and children in the family law system. And they have failed to address any of the fundamental problems plaguing the family law system, including the risk of family violence survivors falling through the cracks.

No-one likes this legislation. No-one in the system thinks this legislation is a good idea. Just listen to what eminent experts have said of the proposed merger of the Family Court and the Federal Circuit Court.

An honourable senator: Point of order: I don't know that you're allowed to use your phone to take photographs in the chamber.


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