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
Today we again see misplaced so-called reform come before this chamber. The government has been intent on merging the Federal Circuit Court and the Family Court of Australia, and we know that these 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, were previously rejected by the Senate. I can't remember if they were actually put, but we went through a complex Senate inquiry that looked in detail at the issues raised by the desire to merge the two courts and it was found that this merger was not supported by the evidence. Minister Porter has gone ahead with pushing this merger while he's yet to act on the substantial issues raised by the Australian Law Reform Commission's report into family law in Australia.
What we have here is legislation that impacts on the most vulnerable families at a time when they need support, at a time when they need dispute resolution most and at a time when we see, across our country, family violence and abuse on the rise. What we see here is, in effect, the Family Court of Australia ceasing to be a specialist, standalone superior court. It would be collapsed into Australia's busiest and most overburdened court—that is, the Federal Circuit Court—which deals with a great diversity of issues. We've known since the creation of the Family Court that the vision for the court was as a specialist family court with interrelated, co-located resources and services. As our late, great Prime Minister Gough Whitlam said, a court with regard to the 'human problems' of couples and families, 'not just their legal rights'.
What we have here are not general issues that other generalist courts deal with; they are of the most fundamental nature to our being. The court makes life-changing decisions about children's lives. It is essential, in my view, that the distinguishing feature of the Family Court, which is its specialisation in families, must not be abolished; it must continue to exist. It is bizarre and ridiculous to me that the government think they can merge this court into a much busier court and retain the same emphasis on the services required. But I guess I'm not surprised, because I haven't seen any evidence yet of the government's desire to put more specialist services into the Family Court. I know that in particular communities around Australia they have done some trials looking at innovative ways of resolving Family Court disputes, but there isn't systemic support for what is a nationwide problem.
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.
They are telling words indeed. The first time this legislation came forward, the Australian Law Reform Commission was newly commissioned to undertake a review. Nevertheless, Minister Porter sought to push on with this court merger as if it were a great priority. Again, it is not just the reform of family law issues but the very resourcing of the courts and services that has been underdone. What the government has done is, frankly, to blame the family law system for being inefficient, when the statistics do not back up that argument.
This merger is taking place without consultation with family specialists, like counsellors and child psychologists—no-one other than the Chief Justice. It's taking place without any judges of the Family Court being able to participate. I know from my previous experience in Senate inquiries on these issues that judges have to be very circumspect about making appearances before Senate committees because of the separation of powers. It wasn't seen as proper that they talk to us directly, but enough judges have put their voices up for us to hear very clearly what their views are.
We very much need in our nation a specialised court that provides a system that is safe and sensitive to the particular needs and vulnerabilities of children and families. I very much recognise that this legislation undermines that need. I come from the state of Western Australia, where we have our own Family Court that hasn't been merged with the federal system. As a result of that we were able to do things like same-sex de facto recognition back in the early 2000s. We have a court system that tries to focus, not only in law but also in the way it is resourced, on responding to the needs of the community.
Right now almost 70 per cent of matters before the Commonwealth Family Court involve allegations of family violence. We really need a system that bolsters specialisation in this critical area. I have to say that this legislation does nothing but undermine that. It's a bad situation for families. It's a bad situation for victims of family violence. We need cultural competence and we need resources in our Family Court.
As I highlighted before, WA is the only state with a state based Family Court. In WA we have effectively two divisions—magistrates and judges—operating seamlessly to determine family law issues. I would very much be the first to recognise that that state system has its challenges with resourcing et cetera, but, as Minister Christian Porter would know, as a former Attorney-General of Western Australia, Western Australians value the expertise and focus of that court. The last thing that would be acceptable to the state of WA is some kind of generic court system. Minister Porter would know that. It would never have been something he would have put forward at the state level and it should not be put forward now.
The 2008 Future governance options for federal family law courts in Australia report, which is called the Semple report, recommends that kind of system. It has been endorsed by stakeholders, including Women's Legal Services Australia and the Law Council of Australia. Again, the Attorney-General should know this. I guess Minister Porter is just looking for some things to put his stamp on, because he's not capable of engaging properly with the kinds of cultural and legal issues that are really at the core of enhancing people's rights and protecting their vulnerabilities. We know that family violence is on the rise and we in this place want to be promoting safety for children and safety for adults by preserving access to this specialist Family Court.
Over the last seven years of the Liberal government we have had a family law system that has been one of neglect. I think these bills makes that much worse, putting people into a much bigger melting pot of the legal system. We have a government that's cut funding to legal assistance, failed to replace retiring judges in a timely way and failed to respond to the dozens of recommendations that have been made by experts to improve the family law system. So we have a family law system that has been underresourced and a family law system that has failed to have the kinds of laws within it that are necessary for a quality system, and yet this Attorney-General has sought to blame the Family Court itself for some of these problems.
We have seen an increase in the number of unrepresented litigations, and these typically take longer to resolve. Why? Because of a lack of resourcing. The Law Reform Commission completed the most comprehensive review into the family law system that's ever been conducted. It did not recommend this merger, and the government has failed yet to even respond. So what flimsy evidence is the government basing this on? Instead, it's the discredited six-week desktop review by PricewaterhouseCoopers, by two accountants. That's the evidence base for these radical reforms.
We quizzed PricewaterhouseCoopers about these reports in the Senate committees, and, indeed, the statistics don't take account of the complexity of matters. They simply looked at time lines in the statistics for the resolution of cases. So, once you account for those factors, if you were to take into account complexity, then there is no evidence base at all to say that one court is more efficient than the other, especially in an environment where you've got unrepresented people before the court, especially in an environment where legal services have been defunded and especially in a system where the law reform itself that should be embedded in these courts hasn't been addressed.
There's a clear consensus among experts that collapsing the courts is a bad thing. It's a bad thing in terms of harming vulnerable children and families in need of specialist family law assistance, increased cost, increased time and stress for families and children in the system, and increased stress on Federal Circuit Court judges, who are already under unsustainable workloads. I recognise that Federal Circuit Court judges do currently deal with family law matters, but this is not their area of expertise, and it is an area of expertise that we should be supporting the growth of in terms of specialist courts and a specialist system.
Evidence from experts on this merger proposal is that it will increase costs and increase time and stress for families and children. It will place further stress on Federal Circuit Court judges, and I also find that alarming. We have a family law system that is already in crisis in this country, and this so-called reform and merger of the courts is the last thing the court system and families of Australia need.