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 the parliament is again considering the Morrison Liberal government's attempt to dissolve the specialist Family Court of Australia as a standalone superior court. Should the parliament accept this legislation, it would be a sad end indeed to a decades-old institution which has served Australia well. The Family Court of Australia, of course, is an institutional legacy of the Whitlam Labor government. It has a proud legacy and has served our nation well. The enactment of the Family Law Act 1975 saw two significant social reforms for the nation. It brought about the key milestone for Australian women of no-fault divorce and it established, finally and with much need, a standalone multidisciplinary court designed specifically to consider disputes arising within the family.
The Federal Circuit and Family Court of Australia Bill 2019 and Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019 represent the most significant change to the structure of family law in this nation since that time, 46 years ago. So it is more than appropriate that this matter be given the sort of consideration and debate worthy of the institution and the critical matters it deals with.
Let us briefly consider some of the history of family law and the court in Australia. I know that other senators have spoken about the work of former Labor Attorney-General Kep Enderby, but it is important that the Senate hear these words again. This is a critical piece of legislation that needs to be defeated. Shortly after the passage of the Family Law Act in 1975, Mr Enderby said:
In public discussion of the Family Law Act, most of the attention has understandably, and quite properly, focused on the ground of divorce and, to a lesser extent, the maintenance provisions. While not underrating the magnitude of the reforms to the divorce and maintenance laws, I feel sure that, in time, the provision for the establishment of Family Courts will come to be seen as a reform of equal importance.
Mr Enderby later said that the essential distinguishing feature of the Family Court is that it would be dealing only with family law matters. This has been critical. Yet the proposition before us today would abolish this essential distinguishing feature. It would roll the Family Court into one of Australia's busiest and most poorly resourced and overburdened courts, the Federal Circuit Court. And what of the modern-day role of the Family Court in Australia? Much has been said about its pivotal role and vital need as an important institution.
In 2019, the Australian Law Reform Commission delivered a landmark report on the family law system. It should be noted in this place that, whilst the government commissioned the report, it has completely ignored it. In the report, the commission noted that, at the time of passage of the Family Law Act, the Whitlam government did not, quite reasonably, foresee the growth in the incidence and awareness of family violence that would come. Thus the need for a specialist court to deal with these sensitive matters has only grown. We must consider what 'specialisation' actually means. At the time of its establishment, the specialised court was envisaged as one in which the environment would have regard to the human problems, as Whitlam described it, of couples and families, not simply a clinical and sanitised institution that solely considered legalistic matters and requirements. It was to be a court with interrelated and co-located services and resources for families. This is a critically important distinction, especially for vulnerable children and families in need of a safe and sensitive environment.
It is universally understood and accepted that the family court system, at present, suffers from serious deficiencies. We need only look at the findings from the Australian Law Reform Commission, which determined that 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 at and tried to emulate.
That's a sad indictment indeed of the current state of affairs for families in need of a swift and quality judicial experience.
The last seven years, in particular, have brought about such neglect. It would be hard to consider it to be anything other than deliberate—a deliberate trashing of Australia's system of family law from successive conservative governments. It started with deliberate cuts and neglect by the government led by Mr Tony Abbott. It continued with further cuts and neglect by the government led by Mr Turnbull and now Mr Scott Morrison. How has that neglect manifested itself? It started with the failure to replace judges of the Family Court and the Federal Circuit Court in a timely manner. Despite increased demands for services, funding has not been delivered to meet that demand. The recommendation of repeated reviews has been continuously ignored—parked on the bench to gather dust.
After all of that, the government's solution is this legislation before us. Instead of working to fix the family law system, these bills will only make this situation much worse, and that is bad news for Australian families and vulnerable people, including vulnerable children.
The government's bills seek to combine two distinct courts into one. They trash the concept set forth by the Whitlam government of a single, standalone and specialised family court designed to deal with the sensitive human problems of family law. In combining the Federal Circuit Court and the Family Court, both these divisions would share the same single Chief Justice and Deputy Chief Justice. They would share a single set of rules and a single point of entry. Worryingly, the Appeal Division of the Family Court would not be replaced with anything. The same bench of judges would hear matters both in the original jurisdiction and on appeal.
When this merger was originally proposed by the government, the Attorney-General said that he would stop appointing new judges to Division 1 as they retire. That would obviously amount to a gradual abolition of Division 1—that is, the Family Court of Australia—over time. Whilst he backed away from this proposition after sustained public criticism, there is nothing in this legislation that would prevent him from reverting back to his original position. He can, once again, have a change of mind and simply stop appointing judges. We are supposed to simply take him at his word. Unsurprisingly, there are few who do when it comes to this Attorney-General. Even if changes were made to this legislation to guarantee the continuation of the proposed Division 1, the Family Court, it would not address the fundamental problem at the heart of this legislation—that is, the abolition of specialisation within our Australian system of family law.
So, why such a radical departure? Perhaps the government are relying on a quantum of supporting evidence. Perhaps they've consulted widely to reach and form this view. No, and no—no such evidence, no such consultation. The Morrison government claims that the proposed merger has been informed by independent reviews and inquiries over a decade. On his departmental website, the minister, the Attorney-General, has named five reports under a heading that reads 'The evidence base for the reforms'. However, unfortunately, like most of the work produced by this Attorney-General, it doesn't even make sense. Not one of the reports he lists has recommended these radical reforms. In fact, none of those reports have even considered these reforms. Just one of the reports recommended restructuring the Family Court. However, the model recommended would have maintained—would have maintained!—a standalone specialised court. Not once in almost 70 reviews of the family law system undertaken since 1974 has it ever been recommended that the family court system of Australia should be restructured in the way proposed by this government. These reviews and reports are all listed in appendix 3 to the interim report of the Joint Select Committee on Australia's Family Law System, but the Attorney-General continues to ignore all this, continues to ignore the evidence cited by his own department and this parliament. But senators in this place should not ignore the evidence.
What evidence does the government rely on? Amazingly, the most radical change to the structure of family law in Australia has been done off the back of a six-week desktop review of data by two accountants. That's it. It should be noted that this review has been widely panned and thoroughly discredited. And what about consultation on this legislation? There has not been any meaningful consultation with the legal profession or with any other family specialists, like counsellors or child psychologists. There was no consultation with users of the family law system—Australian families—other than with the Chief Justice. The government did not even consult with the judges of the Family Court. Such a radical reform should not be undertaken with such scant regard for consultation. Yet, it is no wonder the government did not wish to consult, because they would have come across naught but an avalanche of opposition.
Let's look at some of the commentary, opinion and analysis on this legislation. A letter that was sent to all members of parliament indicates it's opposed by over 155 stakeholders, including 13 retired judges. Signatories also include community legal centres, the Law Council of Australia, Aboriginal and Torres Strait Islander legal services, child protection advocates, women's legal services, disability services and many more. They've written to the Attorney-General, asking him to abandon this proposal. They have been silenced; their views have been ignored. To the last, these opponents have made it clear that it is their combined view that this proposal will increase, rather than decrease, cost, time and stress for families and children in the family law system; harm vulnerable children and families in need of specialist family law assistance; place further stressors on the Federal Circuit Court judges, who are struggling under unsafe, unsustainable and unconscionable workloads; 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.
The very first Chief Justice of the Family Court of Australia, Elizabeth Evatt AC, has said:
The proposed merger of the Family Court and the Federal Circuit Court (FCC) will lead to undesirable outcomes for children and families.
The Hon. Alastair Nicholson, the second Chief Justice of the Family Court, who served in that position between 1988 and 2004, has fully supported Ms Evatt's remarks. Mr Nicholson has also said, in biting criticism:
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.
He went on to say, in pointed remarks:
The Family Court is a Court that has been envied throughout the common law world and its judgments have often been cited with approval by the courts of many countries including New Zealand, UK, Canada, the USA and others. Its significance as the only specialist Family Court set up as a superior Court of Record and particularly that of its Appeal Division cannot be over emphasised.
There are so many groups, organisations and experts in this field that have asked the government to stop with this reform and stop with this legislation. But the government has been unprepared to listen and unprepared to back down, and it's not good enough. We know that this legislation, if enacted, will lead to worse outcomes for very vulnerable families. I believe that, amongst the people that have written to all the senators and members here, there are a number of highly specialised expert organisations from South Australia. We've got the Coalition of Women's Domestic Violence Services of South Australia. We've got the Family Violence Legal Service Aboriginal Corporation (SA). There is JusticeNet SA, the South Australian community legal centres—and it goes on. So I ask those senators to look to their own, to look to their state experts as to what they are saying— (Time expired)