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

10:23 am

Photo of Jess WalshJess Walsh (Victoria, Australian Labor Party) Share this | Hansard source

I too rise to speak on the government's Federal Circuit and Family Court of Australia Bill 2019 and a related bill. Let's be very clear about the government's intention with this bill. This bill would destroy the Family Court of Australia, leaving families and children at risk. This government has been hard at work for some time running down the Family Court. There have been unacceptable delays in replacing retiring Family Court and Federal Circuit Court judges. Funding has not increased in response to increasing demand for Family Court services. Review after review with critical recommendations has been ignored by this government. And, instead of fixing the family law system, the government wants to restructure the Family Court and the Federal Circuit Court in a way that would make a bad situation even worse for so many Australian families and leave Australian children vulnerable. The Law Council of Australia has described the government's proposal as 'a terrible gamble with the lives of children and families'.

This government's bill is just another chapter in this government's long, long story of builders and wreckers. It's Labor that builds and protects our most significant national institutions. It was Labor that laid the foundation for Australia's world-leading Family Court system. We created Medicare, delivering free universal health care to every Australian. We invest in education and training so that our young people can fulfil their potential. We established a universal superannuation system so that working people have dignity in their retirement. We introduced the NDIS, making sure people with a disability are properly supported, and we built the social safety net that is so important for vulnerable Australians. But the Liberals, on the other side, the wreckers, are always trying to tear these institutions down, and this bill is no exception. Why do they do that? Because they just don't understand ordinary Australians, the working families and young people who are trying to build a good life and get ahead, the retirees and the pensioners. They just don't understand the people of Australia.

Labor Prime Minister Gough Whitlam first introduced the bill to establish the Family Law Act back in 1975 in response to what he described as an overwhelming demand for reform. The Family Law Act instituted no-fault divorce and it established the critical Family Court of Australia, a specialist, multidisciplinary court for the resolution of family disputes. In 1975, Mr Whitlam said the Family Law Bill was an achievement reflecting the Labor government's:

… fundamental social and human priorities. The Family Law Bill … has completely refurbished the marriage and divorce laws of Australia and done away with the medieval concepts of guilt and fault. The Bill has established a Family Court of Australia which will … protect the rights of all parties in divorce proceedings in an atmosphere of dignity and humanity.

I'll repeat this for the wreckers on the other side of the chamber: Labor's family law reforms were, and remain, a reflection of Labor's fundamental social and human priorities—priorities which, with this bill, are in such clear deficit on the other side of the chamber.

Labor's reforms transformed outcomes for generations of families and, critically, for women and for children. In 1974 the Senate Standing Committees on Legal and Constitutional Affairs described the Family Court as 'essential' to give substance to key aspects of the Family Law Act. The bill before us would collapse the Family Court into one of Australia's busiest, most poorly resourced and overburdened courts, the Federal Circuit Court. The bill would erode and ultimately abolish the Family Court of Australia as a specialist court. That specialisation is intended to prioritise the safety of children. It's intended to prioritise the safety of adult victims-survivors of family violence. Eminent Australian and the first Chief Justice of the Family Court, the Hon. Elizabeth Evatt AC, has said that merging the Family Court will undermine the integrity and structural specialisation of the court:

The Family Court was designed purposely as a world-leading, specialist, stand-alone Court to deal only with family law matters, with the support of a dedicated multi-disciplinary team of counsellors and mediators. Its stand-alone nature is one its greatest attributes, providing protections for vulnerable people in need of family law assistance …

Her comments are fully endorsed by the Hon. Alastair Nicholson, the second Chief Justice of the Family Court. He has said that it is unbelievable that the government would propose the dissolution of the Family Court. Let me repeat that word of his: 'unbelievable'. It is unbelievable that the government would propose the dissolution of this court. He also says that the court's specialisation is absolutely necessary to deal with cases that can be extremely complex, involving the determination of issues relating to children, including their rights and need for protection not only from individuals but also from government in its myriad forms.

Who here in this chamber today doesn't understand the need to protect Australia's vulnerable children? Who here doesn't understand the advice that is coming from these eminent jurists? It's clear that the wreckers on the government benches just really don't care about taking advice or considering the overwhelming evidence on this bill. This bill does not have the support of people who work within our family law system, the very people who work to protect Australia's vulnerable children, who work to protect Australia's separated families, who work to protect victims-survivors of family violence.

Community Legal Centres Australia have said that moving away from a specialist family court model would be 'a retrograde step' from this government. They say it would expose survivors of violence to unnecessary risk. Women's Legal Services Australia's opposition to the government's legislation is, in their words, centred on ensuring the safety and best interests of the child and the safety of adult victims-survivors of family violence in family law proceedings. And there is this damning observation offered by an eminent family law practitioner, who says: 'It can't be anything other than ideology, because there are so many groups opposed to it.'

Consultation with stakeholders on this bill, on the substance of the government's plans to abolish the Family Court in this bill, has been absolutely terrible. It has been missing in action. There has been no meaningful consultation with the legal profession or with other family specialists like counsellors or child psychologists. There has been no consultation with users of the family law system—Australian families. And, other than with the Chief Justice, the government did not even consult with the judges of the Family Court. Over 100 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 the country have written to the Attorney-General to ask him to please abandon this proposal. Their pleas have fallen on deaf ears.

This is what they have told the Attorney-General. They say that this proposal will harm vulnerable children and families in need of specialist family law assistance. They say the proposal will increase rather than decrease cost, time and stress for families in the family law system, families who are already under extreme stress. They say this proposal will place further stresses on Federal Circuit Court judges, who are already struggling under unsafe, unsustainable and unconscionable workloads. And they say this proposal will fail to address any of the fundamental problems plaguing the family law system. Again, this bill will fail to address any of the fundamental problems plaguing the family law system, including the risk of family violence survivors falling through the cracks. Women's Legal Services Australia has said:

Government commissioned inquiry after inquiry has recommended increasing specialisation of the family law system in family law and family violence. The safety of children and adult victims-survivors of family violence and ongoing consideration of risk must be foundational in the family law system. If the courts are to merge, we recommend retaining the specialist stand alone superior family court.

Likewise, Victorian Women Lawyers does not support the government's bill, observing that there has been overwhelming opposition to the bill by family law experts and stakeholders, including a vast number of submissions from law societies and legal professionals, calling for the bill to be rejected.

In particular, VWL is concerned that:

● the Bill prioritises the efficiency of hearing and resolving family law matters over and above the safety and wellbeing of families and children:

● the Bill seeks to reduce the operating costs of hearing family law matters at the expense of ensuring the appropriateness of judicial outcomes;

● the proposed merger of the Family Court and the Federal Circuit Court lacks sufficient justification weighed against the interests of parties to family law proceedings, and goes against the recommendations of family law specialists.

I want to make particular mention of the government's proposal in the COVID context. While parts of Australia remain in lockdown and remain at risk, for some people home is not always the safe place that it should be. A survey by the Australian Institute of Criminology has revealed more than half of women who had experienced violence before the COVID-19 crisis said the violence had become more frequent, more severe, since the start of the pandemic. COVID lockdowns and self-isolation, increased job insecurity and financial pressures are increasing the risk of family violence and family breakdown in our country today. That is why it's so astounding the government would decide to pursue this legislation now.

More than ever, it's time for us to actually strengthen and properly resource a standalone specialist Family Court, not tear it down. But the wreckers on the other side, the wreckers on the government benches, are not listening. This bill, all the evidence says, will do nothing to help Australian families. Instead, the experts tell us that this bill will put Australia's vulnerable children at even greater risk. This bill will put Australian families already struggling, already under immense stress, at harm. That is what the experts are telling us about this bill.

Australian families deserve better from their government. They deserve protection from their government. They deserve a government that backs them up and supports them, not a government that tears down vital institutions that exist purely for the protection of Australian families. Australian families deserve better.


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