Wednesday, 2 December 2020
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
That these bills be now read a second time.
I seek leave to have the second reading speeches incorporated in Hansard.
The speeches read as follows—
It is with great pleasure that I introduce to this Parliament a package of legislation that will reduce the costs and delays that thousands of Australian families experience as a result of a split federal family law court system. This legislative package will create greater efficiencies in the federal family law court system and, in turn, assist families navigating the court system during what can be some of the most difficult and distressing times of their lives.
The Government first introduced this Bill package into the Parliament in August 2018; it lapsed when the Parliament was prorogued. Since then, the Government has worked to strengthen and improve the suite of measures to respond to some of the concerns raised, while still fundamentally delivering a structural reform of the federal family law courts that will assist families to have their matters dealt with quickly, efficiently, cheaply and as safely as possible.
The Federal Circuit and Family Court of Australia Bill brings together the Family Court of Australia and the Federal Circuit Court of Australia as an overarching, unified administrative structure to be known as the Federal Circuit and Family Court of Australia. The Family Court will continue in existence as the Federal Circuit and Family Court (Division 1), and the Federal Circuit Court will continue in existence as the Federal Circuit and Family Court (Division 2).
The Bill creates a consistent pathway for Australian families in having their family law disputes dealt within the federal courts. Under the Government's reform, there will be a single point of entry for the federal family law jurisdiction and, ultimately, a common set of rules, practices and procedures, and approach to case management. The reforms enabled by these Bills will improve user experience for those Australian families that unfortunately need the assistance of the courts to resolve their disputes, and promote improved practices by both courts, and legal practitioners.
The structural reforms and legislation to give them effect, have been developed and informed by a number of substantial inquiries over the last decade, including the 2008 Semple review, a 2014 KPMG review, a 2015 EY report, the 2017 House of Representatives Standing Committee on Social Policy and Legal Affairs inquiry, and most recently a 2018 PwC report, and these were also tabled in the Parliament when the Bills were first introduced.
Since the Bills were last before the Parliament, the Government has carefully considered the comments made and issues raised by court users, legal and other professional stakeholders, House of Representative members, the Senate Legal and Constitutional Affairs Legislation Committee and members of the general public.
And while there was disagreement about what approach the Government should take, there is widespread recognition that the current structural arrangements in the courts are just not working for Australian families. The Government remains committed to resolving these structural failings.
To address some of the key concerns identified by stakeholders, the Government has made several changes to the package as it was before the last Parliament.
The Government will no longer create a Family Law Appeals Division in the Federal Court. The Bill instead preserves the existing Family Court's appellate jurisdiction within the FCFC (Division 1). While the Bill will retain the appellate jurisdiction in the FCFC (Division 1), the Bill provides that there will no longer be an Appeals Division for select judges to be appointed to, but rather, Division 1 judges will be able to hear appeals, both as individual judges and as members of a Full Court.
Further, the Bill will enable the Court to deal with appeals more efficiently, as appeals from decisions of the FCFC (Division 2) will be ordinarily dealt with by a single judge from Division 1. The Chief Justice will have the ability to convene a Full Court to hear an appeal from Division 2, where appropriate. This will provide flexibility for a Full Court to hear appeals involving novel or complex questions of law.
Both of these changes reflect the approach taken in the appellate jurisdiction of the Federal Court, which successfully exercises a substantial and diverse appellate jurisdiction. This approach will enhance the courts' ability to resolve family law matters.
The Bill also now makes much clearer how the single point of entry for first instance family law matters in the Federal Circuit and Family Court will operate, by providing that all original jurisdiction family law applications are to be made to the FCFC (Division 2), with matters able to be transferred to Division 1 as appropriate. Implementing a single point of entry in this way is a significant and long-called for reform to improve the user experience with the family law courts and enhance the unified identity of the Federal Circuit and Family Court. Coupled with the harmonisation of rules and case management approaches, it will reduce confusion, and create a much simpler pathway for resolving disputes.
Another recommendation of the Senate Legal and Constitutional Affairs Committee was to require judicial appointments to the FCFC (Division 2) to involve consideration of whether the person has the appropriate skills, knowledge, experience and personality. The Australian Law Reform Commission made a similar recommendation for the appointment of judicial officers exercising family law to involve consideration of the person's knowledge, experience, skills and aptitude relevant to hearing family law cases, including cases involving family violence.
The Bill now provides that for a person to be appointed to the FCFC (Division 1), or appointed to the FCFC (Division 2) and expected to deal with family law matters, the person is, by reason of knowledge, skills, experience and aptitude, suitable to deal with family law matters, including matters involving family violence.
In addition, the Bill now provides for:
The reforms are consistent with the Parliament's powers to create and invest federal jurisdiction in courts other than the High Court under Chapter III of the Constitution. No existing Court is being abolished as a result of the legislation. Current judicial appointments will continue in the new structure, with no changes to the terms or conditions of existing judges. The Bill ensures that the Federal Circuit and Family Court (Division 1) is considered a superior court of record and a court of law and equity, and the Federal Circuit and Family Court (Division 2) is considered a court of record and a court of law and equity.
The Government, as part of this reform, has also committed to providing:
However, while the Government is committed to ensuring that the courts are appropriately resourced, it is not a good use of taxpayer funds to appoint additional judges without first addressing fundamental structural problems within the courts.
The reforms enabled by the legislation introduced today also build on the measures the Government has already taken to improve the family law system, and this Government's commitment to ongoing improvements.
The reforms in this Bill are a valuable and vital piece of family law reform, and will play an important role in providing Australian families with an effective and much improved experience when navigating the family law system.
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (CONSEQUENTIAL AMENDMENTS AND TRANSITIONAL PROVISIONS) BILL 2019
The Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019 forms part of the Government's package of legislative reforms to the structure of the federal courts which will enhance the experience of Australian families in the family law system.
This Bill is a companion bill to the Federal Circuit and Family Court of Australia Bill 2019 (the primary Bill). It facilitates the transition for court users from the Family Court and the Federal Circuit Court to the Federal Circuit and Family Court of Australia (FCFC) on commencement of the legislation.
In February 2019 the Senate Legal and Constitutional Affairs Legislation Committee delivered its report on the Federal Circuit and Family Court of Australia Bill 2018 and Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018. The report outlined five recommendations. The Government paid close attention to the concerns raised by the Committee, and the present legislation package addresses the key concerns raised by the Committee and stakeholders regarding the 2018 Bills, while maintaining the critical objectives of the reforms.
The Bill repeals and amends substantial parts of the Family Law Act 1975, as these provisions will now be covered by the primary Bill. Similarly, the Bill repeals the Federal Circuit Court of Australia Act 1999.There are also some amendments to the Federal Court Act 1976 to achieve greater consistency between the federal courts and in recognition that the primary Bill will provide for the Federal Circuit and Family Court of Australia to have its own Chief Executive Officer.
The Bill makes consequential amendments across the Commonwealth statute book to reflect the continuation of the Family Court as the FCFC (Division 1) and the Federal Circuit Court as the FCFC (Division 2) and to update other references to legislation. The Bill also includes a number of contingent amendments to reflect the effect of other Bills currently before the Parliament that refer to the Family Court or Federal Circuit Court, or judges or officers of the court.
The Bill also ensures that appropriate transitional arrangements are in place, including for matters before the federal courts at the time of commencement of the primary Bill. For example, it clarifies the arrangements for situations where matters have not been substantively heard before commencement, and where matters have been substantively heard in whole or part before commencement.
The Bill will commence at the same time as the primary Bill.
On behalf of the Government I extend my thanks to the hard working and dedicated judges and officers of the Family Court and the Federal Circuit Court. Your jobs could in no way be described as easy, but we are confident that this package of measures will go some distance to assist you in your task of helping Australian families to resolve their disputes.
The Government has every confidence that this Bill package will help Australian families more easily navigate the federal family court system during some of the most difficult and worrying times in their lives.
I seek leave to continue my remarks later.
Leave granted; debate adjourned.