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

5:33 pm

Photo of Patrick DodsonPatrick Dodson (WA, Australian Labor Party, Shadow Assistant Minister for Reconciliation) Share this | | Hansard source

I rise to speak on the Federal Circuit and Family Court of Australia Bill 2019 and the related bill and express my strong opposition to this misguided reform. The Family Court was established in 1975 under the Whitlam Labor government as a standalone specialist Family Court. The establishment of the court along with no-fault divorce put Australia at the forefront of developments in the field of family law. Whitlam's reform served as a model that was lauded and adopted around the world. This is a history and legacy we should be proud of and committed to constantly improving, not dismantling, and that is what this legislation seeks to do—to dismantle one of the most important components of our family law framework while at the same time failing to address the real issues plaguing the current family law system.

This legislation would strip the Family Court of its essential distinguishing feature—its specialist nature as a superior court dedicated to family law. It would merge the Family Court with one of Australia's most poorly resourced and overburdened courts, the Federal Circuit Court. As Ms Pauline Wright, President of the Law Council of Australia, has explained, this merger would mean that Australian families and children would have to compete for the resourcing and hearing time with all federal matters—that is, on matters like migration, bankruptcy and those sort of things that the Federal Circuit Court and the Federal Court deal with it. The merger would result in the effective abolition of the Family Court of Australia, a respected, specialised and focused court dealing with family law issues. She said—and I agree—that there must be 'an increase, not a decrease, in specialisation within family law and violence issues'. This is critical to the safety of children and the victims of family violence. Family law matters are not like other legal matters that generalist courts tend to deal with. They involve complex relationships, power dynamics and, most importantly, the lives and wellbeing of children. These matters require nuanced, experienced and specialised responses, the kinds of responses that are made possible by a specialised court like the Family Court.

At the time the Family Law Bill was debated in 1974, Gough Whitlam recognised the importance of specialisations, when he said:

The Family Court will, of course, determine legal rights, which it is bound to do as a court, but it will do much more than that. Here will be a court, the expressly stated purpose of which is to provide help, encouragement and counselling to parties … and to have regard to their human problems, not just their legal rights.

Recognising the importance of a specialised family court is not to deny the serious problems that currently exist in the family law system. Multiple reports over the last decade have explored these problems and diagnosed them as real causes. The Australian Law Reform Commission has conducted one of the most comprehensive inquiries into the family law system. Its landmark report, which this government has ignored, stated:

… 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.

Over the last seven years of Liberal government, the family law system has been neglected. Family Court and Federal Circuit Court judges have not been replaced in a timely manner. Funding has not increased to match growing demand. Legal assistance services that support children and the most vulnerable litigants have been squeezed of resources. But, instead of fixing these underlying issues, the government is determined to restructure the Family Court and the Federal Circuit Court in a way that makes a bad situation even worse for families and children. This legislation is not the solution. It is opposed by virtually all of the family law sector. Some 110 stakeholders have written to the Attorney-General asking him to abandon this legislation. They include judges, legal sector representatives, child protection advocates and First Nations stakeholders. To take just one eminent example, Elizabeth Evatt AC, the very first Chief Justice of the Family Court, warned:

Merging the Family Court into a generalist court will undermine the integrity and the structural specialisation of the Family Court.

…   …   …

The increasing number of cases in which issues of family violence and child abuse are raised has led to an even greater need today for family law jurisdiction to be vested exclusively in specialised judges who can give their full attention to the needs of family law clients without being diverted to exercise other unrelated jurisdictions. The current bill undermines this principle, is not in the public interest and should not be enacted.

I want to speak briefly about the First Nations perspective. The National Aboriginal and Torres Strait Islander Legal Services has said that the proposed merger:

will disproportionately impact the most vulnerable including Aboriginal and Torres Strait Islander children and families who need the most support.

They've said:

From our experience, as Aboriginal organisations, we say that mainstreaming does not achieve efficiency or better outcomes for our people and that specialisation in the law is important and it works. Our main call is for more specialisation and more resourcing into the cultural competence of the family court system. The introduction of specialist Aboriginal Courts in the family law system has seen an increase in Aboriginal participation. We implore the Parliament to do the right thing by our communities and reject this bill which does not address the root causes of these problems. We fear, in the middle of this global pandemic, the bill will exacerbate the issues that our communities are facing.

How often do the pleas and beggings of First Nations organisations have to be made in the chamber only to see them ignored? It seems you're only capable of hearing about what you can do to the First Nations peoples and not what you can do with us. Even with a First Nations minister, why is it so difficult for this government to listen and to respond to First Nations peoples?

Only two days ago in this parliament, to mark the anniversary of the National Apology to the Stolen Generations, in my statement to this chamber I spoke of the terrible suffering and grief caused by the removal of children. I spoke of the continuing pain caused by the overrepresentation of First Nations children in out-of-home care today. Let me repeat some of those salient facts. First Nations children are nearly 10 times more likely to be living in out-of-home care than non-Indigenous children. There are currently over 20,000 First Nations children in out-of-home care in Australia. They make up 37 per cent of the total number of children in out-of-home care, despite representing only six per cent of the children's population. More First Nations children are in care than at the time of the Bringing them homereport, which was published more than 20 years ago. These figures are totally unacceptable, and they are worsening.

While the child protection system is distinct from the family law system, there is a critical connection. The family law system plays an important part in diverting families from the child protection system. It is an avenue for families. It's an avenue they can use to raise issues early and enable family members to step in and seek care of their children without the intervention of the state. By accessing specialist courts proactively, aunties, uncles, grandparents and parents can protect their children and ensure they remain connected to family and country in ways that are made much more difficult once child protection services get involved.

A bill that diminishes the Family Court and the Family Court system is a bill that does not serve the interests of First Nations peoples. Yet, again, this government shows its disdain for the views of First Nations peoples. A good family law system would take a human rights approach underpinned by principles of self-determination. A good family law system would see the appointment of specialist judges with the ability to decide cases in culturally appropriate ways. A good family law system would fund the preparation of cultural reports to aid those judges in their decision-making. A good family law system would adequately fund the legal assistance services to provide advice and representation to vulnerable litigants, including First Nations litigants. A good family law system would provide family support services that are culturally safe for First Nations peoples.

All of these things our government can do, but will they do them? No. On the vote of a couple of people we're going to go down the road and destroy one of the best things done under the Whitlam government. It has proven to be one of our best institutions in this nation, despite the lack of resourcing. The government can do all of these things. Instead, they are intent on dismantling a core component of what once made our family law system the envy of the world.

5:47 pm

Photo of Malarndirri McCarthyMalarndirri McCarthy (NT, Australian Labor Party) Share this | | Hansard source

[by video link] I rise to speak against 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. These bills will rob the Family Court of its essential distinguishing feature by collapsing it into one of Australia's busiest, most poorly resourced and overburdened courts—the Federal Circuit Court. This merger is being proposed without a sound policy basis and against expert advice.

The Family Court of Australia is a proud Whitlam legacy. Like most of the great social reforms that have occurred in Australia—from Medicare to our world-leading superannuation system to free legal assistance services for Australians in need—the Family Court of Australia is an institution that has served our nation admirably. The Family Law Act 1975 instituted two major changes—no-fault divorce and the establishment of the Family Court of Australia, a specialist, multidisciplinary court for the resolution of family disputes. This legislation is proposing to undo the second of the major changes introduced by the Family Law Act—the establishment of the Family Court of Australia as a specialist superior court. This would be a profoundly retrograde step that would harm Australian families and in particular children at their time of greatest need.

The Morrison government claims that the proposed merger has been informed by independent reviews and inquiries over a decade. The Attorney-General's Department website lists five reports under the heading 'The evidence base for the reforms'. In fact, none of the reports listed on the website recommended these radical reforms—none whatsoever. None of those reports even considered these reforms. In fact, the only one of the five reports that recommended restructuring the Family Court and the Federal Circuit Court recommended an entirely different model that would have maintained a standalone specialist family law court.

The proposal to merge the Family Court with the Federal Circuit Court is not based on any consultation with Australian families or family law experts. More than 155 stakeholders in Australia's family law system have now signed an open letter to the Attorney-General opposing the government's flawed legislation to abolish the specialist standalone Family Court. These signatories represent a range of professions and community organisations, 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 Australia. They also include 11 retired Family Court and Federal Circuit Court judges and chief justices, the Hon. Elizabeth Evatt AC, and the Hon. Alastair Nicholson AO, RFD, QC. Individuals and organisations oppose this proposal because they believe that it will harm vulnerable children and families in need of specialist family law assistance; increase rather than decrease cost, time and stress for families and children in the family law system; place further stresses on 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.

Northern Territory stakeholders who have signed onto that letter include representatives from the Darwin Community Legal Service, the Central Australian Women's Legal Service, the Central Australian Family Violence and Sexual Assault Network, the Katherine Women's Legal Service, Dawn House, Northern Territory Council of Social Service and the Sex Worker Outreach Program Northern Territory. National Aboriginal and Torres Strait Islander Legal Services have said that the proposed merger 'will disproportionately impact the most vulnerable, including Aboriginal and Torres Strait Islander children and families who need the most support'. They say:

From our experience, as Aboriginal organisations, we say that mainstreaming does not achieve efficiency or better outcomes for our people and that specialisation in the law is important and it works. Our main call is for more specialisation and more resourcing into the cultural competence of the family court system. The introduction of specialist Aboriginal Courts in the family law system has seen an increase in Aboriginal participation. We implore the Parliament to do the right thing by our communities and reject this bill which does not address the root causes of these problems. We fear, in the middle of this global pandemic, the bill will exacerbate the issues that our communities are facing.

The CEO of Community Legal Centres Australia, Nassim Arrage, said the merger 'would move away from a specialist family court model, exposing survivors of family violence to unnecessary risk'. Law Council president Dr Brasch QC said:

As the impacts of the devastating shadow pandemic of family violence experienced during the COVID-19 pandemic continue, now is not the time to proceed with an unnecessary, risky bill that has been opposed by all non-government members of the House of Representatives.

As signatories have said, if anything, there is in fact more need for a specialist Family Court. As the Australian Law Reform Commission noted in its landmark 2019 report on the family law system, a report the government commissioned but has completely ignored, the Whitlam government could not have foreseen the growth in the incidence and awareness of family violence and child abuse since 1975.

Here in the Northern Territory, the Central Australian Women's Legal Service, a signatory to the open letter, agrees that action can be taken now to further increase family violence specialisation in the family law system. Women's legal services across Australia work on the frontline to represent family violence victim-survivors in all state and territory justice systems. They recognise that the core business of the family law court is family violence, yet the family law system is not adequately protecting the safety of women and children.

Aboriginal and Torres Strait Islander families experience family violence at higher rates than other Australian families. In comparison with other Australian women, First Nations women are 34 times more likely to be hospitalised as a result of family violence and 10 times more likely to be killed. Here in the Northern Territory, we have one of the highest rates per capita of domestic and family violence in Australia. We know this because we have mandatory reporting of domestic violence in the Northern Territory. It was something that I introduced as Minister for Children and Families in 2009. We did this in order to recognise that we needed to change attitudes towards family and domestic violence and that it is everyone's problem.

The National Aboriginal Community Controlled Health Organisation, NACCHO, points out that there remains significant fear amongst First Nations people about engaging with the family law system as a result of the historical legacy of the forced removal of children and forced resettlement of communities. As my colleague Senator Dodson has said in his response to this bill, we've only seen again and again, in the reports this week of the stolen generations, the continued trauma of families of First Nations children throughout the country.

NACCHO recommend that legal education, information options and processes be made more accessible to Aboriginal and Torres Strait Islander people in First Nations languages, plain English and formats appropriate to particular communities and age groups; and that Aboriginal community controlled health organisations, ACCHOS, are funded to provide family dispute resolution practitioners programs.

English language and literacy issues have presented a barrier to Aboriginal and Torres Strait Islander people accessing the family law system and related services, particularly when English is not a first language or when there are literacy difficulties. I have stood in the Senate on so many occasions to express the enormity of the different languages that we have here in the Northern Territory—the nearly 100 First Nations languages that are covered under the Aboriginal Interpreter Service system here. While appropriately trained and qualified onsite interpreters can be critical to mitigating communication barriers, the availability of interpreters, particularly in First Nations languages, can be severely limited. Further compounding and complicating communication barriers is the need for interpreters to be of a particular gender or age—even a particular relationship to the client. Technical legal terms and processes, the relationship between a client and their lawyer and conflict-of-interest issues also make some interpreters inappropriate.

Without adequate legal representation, clients may not understand their legal options and may not convey their case effectively in court. We know that there are problems in the Family Court, and these have led to unacceptable delays for families and, in particular, for children, but these issues do not arise out of its specialisation or even its structure. The reason why the family law system is not performing as it should is that for seven years the Liberal government has cut funding to legal assistance services like ATSILS, family violence prevention legal services and other Aboriginal community controlled organisations. It's failed to replace retiring judges in a timely manner and failed to even respond to the dozens of recommendations that have been made by experts to improve the family law system. As 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.

This does have impacts for most Australians, but particularly for my constituents here in the Northern Territory, where getting to court and accessing legal services can be difficult for people in rural and remote regions, most of whom are First Nations people. The Central Australian Aboriginal Family Legal Unit points out that, due to geographic and economic restrictions, many First Nations families have limited or no access to family law services. In Alice Springs, for instance, the federal Family Court sits only three or four times a year. The local court does not exercise family law jurisdiction. This presents significant challenges to the ongoing safety of First Nations families experiencing family violence who require urgent family law orders. Will this bill help solve this issue or, as the evidence from experts points out, will this merger proposal in fact increase the cost, time and stress for families and children and place further stress on Federal Circuit Court judges?

As the experts have made very clear, this merger proposal will do nothing to address delays in the family court system. There is nothing in this bill that will increase the number of interpreters, judges, registrars and other court staff. There is nothing in this bill that will force the Attorney-General to do his job, even something as basic as appointing new judges as vacancies are created. There are many things that need fixing within the family law system, but this bill will do none of it. This bill will do nothing to help Australian families.

6:00 pm

Photo of Sue LinesSue Lines (WA, Deputy-President) Share this | | Hansard source

It is quite an honour to follow Senator McCarthy and Senator Dodson. If there are two people in this chamber who have some expertise around First Nations groups, then it is these two. Senator Dodson's track record is enormous, over many, many years. He is not known as the father of reconciliation for nothing. And yet his contribution today, pleading with the government, pointing out how bad the merger of the court systems will be for our First Nations people, has fallen on deaf ears, I suspect, as he said. Senator McCarthy has lived her life in the Northern Territory, a territory which has very vulnerable citizens living in it. Senator McCarthy has been a minister in a Labor government in the Territory. She has some expertise in these matters. And yet the comments that she made, in the very valid contribution that she made, about the likely impact of this legislation on First Nations people in the Territory will, I suspect, be ignored. I've had the honour today of chairing a lot of the Senate proceedings and I've heard a lot of the debate. No-one has put to me yet why this merger makes sense—no-one. Senator McCarthy, when she started her speech, alluded to the fact that the minister's website, under the justification for the court mergers, has five reports, none of which recommend what is currently being proposed.

The other issue that disturbs me greatly is: it's one thing to have a debate in this place and do the best you can to negotiate to try and get improved outcomes as particular parties see fit; it's quite another just to trade your vote off for some improvement in your state or some commitment to something else at a later stage. That is not democracy, and there is not a single group outside of the Morrison government who thinks this proposed merger has any merit at all. I don't know why that falls on deaf ears. Surely someone on the government side is listening. We've yet to learn about why this merger is taking place. Certainly none of the legal centres in this country agree to it. None of the Aboriginal and Torres Strait Islander legal centres think it's a good idea. Former judges don't think it's a good idea. So why is the Morrison government doing this?

We've seen, particularly this week but certainly since the time of Mr Abbott's election as Prime Minister, that this government really hasn't done much towards the advancement of women. Is this yet another example of that, because women are disproportionately affected by the outcomes of the family law court?

Is it that continued ignorance and do-nothing approach in relation to women that's driving the Morrison government? Their budget this year was criticised from all sorts of quarters because it didn't deliver to women. Is that why the government are doing this? Is it a punishment of young children? We've again seen the Morrison government's childcare policies not deliver for children. Is that what they're doing? Australian families are now out of pocket in relation to childcare costs. Is it a continuation of not caring about the welfare of children that's at stake here?

We've seen the Abbott government, the Turnbull government and the Morrison government try to force more responsibility and costs onto the states. Is that what's driving this move? I think it was Mr Turnbull who came up with the idea, at the snap of his fingers, that somehow the states should fund their health systems. Mr Morrison is very good at saying it's not his responsibility. Is this merger about forcing the states to pick up more responsibility? When we go to welfare issues and the negative outcomes that will undoubtedly result from this merger of the court system, who picks up the cost for that? Not the federal government; it will be the states, because they're responsible for welfare.

Today we heard from Senator Dodson and Senator McCarthy about the appalling state of child removal, which could get much worse with a court system that's merged. Personally, I've had experience with the family law court. My experience was pretty reasonable and fairly quick, because I was able to settle most things amicably with my former partner. We both had to go to the family law court and explain how our children would be dealt with. I'm an educated, middle-class woman, but, even for me, that was pretty onerous. I can't imagine how women and, indeed, men will get on in a merged system where those support services are much harder to access, or may, in fact, fall away.

I've also been inside the criminal court system. I'll tell you what: the court building in WA is very stark. The family law court is actually quite a nice building, but the central law courts are not a place you want to be. They're full of police. We already know about many people's poor interaction with the police, but the police are there because they've got other matters to transact. Nevertheless, that's what you are confronted with. They're heavily secured, as they should be. But vulnerable people who have to go through that and have their bags searched—maybe they've got children with them—are already in an emotional state. That's a very poor experience. WA is not a heavily populated state, but the central law courts are a big place to find your way around. I've sat on a couple of jury trials. I did my duty. But to see the vulnerabilities that I saw as a juror was awful, and merging our court systems will put all sorts of people in the same area. It's just a very poor system.

I've spoken about this in this place before, and a lot of Labor senators made their contribution today. Is this being done because this was put in place by Gough Whitlam, the great social reformer? We know that the Morrison government certainly doesn't like Medicare. It attacks Medicare at every opportunity. The amazing reforms that Mr Whitlam put in place have lasted us through to this day. One of the really important reforms was no-fault divorce and the establishment of a special court to deal with family break-up.

As a young person, or even as an older person, it's a big deal when you commit to someone through formal marriage. You see your life before you with a partner, maybe children, owning a home together, having your soulmate at your side—it's a big deal to make that commitment. For many couples in Australia, including me, it doesn't work out. At that point, you don't want to be having to deal with more vulnerabilities or having to go to court in an emotional state and not be dealt with in a fair manner. In a Family Court situation, you're not dealing with people who are on top of their game, in lots of cases, because their emotions are all over the shop. That is made much worse when, as we've heard from many other senators, it's coupled with domestic violence and family violence. If you have also experienced domestic violence, imagine then having to go to some kind of merged court.

I want to talk about my mother. When my mother went through her divorce to my father, it was before Gough brought the reforms in, so they had to invent a reason for their divorce. The other point was that in the days that my mother got divorced there was a list in the local newspaper of who was getting divorced and the reasons—the reasons! My mother was a prominent woman in the local community. She was a deputy principal of a primary school. She was devastated at having to come up with a reason. Her marriage, like mine, simply broke down. The easiest way to get a divorce, when we didn't have no-fault divorce, was to imagine the reason was adultery. Imagine how my mother felt putting the reason for her marriage breakdown as adultery, and imagine when that was published in the paper. What a scandal! My mum was still in love with my father when they divorced, and having to go through that bogus system of having it published in the paper that (1) she was divorced and (2) that it was adultery, must have been awful. So, thankfully, with the evolution of the specialist Family Court we've done away with no-fault divorces. But, gee, you have to wonder. I believe it was under the Abbott government, though I stand to be corrected, that Kevin Andrews, the minister at that time, came up with this notion that people were going to make money available for couples counselling—it was $200, from memory—to try to stop people going down the divorce track. So we've seen a little tiny snip, snip: before you get divorced, we'll just give you a bit of counselling. This is from a government that stands in this place every day of the week and tells us how it doesn't interfere in the lives of individuals. It doesn't look over people's shoulders. It doesn't tell them how to spend their money. Yet, here we have a government that wants to dictate how you get a divorce.

Of course, you've heard from many senators in this place today about the resource issue at the Family Court, and none of us are glossing over that. There is a resource issue. We've had a conservative government that's been slow to appoint judges and that has starved the court system of dollars. I remember when Senator Cash—I think it was Senator Cash—and Senator Brandis, who was still around, decided to take money off the CLCs. So, for whatever reason the government has—which is completely hidden not only from Labor senators and other senators who oppose the bill in this place but from anyone connected with the Family Court—we have a government that wants to reduce funding to the courts. When the government took funding away from the community legal centres, they denied it for about eight months. Senators Brandis and Cash finally had to fess up that, yes, they had done that, and they quickly slipped some of the money back.

I mean, I've seen how those community legal centres work. They operate off the smell of an oily rag. We're a wealthy country. We should have a properly resourced, separate family law court. I hope tonight we will hear from the minister why the government are wanting to merge the courts, because it makes sense to no-one except the few people in the Morrison government who came up with this idea. Roll out the organisations that support this merger because we haven't heard from them. No-one in here has named any of them. We've just heard opposition after opposition from 'leading specialists', from 'former judges'.

It is a good system. Yes, there are issues with it. It is a resourcing issue. Ask anyone and that's what they will tell you. I can't believe we are here debating a bill tonight which has essentially been traded away for some kind of partisan interest. It's disgraceful and that is not how democracy works in this country. You have a fair debate, you have a fair process, and you don't go and do a side deal with a couple of senators to get your legislation passed; that is not democracy.

6:16 pm

Photo of Glenn SterleGlenn Sterle (WA, Australian Labor Party, Shadow Assistant Minister for Road Safety) Share this | | Hansard source

I rise to make my contribution to this cluster mess that we've got in front of us here. There is nothing more powerful than when you hear from senators who speak on an issue that they have either lived or breathed recently, or for many years. It is powerful and it is even more moving when they can share their experiences of the topic at hand. I myself have been lucky; I have not had to go to the Family Court. I have been a visitor at times to certain other courts. Senator Gallacher, that was all in a fair day's work, wasn't it, mate?

Before I talk about the Federal Circuit and Family Court of Australia Bill 2019 and the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions), I want to touch on the statement of Senator Lambie. I was in here earlier this morning to hear Senator Lambie's passionate contribution; it was powerful. What got me was when Senator Lambie made one statement. She said, 'it's gone from a lawyer's picnic to a lawyer's banquet'. I just want to share a few stories here. I consider lawyers essential when you've got yourself into a bit of manure and you need to get out of it, but, to me, they are like insuring your car—no-one wants to pay it but, by crikey, you wished you had when you prang it.

I'm pleased to hear Senator Lines's one wasn't too bad, but, from the experiences that I've heard about and the conversations I have had with many people in the Family Court, I don't think I have heard of a happy divorce. What I have heard anecdotally is how drawn out the time is that it takes to get to the Family Court. A lot of it is created because, as Senator Lines said, there are resource issues—I get that. I'm not at all having a crack at the judges and the fine people who work in the courts, but I'm scathing of the lawyers' picnic, banquet—whatever you call it.

Let's not forget that a lot of the times there are children involved. I can see how it could be a very traumatic experience, even if it only went for a few weeks or a month, but these go on for years—years and years. I'm going to say this and I make no apology to the legal fraternity out there: by God, there are some parasites amongst you people. When I was running my trucking business, I wished I could charge what you people charge. You know what I would have given to be able to charge 30 bucks for a photocopy? Do you know what I would have given for the blood, sweat and tears that I lost over the years between Perth and the Northern Territory if I could charge by the minute? My goodness me! Not only that, I've heard stories from friends of mine who have gone through this. When they have made offers to their partners and, for whatever reason, their partners have said no—this is male and female—they then go to the parasitic legal firm that gives them false hope. I say 'false hope' because it is false hope when they stretch it out. They get in their ear and say, 'We can go for this,' or, 'We can go for that.' They say, 'We'll want more, so let's just get another hearing. By the way, we can't get there for eight months or 12 months. But we'll get there!' Then someone might not turn up and it's 'here we go again' for another four or five months—tick-tock, tick-tock. You can hear the dollars falling out of the poor devils' pockets into the pockets of the parasitic legal firms.

I experienced a lot of this when I was on the road. I might not see a mate for a month or so until we crossed each other's path, and then I'd say to them, 'How's your divorce going, mate?' They'd say: 'Oh, crikey. You're not going to believe this. It's cost me'—X amount of dollars. I'm not talking 10 grand, 20 grand or 30 grand but massive amounts of money for them to be dragged through the courts and for their partner to be dragged through the courts. A heck of a lot of dollars goes to the legal representatives of both sides, who have been leading these poor devils down the wrong path all this time. They're walking away with 100, 120 or 150 grand while many times the settlement has been what the first offer was. Who in the heck thinks it's a good idea just to give these people a licence to print money whenever they like?

I just had to get that out, because no-one in this land will convince me that I'm not on the side of the angels here. There is no-one in this parliament who will convince me that I may be a bit rough on the lawyers. I don't care who the lawyers are: it goes for the lot of you. Let me come back to the bill and the merger of the two courts. I've been listening to the contributions that have predominantly come from this side of the chamber—they're probably all from this side of the chamber at this stage. Where are the government senators on this? It would be lovely to know. This is the problem: when you get lawyers making laws in this building and they're not lawyers outside, where's the influence coming from? There are so many questions that haven't been answered.

The Attorney-General, another lawyer—fancy that!—did not undertake any meaningful consultation in relation to this proposal to effectively abolish the Family Court of Australia. He didn't undertake any consultation, yet there's a bill that will go through tonight. They've got the numbers; it's going to happen. There was no meaningful consultation with the legal profession or with family specialists. Crikey, you'd have to talk to them, wouldn't you? Counsellors didn't get consulted. Child psychologists, I'm told, didn't get consulted. Most senators have touched on the pain and the grief that families go through. And then when the kids are used as pawns—I don't even want to go down that path. It's painful enough for the people who have been through that; fortunately, I haven't. There was no consultation with users of the family law system, so Australian families didn't get a say in this. Other than the Chief Justice, the government did not even consult with the judges of the Family Court.

Senators, I ask you: how are we going to sit here tonight and watch a bill go through which, on the surface, appears to have been a good idea between the Attorney-General and the Chief Justice. The Liberals' and Nationals' party rooms said: 'Yes, tick it off. No worries, mate. She'll be right. Let's go for it.' Anyway, I know those opposite are distracted because there are other things going on, as there are in this building all the time.

I'm told that no fewer than 110 stakeholders, ranging from the Law Council of Australia to women's legal services, community legal services, Aboriginal and Torres Strait Islander Legal Services—as we heard before from Senator Dodson and Senator McCarthy—child protection advocates and disability services from across Australia, have written to the Attorney-General to ask him to abandon this proposal. I'm well-informed that, sadly, they've been ignored. That doesn't surprise me, because this Attorney-General, Mr Porter, has form on ignoring people. How do I know? Because I was at his office with a heap of women who were seeking access to JobKeeper, because the government had shut down their industry. All they wanted to do, in a peaceful protest, was to present a document. They knocked on the door and asked to speak to Mr Porter. He wouldn't even meet with them. So I'm not surprised. He's got form. I'm still waiting for him to correct me. I know, because I was there.

These 110 individuals and organisations oppose this proposal because they believe that it will harm vulnerable children and families in need of specialist family law assistance. How are you going to sleep at night with reading just that one line? I'm shaking my head, hoping I'm going to wake up and it's a bad dream. It's going to increase, rather than decrease cost, time and stress for families and children in the family law system. So, Mr Porter, please explain to me how you think that's a great idea. You can't, because you got together with someone—and we're not quite sure who it is—and made up this decision without even consulting anyone. But you'll be right, mate. You'll tuck yourself in your safe office, you'll get your $400,000 a year and, with a bit of luck, you won't even have to talk to your staff if they put another door in the building for you.

These individuals also say that it will place further stresses on the Federal Circuit Court judges who are struggling under unsafe, unsustainable and unconscionable workloads. I touched on that. I couldn't imagine the workload of a judge. I know our workload, but I sympathise with the judges because of their workloads. They also say it will fail to address any of the fundamental problems plaguing the family law system, including the risk of family violence survivors falling through cracks. Surely that would be a red flag for the Attorney-General who doesn't like to talk to people. I would love to hear from the lawyers in the party. I would love to hear that those on the opposite side even just challenged their Attorney-General to find out what the hell is going on, as they quite rightly should. I would love to know why that hasn't happened—if it has happened, sadly, he doesn't even listen to his caucus.

The Joint Select Committee on Australia's Family Law System received no fewer than—those of us who have been around this place for a while and those who have just arrived, wait for this figure—1,700 submissions. I thought I had read the wrong figure; I thought someone had got an itchy finger and put on another zero. I can't remember how many inquiries I've been on or how many motions I've seen go through this place to send bills to committees. Apart from maybe the royal commission, I don't know whether we have ever seen as many submissions go to one inquiry. Gobsmacking! As a senator representing the great state of Western Australia, I would like to take the opportunity to read into the Hansard some of the concerns and reasonings from organisations and individuals in WA who made submissions, so we can look at this debate from their perspective. As we've heard, the ALRC released a landmark report on the family law system in 2019, which, sadly, this government has ignored. The Family Law Practitioners' Association of Western Australia, the principal representative body of Western Australian lawyers practising in the area of family law, in their submission to the inquiry on Australia's family law system said they were:

… concerned this inquiry is being conducted in circumstances where the Government is yet to address the recommendations of the recent ALRC report, 'Family Law for the Future – An Inquiry into the System'.

They also said that they hoped that their submission:

… directs the Committee's attention to some of the relevant recommendations of the ALRC Report …

Community Legal Western Australia, headed by my former colleague and member for Hasluck, Sharryn Jackson, in its submission made a stand-alone recommendation which relates to exactly what this bill is trying to achieve. Community Legal WA recommended:

Any proposal to merge the Family Court and Federal Circuit Court of WA be abandoned, with any discussion of future amendment to structural arrangements based upon the recommendations of the ALRC.

Again, this is the very ALRC that was tasked by this government to produce a report to look into the family law system in Australia. The ALRC produced that report, all 583 pages of it with 60 recommendations, and the government has still ignored it. I know it might take Mr Porter a lot longer to read 583 pages—I understand that—but wouldn't you think he would at least have the decency to respond when you ask people to send recommendations or write reports?

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.

For any senator or any member of the House of Representatives in this nation, surely that would be the first thing you look at and say, 'Why?' Why would I go to my caucus room and play Geppetto and get them all dancing up and down while I'm pulling the strings telling them what a great thing it is, even though I'm not answering anyone and I'm not going to tell them what I'm going to do? Who would think that you could pass a bill, then pull the guillotine on it if you're running out of time, and not think if it's going to harm children and families? Who in their right mind will wake up in the morning and think, 'Geez, I might pass a bill, and with a bit of luck I'll be able to harm some children and a family'?

If I was the A-G, I would be defending my stance on this. I would be busting down every door to get into every place I could to say, 'You're wrong, and these are the reasons you're wrong.' But, typical of Mr Porter, he's the phantom—puff! And he disappears in a puff of dust: 'God almighty, there are people at my door.'

I'm sorry, I've just run out of time. We're rejecting the bill.

6:31 pm

Photo of Alex GallacherAlex Gallacher (SA, Australian Labor Party) Share this | | Hansard source

I too would like to make a contribution on the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019. Knowing absolutely zero about this bill and realising that I had to make a contribution on it, I've read as much information as I could get my hands on and listened to as many contributions as possible today. As always, when I don't really know what's going on, I go to the ever reliable people at the Parliamentary Library and ask for a Bills Digest. And, as always, they come good. In 'The Bills Digest at a glance'—I think there's a little bit of irony there, because, at a glance, the Bills Digest is 37 pages long, so you need more than a passing glance to get across the issues that are canvassed in the Parliamentary Library's Bills Digest. Basically, I'm instructed:

The Bills were first introduced in 2018 and lapsed at the end of the 45th Parliament on 1 July 2019. The 2019 FCFC Bill includes the following changes from the 2018 version:

• Rather than both Divisions sharing the same original jurisdiction, there will be a single point of entry to the Court, with all matters initially filed in the FCFC (Division 2) and the ability to transfer cases between Divisions

• The FCFC (Division 1), rather than the Federal Court of Australia, will be responsible for hearing family law and child support appeals

• The criteria for judicial appointments has been amended to require FCFC (Division 2) Judges to have the appropriate knowledge, skills, experience and aptitude to deal with the kinds of matters that might be expected to come before them, including family violence in the case of family law matters. An express reference to family violence has also been added to the criteria for appointment of FCFC (Division 1) Judges and

• Regulations may (but are not required to) prescribe a minimum number of FCFC (Division 1) Judges—the Government has stated this number is intended to be 25.

So, that's the short history of the bill, and there has been a Senate Legal and Constitutional Affairs Committee inquiry, reported on 20 November 2020. That's a legislation committee, so a government controlled committee. And:

The committee recommended the Bill be passed. Australian Labor Party (Labor) Senators and the Australian Greens (Greens) issued separate dissenting reports…

I think this is something that Senator Sterle has touched on, that might be just set aside as political opponents not agreeing, but the stakeholder comments referred to in the Bills Digest are quite instructive as well:

The majority of submitters to the Senate Inquiry argued that greater resourcing, rather than structural change, was required to address the issues facing the family law system.

They called on the government to respond to the recommendation of the Australian Law Reform Commission when it produced Family law for the future. So it was argy-bargy, and the government went ahead with its recommendation that the bill be passed. The Australian Greens and the Labor Party went the other way. But it's instructive that the majority of submissions were against the bill. We really do get to a system here, and I think it's quite instructive to skip to the Productivity Commission's evidence in this matter.

The Productivity Commission's Report on government services2020 has highlighted an increase in the backlog of cases in the Family Court and the Federal Circuit Court—that is, cases in the courts for over 12 months. It has identified a 34 per cent increase in the Family Court's backlog between 2012-13 and 2018-19, and a 63 per cent increase across the Federal Circuit Court. In respect of the funding and judicial appointments across the same period, the NSW Bar Association provides the following summary:

… there had been an increase of just 2.73 percent, or $6.724 million, in the operating appropriation provided to the Federal Court, Federal Circuit Court and the Family Court together from 2013-14 to 2017-18.

Real recurrent expenditure in the Family Court has almost halved, from $101,940,000 in 2012-13 to $57,689,000 in 2018-19. Real recurrent expenditure in the Federal Circuit Court increased from $113,486,000 in 2012-13 to $154,942,000 in 2018-19.

… From 30 June 2013 to 19 January 2018, only two additional judicial officers were added to each of the Federal Circuit Court and the Family Court of Australia, bringing the total to 66 FCC Judges and 33 Family Court Judges, representing a total increase of 4.2 percent.

I think that paints a picture of a steady and increasing workload, steady and decreasing financial support and there being not enough judges. This is instructive.

In the 2020-21 budget, the Commonwealth made multiple funding commitments for the federal family law courts, including $35.7 million over four years in additional resources and judges for the Federal Circuit Court to assist with the timely resolution of family law and migration matters and $2.5 million over two years from 2020-21 for federal family law courts to maintain specialised court lists for urgent matters arising from COVID-19. And on 13 November 2020, the Attorney-General, the Hon. Christian Porter, announced two new judicial appointments—current Federal Circuit Court Judge Thomas Altobelli to the Family Court and Kylie Beckhouse to the Federal Circuit Court. There's been a long period of lower funding and a long period of increased workload and outcomes that are not very good. Somehow or other—and I do respect the work of the Parliamentary Library—this is a very, very, very complex issue.

There was a KPMG review in 2014, which stated:

… it is recognised that the FCA, FCoA and FCC operate in a broader (constrained) fiscal environment which necessarily impacts on timely, efficient, equitable access to justice and facilitation of judicial decision-making. Equally, reported increases in case complexity and changes to the client profile mean that the courts are operating in a new landscape which presents challenges to the timely, equitable and efficient administration of justice.

Presumably, in 2014, a Liberal coalition government initiated the KPMG report. At the time the KPMG review of all three courts projected budget deficits for the financial year 2014-15, and it was recognised that there were entrenched structural funding issues. Amongst other things, the KPMG review concluded:

The current funding model for the Courts is not sustainable. The question of sustainability cannot simply be addressed through the injection of additional funds or one-off cuts, rather it requires more fundamental amendments to the model.

To achieve the current budget across the forward estimates for all three Courts would require significant cuts to service and staffing levels. Such cuts to administrative services are unlikely to form a sustainable basis or driver for long-term efficiencies.

There are 37 pages of information from the Parliamentary Library, which state in relation to the PwC report:

In 2018, the Attorney-General's Department commissioned PwC to review the operations of the courts in relation to family law matters. The PwC report measured the performance of the Family Court and the Federal Circuit Court in the following ways:

            I said at the start that I'm not really across this issue per se, but the various submissions I have seen and the Parliamentary Library's Bills Digest tell me there's a huge problem here. When you look at the Senate reports, the joint committee reports and the position of respective organisations outside of the party—and Senator Sterle commented that there were 1,700 submissions—the majority of which don't appear to be in support of the government's position, you have a huge problem which is being fixed by government in a way that won't please anybody. If it doesn't please the legal fraternity, you may be able to say that they have a vested interest. But if it doesn't reduce the time taken to get matters delivered and if it doesn't reduce the amount of money litigants have to pay then how is it going to be more efficient? I think that's a question Minister Porter hasn't quite answered in this debate. I didn't hear any comments of note from the other side of the chamber.

            The Labor Party are opposed to this. I understand Senator Hanson has a different view. I understand the Australian Greens are going to oppose it. The crossbenchers will do what the crossbenchers do—they'll either support, oppose or transact on it. That's the way the parliamentary system works.

            I really do think that, if people are in the unfortunate situation of not being able to deal with family separation or family court matters in an amenable way and it does result in appearances at court and the use of lawyers and judges, then that should be an open, fair and transparent process. I can't imagine a family with three children going through 18 months of litigation about who has access to who, but that sort of stuff is happening. I think we are a better nation than that. People should have access to a jurisdiction that is eminently fair, reasonably inexpensive and adequately resourced so that the impacts that may be felt by children in these awful situations is minimalised.

            To sum up, from our position this is a very, very complex area. It's, if you like, a Labor Party legacy from Gough Whitlam's day. We've heard about people having their divorce published in the paper and the reasons why. No-one wants those days back, but we do want an open, transparent and fair system which allows access to justice, and it shouldn't cost you an arm and a leg; it shouldn't cost you half the family home. People should be guided into solutions. It isn't all that complex, and most people, when they sit down, could work it out themselves, but that's not the system we have and this won't make it any better.

            6:46 pm

            Photo of Amanda StokerAmanda Stoker (Queensland, Liberal Party, Assistant Minister to the Attorney-General) Share this | | Hansard source

            I thank members for their contributions to this important debate. 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 bring together the Family Court of Australia and the Federal Circuit Court of Australia, to be known as the Federal Circuit and Family Court of Australia, or the FCFC. The consequential amendments bill will facilitate the transition to the new FCFC. The FCFC will bring together the Family Court of Australia as Division 1 and the Federal Circuit Court as Division 2. The FCFC will continue to comprise the existing judges of the Family Court, in Division 1, and the existing judges of the Federal Circuit Court, in Division 2. The FCFC will provide a consistent pathway for Australian families and have common, streamlined processes and procedures to operate consistently. It will be simpler, more efficient, more effective and a more accessible court for Australian families to resolve their matters, meaning that we increase the number of matters that can be finalised each year.

            These proposed reforms have been developed in close consultation with the federal courts, including the heads of jurisdiction, 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 a 2018 PwC report. Under this legislation there will be a single point of entry for all Australian family law matters, with all matters to be filed in Division 2. This will be of significant benefit to Australian families because it will simplify the process and save time and effort for those navigating the system. This is a reform that has been long called for, but to date it has not been able to be achieved or delivered.

            The bills will facilitate common and harmonised rules of court which will simplify forms and the case management process for the ultimate benefit of the Australian families who use the system. While there has been long-term agreement that there should be common rules and practice, this has never occurred under the current, existing, legislative arrangements. As part of the legislation, the Chief Justice will be invested with the power to make the rules of court for a limited period, after which the power will revert to judges, or a majority of judges, of each respective division. While the bills originally prescribed that the Chief Justice would have this power for two years, the government has agreed to reduce this period to 18 months.

            The bills retain the appellate jurisdiction in the FCFC Division 1, but all Division 1 judges will be able to hear appeals, both as individual judges and as members of a full court. Further, the bills will enable the court to deal with appeals more efficiently, as appeals from decisions of the FCFC Division 2 will ordinarily be 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.

            I can't tell you, Madam Acting Deputy President, how unfortunate it is that so much of the debate on these bills mischaracterises them and the current system as a whole. Most notably, despite what has been said, the bills we are dealing with—and I make a point of this—do not abolish the Family Court. Judges appointed to the Family Court and the Federal Circuit Court will continue in their existing appointments, and the government had committed to a minimum of 25 Division 1 judges, in line with the recommendation of the Semple review. The government will also now entrench that minimum number of Division 1 judges in the legislation itself, so there can be no doubt.

            It is also necessary to respond to claims that these bills will result in a loss of specialisation. That claim is false. The reality of our existing family law system is that the Federal Circuit Court deals with close to 90 per cent of family law parenting matters. There are around 40 judges of the Federal Circuit Court who hear only family law matters. It doesn't get any more specialised than that, and the average FCC judge hearing family law matters has, on average, 25 years of experience in family law. These judges have experience with matters involving families with complex needs, and the unfortunate reality is that they also have experience dealing with matters involving family violence.

            There have also been suggestions that the Family Court provides some greater level of service to families than one can get in the Federal Circuit Court. However, the CEO of the Federal Circuit Court and Family Court told the recent Senate committee inquiry:

            … for the avoidance of doubt, the court's internal family law services are shared between the courts. This includes registrar resources, family counsellors and registry staff.

            There is no difference in the level of service provided between the two at present.

            There have also been claims made by those opposite that the government has failed to provide funding for the federal family law courts and the family law system. That simply ignores the significant investments this government has made. Since 2015, the government has committed $84.8 million for specialist domestic violence units and health justice partnerships, whereby lawyers and social workers provide legal representation, advice and support to those experiencing family violence. The government has provided $48.9 million to establish family advocacy and support services which operate in family law registries to deliver duty lawyer and support services for people affected by family violence in their family law matters. We have banned the direct cross-examination of parties in family law matters involving allegations of family violence, and we have allocated over $20 million in funding for legal representation to those affected by the ban. We've allocated more than $56 million to help families resolve family law property matters, including funding for Family Relationship Centres to deliver mediation, for a two-year trial by legal aid commissions of lawyer assisted mediation for property matters and for the federal Family Court to conduct a two-year trial of simpler and faster court processes for resolving family law property cases. Since early 2020, the government has co-located police and child protection officials in family law registries to improve information sharing between state and territory agencies, implemented with a $10.4 million investment. We've allocated $13.5 million for the Lighthouse Project, which has commenced in the Brisbane, Parramatta and Adelaide family law registries to pilot a systematic approach to identifying and managing family safety. We've implemented a new National Legal Assistance Partnership worth more than $2 billion, with $248 million of that being additional funding. The largest recipients of this funding are legal aid commissions, and 93 per cent of the representation services they provide are for family law matters.

            As part of the most recent budget, over $140 million in funding has been provided by this government to expedite family law matters and increase resourcing in the Federal Circuit Court. That includes funding for family law services; for the continuation of the current COVID-19 lists being operated by the courts; for improved and safer facilities for the Federal Circuit Court in Rockhampton and Launceston; and for additional Federal Circuit Court judges and registrars, including an extra family law judge and five new family law judicial registrars. The government has also previously committed to the appointment of an additional Division 1 judge, subject to the passage of these bills.

            The government has always held the view that resourcing applied to what, up to this point, has been a well-recognised failed structure in these courts would ultimately represent a situation where these valuable resources won't have their maximum impact for the taxpayer or for users of the court.

            As part of the implementation of these bills, the government will also provide a further Division 1 judge, two additional Division 2 judges and an extra judicial registrar to support the Adelaide registry; and an additional $14.3 million for further legal assistance in South Australia, to be used to establish a pilot program for family law matters. In addition, the government will re-establish the Family Law Council to provide further ongoing guidance on the family law system. The government recognises the advocacy and support of Senator Patrick for those initiatives.

            The structural failings of the current split family law system are widely agreed, and continuing to do nothing to fix this problem is not an option. Reform of any longstanding structural problem is challenging. The proposed reforms are the least radical path to end the unnecessary confusion, costs and delays for thousands of Australian families that have arisen by virtue of this split system. The government is confident that these bills will deliver a significant improvement to the lives of the Australian families that are required to navigate the federal family law courts. I commend the bills to the Senate.

            Photo of Scott RyanScott Ryan (President) Share this | | Hansard source

            The question is that the second reading amendment moved by Senator Watt be agreed to.

            7:04 pm

            Photo of Murray WattMurray Watt (Queensland, Australian Labor Party, Shadow Minister for Northern Australia) Share this | | Hansard source

            On behalf of Senator Polley, I move:

            Omit all words after "that", insert:

            "further consideration of the bill be deferred until the Joint Select Committee on Australia's Family Law System has presented its final report."

            Photo of Scott RyanScott Ryan (President) Share this | | Hansard source

            The question is the second reading amendment moved by Senator Watt on behalf of Senator Polley be agreed to.

            7:08 pm

            Photo of Murray WattMurray Watt (Queensland, Australian Labor Party, Shadow Minister for Northern Australia) Share this | | Hansard source

            On behalf of Senator Pratt, I move:

            At the end of the motion, add:

            ", but the Senate is of the opinion that:

            (a) the Government proposal to merge the Family Court and the Federal Circuit Court is deeply flawed and will do nothing to alleviate any of the fundamental problems plaguing the family law system – a system the Government has neglected for the last seven years; and

            (b) further consideration of the bill should be deferred until the government responds to the Australian Law Reform Commission's report Family Law for the Future – An Inquiry into the Family Law System, which made 60 recommendations for reform."

            Photo of Scott RyanScott Ryan (President) Share this | | Hansard source

            The question is that the opposition amendment moved by Senator Watt on behalf of Senator Pratt be agreed to.

            7:12 pm

            Photo of Scott RyanScott Ryan (President) Share this | | Hansard source

            The question now is that the bill be read a second time.