Shayne Neumann (Blair, Australian Labor Party, Shadow Minister for Immigration and Border Protection) Share this | Hansard source

I rise to speak 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. These bills are the government's very big step towards amalgamating the Federal Circuit Court of Australia and the Family Court of Australia under the guise of resolving issues in those courts. Specialist judges within the family law system have a vital role to play in extremely complex family law cases, but the court is grossly under-resourced. The court system is experiencing serious issues, with many families being denied expeditious, just and cost-effective resolution. And the government believes, wrongly I think, that this bill will make change to see cases finalised faster and with greater cost saving for users. The amalgamation will result in a single point of entry for all family law and general law cases through the new Federal Circuit and Family Court of Australia. Appeals would be heard by a single judge of the Federal Court.

Issues could have been resolved, as I say, through adequate funding of court and legal-aid support services. This bill is abolition of the family law system by stealth. Before I entered politics in 2007, I was an accredited family law specialist and partner of a Brisbane CBD law firm, so I come to this debate with a degree of interest and expertise having spent hundreds, if not thousands, of hours in the Family Court and Federal Magistrates Court, as it was then called. I support the purpose and intention of the family law system and any reformation which seeks to improve the family law system for the benefit of Australians.

Most Australians are not charged with criminal offences. Most Australians don't go to court over civil actions, debt recovery or indeed personal-injury actions, but they interact with the family law system. About one in three first marriages break up; about one in two second marriages break up. It's in those circumstances that people interact most often than not with the family law system. And indeed it is the case that these bills seek to make very large changes to that system—the largest change since the Whitlam government introduced the Family Court of Australia in 1975.

Following its election in 1972, the Whitlam government set about making changes to the archaic laws on divorce, custody, access and family law matters. In September 1973 the then Attorney-General, Senator Lionel Murphy, introduced the Family Law Bill into the Senate for consideration and comment. This bill proposed a 12-month separation as the only grounds for no-fault divorce. This applied, of course, an historic precedent being established. Prior to that, there were shocking examples of private investigators being engaged and people having to prove all manner of things against each other. No-fault divorce was a seminal and important reform. Detailed provisions were made relating to property settlement, and custody and maintenance expanded beyond proceedings to include property, spousal maintenance, and, eventually, child maintenance and child support.

We have seen a major expansion of jurisdiction from the Matrimonial Causes Act, which previously was confined to those aspects of divorce. It was originally intended these matters would be heard in the supreme courts of the states or a proposed superior court of Australia. However, the later establishment was defeated by two votes in the Senate in 1974 and a tied vote in 1975. The legislation provided options for the state to establish state family courts with federal-government funding. But by August 1975, Western Australia, as the member for Burt said, was the only state to take up the invitation. Following the dismissal of the instrumental and important reform in government—the Whitlam government—the incoming government attempted to revitalise the offer to the states to establish their own courts, but this failed.

In January 1976, Elizabeth Evatt, Austin Asche, Kenneth Pawley and John Ellis were sworn as judges of the Family Court of Australia, a ceremony in Sydney presided over by what I am sure would be a very happy Justice Lionel Murphy, the main architect of the court. The Family Court was established with a view to having a specialised court so that complex legal matters could be presided over by specialist judges. Across the court's history, its role has expanded to include what was then called contact, parental responsibility, child support, leave to adopt, Hague Conventions on child abduction, and matters concerning sterilisation of children involving parental responsibility and also gender reassignment—a vast expansion of the court's jurisdiction, often done through COAG arrangements and agreement. The Senate committee which oversaw the initial process at the time that the court was established made a recommendation that judges be appointed where 'by reason of training, experience and personality, the person is a suitable person to deal with matters of family law'. This gave rise to section 22 of the Family Law Act, which is arguably one of the most important features of the court, ensuring cases would be presided over by specialist judges.

The establishment of the Family Court of Australia has been one of the most significant improvements to our legal system in the last half century. It brought the legal profession of Australia to the forefront of reform and remains one of Labor's most significant achievements. It has been copied, internationally recognised and praised. In 1999 the Howard Liberal coalition government attempted to provide a quicker and cheaper option for litigants in family law matters and established the Federal Magistrates Court, which is the antecedent, of course, of the current Federal Circuit Court. I don't think that was a smart move. I have never thought it was a good move. I don't think it resulted in better justice for people. They then endeavoured to curb, by the way, the jurisdiction of the court in parenting issues in part VII of the Family Law Act by curbing and prescribing—indeed, meddling in—the court's jurisdiction and discretion with respect to parenting audits by imposing a prescriptive hierarchy of considerations for the court to determine, with primary and secondary considerations in terms of parenting orders that a court would make.

Now we have a Liberal government and a Liberal Attorney-General attempting to fix up the mistakes of his predecessors in underfunding and underresourcing legal aid, community legal centres and the Family Court system itself by arguing that this is a reform. It's not reform at all. It won't fix up the system, it won't make it cheaper and it is not better. There are many people who appear in the Federal Circuit Court and the Family Court who are self-represented, and judges painstakingly and with a lot of care and consideration assist those people in these matters to represent themselves to the best of their ability. It's not uncommon for any court listing in Sydney, Melbourne, Brisbane, Parramatta or whatever to find 40 per cent or more of people being self-represented in those cases at first instance. Many people can't afford the cost involved in litigation. But I can say—and the member for Burt is right—that my experience is that most lawyers try to settle cases. Most people come in with the best of intentions, and it is indeed the fact that 95 per cent of cases settle before getting to a final hearing. I personally did far more consent orders, agreements that were filed and approved by court, than court hearings that lasted, say, two, three, four, even 14 days or longer.

The courts handle over 106,000 family law applications each year, and a significant portion of this number is the 43,800 divorce applications to the Federal Circuit Court. They are done more often than not by themselves. There were 14,200 consent orders made in terms of applications to the court last year. Twenty thousand, five hundred final order applications were received each year, with the vast majority of those received by the Federal Circuit Court. Currently, family law applications can be lodged in either the Family Court or Federal Circuit Court. Often cases of two days or fewer in terms of length and about less complex and simpler matters are lodged in the Federal Circuit Court, and matters can be transferred. Complex matters involving significant child abuse—often called Magellan type cases—are often dealt with in a separate list by Family Court judges with particular expertise. Quick, less complex applications, as I've said, are referred to the Federal Circuit Court, and I have seen and been personally involved in many cases where matters were transferred between courts.

The report commissioned by the government and conducted by PwC over a relatively short period of time really was a complete failure of this government. The way they did it was a really bad mistake. The data wasn't sufficient to determine the complexity of how the courts varied. It was really a desktop arrangement. PwC were quick to infer the Family Court was less efficient. The Family Court is not without failings, faults and foibles. It's not without problems. Any lawyer who practised in the jurisdiction would get frustrated with delays and backed up caseloads, which contribute to the frustration and anguish of those caught up in the system. At times it seemed like the delays resulted in people going through the pain of divorce a second time. This was particularly the case if final orders weren't made expeditiously and with care by judges in relation to parenting issues. People couldn't get on with their lives in terms of property settlement.

But often judges dealt with cases with real expertise, care and consideration. They understood the vagaries and frailty of human nature and understood the jurisprudence in this area. I'm very concerned that we'll have judges who are not trained and don't have long experience practising the jurisprudence of family law. Indeed, I've seen judges who've been appointed to courts exercising family law jurisdiction—fine lawyers in their own right and very capable in, perhaps, commercial law, building law or criminal law—struggle, from time to time, to get their heads around financial circumstances and complex property matters, or difficult Hague convention cases—very challenging cases involving the most horrible child abuse. The legislation before the chamber is not the way to go. It's unsurprising there's a backlog of cases. It could be addressed with proper funding of the court system and better funding of legal aid to make sure people have representation.

One thing about having legal representation and going through a court system is that often it equalises the power imbalance for women who have been physically or sexually abused, who, understandably, feel they want to settle the matter and get on with their lives but will not achieve the kind of property settlement, spousal-maintenance support and child support outcomes that I would describe as a fair and just settlement under, historically, sections 79(4) and 75(2) of the Family Law Act. The President of the Law Council, in May this year, said:

Further investment in the courts and legal aid is still required to deliver the best outcomes for children and Australian families.

And I say: amen to that!

Presently, as I said before, the majority of cases are handled by the Federal Circuit Court, and the most complex matters are reserved for the more experienced specialist judges who preside over the Family Court. I've seen circumstances in which people have been appointed to the Appeals Division of the Family Court and the government has not appointed a replacement for that judge, who deals with trial matters—matters at first instance, interim hearings and final hearings. That's one reason there are delays. If you appoint an experienced judge who's dealing with matters at the trial level, or the final hearing level, to the Appeals Division then you'll have a backlog. That's the trouble: they're not appointing the judges that they need and resourcing the courts the way they need to. This is a significant change to our court system. It is a big change that will have an impact on people.

Friday last week, across Australia, we marked White Ribbon Day, and yesterday, Sunday, was International Day for the Elimination of Violence against Women. On Friday I was privileged to be at Ipswich State High School. I want to congratulate Sarah Lake, the year 7 student welfare officer, and Principal Simon Riley, a White Ribbon ambassador, as I have been, who made a fantastic speech on the issue of violence against women, about how men have to respect women and people need to change. Domestic violence takes place in many ways. It can be physical and sexual abuse, familial isolation, religious persecution, financial domination—there are a whole range of manners in which it can be exercised, and it's shocking; it's a disgrace. Men need to have a look at themselves, because it happens at all levels of our society.

I also want to congratulate the Zonta Club of Ipswich. I was there yesterday, with the member for Ipswich, Jennifer Howard, for the launch of the club's 16 days of activism against domestic violence. I'll have an 'orange lady', as they call it, with slogans all over it in my office—I always have one. I want to encourage and congratulate the President, Pat Evatt, and all the members of the Zonta Club of Ipswich for their activism in this space.

I want to finish on this note: these are very complex areas to deal with. The government are swiftly trying to introduce changes, which I think has been a farce from the start. They should listen to the Bar Association, the Law Council of Australia and other stakeholders, as the member for Burt mentioned. The government should have a look at themselves again and look at the history of this court. If they funded the courts properly and funded legal aid properly we wouldn't have the problems we're having in the system.

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