Sharon Claydon (Newcastle, Australian Labor Party) Share this | Hansard source

I rise to join my colleagues in speaking on the Federal Circuit and Family Court of Australia Bill 2018 and the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018. If this proposed set of reforms was to proceed, it would represent the most significant change to family courts since they were created some four decades ago by the Whitlam government. Together, these would see the Family Court of Australia merge with the Federal Circuit Court. There would be a single Chief Justice and a single set of rules. If the government's plan is carried out in the way it has been outlined in these bills before the House, it would also see the end of specialist expertise within the Family Court. What this government effectively wants to do is hand all family law matters, over time, to the more generalist Federal Circuit Court. Concerningly, this would include family law specialists who are specially trained to deal with family violence from the system.

Labor will oppose these bills, because the government has fundamentally failed to make the case that this change is indeed the best way forward. This government has been adamant that these changes will increase efficiency in the system. But it is utterly unclear how what the government is proposing will in fact reduce waiting times, create faster dispute resolution or reduce costs. There is no evidence that these reforms would result in an improved service or outcome for members of the public using these courts. We are seriously concerned about the government's appalling lack of consultation with stakeholders. It is hard to overstate what a seismic change this would be, and yet it's hard to understate the work that the government is putting into making sure it is the right way to proceed. Labor does not take our family courts for granted, and it is extremely worried about the consequences of such enormous change undertaken without due process or consideration.

Labor understands that the family law system is under dire pressure at the moment, make no mistake. As many as 22,000 family law final order cases are filed annually across both courts. The number of cases awaiting resolution has grown from 17,000 to 21,000 under this government's watch, and median time to trial has ballooned from 10.8 months to 15.2 months in the Federal Circuit Court and from 11.5 months to 17 months in the Family Court.

The personal impacts of this mess on the families caught up in the Family Court system are diabolical. People are left waiting in limbo, sometimes for years, for their cases to be resolved. This isn't just an inconvenience. It is a serious matter of community safety, given that we know that the majority of these families are facing tragic issues including domestic violence, substance abuse and extreme family breakdown. We also know that women—who are most often the victims of this family violence—are at their most vulnerable when they actually take these actions against their abusive former partner. That is when they are in the most danger. Yet these cases now are dragging out for months and months, and, indeed, years.

A fundamental driver of this backlog is that the government has utterly failed to adequately fund the Family Court system. Nor has it invested in desperately needed resources in legal assistance services. This is an observation that the Social Policy and Legal Affairs Committee made when it looked at the family law system and delivered a report to this parliament only months ago—a report that this government appears to be taking zero interest in, despite having designed the terms of reference and asked the committee to undertake the inquiry. The government is currently showing the same discourtesy to the Australian Law Reform Commission, which was asked to undertake a root-and-branch review of the system over a two-year period.

But this sentiment about the lack of funding and adequate resourcing is also echoed by the Law Council of Australia president, Morry Bailes, who said:

Chronic underfunding for more than a decade has led to a court system which continually struggles to meet the needs of the community.

And that is what is at stake. In March, the Law Council of Australia released an issues paper that acknowledged the growing complexity of family law cases and that the Commonwealth, as a bare minimum, needed to commit to a substantial funding boost to remedy the significant delays. The council also recommended a substantial increase in legal aid funding to improve justice outcomes and the efficiency of court proceedings. But you won't hear the government talk about this, and this bill demonstrates how completely deaf they still are to these critical concerns. Regretfully, but certainly not surprisingly, the measures in this bill provide no extra funding for the chronically underresourced court system or associated support services. That is zero additional funding.

Since it came to power, the government has consistently demonstrated that it's more interested in propping up tax breaks for high-income earners than properly investing in the Australian courts that tens of thousands of families in distress rely on year after year. Not only has the government ignored stakeholders and Australian families caught up in this fractured system but they've tried to overrule the democratic will of the Senate to ram their bill through the parliament.

Recently, the Senate voted to extend the deadline for the legislative inquiry report until 15 April next year. This would ensure enough time for thorough consultation, and the Australian Law Reform Commission's review of the family law system could then be taken into account. But government members of the committee initially refused the Senate's demands and instead set their own reporting deadline of 25 November this year. This would have meant that stakeholders would only have had three weeks to make submissions to these bills, which stretch over 500 pages. Then the committee would only have had three days to consider submissions before the final report was published.

To make these huge structural changes to the Family Court system before the commission had completed its report is both reckless and foolish. The Australian Bar Association president, Noel Hutley, has recognised the importance of parliamentary oversight, stating:

The ABA remains of the view that any legislation to restructure Australia’s family law system requires close and careful examination by Parliament.

I am very pleased that the government has succumbed to the pressure from Labor and other stakeholders and backed down from this shameless attempt to ram this bill through the committee process and deny it the time it needs to undertake this inquiry properly. But this still leaves massive problems with the government's consultation process to date. Who did the government actually consult in the development of these bills?

Well, the Chief Justice of the Family Court and the Chief Judge of the Federal Circuit Court. And that is it. Indeed, virtually the entire basis of the government's argument is a PwC report commissioned by the Attorney-General which was the result of just six weeks of desktop research, and included consultation with only senior stakeholders. The government hasn't bothered to talk to the people and the groups who use the family law system every day—the family groups, the registrars, the legal assistance services, the lawyers and the judges. I've spoken to a number of legal professionals in my community about what these changes will mean, and I have to say that they've been unequivocal about the need to avoid damaging and reckless action without thorough consideration of the outcomes. Indeed, concerns raised locally reflect those raised by the Australian Bar Association—the lawyers there—around how this would remedy the known existing problems in the Family Court system.

My colleague, the member for Blair, before me talked about the shocking delays in judicial appointments. My goodness, in Newcastle we've experienced that firsthand over a number of years. There are also enormous workloads on these judges now, to the point where there are serious concerns around judges' mental health and wellbeing in this country. That's not a good place for our judicial system, by anyone's measure. If the government cannot take the time to do its job properly and can't be bothered to talk to the people and the groups who are in the family law system every day, I can bring them any number of stories of people that these changes will affect. I regularly hear from constituents in my community of a system that is under extreme stress and pressure. Complicated and difficult cases with issues of family safety are at stake. They're being held up all over the country, and the human toll is immeasurable.

The government's plan, through these bills, would see an end to the specialisation provided by the Family Court. What the Attorney-General effectively wants to do is hand all family matters to the more generalist Federal Circuit Court by abolishing the specialist appeals division of the Family Court and, over time, the Family Court entirely. If such a broad, sweeping change is to proceed, the government must ensure that it is making the right decisions in the best interests of those Australians suffering under the current system. At this stage, it has fundamentally failed to make the case. Indeed, the feedback from stakeholders so far would suggest that that's because the government's plan is 'deeply flawed', 'ill considered' and 'quite possibly dangerous'. A quick perusal of the submissions that this inquiry received illustrates the depth of concern stakeholders have and demonstrates how important it is that this inquiry is given the time it needs to do its job. I would like to share a few of these contributions with the chamber today.

The Queensland Law Society said:

In our view, the proposed reforms are significantly flawed and the Bills will not achieve their intended objective.

Their submission went on to say:

… this would see a court well-versed in sensitive family law matters abolished in favour of a court which handles multiple areas of law. We submit that this would be to the detriment of families who will not have the benefit of the expertise the Family Court currently provides.

Women's Legal Services Australia was equally cautionary, raising its deep concerns, which include:

All of this is gravely worrying. In the week of the International Day for the Elimination of Violence against Women and in a year when 66 women already have lost their lives at the hands of violence in Australia, this government is proposing a move that might compromise their safety even further. This is utterly unforgivable.

Sadly, that wasn't an isolated view. Indeed, the safe steps Family Violence Response Centre submitted to the inquiry that:

… the Bills will result in a loss of family law specialisation, diminishing the courts' capacity to understand the nature and dynamics of family violence, and respond in a way that is trauma-informed and ensures the safety of victim survivors. In particular, it is not clear whether new judges appointed to the new family law division or the family law appeal division would be required to have specialist family law and family violence expertise.

This was echoed by Domestic Violence NSW, which submitted:

DVNSW is concerned that this will result in the loss of the current expertise and specialist features in the current family law system. Specialist knowledge of family law and family violence is critical in ensuring the safety of women and children experiencing domestic violence.

These are not small quibbles. They are profound flaws that may point to a serious risk to the safety of women and children facing domestic and family violence.

In summary, this bill demonstrates the Morrison government's arrogance. They have utterly failed to undertake appropriate consultation with stakeholders and Australians in relation to the most significant changes to the Family Court since its establishment. They have tried to ram these changes through with scant regard for their potentially massive impacts. Early feedback suggests that the responses of key stakeholders is almost universally negative, with serious concerns about women's and children's safety. I implore this government to give up this fanciful and ridiculous reform. (Time expired)

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