Julie Owens (Parramatta, Australian Labor Party, Shadow Assistant Minister for Citizenship and Multicultural Australia) Share this | Hansard source

And a parliamentarian now as well, but always a piano player. So I don't know a great deal about the legal language and legal structures that underpin our court systems. I don't. A number of speakers prior to me have spoken very eloquently about those systems. What I want to talk about today is the process—or, rather, the lack of process—that this government has embarked on in dealing with one of the most important things in people's lives, which is the welfare of their children, at one of the most difficult times in their lives, which is during the break-up of their family. What you see when you look at the process that this government has embarked on is an extraordinary lack of care. The only way to describe it is a shocking lack of care.

The two bills that we're looking at today—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—effectively abolish the Family Court, which was established back in 1975. The legislation doesn't do it in one step. Initially, it combines two courts—the Family Court and the Federal Circuit Court—into one court which effectively will remain two separate courts. But the minister has admitted that, over time, the government won't reappoint Family Court specialists. So eventually the Family Court as we know it will disappear altogether into the Federal Circuit Court.

If the government had approached that idea with the proper consultation with the people who are affected by this decision, if the consultation had taken place over a long time, if there had been input, if it had been debated and discussed and if the sector had come to some agreement about the way this should be done, I probably wouldn't be up here speaking about this in the way that I am. But that hasn't happened. What we've had instead is basically a six-week desktop review by a firm that did a desktop review of the courts and decided this would bring efficiencies, and that's it. The consultation has been virtually nil.

There are serious problems with the Family Court at present. There are unacceptable delays. We know that. But there are ways to deal with that, and one of them is to appropriately appoint justices. We know, for example, that back in 2016 in Parramatta we had a situation where one judge was handling 600 cases. We had the Family Court in Parramatta waiting 560 days for the replacement of a judge who had retired. We had people waiting up to three years for a settlement. Your six-month-old child is 3½ in three years. Your 10-year-old boy goes through puberty in that three years. Your 15-year-old daughter is dating. In the life of a child, three years is a long, long time, and three years in the life of a parent without a settled relationship with their child is almost unimaginable.

The consultation has been so poor that, essentially, the government didn't consult with any of the people we would have expected them to consult with. They tried to push these changes through so quickly that initially they gave the sector only three weeks to comment on a bill that is some 500 pages long. As a result of that, we've had judges speaking up against these changes. Judges are usually pretty conservative in the comments they make. In this case they've been quite vocal. Virtually every association and organisation that represents the legal fraternity have had something to say about this. Organisations that represent people fleeing domestic violence have had something to say about this. Right across the board, we've had commentary after commentary on the lack of consultation by this government. The Law Council, for example, has said:

The Law Council is deeply concerned by the truncated three-week timeframe for the public to scrutinise the recently introduced court merger bills.

The two bills, if passed, will merge the current Federal Circuit Court of Australia and the Family Court of Australia into the new Federal Circuit and Family Court of Australia. The bills signify the biggest changes to Australia’s justice system in decades.

On Thursday, the same day the bills were introduced in the lower house, the Senate Legal and Constitutional Affairs Committee reduced the reporting deadline from 15 April 2019 to 26 November this year. The Committee also fixed a submission closing date of 14 September.

Law Council of Australia President, Morry Bailes, said the peak body already held significant concerns about the proposal to merge the courts, and a three-week deadline to scrutinise the bills would short-change a court system already at breaking point.

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"We owe it to the people caught-up in the family law system not to give the most significant court changes since 1975 a mere cursory glance, or a simple tick-and-flick," Mr Bailes said.

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"A reporting deadline in mid-April 2019 would allow the Senate to consider the recommendations of the Australian Law Reform Commission’s Family Law Review. The final report is due on 31 March 2019.

That's worth commenting on as well: there is actually a Law Reform Commission family law review due on 31 March, one that was commissioned by this government—by former Senator Brandis. It's due in March 2019. To make this change before that commission review reports is quite bizarre. One really has to ask: why is there the rush here? What is going on here that this government feels they need to rush this through in this way, before they even have all the information? The Senate inquiry isn't due to report until next year. Again, it's irregular for a government to try and push bills through before the Senate committee's report. It's hard to figure out exactly what is going on here, and why the government feels it's necessary to push such an extraordinary change through without proper consultation.

The Australian Bar Association president, Noel Hutley SC, says:

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

The structure and implementation of any reform of the area can only be determined if all interested parties have access to and appropriate time to consider, the most up-to-date information available and particularly the PwC report which the Commonwealth Attorney-General has referred to as being the basis of the current proposals.

That PwC report was the short desktop analysis of the role of both courts, and it's that report that made the recommendation to combine the two courts. PwC is not a body with expertise in both courts. It is certainly not a body that you would expect to make a considered assessment based on the complexity of family law, particularly since family law in Australia, as we all know, is getting more complex by the day, as we have more and more families where the broader family is split across continents. There are significant family violence issues.

What we see with this combination of the courts and the government's intention, eventually, to not replace the Family Court judges is a move towards a court that does not have specialist expertise in family matters—a court that does not have expertise in the matters before it. Shockingly, perhaps that is why this government thinks that its changes will be more efficient. It seems to be adamant that this merging of the two courts and the removal of the family expertise will actually increase the efficiency of the court.

The minister states that there will be up to 8,000 extra cases per year cleared because of this merger. Yet there's no additional expenditure. There are no additional dollars—zero additional dollars—and no additional justices. No extra money, merging two courts and removal of expertise in family law gives you efficiency only if the only thing you care about is the speed and the cost of the decision. If all you care about is the speed and the cost of the decision relating to a child's future and their relationship with their parents then maybe this is fine. But for most of us, if we think about it, we know that when it comes to family break-up, with all the complexity, anger and difficulty that people have in resolving those issues and the complexity when you add family violence, when you have extended families across continents, when you have careers that move interstate—all the things that affect it and all the complexity before you even put the emotion into it—the decision needs to be the best one, not the quickest one. It needs to be the best one, not the cheapest one.

There are some cases in policy, and health is one, where what is best for the patient is almost universally cheapest for the taxpayer—you intervene early, have a person stay home, all those things. In nearly every case when it comes to health, if you treat the patient in the best way possible, the cost over a lifetime is less for the taxpayer. In this matter, this is not the case. This is not a case where reducing the cost and going for efficiency rather than outcome is a good result for the community or the family. It is simply not that.

I also want to point out that, given this is the most significant change to the Family Court in nearly 50 years—actually, it's effectively the abolition of the Family Court after 50 years following an eight-week review and a very short consultation process—there are two speakers, I think, on the other side on this bill. I'm just going to double-check; yes, two. This is one of the most significant changes in 45 years, and there are two members of the government who have decided to speak on this. They're hardly proud of it; I suspect they don't even know about it. Two government members are speaking on this—so no consultation, a review which the sector hadn't even seen that was the basis of the decision, very short time frames, and two people on the government side getting up to speak on it. There are 12 or 13 members on this side speaking on it. But that's not unusual. Following this we will do the Social Services Legislation Amendment (Housing Affordability) Bill—an incredibly important issue—and there are no government speakers. On the Fair Work Amendment (Family and Domestic Violence Leave) Bill, there is one. So they're not exactly into their own work at the moment—certainly not in this chamber. They're off doing heaven knows what, but they're certainly not in here to make the case for this bill.

If this is such an important bill that it needed to be pushed through in this kind of time frame—it's the most significant change in 45 years and, according to the government, it's going to result in an extra 8,000 cases going through every year—you'd think that some of them would be in here actually speaking about it and explaining it, because the criticism of it that has come from outside of this place is overwhelming. The speeches that are made by this side of the House also make a number of extremely valid points. I would expect that a government that was proud of this bill would have people prepared to speak on it and prepared to argue it.

I would like to hear the arguments that the government makes for pushing this through at this kind of pace and for making this extraordinary change. I would like to hear the argument that says that a removal of expertise in the Family Court system provides better outcomes for families and for children. I would like to hear members on the government side actually make that case. I would like to hear how you get 8,000 extra cases cleared without additional funding. I would like to actually hear that. I would like to hear how, rather than put extra money into the Family Court system so that it can function properly, you wear it down until it starts to break and then you abolish it. I'd like to hear the government members make a case for that, because it's very hard to see when what you essentially have is very little consultation with the community, rapid decision-making, unreasonable speed and pushing it through the House when the Senate can't consider it for several months anyway.

It's a very strange position that we find ourselves in on this side of the House today, looking at government legislation that the government itself isn't prepared to defend. We won't support this. I look forward to seeing the results of the Senate inquiry. I look forward to reading the report when it finally comes down in March, and then we'll see what is needed in the Family Court.

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