Cathy O'Toole (Herbert, Australian Labor Party) Share this | Hansard source

I am luckier than many in this place to speak with some understanding of the negative impact of this bill. I say so because my sister Janice Mayes is a family law barrister in Townsville. In speaking with her I have become very aware of the processes and procedures that affect the family law court. I am aware of how busy the family law court is and the pressure it is under in regional Australia because of the conversations I have had with my sister. I am aware how detrimental these changes will be for family law judges, barristers, solicitors and, importantly, the families themselves because of the LNP government's bill and what this means on the ground, all thanks to the skill my sister has as a family law barrister. In due respect to my sister, I will provide an open and honest account of the government's changes to a system that is already under massive pressure.

At the heart of this bill are vulnerable people and, particularly, in most cases, children. The question must be asked: are these changes in the best interests of vulnerable families and children? Efficiencies that harm people, especially children, are not efficiencies. In fact, it is simply a cost-shifting exercise. And, possibly, the cost shifting will go to the health budget, and in particular the mental health budget, for years to come when we consider that many of the people negatively impacted by these changes are children.

The government should own up to what they are doing here. They are in effect abolishing the Family Court, a legacy of the Whitlam government. Even worse, they are abolishing the Family Court without even bothering to ask the families in the system for their point of view. It is absolute arrogance. These two bills run for more than 500 pages. If passed this will implement the most radical change to the family law system since the Family Law Act in 1975. The bills will alter the current structure of the courts. They don't merge the two courts. There will still be two distinct divisions. The Family Court will become division 1 of the new Federal Circuit and Family Court of Australia and the Federal Circuit Court will become division 2 of the new FCFC. Family Court judges will remain judges of the division 1 court and Federal Court judges will remain judges of the division 2 court.

The LNP are trying to hide what they are doing by not being open and honest about these changes. The Attorney-General has stated publicly that he will not be appointing or replacing any Family Court judges, essentially killing the family law court by stealth. This is a radical reform. Moreover, the Appeals Division of the Family Court will be abolished immediately. Appeals will be moved to the Federal Court. Only appeals from the soon-to-be-extinct division 1 would be heard by three judges. All appeals from division 2 would be heard by a single judge.

Let's be very clear about this: the government wants to hand this function over to a court that has never handled family law before. These are huge and fundamental reforms and fly directly in the face of the purpose for which the family law courts were created in the first place. The Family Court of Australia was set up in 1975 as a specialist court, with specialist judges, to resolve the most complex of family legal disputes. It was a Whitlam Labor government policy and reform. The Family Court of Australia is a superior court of record. When the Family Law Bill was progressing through the parliament back in 1974, it was also sent to a Senate committee. That committee made significant recommendations, including a recommendation to establish the Family Court of Australia. It also made a recommendation about the way in which Family Court judges would be appointed. The committee recommended that appointees must be, 'by reason of training, experience and personality, suitable to deal with matters of family law'. Nearly all of the committee's recommendations were given effect, including these two examples. Section 22 of the Family Law Act, which is still in operation, gave effect to what has become the essential feature of the Family Court: specialist judges. The Senate committee considered that the creation of a specialist court would:

… put Australia in the forefront of family law reform and … ensure that other facilities and remedies provided in the Bill can have effective implementation.

The Australian government, more than 50 years ago, recognised the unique issues and specialist skills needed to address and work in family law issues, so why is the current LNP Morrison government ignoring this? Are the government so out of touch that they do not understand that one of the most complex areas of law is family law, and, in being one of the most complex areas, it requires experts in family law to understand and comprehend the unique and individual issues presented to its court?

Family law deals with people at their most vulnerable. They are often in a distressed state and they need and deserve relevant and appropriate expertise. Yes, there are serious problems with the Family Court at present. There are unacceptable delays and backlogs, which are adding to the pain of those caught up in the system. These backlogs are due to inadequate funding of the court system, inadequate funding for legal assistance services and the failure of the former Attorney-General, George Brandis, to appoint replacements for judges as they retired. These are failures by an LNP government, not failures of the court system.

This year, Federal Circuit Court judge Joe Harman blamed the severe court delays affecting families on the shrinking number of judges. According to a report in The Australian:

Federal Circuit Court judge Joe Harman told his court at Parramatta, in Sydney's west, the number of judges had dropped from five to four, and at one point was down to "effectively two".

This has contributed to a blowout in waiting times for litigants to three years. His Honour's eloquent judgement read:

It is well known that the delays before this court and, in particular, this registry, are severe with great disadvantage, particularly in parenting proceedings, occasioned to parties who wait three years or more for a determination of their business.

It continued:

Some part of that delay may well be connected with an absence of resources. Certainly, the number of judges in this registry depleted between 2014 and 2015. The registry, in 2014, was staffed by five judges. The registry now has four judges although having dropped, at one point, to effectively two judges.

This is clearly a scathing review of the current LNP government and their handling of family law. The option is there for the government to appoint more judges to deal with the large volume of matters before the family law court, but instead of the government providing more support to these courts, instead of the government listening to the experts and acting on what is needed to address these issues, the government says that abolishing the court entirely is the solution. This will only increase waiting times, add pressure to judges and magistrates, and lose the specialists and experts in the family law court.

If the government does not understand the importance and the complexity of the matters before the family law court, then clearly they have not done their homework, because the only evidence, reason or excuse the government is using regarding these radical changes is a report that it commissioned from consultancy PwC, which took six weeks to do a desktop review—hardly thorough evidence. Family law judges, barristers and solicitors are going to just laugh at the part included in the six-week review report which outlines an equivalent level of complexity between the Family Court and the Federal Circuit Court. Anyone who has one iota of understanding of the courts will know how laughable and ridiculous that notion truly is.

I know what many lawyers, barristers and judges are thinking in listening to this speech and seeing the reforms the LNP government are suggesting. They are asking: why? Why is this happening? The Senate committee into this bill is coming to Townsville in the middle of December, so why is the bill being presented here today? The simple answer is because of the dirty deals being done with One Nation. That's right. The government are agreeing to lose a specialist court, to lose specialist judges, to create longer waiting times and to create more havoc for distressed families during a very difficult time in their life, all to do backroom deals with One Nation. The LNP government are in such chaos that sneaky deals are being done to the detriment of hardworking Australians. Until February 2017, the One Nation website included a policy which said, 'The Family Law Courts will be abolished and replaced with a Family Tribunal.' Here lies the real reason why these radical changes are being rushed. It certainly raises the question.

There is an election to be had and backroom deals to be done before the election. These dodgy deals lack transparency and fail the fair go and pub tests. All around, they stink and are rotten to the core. It appears this LNP government is prepared to turn its back on families during the most difficult and stressful time in their lives, all for some dodgy backroom agreement, as it may appear. The LNP government is demonstrating to the Australian people that they are no longer working in the best interests of Australians; they are working for themselves.

Earlier this year I spent a full day in the family law court in Townsville. I wanted to better understand the processes, procedures and complexities. I wanted to ensure that when bills relating to the family law court are presented to the parliament I, as a lay person with no legal background, knew what these changes would mean to vulnerable families on the ground. From what I saw over that day, I know wholeheartedly that these changes will negatively impact on my community. At the invitation of Judge Coker, I spent a full day listening to interim hearings regarding matters before the family law court. I witnessed an incredibly professional and caring approach to what is in fact a very complex and distressing environment. I was surprised at the number of people who present to the court to self-represent or who are unrepresented. This takes much more of the judges' and courts' time. I witnessed a very effective court process where procedural fairness was delivered to all parties. I also witnessed a strong focus on the needs of powerless children who are, sadly, caught up in this complicated process. What I also witnessed is how incredibly underfunded and under-resourced the family law courts are.

I am deeply concerned about the amendments in this bill. The approach does guarantee that a negative impact will be had on family law and regional Australians. The LNP government are ignoring key stakeholders to rush this bill through. The government has not bothered to talk to the people affected and the many stakeholder groups associated with the family law system every day—the family groups, the registrars, the legal assistance services, the lawyers, the barristers and the judges. The Law Council of Australia have said how deeply concerned they are by the complete lack of consultation. The Australian Bar Association have also outlined their serious concerns. Today I outlined my serious and genuine concerns, as well of those in my community. But, importantly, I am very concerned about the motivation behind this bill as presented today.

I cannot and will not support a bill in this place where due process and consultation have not occurred. In the current form, as this bill is presented, it would essentially put an end to the Family Law Court and specialist practitioners. From speaking with the Townsville legal community and knowing the detrimental effects this bill will cause, I cannot support this bill.

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