Peta Murphy (Dunkley, Australian Labor Party) Share this | Hansard source

I rise to speak on the Federal Circuit and Family Court of Australia Bill 2019. Almost by definition, people who are coming before the family law courts in Australia have had a relationship break down. They've had their hopes for the future, the sort of family life they wanted to have, the sort of relationships they wanted to have sometimes not be fulfilled and other times be smashed—sometimes literally smashed, by domestic violence, and often smashed by the consequences of job loss, of cultural and religious difficulties within a relationship, of a community where they couldn't find support to get through difficulties. And people who are accessing the parens patriae jurisdiction of the Family Court by definition have such a difficult situation with a child—and the child has such a difficult situation about rights, often to do with decisions about their health—that they need a court to assist them through it.

The family law jurisdiction is a place of social policy as well as a place of law, because it's about people's lives; not just their legal rights. As the great Labor Prime Minister Gough Whitlam said in November 1974, when speaking in the House of Representatives about the transformative Family Law Bill:

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.

He put it this way: it's a court that will 'have regard to their human problems, not just their legal rights'.

More recently, the Hon. Alastair Nicholson AO RFD QC—the second Chief Justice of the Family Court, serving in that position between 1988 and 2004, and a man of intellect and experience—said, when he was making comments about the absolute unsuitability of this piece of legislation to pass:

Many involve the determination of important issues relating to children, including their rights and need for protection, not only from individuals, but also from government in its myriad forms. Many also involve problems of family violence and the effects of it upon the parties and their children.

As the first Chief Justice of the Family Court of Australia, Elizabeth Evatt AC, has said:

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—

the bill we are debating today in this place—

undermines this principle, is not in the public interest and should not be enacted.

It is astounding that in the face of those comments, let alone the some 110 stakeholders who oppose this legislation—this reheated legislation—the current Attorney-General and all of the members of the government on that side of the chamber want to push this legislation through. This is not about ideology; this is about the lives of vulnerable children, and it's about the lives of all of our friends and family. There can't be a person in this place who doesn't know someone who has had a marriage or significant relationship break down and had to go through the Family Court system. Surely, there can't be a person in this place who doesn't understand how important that system is to the lives of people who are going through, often, trauma that they never thought they would have to experience.

We know it in my community. We are incredibly fortunate in my community, in Dunkley, to have the Peninsula Community Legal Centre, the amazing lawyers that work there, the incomparable Jackie Galloway who runs the centre, the support staff and the partnerships that PCLC has made. PCLC looks after the most disadvantaged and marginalised in our community, as community legal centres do across our country. They look after people who otherwise fall through the gaps, who can't afford private lawyers. Despite the best intentions of the family law system, of those who devised it and those who are its custodians, it is not often a user-friendly place, and people need lawyers to get through. Places like PCLC look after people who would otherwise fall through the gaps because they can't afford private lawyers and they don't qualify for legal aid.

More people would qualify for legal aid if federal governments—this federal government—would put more money into the legal aid system. They could represent more people going through the trauma of a marriage breakdown and having to deal with sorting out child custody arrangements, sometimes when they fear that their child's welfare, let alone life, is in danger as a result of the access of their estranged partner. Peninsula Community Legal Centre's clients are low-income earners. About 75 per cent of their clients have no or low incomes, and the most common legal problem faced by clients of PCLC is family law. Fifty-four per cent of their clients experience family law problems and more than a third of those clients experience family violence. We know that not only is Australia in an ongoing epidemic of family violence but also COVID-19 has exacerbated it.

Family law and family violence problems in my community that are looked after by PCLC are often complicated by the risk of homelessness, welfare concerns for children, disabilities or histories of substance abuse. These are complicated people with complicated lives who deserve a system that is specialised in looking after their needs and lawyers who are specialised in looking after their needs. PCLC, led by Jackie Galloway, are so concerned about the consequences of this piece of legislation that they were a signatory, in November last year, to an open letter to the Attorney-General along with—I haven't counted them—tens and tens and tens of people working in the family law system. It said the government's proposal to merge the Family Court and the Federal Circuit Court is wrong.

Reforms should strengthen a system, not lead to the diminution of specialisation. The government's proposed reforms, this legislation, will lead to the loss of a standalone specialist superior Family Court. Notwithstanding the talking points the Attorney-General has given to the backbenchers of the government saying that it won't, this bill will lead to the loss of a specialised family law court. It will lead to a loss of services for some of the most vulnerable of people in our community and it will do a disservice to what has, before this, been a proud legacy of the legal system in Australia.

There is no doubt that there are problems that can be fixed in the family law system. It is not inconsistent to stand here and be proud of our family law system and, at the same time, acknowledge that there are issues that need to be fixed. Some of those issues stem from something, one would think, as simple as properly funding the system, which this government has failed to do—budget after budget after budget. Some of those problems arise from the changes in society, from the increased prevalence and awareness of domestic violence and the need for the system to adapt to deal with that. But none of the problems in the family law system arise because we have a specialised family law court, and they won't be solved by merging it with the Federal Circuit Court full of people, some of whom have limited to no legal experience in the first place, of whom are mostly not specialists in family law. There's a reason people specialise in something. It's so they can give the best advice, the best judgement and the best outcome possible. This government doesn't like experts in a range of fields; we know that. But expertise is important. It means something. And we will lose that if this legislation goes through.

As PCLC and the other signatories to the 11 November 2019 open letter to the Attorney-General said:

We understand and support having a single entry point to the family courts and common rules so the family law system is easier for families to navigate.

They go on in the next paragraph to say:

… this can be done without abandoning the benefits otherwise available to children and families from a properly resourced and specialised court system.

The entire family law sector opposes this legislation, and it is pure hubris and arrogance of the Attorney-General and those on that side of the parliament to say that, somehow or other, they know better.

The briefing note published by the Law Council of Australia demolishes all of the speaking points that we've heard from the very few coalition members of parliament who are actually speaking on this legislation, which in itself says something. Here are the myths and misconceptions: everyone in the system has known for years it needs to be reformed, but no-one has able to agree on the best way. In the family law system, 110 stakeholders agree the merger is not the solution and oppose the bill because it will 'put families at risk'. This is a government that talks over and over again about the importance of protecting vulnerable children, and here they are putting forward legislation that the Law Council of Australia says will 'put families at risk'. They support the Family Court 2.0 model proposed by the New South Wales Bar Association. There are other options out there.

The second misconception put forward by the government is that this merger has been informed by independent inquiries over a decade. No, it hasn't. Inquiry after inquiry has done the opposite of saying that the courts should be merged. A desktop review by an accounting firm is no replacement for the evidence given to inquiries by people who have worked in the system and people who have had their marriages and their relationships dealt with through the system—people who are actually experts in the system.

The Law Council of Australia, anticipating the speaking points that would be used in the debate in the chamber today, have said that misconception No. 3—that the merger proposal will not abolish the Family Court—is wrong. The Attorney-General might have tweaked this version of the legislation from the last one and said, 'No, I won't follow on with that idea that we will stop appointing judges to division 1.' No-one believes what he says. Everyone is concerned that the outcome of this legislation is to abolish the Family Court. It won't increase efficiencies or reduce delays in the system. It won't save money. It will cost money, and it could well cost lives.

I want to respond to something that the member for Fisher said about the Lighthouse Project, which is about specialised family law court systems for domestic violence, and remind the member for Fisher and this chamber that that legislation should have gone through the parliament in February. Nine months later, we are still waiting for that pilot project to start, because the government didn't push it.

On behalf of my community—the Peninsula Community Legal Centre led by Jackie Galloway, every single organisation that is involved in the family law system and the men, women and children who rely on that system for a fair and decent outcome for one of the most horrific times in their lives—I oppose this legislation, and I join the voices of everyone else who is asking the government and the Attorney-General to put aside ego, put aside a belief that they know more than others, listen to what the community is saying to them and withdraw this legislation.

See this speech in context