Shayne Neumann (Blair, Australian Labor Party, Shadow Minister for Veterans' Affairs and Defence Personnel) Share this | Hansard source

Most Australians don't commit criminal offences. Most Australians don't get injured at work. Most Australians don't have car accidents. Most Australians aren't sued as debtors. Most Australians as creditors don't sue other people. But Australians en masse—one in three marriages that break up, and in second and third marriages it's as high as 50 per cent and in de facto and common law arrangements it's even higher—are affected by what happens in our family law and child support systems. The Federal Circuit and Family Court of Australia Bill 2019 and the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019 will impact upon them in a way other bills we debate in this chamber do not.

The history of this legislation displays once again the strong ideological position of the conservative parties in this country. There are some issues that really divide the major political parties. For decades the coalition opposed Medicare and they only reluctantly accepted it when Australians from Toombul to Toorak eventually accepted Medicare as socialised medicine in this country. Industrial relations remains a thorn for those opposite. Every time they get an opportunity, they will pass legislation that will impact upon the right of workers to organise. Another issue is superannuation. We saw that recently with the announcements. They've got legislated increases in the superannuation guarantee, but they've never seen a pause they didn't like with respect to the increase in the superannuation guarantee.

Another schism is the family law system. It wasn't that long ago that our grandparents and great-grandparents had to go to state courts and had to prove, blame, fault to get a divorce. In the 19th century, and even earlier, people didn't have a legal responsibility at law to provide for their children, and it took legislative intervention—for example, the poor laws in 1601 in England—for that to happen. It was only legislation to provide for ongoing child support and the Family Law Act which made it clear that parents have parental responsibility obligations to support their children.

The Family Law Act came in against much opposition from conservative forces in this country. Sure, in 1959, Sir Garfield Barwick, the then Attorney-General, brought forward the Matrimonial Causes Act to make this come under a federal jurisdiction. But there were still fault divorces. Private eyes and private investigators, when I was practising as a lawyer, still would say that that was one of their main sources of income. It took the foresight and the intelligence of then Prime Minister Gough Whitlam and his minister Lionel Murphy to bring in the family law system against the objection of the conservative forces in this country.

I'll speak on no-fault divorce. Divorce's only ground has been, since 1976 in this country, irretrievable breakdown of marriage evidenced by people living separately for a duration of 12 months, that being the test that the consortium vitae, the partnership of life between a man and a woman, had broken down. It took Labor governments—and, indeed, state governments—to extend the jurisdiction of the family law system to do things like bring in de facto relationships and same sex relationships and to extend the rights that you see in section 79(4) and section 75(2) of the Family Law Act for property settlement to cover other people. Ex-nuptial children and de facto relationship children were brought into the system so that family courts could make decisions in the best interests of children guided by the Family Law Act so that those children would not be neglected.

The family law system is not perfect. I know it. I practised for nearly 25 years as a family lawyer. I was an accredited family law specialist since the mid-nineties and practised in the jurisdiction—everything from the Full Court of the Family Court to the High Court to the local Magistrates Court, where I was involved in domestic and family violence cases. I know the system is not perfect, but the coalition parties in this country in the last three terms have done everything they can to stymy the system. This legislation is about diminishing, dismantling and destroying the Family Court system in this country, and it will impact men, women and children adversely. They know it, but they can't take off their ideological blinkers. They just cannot do it. It's like superannuation, it's like Medicare and it's like industrial relations.

The Family Court system in this country is not perfect, but it's a heck of a lot better than in other countries, and it's better than it was before Labor won the election in 1972 and in 1974 and then brought in the legislation in 1975, which was promulgated and established in 1976. I regret seeing the wigs, the gowns and the robing. I recall that, when I first started practising as an articled law clerk, the judge sat there in a suit and a tie opposite us and that we sat there at tables. I liked the informal basis for that. I saw changes in years to come which meant a more formal structure. But also there was need to be flexible in the system.

We saw a situation where the most egregious domestic and family violence and child sexual abuse cases were dealt with in a Magellan list. We saw the improvements there as a result of that. We saw, for example, improvements in dealing with the system by establishing a Federal Magistrates Court, which has become the Federal Circuit Court. We saw an expansion of that jurisdiction so that simple cases could be dealt with more expeditiously. But, if you don't appoint enough judges, if you defund community legal centres, if you don't fund legal aid as you're supposed to and if you don't fund the ATSILSs as they need to be funded, you'll have some consequences. This is what this government has done, whether it's been under Prime Minister Abbott, Prime Minister Turnbull or Prime Minister Morrison. It doesn't matter; they still have the ideological blinkers on. This particular bill is about dismantling, destroying and diminishing the family law system in this country, and it will have an adverse impact.

The coalition parties had chances. They made some mistakes, by the way, in John Howard's day. What they did was to create a presumption of equal shared parental responsibility and then lead people to believe that it was equal time. The consequence of that was devastating because it raised expectations and dashed them. I saw it again and again and again in the many, many thousands of cases I did. They then prescribed the jurisdiction for federal magistrates and judges to make it more difficult, with hierarchies of presumption between primary obligations, primary considerations and secondary obligations. They fiddled around the edges and made it more difficult and more challenging. But that's not the most egregious thing they did. The most egregious thing they've done since that time is not listen to people. They haven't listened to the 110 individuals and organisations that have pleaded with them not to do what they're doing. A desktop review from a couple of accountants at PwC is really not good enough. Listen to the voices of the former chief justices of the Family Court, as my colleagues have again and again talked about today.

The fact that the coalition parties over there cannot bring themselves to really own this is shown by the fact that, if you look at the lists of speakers today and tonight, you can barely see one of their members. They rolled out the poor old member for Fisher. I don't mind the member for Fisher. He's not a bad sort of bloke. I don't mind him. But he's never even practised in the area. He said that in his speech today. He was a barrister, but he didn't practise in the area. He had no idea what he was talking about, sadly, because he never practised at all in the area, and he talks about how the family law system is to operate. Look at what they're doing in this legislation. They're diminishing. They have simply failed again and again when given the opportunity to take this legislation off the table. The Attorney-General, in a stubborn, pig-headed way, will not do so. The public wants him to do so.

The government could attend to the problems in this jurisdiction. We've seen evidence—and some of my colleagues have referred to it—about how many hundreds and hundreds of cases judges in the system are dealing with. That was the evidence that came through in the inquiry, in the dissenting Labor report that we put in. Do you know what that is? That's not enough resources. That's what the Australian Law Reform Commission said. You under-resourced the system. You've underfunded it. You haven't appointed enough judges. I've had barristers and solicitors from my home state of Queensland, where I was the senior partner of a Brisbane CBD law firm, tell me again and again that there have been vacancies for judges in Brisbane and elsewhere, and they haven't appointed them. They might promote someone up to the appeals division without promoting someone on the ground. You don't promote, you don't have enough resources and you also take away things like funding. It's ridiculous that you have to wait such a long time to get a family report. You know why? Because there's not enough funding in the system to do it. You need those independent children's lawyers, those independent representatives, to act in those difficult family law cases.

You would think, when you listen to those opposite—and, sadly, to some people in our community—that all of these cases get to trial. The fact is that only about five per cent of cases where people have actually instituted proceedings ever get to a final hearing. I did more consent orders and binding financial agreements at interim hearings or after family reports were prepared than cases ever got to a final hearing. I did a lot more final hearings than ever went to the Full Court of the Family Court or even to the High Court. Most people settle their cases. Most Australians want to act in the best interests of their children and provide financial support for them. Most Australians do the right thing. They do. But there are the ones that are complaining again and again. Some people think that the Family Court system's biased against one gender. It is not. When you look at the legislation, the Family Law Act makes it very clear that it takes into consideration the best interests of children, and it takes a whole range of factors into consideration as well. Children have a right to know and be cared for by both parents, regardless of their marital status, and by other people who are significant to their care, welfare and development—grandparents and uncles and aunties and other people who are going to contribute and help them in their lives.

I urge the government to think about this legislation: think about what you're doing. This is not an academic exercise. This is not affecting that person who might be charged with a criminal offence, that debtor or that creditor or that person who might have been injured at work. In our lives and in this place, there would be many people who went through the family law system. You might have friends and relatives who have. You would have—many of them have. This legislation is going to adversely impact them and their children, and your children and your children's children. This is a very consequential bill that will impact for years and years to come.

If they dismantle the Family Court system as we know it, what will they next do in a situation of child support? In child support, we had to rely on the case of Mee & Ferguson in the Family Court system and the legislative changes that were necessary before the Child Support (Assessment) Act and Child Support (Registration and Collection) Act were brought in in the late 1980s. That improved the payment of child support, but it had to be almost a very strong legal compulsion. You still had the rights for people to seek reviews if they wanted to, internally as well as on to the tribunals and courts if they needed to, under section 117 of the Child Support (Assessment) Act. Those rights were still there. But until those legislative interventions people weren't paying enough child support, which meant all of us were paying more social security payments to people because people, whether male or female, mums or dads, weren't paying the way for their own children. They weren't.

So, if you pass legislation today that dismantles the Family Court system in this country, there will be consequences. There will be consequences for children. What happens then to those children? What happens to those individuals who are going through this system? How long will it take before they get justice? It will be longer; it will not be shorter. There'll be less access to financial support and legal aid. The legal aid system has already been dismantled by those opposite. That was one of the first acts they did. When the shadow Attorney-General was the Attorney-General in this country and I was the parliamentary secretary—what they now call assistant minister—in our last budget we put extra money, about $40 million, to Aboriginal and Torres Strait Islander legal aid, community legal centres et cetera. The first act of this government was to dismantle the legal aid system and that funding and rip it away from places like the Taylor Street Community Legal Service centre up there in Hervey Bay. Don't do this. Don't pass this legislation. This will have terrible consequences for families across this country. Just don't do it.

See this speech in context