Tony Zappia (Makin, Australian Labor Party) Share this | Hansard source

In speaking to this legislation, I speak in support of the amendment moved by the member for Isaacs. In his address to the House on the matter he articulated why this legislation, 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, should be opposed. This legislation merges the Family Court of Australia with the Federal Circuit Court. It is a move that, in my view, and in the view of many others, makes no sense at all. It is a move that has been poorly thought through with questionable community consultation and, not surprisingly, it has been widely opposed. Indeed, it is difficult to understand the rationale for the merger. It is even more difficult to see how the merger will lead to greater efficiencies and improvements to the court system, which, as other speakers have already highlighted, is already under stress.

Not surprisingly, only one coalition member attempted to defend this legislation in the House. If the legislation is, indeed, in the public interest, why are government members not prepared to come into the chamber and to defend the legislation, particularly in the face of so much opposition to it. When legislation is non-controversial it quite often flies through this House, but when it is controversial it is important that members come into the chamber and either defend or oppose it and state their grounds for doing so, yet we have seen almost none of that from the government. This leads me to conclude that the government simply cannot justify this legislation and wants to ram it through for its own ideological purposes. I can only conclude that one of those purposes is that it's a backdoor attempt to cut costs in the long term, and, whilst the government will argue that they are putting more money into the court system right here and now, the reality is that over a long period of time I suspect that it is another cost-cutting measure by this government. It will be a cost-cutting measure that will be paid dearly for by struggling families, by children and by people in domestic violence situations—people who are already vulnerable. These are people who are already in a crisis or a very stressful situation and who need the intervention of a court system that unfortunately right now is itself under stress.

We have heard statistics by members who have spoken in this debate of judges with case loads of some 337 cases and hearing waiting times of some 18 months. I can only imagine the stress to those families that are waiting for 18 months to have their matters heard by a court. Going to court for any person is always a stressful matter, regardless of what the issue is, but particularly for family matters the stress, I suspect, is much greater. To then have to wait months and months to have your hearing would be something that I believe would unduly add to the stress for those families.

The Law Council refers to some Federal Circuit Court judges also having more than 600 cases in their dockets. Again, waiting times are 18 months to two years, and, again, for those parties to those court cases it's totally unreasonable.

It's been pointed out that there have been 110 stakeholders, all with expertise in this matter, that have opposed the court mergers. When I look through the list of those parties who have made submissions, I note the expertise that they have. These are people that understand the court system well and understand what needs to be done to improve it. Therefore, they are in a very good position to pass judgement as to whether this is a good move or not.

I want to summarise one of the statements put out by the Law Council of Australia. It highlights six matters with respect to why this merger should be opposed. They are: (1) it will abolish the standalone specialist Family Court as we know it and collapse it into one of the busiest, under-resourced, overburdened, lower level Federal Circuit Courts; (2) it will harm vulnerable children and families in need of specialist family law assistance; (3) it will increase cost, time and stress for families and children; (4) it will place further stress on Federal Circuit Court judges already struggling under unsafe workloads; (5) it will fail to alleviate the fundamental problems plaguing the family law system; and (6) it will fail to address the risk of family violence victims falling through the cracks. The statement goes on to say, 'The strongest protection for children, families and survivors of family violence is to maintain and strengthen a standalone specialist family law court involving a holistic specialist system of interrelated, co-located services and resources as was intended when the Family Court was created.'

If the Law Council of Australia makes those statements, we should take note of them. The Law Council is the body that deals with these matters on a daily basis and listens to its own members and so on. These are the experts in making judgements about what should and should not work within the court system. Yet it's clear that this government is totally ignoring those serious matters being raised by the Law Council of Australia.

In a dissenting Senate report, Labor senators articulated in 25 clear and concise statements why this legislation should be opposed. I want to quote one statement, at paragraph 12 of the report. It says:

The government's proposed abolition of the Family Court as a stand-alone specialist family court is not merely friendless. It has been almost universally condemned.

This highlights the fact. Why is the government proceeding with this merger and why is it ignoring the voices of so many out there who are telling the government it is the wrong thing to do?

I note that this legislation has been on the table for nearly two years. I think it was first brought in in 2018, then it lapsed, then it was brought in again about a year ago and now, a year later, we are finally debating it. It tells me that the government knows it is introducing legislation that will not achieve the objectives it claims it will, legislation that is widely opposed, and is somewhat nervous about it. The fact that we are now dealing with it almost two years later suggests to me that the government knows full well this legislation should not be passed; nevertheless, it wants to push it through.

Forty-five years ago the standalone Family Court was established because of the specialist nature of the matters dealt with in family courts. In his second reading speech, the minister said:

… there is widespread recognition that the current structural arrangements in the courts are simply not working to the benefit of Australian families.

Of course those arrangements are not working to the benefit of families. We have waiting times of 18 months to two years, we have case loads for judges of around 337, on average, and we have a system that is not supported sufficiently by the government and is underfunded. The system is under stress. That is why it is not working properly. It's not because of the structure of the courts themselves. Rather than fiddling around the edges trying to amalgamate the two courts, it is high time the government addressed the real issue of under-resourcing and underfunding. That would resolve the problems the minister himself referred to in his second reading speech on this matter.

On that issue, the Australian Law Reform Commission's statement—and this is a statement that has been quoted by other speakers, but I believe it's important enough to requote it—found the family law system:

… has been deprived of resources to such an extent that it cannot deliver the quality of justice expected of a country like Australia, and to whose family law system other countries once looked and tried to emulate.

If other countries once looked to Australia's system and tried to emulate it, it tells me that it is a system that has been looked at as a model for the rest of the world. It tells me that the model itself is the correct model, and so therefore, if we have the correct model that other countries and other jurisdictions are trying to emulate, why are we wanting to change it? And, indeed, to whose system are we looking to change it to? I saw no reference in the minister's second reading speech to any other country that has a similar system to what is being proposed and that works better than the one we currently have. So why are we wanting to move from a good system that has been looked at by other jurisdictions to a system that has not been tried anywhere else, to my knowledge?

The ability of courts to function properly directly impacts on their ability to deliver justice. Judges are also real people, and workloads and work pressures undoubtedly affect their ability to do their job, and yet their job matters so much to the people that appear before them. The first Chief Justice of the Family Court of Australia, Elizabeth Evatt AC, and the second Chief Justice, the Hon. Alastair Nicholson, who both understand the workings of the Family Court as well as anyone else, have criticised the proposed merger. Both former Chief Justices would be in the best position possible to know how the courts function, how they can be improved and what changes are necessary. This legislation is not what they recommend. Again, if we are not prepared to listen to the people that were part of the system, that oversaw the system and that would understand the system as well as anybody else in this country, then on whose advice are we making the changes that are being proposed? Indeed, it is quite an insult to those people with that level of expertise to suggest to them that they don't know what they are talking about by ignoring their submissions and their comments on this legislation. These are people who were part of the system for years and years and possibly the people who put it together and brought to us the very arrangements we currently have.

In closing, I make this point: the standalone Family Court was a Whitlam Labor government initiative, as so many other speakers on this side of the House have already pointed out. It was an initiative that recognised the unique and specialised nature of the court's functions and the sensitive family matters that the court had to deal with. I can think of very few other matters that would be as sensitive as Family Court matters, matters that deal with family separations and the stresses that go with all of that, often matters that include domestic violence and, most importantly, matters that deal with the best interests of children.

Children are the innocent parties in all of these matters, and the whole intent of the system is ultimately to ensure that those innocent parties are looked after as best as possible. It requires a court that has specialists and people with expertise attached to it, a process that is unique and a process that focuses on that very issue. That is what was put in place around 45 years ago. For all the faults that others might have about it—and, indeed, that have been highlighted over some of the inquiries—the reality is that it's a system that has worked well. Yes, it is a system that is under stress right now, and, yes, it is a system that needs additional support. But it doesn't need to be changed to get that additional support. What it needs is a government that is committed to a process that has been tried and proven—a process that has been looked at by outside jurisdictions in an endeavour to copy it and a process that has served this country well for 45 years and will do so into the future if the government is prepared to support the system we currently have, and that's why this legislation should be opposed.

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