Julie Owens (Parramatta, Australian Labor Party, Shadow Parliamentary Secretary for Small Business) Share this | Link to this | Hansard source

I am pleased to have the opportunity, once again, to rise in this place and talk about the administration of our federal courts. In the electorate of Parramatta, it is a particularly important issue. We have an incredibly beautiful legal precinct, built since I became the member for Parramatta—so it is in the last decade at least. It is an incredible facility that holds up to 12 courts. On a Monday a couple of weeks ago, four of those courts were sitting, not because there was not enough work but because there were not enough judges to staff those courts.

We have backlogs, particularly in Family Court matters, that are seeing families on custody disputes being told they will have to wait three years to have their matter heard. Interim hearings are taking 18 months, at the least. So we have families, barristers and judges under incredible stress, because families are suffering in the way that only families can when one parent is denied access to a child for that length of time. You can imagine what it is like to be the parent of a six-month-old child, knowing that your custody matter will not be able to be determined for at least three years, when your child is 3½ years old. It is just not good enough. It really is not okay.

I am very pleased to be able to get up today and once again speak on this matter. The Courts Administration Legislation Amendment Bill 2015 is actually an important bill. It merges the corporate functions of the three federal courts—the Federal Court, the Family Court and the Federal Circuit Court—to make efficiencies behind the scenes. It does not merge the functions of the three courts. The three courts remain separate and their current management systems remain in place, but the administrative functions, including finance, human resources, information technology and property administration—things that are absolutely back-end administrative support for these three courts—are merged, with an estimated saving of $9.4 million over the six financial years up to 2020-21.

In federal budgets, $9.4 million is not a large amount, but $9.4 million is a large amount of money, and it is worth making these administrative changes to save that amount of money. It is well and truly worth doing that, but I would question what the cost to families and the community is, over a six-year period, of delays of up to three years in having a property or custody matter heard. I would question whether this government even knows what the economic costs are, let alone the social costs to families that are unable to make decisions about their work life, that are constantly under stress and that are unable to settle with their child into the new family arrangements, or to barristers who are feeling the pressure and judges who are taking sick leave. We have one judge in Parramatta who is on sick leave for six months, leading up to his retirement. We hear stories from barristers that the judges are under incredible strain.

I wonder whether this government has considered what the economic cost is to our community of these kinds of delays, let alone the social costs. I really would urge the government to think very clearly and very hard about whether or not this is actually good enough. I know that the Parramatta court is not the only one with these circumstances. Colleagues of mine from Newcastle and Wollongong have made similar speeches to this House about their delays. My concern today is about the completely unreasonable strain that families are carrying because our courts simply do not have the resources they need to deal with the matters before them.

Our courts are chronically under-resourced. Since the election of the coalition government in 2013, the number of judges sitting at the Parramatta registry of the Family Court and Federal Circuit Court has decreased from eight to five. Families are now waiting one to three years to have final orders, leaving lawyers encouraging mediation to solve most disputes. That is a good thing, but, where mediation cannot solve an issue, 18 months to three years is far too long for a matter involving property, let alone a matter involving a child.

The delay is due to judges leaving the court, essentially, and not being replaced. In 2014, we saw a judge move from Parramatta to Melbourne, so we lost one. We had another judge who took 560 days to be replaced, and we have another one now on sick leave who is due to retire in six months time and is not expected to be back before the courts before his retirement. That leaves us in a situation where, on a Monday a few weeks ago, we had four judges hearing matters in 12 courts, and one of those judges in the Family Court was handling 600 matters. He had 600 matters on his list. Judges usually handle around 300, which still sounds like a lot to me, as a layperson, but he is handling 600. We are hearing from barristers of judges effectively showing their stress levels in the courts themselves, which does not provide the kind of settling relationship with the families that we need in our family courts.

In November 2014, the Chief Judge of the Federal Circuit Court, John Pascoe, said:

The Attorney-General is aware of the pending retirements and of the court's heavy workload. I have indicated to the Attorney the pressure that is currently faced in particular registries such as Parramatta.

Then, in December last year, Chief Judge Pascoe said he was considering moving the judges who sit in Parramatta and the Wollongong courts to Sydney due to insufficient resources, despite Parramatta being one of the busiest courts in the country. So we have now the idea of closing the Parramatta registry being floated. The very idea that you would close a major part of your court infrastructure in the geographic heart of Sydney because the government has not appointed enough judges is quite extraordinary. The idea that the pressure in the court system would be so great that that idea would be even floated astonishes me. It astonishes me.

We have, as I said, a phenomenal legal precinct built within the last decade. It has a capacity to grow. It has a capacity to serve our community. We are going to see the population of Western Sydney double in the next 20 years. I would argue that we are going to see the population of Parramatta double in the next 10 to 15, given the amount of work that urban growth is doing with high-rise residential at the moment. We are not a declining community; we are a community that is growing, and we are a community where the need is only going to grow. And here we have the idea of the registry being closed because of insufficient resources seriously being floated.

Again I would ask the government, particularly the Attorney-General, to reflect on this. This is something that impacts on a large number of families in a way that nothing else does. At a time when the things that you thought were secure are falling apart or you are trying to re-establish your life, when you are struggling and arguing over custody of your child—and there is nothing more important than that—to be told that the wait could be three years is just not okay. I have seen parents who are not in that situation moved to tears by the idea that they might have been—that they might have actually been denied access to their six-month-old until that six-month-old was three or might lose contact with their 10-year-old and not meet them again until they are in puberty. This is not okay.

The level of strain and tension that is caused in these families that cannot find a resolution is beyond belief. The spirals of mental health that we see parents go into when they cannot find a way out, when there is no solution to something that is so profoundly important in their lives—the most important thing—are something that the government should reflect on. I have heard lawyers tell me how worried they are about the mental health of their clients over this, and I know that members opposite would understand this because we all have people who come to our offices who are in situations that they cannot resolve. We all see those spirals. We see the beginning of it. We see them becoming increasingly litigious. We see them give up their jobs to be full-time litigants. We see them bit by bit lose their connections with community as they become angrier and angrier and more obsessed with one element of their life. It is not okay. That is what I say to the Attorney-General: it is not okay.

In Senate estimates in early February, the Attorney-General said he was aware of the delays in the Family Court and said:

I wish I had more judges.

Well, so do we. So do we in Parramatta. He has appointed six new ones since then. He has done that. He has appointed six more, and I congratulate him for that because these delays are all over the country. But he placed them in Sydney, Melbourne, Brisbane, Perth and Adelaide registries. We did not get an extra one in Parramatta. Even with a judge retiring in six months on sick leave, we can see no improvement in our current circumstances and only increasing delays as that backlog continues to grow.

At the very least, I would urge the Attorney-General to make sure that he is ready to appoint when that judge does retire. He knows when he is going to retire. He knows the date. We cannot wait 560 days this time like we did last time. You do not leave families waiting that long. You do not leave them in those kinds of circumstances. And you do not leave judges in those kinds of circumstances either. You do not leave people who are handling incredibly complex and sensitive matters and who need their full capacity to do so in circumstances where they are handling double workloads under this level of stress. You do not do that to employees. You do not do that to judges. You do not do it to people who need their full capacity in place. And that is what is happening in the courts of Parramatta.

The judges will not be speaking out about this. They are doing what they do, although I have heard of occasions where they have lost it in the court and literally said: 'What do you expect me to do? I've got 600 cases.' That is not what you expect of a judge, particularly if you are standing there waiting for the judge to help you resolve one of the most important issues of your life.

Unfortunately, after those six judges were appointed, a spokesperson for the Attorney-General's office commented that the Parramatta and Sydney courts are now at 'their full complement of judges'. I beg to differ. If this current level is the full complement of judges then it is not enough. It is not enough. It is not okay.

The Attorney-General received a KPMG report before the 2014 budget, which he has refused to make public. It reportedly warned of severe under-resourcing of the Family Court, the Federal Circuit Court and the Federal Court—a $75 million funding black hole. I urge the Attorney-General to release that report and have a real conversation with our judges, the people who represent families in distress and advocacy bodies who represent those families about how we can ensure that our Family Court system is able to deal with the matters it has before it in a timely way. If there is change needed then make a change. If there are new ways of doing things and new ways of keeping people out of courts then do that.

Alongside the lack of appointment of judges we have also seen cuts to the legal aid services in the community that actually help people keep out of court. In my community we have the Macquarie Legal Centre. It is a fantastic centre. We have seen funding on again and off again. It is likely that there will be a 30 per cent cut coming next year. These are services that over time have built expertise, relationships and networks in the community. They assist people to make decisions early on, when their problems emerge, so they do not go down a protracted legal pathway. They are incredibly important resources, which the government have cut. In fact, they have cut those legal services three times since they have come to government. Again there is a lack of logic here: on the one hand they do not appoint enough judges but on the other hand they cut the services that help keep people out of court. It beggars belief.

Parramatta has lots of courts but no judges. Rockhampton is blessed in that it has one more judge than it has courts. A full-time Federal Court judge was appointed to Rockhampton but they have no court to sit in. We have a spare one in Parramatta—in fact, we have eight spare in Parramatta at the moment; they are fantastic courts—not that I want to take a judge from Rockhampton; I do not. I seriously urge the Attorney-General to have a look at what he is doing and perhaps plan a little further ahead than he is now. If he is going to appoint a judge, he should make sure that they have a court to sit in. If there is a great need somewhere else, he should make sure that those matters can be heard in a timely way.

I will finish by thanking the government for this bill, as far as it goes. It does make some machinery changes that will improve the efficiency in the back end of our courts, and that is always a good thing. It is always good to make sure that money is not wasted if there is a more effective way to do it. I urge the government seriously to look at the economic and social costs to families and ultimately our community of substantial delays of up to three years on things like property and custody matters. As I have said probably 20 times in this speech so far, it really is not okay that families are waiting that long for a resolution to disputes about the most important thing in their life, which is their child.

Steve Irons (Swan, Liberal Party) Share this | Link to this | Hansard source

I call the member for Moreton.

Graham Perrett (Moreton, Australian Labor Party) Share this | Link to this | Hansard source

Mr Deputy Speaker Irons, thank you for giving me the call. I know it is sometimes difficult for you to do so, so I appreciate it.

Steve Irons (Swan, Liberal Party) Share this | Link to this | Hansard source

It was a pleasure.

Graham Perrett (Moreton, Australian Labor Party) Share this | Link to this | Hansard source

I rise to speak on the Courts Administration Legislation Amendment Bill 2015. This bill at one level is quite simple in that it merges the corporate functions of the Federal Court, the Family Court and the Federal Circuit Court. I say up-front that the Labor Party are broadly supportive of this legislation. I will give a little bit of background. The Family Court and the Federal Circuit Court have jurisdiction to hear family law cases. As the shadow parliamentary secretary to the shadow Attorney-General I have a particular focus on family law. It was my area of law before coming into parliament. Since receiving this responsibility from the Leader of the Opposition and the shadow Attorney-General I have consulted right across Australia with family lawyers, I have employed a family law barrister and I have had a lot of consultation on family law—from Cairns to Townsville, Brisbane, Toowoomba, Sydney, Melbourne, Adelaide and even Perth.

The consultation with family lawyers and legal aid, who deal with the consequences of the breakdown of relationships, was certainly heartening and disturbing. It is always difficult when love turns to hate. I think 91 per cent of the filings in the Federal Circuit Court last year were for family law proceedings. I should point out up-front that, when relationships end or disintegrate, many people sort out their own lives outside of the court process or just need the arrangements they have come to signed off. Unfortunately, there will always be some relationships that require legal intervention. Seventy per cent of people who have contact with the family law legal process do not go to a trial but, unfortunately, some do.

The Federal Circuit Court and the Family Court hear complex family law cases, often involving family violence, abuse, mental health issues or drug addiction. On this day I would like to particularly acknowledge the judges and the staff who deal with the people presenting this information. It is often difficult information. Unfortunately, people can misrepresent facts. Often in these proceedings people are unrepresented and that creates additional stress where judges are trying to be supportive but obviously also need to be able to test the evidence. They need to be able to test what people are saying. Unbelievably—and it is hard to accept—sometimes people lie in these circumstances. People lie because when love has turned to hate they do not always act logically.

Sadly, there has been lately some strong and consistent criticism about the state of the Family Court in Australia. That criticism has been sustained for quite a while. From Launceston to Cairns family lawyers are speaking up and writing to the shadow Attorney-General and to me. They are writing to the Attorney-General because of the same concern, which is that delays are increasing. I note that the member for Parramatta and the member for Isaacs touched on this in their earlier presentations. People are waiting, in some cases, up to three years before they can get in front of a judge—three years.

There is no doubt that families are suffering because of these delays. When I say 'families', it can be the children especially, because the family law has a particular focus on children, but it is also the mum and the dad. All can suffer because of the uncertainty and the delay. A child living with parental conflict already has a tough cross to carry, but if they have to wait another year it would seem a lifetime for that child. If the conflict is continuing, and in some cases escalating, because of the delay, over a period of years that can literally be the child's whole life. Their childhood is locked into a set of circumstances where there is no certainty and the uncertainty creates extra damage, as I said, not just to children but to mothers and to fathers.

These delays have been made intolerably worse by the Attorney-General's tardiness when it comes to replacing judges in the family courts. The coalition have been in office for 910 days. It does seem a lot longer, but it is 910 days. Yet it took Senator Brandis, the Attorney-General, 560 days to replace a judge of the Family Court in Sydney. It has taken him 375 days to replace Justice Bell in the Brisbane registry, with the replacement judge still not yet sworn in—although I do wish her well. Across the country there have been Federal Circuit Court judges retiring and long delays in their replacements being appointed. I should just point out that this is not due to dollar issues. These positions are funded and budgeted for, and there is no saving for the government by not replacing the judges when they are going to retire. Remember: in the Family Court, we knew for about 40 years that Justice Bell was going to retire. There is a set time, so it is not as if it was suddenly sprung on him that Justice Bell was going to retire.

Delays in replacing retiring judges have caused huge backlogs of work that these registries will never recover from. If a judge gets sick, it is not as if their docket is taken care of. These delays are creating backlogs of misery and bottlenecks of heartache where families suffer because of the Attorney-General's tardiness. The former Federal Circuit Court judge Giles Coakes delayed his retirement for six months so that there would be no delay, yet still there was no replacement ready when he left mid last year. Judge Coakes reportedly 'accused the government of neglect for failing to appoint family law judges in a timely manner' and said that 'the delay in appointing judges had caused court lists to blow out and children had been put at risk'. I repeat that: children had been put at risk. Judge Coakes went on to say:

These (cases involve) … dysfunctional parents because of drug abuse, alcohol abuse, domestic violence in all its forms and mental illness … That represents a real danger to the children. Until a case can be heard and finalised by a judge, those risks … are continuing.

The Attorney-General finally appointed replacements for two judges in the Family Court and two judges in the Federal Circuit Court last week. Only now will this take those courts to a full complement of judges. However, the damage caused by the delay has already been done.

It is not as if the Attorney-General was busy with his Arts portfolio. That was stripped from him by Prime Minister Turnbull because of incompetence in that portfolio. He had time to focus on being Attorney-General. These delays are unforgivable. These are courts that are already under enormous pressure due to the nature of the cases that come before them, because people are often motivated by, perhaps, less than pure reasons when it comes to children and former partners. They can make all sorts of accusations, and it can be very difficult for judges to extract what is in the best interests of the child, what is truthful and how society will be better for their decision. A lot of faith is put in the reports prepared by the people that prepare the reports. It is not exactly a lucrative area of work, yet these reports about children are relied on as if they had been written in stone and brought down from Mount Sinai. So, if the Family Court report writer does not get it right, there can be incredible consequences for children. The Children's Commissioner, Megan Mitchell, was just this week reported as questioning whether the family courts can properly deal with the damage family violence does to children who are the subject of contested parenting applications.

So I would ask the Attorney-General, when it comes to dealing with the Family Court and the Federal Circuit Court, to do some broader consultation—to talk to the lawyers that work in this area. That is obviously very important. Family law lawyers are a very special breed of lawyer, I would suggest. It is a particular calling. So consultation with them is important, but so is consultation with the women's legal services, the people that provide advice about domestic violence, and the men's groups who are involved in this process as well. I am not sure that that consultation occurred with the Attorney-General's latest effort, which is the binding financial agreements. I am not sure if there was a lot of consultation with the women's legal services throughout Australia. That is not what I am hearing at all. So I am hoping the Attorney-General can do his job and focus on family law, because so much damage has been done by the delays.

As I said, I recognise that he appointed six more judges recently, and I particularly praise the Attorney-General for the fact that some of them had family law experience, but obviously I could then spend another couple of hours talking about the consequences of the legal aid cuts and the uncertainty out there in the community legal centres, where people are waiting for cuts of up to 30 per cent to be rolled out—people that want to feed their children, pay their mortgage and all those things that lawyers need to do. Some of them will take their experience, leave the community legal centres and find work elsewhere, and that will be a great shame, because it is not exactly well-remunerated legal work, but it keeps society humming along. That is not just me, a bleeding heart leftie, saying that. The Productivity Commission actually said this. They said we needed to pump more money into the legal aid system. The Productivity Commission, not exactly a bastion of left-wing ideals, are saying there should be more money pumped into it.

The bill before the chamber will merge the corporate functions of the Federal Court, the Family Court and the Federal Circuit Court in order to make savings through efficiencies, a measure that was announced in the 2015 budget. The three courts will share their corporate services. The CEO of the Federal Court will have responsibility for managing these shared resources. There has been consultation with the shadow Attorney-General, and I would commend those who are doing the merger on the consultation with unions and with those who will have to work under the new regime. Obviously all change is stressful, but the people merging these corporate services have done a good job. I would commend them for that. I am sure those reporting to the Attorney-General will report back that I do have something nice to say about some parts of the process.

This measure was first announced in the 2015 budget, as I said. Labor supports efforts to streamline corporate functions of the three federal courts. Although there is some concern from the Family Court as to how this measure will be implemented in a practical sense, but I am hopeful that will be sorted out. It will achieve some modest savings—it will not go anywhere near resolving the problems facing the courts at the moment—but Labor supports this measure as it is a start. They say that a journey of a thousand miles starts with a single step, so I am hoping that the Attorney-General does not rest too long after taking that first step. I wish him well with this piece of legislation.

Terri Butler (Griffith, Australian Labor Party) Share this | Link to this | Hansard source

I rise to speak in respect of the Courts Administration Legislation Amendment Bill 2015 because, of course, the significant under-resourcing of the family law courts, by which I mean the Family Court of Australia and the Federal Circuit Court, is a problem for access to justice generally but is specifically a problem for people for whom family violence is an issue.

Last year, in October, the Honourable Chief Justice Diana Bryant AO of the Family Court of Australia gave a well-received paper called 'The Family Courts and family violence.'In that paper, she indicated that family violence is a feature in about 41 per cent of the matters filed in the family courts. In noting that, the Chief Justice went on to identify 16 different, separate and discrete complexities facing those courts in responding to family law matters in which family violence was a feature. I think it is important to remember that as the workloads have grown, in terms of the number of cases for the family courts, so has the complexity. So not only have you seen increasing numbers but also you have seen a qualitatively more complex case load, and therefore a heavier workload.

In her speech, the Chief Justice spoke quite bluntly about funding and resourcing for the courts. She said it was very pleasing to see that the federal government had announced a $100 million package aimed at addressing family violence. But while acknowledging that, she said:

… I cannot but be concerned that the crucial role of the courts (and the corresponding necessity of resourcing them properly) has not to date been recognised as part of addressing family violence.

She went on to quote approvingly Fiona McCormack, the CEO of Domestic Violence Victoria and her colleague Prue Cameron, who had written in an opinion piece in the wake of the government's Women's Safety Package announcement as follows:

… this funding, welcome as it is, will not come close to filling the significant budgetary shortfall across the family violence system which has left specialist women and children’s services, legal services and the court system struggling to meet the demand which is growing exponentially.

The Family Court Chief Justice went on to make a number of significant comments. At this point, it is important to recall that there had been tens of millions of dollars worth cuts to legal services, both community legal centres and legal aid commissions, by this government that have yet to be rectified, cuts that we have observed and that we made very clear in our International Women's Day package last year that we will seek to redress. We have $50 million for funding for community legal centres and legal aid commissions, including funding for Aboriginal and Torres Islander legal services, because we understand that access to justice is important, particularly in a situation where people are escaping family violence.

It is not just the Chief Justice of the Family Court who has been so blunt, frankly, in her comments about the under-resourcing of the courts. The Chief Judge of the Federal Circuit Court—it is important to remember that an unwilling majority of family law matters are filed in the Federal Circuit Court—has become increasingly open in his criticism of this government's failure to properly resource the family court system, especially including his own federal circuit courts. He received Australia Day honours this year and he used the opportunity of having been given the Australia Day honours to highlight the issues in family court resourcing. In an interview with the ABC at the time, he actually called for more resources in regional Australia, where some families are waiting years—where you have a critical family law matter underway, and you might also have state court matters, DVO orders and child protection matters underway at the same time—for a final court hearing to settle disputes such as dividing property and parenting orders. He said:

If we really want to look after the children of Australia, we have to put resources into dealing with issues such as family violence which have a long-term effect on children as they grow.

He was very clear in his criticism of this government's failure to adequately resource. He drew out the example of Wollongong, where the wait for a final hearing for a family law matter in the Federal Circuit Court was now more than three years. Of course, the benchmark required of the courts is that 90 per cent of hearings be finalised within 12 months. They are nowhere near that even now. If you look at the annual reports, you will see that the most recent one indicated that only 73 per cent of matters were being determined within that time and therefore the benchmark is not being met. That is directly a consequence of this government's failure to properly fund the family law courts. It is a direct consequence of the scandalous under-resourcing of the courts and the consequence of that is long waits for people with family law matters that are complex, in a situation where we know that 41 per cent of these family law matters have family violence as a feature. It is a disgrace, and it is something that this government ought seriously to attend to.

Bruce Scott (Maranoa, Deputy-Speaker) Share this | Link to this | Hansard source

The debate is interrupted in accordance with standing order 43. The debate may be resumed at a later hour.