Kimberley Kitching (Victoria, Australian Labor Party) Share this | Hansard source

I rise to speak on Senator Burston's matter of public importance. We do agree this is a significant issue that does need to be looked at. We would look at the statement from the Attorney-General, Senator Brandis, at the time of the May budget this year, when he asked the Australian Law Reform Commission to review the Family Law Act 1975. I would note they do say that this will be the first comprehensive review of the family law system since the commencement of the Family Law Act in 1976 and that this is a necessary examination of that system. So, it's not only for frontline family law services but also for family violence services. I do question, as Senator Burston does, whether the government is taking this seriously. No further announcements have been forthcoming, other than Senator Brandis saying on 20 August that the terms of reference would be announced soon—but no further detail.

I would also note that, on Thursday last week, at the state memorial service for Australia's first Minister for the Prevention of Family Violence—Fiona Richardson, who was also the Victorian Minister for Women—the Commonwealth Minister for Women did not attend that state memorial service. She may well have had other duties to attend, but it was a shame that she couldn't be there. Fiona Richardson made a great contribution in this space. The royal commission that the Victorian government held in this area was of great importance, and Senator Burston may well be aware of that royal commission.

In relation to the timing, I think this has fallen by the wayside. Since May, we haven't had any announcement other than it will be soon. The Family Law Act was a great reform of the Whitlam Labor government, and we believe that the act has generally worked well. It may well be that, after 40 years of the act's operation, there will be aspects of the act that do merit review. There are serious issues relating to family and domestic violence and to the capacity of the Family Court to deal with the backlog of cases that it has, and the ALRC might well usefully examine that backlog.

I want to go to a particular part of the funding, which is around the parenting management hearings. One of the problems is that what that might actually be has been a little vague. It has been budgeted for $12.7 million. It has caused great confusion in the legal fraternity. As senators would be aware, there are many family law practitioners, so they specialise in that area of the law. They are very confused about exactly what a parenting management hearing will be or what it might entail. It also appears that some government members, and perhaps even the Attorney-General himself, are unclear about this measure. He described it in his media release after the budget announcement as being 'a forum to resolve simpler family law disputes between self-represented litigants'. However, during Senate estimates, Senator Brandis said that he wanted to deal with the most difficult and intractable of those matters that come before the family law system—children's matters at the start. The member for Corangamite has also given some form of definition to 'a parenting management hearing', and that is that they would not include contested matters. But, in his media release, the Attorney-General said:

… those managing the hearings will run inquiries and gather evidence to inform their decisions.

The description in the budget papers says that parenting management hearings 'will be given powers to make binding determinations'. However, during Senate estimates, Senator Brandis said that determinations will need to be embodied in a consent order, so you can see why family law practitioners and litigants alike might well be confused. If the determination of this parenting management hearing is embodied in a consent order, as Senator Brandis suggested during estimates, before it becomes binding, then it won't have much weight. Parents would essentially have to agree with the determination after the hearing and then sign a consent order confirming that they agree. I just can't see that working in the family law system.

Part of the other problem has been that when judges in the Family Court have retired they have not been replaced. There are currently a number of judicial vacancies in the Family Court and the Federal Circuit Court. That is inexcusable, and it's a disgrace. The reason for that is that you can't complain about the fact that there are all these matters not being dealt with and, when it's within your purview to actually replace judges, then not do so. I do think that the Attorney-General has made this situation worse. The family law system has become worse because we have, of course, seen his attack on free legal assistance, the resisting of cross-examination reform and the creation of crushing backlogs in the work of a court system. So, really, to say that this money and this budget measure is going to save the family law system is a little galling, to be frank.

I think the Attorney's own inexplicable failure to appoint judges to vacant positions is causing ongoing pain to families, and this terrible situation is not fixed by any measure of any budget announcement. There are five vacant positions. Because of the delays in appointments, some families are having to wait up to three years to even have an initial hearing for their cases. For a child caught in a custody dispute, that can be a lifetime. Remember, this is a judicial system that is really trying to put the child at the centre of those hearings, so this is a total systemic failure of this legal system. There may well be, also—this is also unclear, and perhaps the Australian Law Reform Commission may look at this as well—a quasi-judicial panel of counsellors, lawyers and social workers who will be given the power to investigate custody disputes and make binding rulings. There's no information, however, available as to how these appointees will be accredited, how the system will be regulated and what safeguards would be in place to ensure the hearings are run responsibly. We would be concerned that the decisions would only be reviewable by the Federal Court, which does not normally deal with family law matters. Part of the problem as well of that is that the scale costs can be prohibitive in the Federal Court.

Parents would not be permitted legal representation at the parental management hearings, so this would be a serious concern for about one-in-five family law matters where domestic violence is involved. As you can imagine, people who are going to hearings that involve their partner, at the hands of whom they may have suffered domestic or family violence, are put in a terrible position if there is no safety net or no representative. They are dealing naked, as it were, with their partner or their former partner, who may well have committed acts of family violence. This is also a concern, obviously, for children involved in those cases and those situations.

One of the simpler solutions, of course, would be to appoint more judges, and this is a very easy solution for an Attorney-General to effect. At the very least, the longstanding vacancies should be filled. We would welcome an Australian Law Reform Commission inquiry. We feel that there would be a number of responsible submissions and that it would address gaps in the act that weren't so readily seen when the Family Law Act was first introduced and legislated. (Time expired)