Anne Urquhart (Tasmania, Australian Labor Party) Share this | Hansard source

I rise to make a contribution to this matter of public importance debate on a proposed review of Australia's Family Law Act 1975. It should come as a shock to no-one in this place that the family law system in Australia is in crisis after four years of inaction and underfunding from the Abbott-Turnbull governments. After four years of attacking free legal assistance, resisting cross-examination reform, failure to appoint judges and creating crushing backlogs in the work of the court system, the Attorney-General had a self-proclaimed reinvention as the saviour of the Family Court system in May of this year. As part of this reinvention, the Attorney-General announced a review of the Family Law Act by the Australian Law Reform Commission and, somehow, it's taken five months to write the terms of reference. Without doubt, the Family Law Act and its administration are extremely complex and it is vital that the terms of reference are comprehensive and wide-ranging. However, if the development of these terms of reference is taking a long time then for Senator Burston to rush in here and condemn the government for its inaction on a review that has a preliminary reporting date of the end of next year is up there in typical One Nation antics in this place.

I noticed that two weeks ago the Australian Financial Review reported that the government would release the terms of reference shortly. It has been advised that the government has delayed the commencement of this review as it wanted to give priority in the Law Reform Commission's workload to examining Indigenous incarceration rates. I note that submissions for the inquiry on Indigenous incarceration rates closed today, and it has an expected reporting date of 22 December this year. While there is a good argument that the Turnbull government should adequately resource the ALRC to conduct at least two important inquiries simultaneously, if there are workload issues within the ALRC then it is vital the current matter is not rushed—and that is investigating what is an unambiguous national tragedy. The ALRC has the time and resources to conduct a thorough inquiry and make what will no doubt be very important recommendations on how we treat our first peoples both directly in relation to the justice system and indirectly that may lead to issues with the justice system later on.

On the Family Law Act, without doubt family law and the functioning of our Family Court system is an important topic to debate. However, it appears the spirit of Senator Burston's matter of public importance is premised on rushing a review that actually needs to be wide-ranging and thorough. This review needs watertight terms of reference, not ones that have been slapped together to suit the One Nation agenda. With the passage of the Family Law Act in 1975, Australia's family law system is over 40 years old. On the whole, it has served us well. But, as with all legislation and government programs, it is timely for a review to be held to address areas that are causing delay, distress and poor outcomes.

I note that, since 1975, the act has grown and become more complex. For example, part VII of the act, which deals with children's matters, has increased from 2,700 words to more than 47,000 words, while the whole act is now comprised of 15 parts, 125 sections and countless subsections. With the size and complexity of the Family Law Act, there is no doubt that a review is timely. Indeed, many judges and legal academics have written on the laws' complexities and the need for reform. I note that a 2015 article in the journal Australian Family Lawyer was titled 'Deciding parenting cases under part VII: 42 easy steps'. I have read many guides and articles over the years, but I've never heard of 42 steps to resolve an issue being described as easy!

This headline demonstrates the lengthy pathway required within the current legislation, which erodes the valuable time of judges and places considerable pressure on children, parents and families. The author of the article described the legislation and its 42 easy steps as a complex and impenetrable legislative scheme. Disturbingly, another former justice wrote in the same edition of Australian Family Lawyer that the current family legislation is commonly misunderstood by litigants, and parties may well be settling parenting disputes in the shadow of a misunderstood law.

It is fair to say that the Family Court is reaching a crisis point. Some families have to wait up to three years to have even an initial hearing for their cases. For a child caught in a custody dispute, that can be a lifetime. So, what has this government done for four years? Instead of getting on and appointing new judges when vacancies arise, the Attorney's great idea in this year's budget was to introduce quasi-judicial parental management hearings. Without any consultation the Attorney proposed that a panel of counsellors, lawyers and social workers have the power to investigate custody disputes and make binding rulings. Parents will not be permitted legal representation in these hearings. Such a hearing is completely inappropriate in the one in five Family Court cases that involve domestic violence.

It is Labor's position that custody battles are one of the most complex and serious elements of family law and should remain in the hands of judges. I remind the chamber of those 42 easy steps. If the complexity of the current Family Law Act is aggravating the difficulty faced by all the parties in the dispute, then the last thing Australian families need is for a quasi-judicial panel of lawyers, counsellors and social workers to hold hearings without judges and without the presence of private counsel.

It is worth briefly examining some proposals from One Nation in the lead-up to last year's election. It is interesting that these policies no longer appear on the One Nation website. First of all, One Nation proposed abolishing the Family Court and replacing it with what they called a 'family tribunal'. The members of the tribunal would consist of mainstream Australians from local community groups with no expertise in mediation, counselling, family law or referrals. Critically, mediation is already the mandatory first step before filing an application in the Family Court or Federal Circuit Court. Family relationship centres have been around for over a decade. As the first point of entry they offer expert mediation and referral services for separating couples. The quasi-judicial panel aspect of the new parental management hearings proposed by the Attorney-General looks, at face value, to be similar to the One Nation policy. I am sure that Australians will be interested if the Attorney took inspiration from One Nation with this policy.

Secondly, One Nation proposed joint custody as a standard when children are involved. It is important to note that under part 7 of the Family Law Act children have many rights. Parents have none—parents have duties and responsibilities but no rights. The decisions are always made in what is the best interests of the child. Rather than mandating a specific joint custody split, it is best for an experienced judge to examine the facts and make a determination.

In comparison, at the last election Labor made a number of commitments that would make a practical difference to families. Those include increasing the number of judges, to provide for more timely determinations of matters in the Family Court; reforming family law to ensure that victims of violence are protected from being directly cross-examined by their abuser, so that they are not re-traumatised by the court process—I note that the Attorney-General proposed amendments in this space a few months ago; and delivering an additional $88 million to fund safe housing for women escaping domestic violence, so that women are not turned away from refuges, as happens in many places around the country today because there simply are not enough places.

In closing, it is my hope that the terms of reference, when they do eventually arrive, propose a comprehensive and wide-ranging review of the Family Law Act. It is clear that One Nation's opinions in this space are dangerous and ill thought through. They will do nothing to improve the functioning of our family court system and do nothing to improve the lives of the many children who are facing immense trauma through their parents' separation.