Helen Polley (Tasmania, Australian Labor Party) Share this | Hansard source

I rise to speak on 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.

The government should really own up to what they are seeking to do with these bills. They are seeking to abolish the Family Court as a specialist and standalone superior court. The Family Court of Australia was established by the Whitlam government in 1975 to serve as a specialist court to resolve complex legal disputes relating to family law or for families in crisis. The Family Law Act, which established this court, also instituted no-fault divorce. This system is one of Australia's most important pieces of social infrastructure and plays a vital role in resolving the legal aspects of family separations and other disputes and in protecting children and victims of domestic violence. Like most of the great social reforms that have occurred in Australia—from Medicare to our world-leading superannuation system to free legal assistance services for Australians in need—the Family Court of Australia is an institution that has served our nation and its people very well.

The Morrison government is not proposing to reinstitute fault-based divorce. But what it is proposing to do is undo the second of the major changes introduced by the Family Law Act, which was to establish the Family Court of Australia as a specialist superior court. The government's bill would combine the Federal Circuit Court and Family Court into one court with two divisions. That court would be called the Federal Circuit and Family Court of Australia, or FCFC. The current Family Court of Australia will become the FCFC (Division 1), while the current Federal Circuit Court of Australia would become the FCFC (Division 2). Like the courts that they would be replacing, the Federal Circuit and Family Court (Division 1) would deal exclusively with family law matters, including complex matters, while the Federal Circuit and Family Court (Division 2) would deal with family law and other federal law matters. The FCFC divisions 1 and 2 would operate under the leadership of a single chief justice and deputy chief justice, with a single set of rules and a single point of entry. The Appeal Division of the Family Court would be abolished. Instead, all Federal Circuit and Family Court (Division 1) judges would be able to hear appeals either as a single judge or as part of the Full Court.

Attorney-General Christian Porter has previously expressed an intention to not appoint new judges to the FCFC Division 1 as they retire. That would amount to the gradual abolition of a specialist family court over time and that work being absorbed by the FCFC Division 2. The Attorney-General has now backed away from the position and promised to keep appointing judges to Division 1, but nothing in this bill would guarantee the continuation and existence of Division 1. The Attorney-General made his intentions for this merger very clear in the last parliament. Yet now he's saying, 'Trust me.' Well, I'm sorry, Mr Porter, but, unfortunately, we can't trust you as the Attorney-General of this country.

In my home state of Tasmania, the Morrison government has failed to appoint another judge to hear family law cases. This is causing delays across the whole state, exacerbating the anguish for families who are already going through a difficult time. Now we have the situation where one judge is doing the work of two, and this just isn't acceptable.

The proposal to merge the Family Court with the Federal Circuit Court is not based on any consultation with Australian families or family law experts. It is principally based on a six-week desktop review by two accountants from PwC. Not even this report endorses the government's proposal. As the authors of that report informed the committee inquiry into this legislation, they were not even asked to consider detailed reform opportunities as part of that review.

As I know from my work on the Joint Select Committee on Australia's Family Law System, the committee has received over 1,700 submissions, and the overwhelming majority have expressed the harm that is proposed by this merger and the additional hardship and harm that could be and will be afforded to vulnerable children and their families. In the committee's interim report, which was released last year, we found there is no persuasive evidence that these bills and the proposed merger would address any of the many problems plaguing the family law system. Since 1995, there have been 11 investigations carried out into the family law system—11 reports obviously still gathering dust in the minister's office. These inquiries have returned recommendations with similar themes regarding the need for improved resourcing, the need to reduce the time it takes to resolve disputes and the importance of having a specialist jurisdiction to deal with family law matters and family violence.

Further, in late 2018, the Australian Law Reform Commission completed the most comprehensive review of Australia's family law system that has ever been conducted. The Australian Law Reform Commission did not recommend the proposed merger of the Family Court and the Federal Circuit Court, but it did make 60 recommendations for improvements to the family law system. I wonder how many of those 60 recommendations have actually been implemented. I would suggest—in fact, I know—zero, none of them. The government has yet to respond to, let alone implement, the Australian Law Reform Commission's recommendations. In direct opposition to these recommendations, the coalition is pushing for the merger of the Family Court and the Federal Circuit Court. Overwhelmingly, the advice states that a loss of the specialist Family Court would increase the risk of harm to children and victims of domestic violence. Witness after witness—experts and former Family Court judges—has given that evidence to the inquiry.

We need to question the Morrison government's emphasis on increasing efficiencies as well as their claim that their proposed court merger will achieve this. Reform should strengthen the system and not be there to undermine the quality of services being provided to families in crises. If anything, the need for a specialist court has only become more pronounced over time. What has become increasingly obvious is that the key issues associated with the family law system are: cost, delays, the adversarial nature of family courts, how family violence is considered, the role of independent children's lawyers and the overall appropriateness of the legal framework.

There is a need for an increase in specialisation in family law and family violence to facilitate an increase in safety, especially for those who are disproportionately impacted. This is supported by the evidence on many government commission inquiries. The process should be streamlined so that there is a single point of contact for families, but this shouldn't be at the loss of a specialist court. That's not the way to do it. There are many benefits associated with having a specialist court system, which is widely regarded as delivering better results for families having to use it. The benefits include higher quality decisions and legal consistency and efficiencies. The specialisation enables members of this court to be appropriately qualified and trained to do better and to understand the nature of and the features and dynamics associated with family law and family violence. This acknowledges and allows those individuals to be better assisted and to not become even more damaged victims of the system itself. Since 2012, the number of Family Court cases has grown by 34 per cent, and Federal Circuit Court cases have increased by 63 per cent.

There is a real concern that the proposed merger will compound current issues associated with a lack of funding. We need to question the emphasis of this move increasing efficiencies, where, realistically, it will be taking funding out of an already chronically underfunded system. Instead, we need to focus on the reforms that can be better delivered safely for children and adult victims of family violence. The proposed merger fails to address the systematic issues entrenched within this system. Everyone accepts that there are serious problems in the Family Court presently. The main cause of those problems is not a mystery. As the Australian Law Reform Commission found, the family law system has been deprived of resources to such an extent that it cannot deliver the quality of justice expected in a country like Australia. Other countries once looked to and tried to emulate Australia's system. Family Court and Federal Circuit Court judges have not been replaced in a timely manner. Funding has not increased in response to increasing demand. Review after review—including many dozens of sensible, measured recommendations—have been ignored. But, instead of working to fix the family law system, the government remains determined to restructure the Family Court and the Federal Circuit Court in a way that will make a bad situation worse for Australian families, including vulnerable children.

Australia has developed a world-leading family law system. However, chronic underresourcing by successive Liberal governments has resulted in long delays and increasing costs for families in crisis. This has resulted in harm for those who are already some of the most vulnerable members of our community. The government have a wealth of recommendations and resources to enact meaningful change and prevent victims from falling through the cracks. Why won't they?

These bills will do nothing to help Australian families, and the fact that the government are trying to rush through this legislation before the family law committee releases its final report is very telling. They know that the report will not recommend a merger of the Family Court and Federal Circuit Court, but they want this legislation to go through regardless.

There's nothing in these bills that will increase the number of judges, registrars and other court staff. There is nothing in these bills that will force the Attorney-General to do his job, even something as basic as appointing new judges as vacancies are created. The former speaker spoke about his work on the committee. I agree that all members of that joint committee have been working diligently and taking evidence, but you cannot have sat through any of those public hearings and not felt deep sadness for what is happening in this country when families go through a breakdown of their relationship. The impacts on those families, and particularly those children, are just devastating. You cannot put a price on the cost to their mental health. So these continual delays are doing more and more harm to those children who have already been greatly affected by separations of their parents.

Therefore rushing these bills through without waiting until that final report has been handed down—they've had plenty of evidence from the interim report already—is irresponsible. There are 11 reports and 60 recommendations all gathering dust at the Australian Law Reform Commission, and not one of them has been acted upon.