Rex Patrick (SA, Independent) Share this | Hansard source

I rise in support of the government's 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, which will merge the Family Court into the Federal Circuit Court to create what will be known as the Federal Circuit and Family Court of Australia. In doing so, I think it is worthwhile going back through the history of this legislation. When this legislation was first introduced in to the last parliament, it was actually a proposition that involved the abolishing of the Family Court. It involved putting family law responsibilities within the Federal Circuit Court, and appeals from matters in the Federal Circuit Court would go to the Federal Court, where, indeed, there were no specialist judges in family law. It also had some other characteristics, such as a passing of responsibility for the making of rules to the Chief Justice.

In late 2018 there was a Senate inquiry examining that legislation. That Senate inquiry travelled across five days to Perth, Adelaide, Sydney, Brisbane and Townsville, examining those changes. I'll provide a little bit of background history. That was close to Christmas. I spent some of my pre-Christmas period sitting in my office writing a scathing draft dissenting report, which was going to go into the committee report. Out of courtesy I sent it to the Attorney-General. The Attorney-General considered it and actually came back to the parliament with a substantially altered bill. This bill actually almost gained the support of the parliament. I seem to recall Senator Hinch being the last person on the crossbench to resist the bill; otherwise support was there for the government to pass the bill.

So I think it is very important when we listen to contributions, and I have listened to the contributions made by Labor senators, that we are not talking about the bill that came to the 45th Parliament; we are talking about a substantially modified bill. When Labor senators stand and say that this bill involves abolishing a superior court, it does not. The provisions of this bill are very clear: it retains a superior court of family law justices, specialist justices. It also retains a specialist appeals division. So to stand up and suggest that this bill in any way is abolishing or breaking up a superior court is just simply wrong; that is not what the provisions say.

I will now come back to some other things that have been said that are, in my view, misleading or ill-informed. Let's talk about what this bill does do. Currently, we have a situation where family law matters are dealt with in two jurisdictions. One of them is a specialist division of the Federal Circuit Court; it is the family law section of the Federal Circuit Court. That generally deals with relatively simple matters. I am not suggesting anything about family law is simple but, in the spectrum, the more simpler matters are dealt with by the Federal Circuit Court in its family law division. The more complex cases are sent to the Family Court, where superior court justices deal with the matter. And appeals from both of those original jurisdiction courts do go to the appeals division of the Family Court. That is the way it currently exists. So just to make it simple, there are three jurisdictions: the FCC jurisdiction, the Family Court original jurisdiction and an appeals body.

What this bill does is simply take those three jurisdictions and puts them under a common roof. So there will remain a Federal Circuit Court that has a specialist family law division and has requirements for the types of judges that are appointed to that division. They must still have experience and be appropriate appointments by way of their background knowledge. The current bill also has a superior court Division 1, which is effectively the transfer of the Family Court into the new court. They are all the same justices, and there will be an appeals division of family law justices, superior court justices, who will hear matters on appeal.

There is a subtle difference in that right now in the Family Court there are specified appeal justices, people who sit only on appeals matters. That will now change under the new arrangements. The new arrangements will have appeals from either Division 1—the superior court division—or from Division 2, which is the old FCC family law division. They will go to a bench that is drawn from justices in Division 1. So no longer would justices get to sit only on the appeals bench; they would have to come down and do original jurisdictional matters, but any justice may find themselves now on appeals. You know what? That's exactly how the Federal Court works. So in some sense it harmonises the way in which appeals are dealt with across the two federal superior courts. We need to recognise that that is what this bill is doing.

It also permits common entry points so that, when you have a family law matter, you can simply make application to the one court and then, based on the arguments that might be presented by people who are represented or by lawyers representing people, or indeed, if people are self-represented litigants, based on the nature of the application and the data associated with that application, and, again, depending on complexity, that will either go to Division 2, which is the judges of a court of record, or, alternatively, be referred to Division 1, which is the superior court. So we'll have a streamlined entry port. Now, there are those who are saying, 'That's happening anyway.' And that is true; that is happening. But, at the moment, if I wish to lodge a matter in the Family Court, I can do that. Even though the court might suggest I should do it in the FCC, the Federal Circuit Court, I have a lawful right to make an application to the Family Court. This bill changes that so everyone is funnelled through the same system. That creates some efficiencies.

There are also rule changes to harmonise the rules between what was the Federal Circuit Court and what was the Family Court. Having been involved in matters in both of those courts, I can tell you that there are two volumes to the Family Law Rules and there is a different set of rules in the Federal Circuit Court, so if someone is a self-represented litigant, they have to switch to a different context as they go from court to court. The arrangements will now be harmonised; there will be a single set of rules. The original bill sought to grant the power to the Chief Justice to change those rules unilaterally. That has now changed. So that the new common rules can be established, I understand the government will move amendments that restrict the time period in which the Chief Justice can make the rules to only the transition period; changing the rules will then go back to the manner in which the courts do so presently.

In respect of this bill, there is a necessity in relation to both harmonising the rules of the court and also streamlining through a single point of entry. So that's what the bill does, and I am in support of the efficiencies that flow from that because we do need to have a court system that removes some of the inefficiencies that are there at present. I will go to some of the claims that have been made in the contributions thus far. Senate Watt stood up and said that we're now seeing matters shared—that immigration matters and family law matters will be mixed. That's simply not the case. Right now there are two divisions of the Federal Circuit Court: the family law division and the general division. That's exactly what is there now, and this bill does nothing at all to change that. It's status quo in that regard.

Other contributions have suggested that this is the erosion of specialisation. No. The same judges that are in the Family Court right now will sit in the new court. The same judges that are conducting appeals will sit in the court. They are specialist judges. Indeed, the legislation, if people bother to read it, does state a requirement in respect of the expertise that must be present before someone is appointed to those courts. But, even further—and I understand amendments to this effect will be circulated shortly—the government has agreed to put in the primary legislation a minimum number of Division 1 justices. Understand that the Attorney-General right now, or a future Attorney-General, if he or she were to choose to do so, could simply not appoint judges to that court, and eventually it would disappear. The changes we'll see today by way of an amendment that I understand the government will circulate will introduce a minimum number of Division 1 justices, which means only the parliament can rid us of that specialist knowledge. That's a strong commitment and, in fact, a strong change where we're actually doing the reverse of what is being suggested, which is the erosion of the specialist court, and embedding it in law so only the parliament can ever change that. That's another aspect of this bill. So, when people talk about an erosion of specialisation, actually this strengthens that. It ensures that we never lose a core of superior court justices dealing with family law unless the parliament permits it, going out into the future.

I just ask people when they're listening to the debate to focus on the provisions of the bill, to focus on what the bill is trying to do, which is to streamline matters as they pass through the court to make sure that we have common rules but also to make sure that we have the right and appropriate levels of skills of judges and justices dealing with these matters. There are still specialist justices. There are still appeals to specialist justices. That does not change as a result of this bill. This bill is about making efficiencies.

I'll concede that I think more resources are required. I am hoping the government will, over time, expand the resources, because that's absolutely necessary. But this is a change that seeks to gather efficiencies, and it is for that reason that I am supporting it.