Kim Carr (Victoria, Australian Labor Party) Share this | Hansard source

Senator Patrick says that Labor senators have been misrepresenting this bill and have no understanding of the detail of the bill. I would just say to him that I am currently the Deputy Chair of the Legal and Constitutional Affairs Legislation Committee, which was tasked with reviewing these particular bills and I think therefore is able to deal with the evidence that's presented to this committee in regard to these specific measures.

I might say that, if you think the Labor Party is having trouble understanding these bills, you'll find that just about every legal organisation in the country is supporting the contentions that are being put forward by the Labor senators about the actual intent of this bill. Given the history of this legislation, it's not surprising that people would be so suspicious and so doubtful of the minister's alleged conversion to the need for a specialist court system for family law. It's not surprising, just given the maladministration of family law in this country under this Attorney-General, that people would be concerned that the minister has to now come forward with amendments to actually specify that there will be judges of a particular type in this court. Why wasn't that in the original bill if the government was so committed to it? It's one measure after another, one backstop after another, one backflip after another by this government in regard to this legislation. Remember the original intention of the government was not to appoint judges to this category of jurisprudence, to let it wither on the vine. That was the whole point of this political exercise. But, Senator Patrick, you've had this conversion on the road to Damascus, and you'll be able to persuade the minister because of your brilliantly worded minority report! And he's suddenly found that there is the need for change to his bill. You should be congratulated, but if you think that's actually how this government functions—you've been here long enough to know that's simply not true.

Now, simple facts here on the current arrangements: as of 21 January this year, there is one Federal Circuit Court judge in Brisbane who has over 600 cases on their docket; there are 18 judges across the country with between 400 and 500 cases, and that's including in Adelaide, in Sydney and in Rockhampton; and, on 21 January this year, the average number of cases across all of Federal Circuit Court judges was 330. That's an average of 330 cases per judge. These are the people you think we should be trusting, we should be relying upon, in terms of the administration of family law in this country? We should just take their suddenly discovered conviction that they are going to be committed to the proper administration of family law in this country given the gross underfunding of family law in this country?

Now, the government senators on this inquiry—and we know the job of the government senators in these types of inquiries is, of course, to find the defence of the government no matter how indefensible the government's position is. We all understand the nature of their task. The senators themselves indicated on pages 33 and 34 of their report that there were weaknesses in the government's approach and there had to be amendments to it. Now, we had the support of over 110 organisations at the time that we actually produced the minority report. Just today, there are many more organisations on top of that calling for this bill to be rejected because there are fundamental flaws in the approach that's been taken by the government in terms of this legislation.

We've got a problem here where the government simply has been negligent and negligent for some time when it comes to family law, so it does actually pay for us to go back to talk about the fundamental principles here. I think one of the great achievements in terms of the family law goes back to with the Whitlam period. Two great major and complementary changes from the Family Law Act 1975 were the institution of the no-fault divorce principle and, of course, the establishment of a specialist family law court in this country. That was a multidisciplinary court for the resolution of family disputes.

I think it is generally understood that family law matters are one of the most stressful points in people's lives. They do require us to pay particular attention to just how serious these questions are. With delays in the processing of family law cases at the moment, with many months taken just to get a consultant organised, let alone to get a judgement, you can understand just how deeply distressing the consequences of the maladministration in this area are for people directly concerned. But it's nowhere as bad as it was when the original divorce meetings were on prior to the Family Law Act in the Matrimonial Causes Act 1959, which set out that there were 14 grounds for divorce, I remind senators who might be looking at these issues. Those grounds included adultery, desertion, habitual drunkenness, imprisonment and insanity. To get a divorce, a spouse had to prove that the other party was, of course, at fault.

Private investigators did extremely well out of the divorce law as it existed prior to Family Law Act. Australian men and especially Australian women did not. So it helps to remind ourselves of what Whitlam actually said back in 1975. He said:

Let us keep in mind that marriage is essentially a human relationship between 2 people. It takes 2 people to make a marriage but it takes only one to break it. Idealists might wish that it were otherwise, but it is not. It is time society acknowledged that simple fact. We have no right to condemn 2 people to live together in misery and suffering for a moment longer than necessary. Ultimately the only test of a marriage is whether both parties agree to maintain it. If one party is unwilling to maintain it the marriage has broken down.

So, since the commencement of the Family Law Act in January 1976, the only grounds needed for divorce, appropriately, are irretrievable breakdown. That's why the supporting jurisprudence around that issue was so important. Spouses no longer have to go through the pain and the expense and the humiliation of trying to prove that the other person was at fault. I presume the government's not planning to go back there, but you never know with a government like this; I presume that's not the case. What we ought to have, though, is an understanding that the government will ensure that the Family Law Act is administered properly and that the government lives up to what its stated position is, about efficiency.

One would expect that, if the government's going to introduce substantive changes, as contained in a bill like this, there is sound evidence to support the claims that are being made by the government. I think anyone that does actually look at the evidence, to quote Senator Patrick, should be prepared to be disappointed. Evidence was the basis on which I looked at the inquiry. As you know, I go into these inquiries with an open mind, but guess what. There was no evidence to support this bill—a lot of hollow rhetoric but no evidence.

The Attorney-General's Department's website listed five reports under the heading 'The evidence base to support the reforms'. When we looked at those reports, what did we find? None of the reports had even considered these changes, and only one of the five reports recommended structural changes to the Family Court and the Federal Circuit Court at all, and they had proposed an entirely different model. So there have been, what, 70 reviews now of the family law system since 1974—70 reviews—and not a single one has recommended that the Family Court be structured in the way that the government is proposing in this bill. I think supporters of the bill are simply ignoring that fact.

The Attorney-General specifically tries to cite as a basis for the findings a six-week desktop review—and other Labor senators referred to that; Madam Deputy Chair Polley, you did refer to that—by two accountants. Now, I know accountants are brilliant, but they're not specialists in this field. From my direct experience recently in Victoria, they're the last people you turn to if you want expert advice. Making a radical change to the Family Court system, probably the most radical in the 40 years it's existed, on the basis of a desktop review by two accountants strikes me as a little short-sighted and subject to argument, and it is easily discredited. I know PwC does very well out of this government—one of the great beneficiaries of this government—and it can put forward a whole series of heroic assumptions and it can suggest that there are enormous levels of complexity in these matters, but the review is simply a series of patently ridiculous assertions that don't match the facts in terms of the way in which people actually live and their lived experience of the way in which family law is actually administered in this country.

This will undermine the specialist nature of family law in this country. Over time, there is just no doubt in my mind that that's exactly what will happen. What the government's claimed, without evidence, is that the merging of the two courts will help reduce delays and backlogs. I'm sure everyone will say, 'We need a single point of entry on family law, and of course we need common rules and forms and practices and procedures, and of course we need to enhance the way in which judicial appointments are made.' But the reality is very simply that it is very different in practice, given what I've already said about the backlogs that exist at the moment and the workloads that individual judges have to deal with at this point.

The Legal and Constitutional Affairs Legislation Committee heard from no lesser an authority than the Chief Justice of the Family Court and the Federal Circuit Court, simply, that these things can all be done without legislative change. We also heard from many other former chief justices of the Family Court—Elizabeth Evatt and Alastair Nicholson—who all said that this was unnecessary and inappropriate. In fact, Mr Nicholson said:

It is unbelievable that Government would propose the dissolution of a Federal Superior Court in this fashion without the most careful and searching Public Inquiry and without carrying out significant research and without consulting the many experts in this field.

I take some issue with Mr Nicholson. You can't simply say things like that about this government, because it is quite believable. They do do things like that. It is disgraceful, unconscionable and irresponsible. It's very believable, because this is a government that acts without evidence and without listening. That's what the legal fraternity across this country are telling us. We should pay attention to them.