Alex Gallacher (SA, Australian Labor Party) Share this | Hansard source

I too would like to make a contribution on the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019. Knowing absolutely zero about this bill and realising that I had to make a contribution on it, I've read as much information as I could get my hands on and listened to as many contributions as possible today. As always, when I don't really know what's going on, I go to the ever reliable people at the Parliamentary Library and ask for a Bills Digest. And, as always, they come good. In 'The Bills Digest at a glance'—I think there's a little bit of irony there, because, at a glance, the Bills Digest is 37 pages long, so you need more than a passing glance to get across the issues that are canvassed in the Parliamentary Library's Bills Digest. Basically, I'm instructed:

The Bills were first introduced in 2018 and lapsed at the end of the 45th Parliament on 1 July 2019. The 2019 FCFC Bill includes the following changes from the 2018 version:

• Rather than both Divisions sharing the same original jurisdiction, there will be a single point of entry to the Court, with all matters initially filed in the FCFC (Division 2) and the ability to transfer cases between Divisions

• The FCFC (Division 1), rather than the Federal Court of Australia, will be responsible for hearing family law and child support appeals

• The criteria for judicial appointments has been amended to require FCFC (Division 2) Judges to have the appropriate knowledge, skills, experience and aptitude to deal with the kinds of matters that might be expected to come before them, including family violence in the case of family law matters. An express reference to family violence has also been added to the criteria for appointment of FCFC (Division 1) Judges and

• Regulations may (but are not required to) prescribe a minimum number of FCFC (Division 1) Judges—the Government has stated this number is intended to be 25.

So, that's the short history of the bill, and there has been a Senate Legal and Constitutional Affairs Committee inquiry, reported on 20 November 2020. That's a legislation committee, so a government controlled committee. And:

The committee recommended the Bill be passed. Australian Labor Party (Labor) Senators and the Australian Greens (Greens) issued separate dissenting reports…

I think this is something that Senator Sterle has touched on, that might be just set aside as political opponents not agreeing, but the stakeholder comments referred to in the Bills Digest are quite instructive as well:

The majority of submitters to the Senate Inquiry argued that greater resourcing, rather than structural change, was required to address the issues facing the family law system.

They called on the government to respond to the recommendation of the Australian Law Reform Commission when it produced Family law for the future. So it was argy-bargy, and the government went ahead with its recommendation that the bill be passed. The Australian Greens and the Labor Party went the other way. But it's instructive that the majority of submissions were against the bill. We really do get to a system here, and I think it's quite instructive to skip to the Productivity Commission's evidence in this matter.

The Productivity Commission's Report on government services2020 has highlighted an increase in the backlog of cases in the Family Court and the Federal Circuit Court—that is, cases in the courts for over 12 months. It has identified a 34 per cent increase in the Family Court's backlog between 2012-13 and 2018-19, and a 63 per cent increase across the Federal Circuit Court. In respect of the funding and judicial appointments across the same period, the NSW Bar Association provides the following summary:

… there had been an increase of just 2.73 percent, or $6.724 million, in the operating appropriation provided to the Federal Court, Federal Circuit Court and the Family Court together from 2013-14 to 2017-18.

Real recurrent expenditure in the Family Court has almost halved, from $101,940,000 in 2012-13 to $57,689,000 in 2018-19. Real recurrent expenditure in the Federal Circuit Court increased from $113,486,000 in 2012-13 to $154,942,000 in 2018-19.

… From 30 June 2013 to 19 January 2018, only two additional judicial officers were added to each of the Federal Circuit Court and the Family Court of Australia, bringing the total to 66 FCC Judges and 33 Family Court Judges, representing a total increase of 4.2 percent.

I think that paints a picture of a steady and increasing workload, steady and decreasing financial support and there being not enough judges. This is instructive.

In the 2020-21 budget, the Commonwealth made multiple funding commitments for the federal family law courts, including $35.7 million over four years in additional resources and judges for the Federal Circuit Court to assist with the timely resolution of family law and migration matters and $2.5 million over two years from 2020-21 for federal family law courts to maintain specialised court lists for urgent matters arising from COVID-19. And on 13 November 2020, the Attorney-General, the Hon. Christian Porter, announced two new judicial appointments—current Federal Circuit Court Judge Thomas Altobelli to the Family Court and Kylie Beckhouse to the Federal Circuit Court. There's been a long period of lower funding and a long period of increased workload and outcomes that are not very good. Somehow or other—and I do respect the work of the Parliamentary Library—this is a very, very, very complex issue.

There was a KPMG review in 2014, which stated:

… it is recognised that the FCA, FCoA and FCC operate in a broader (constrained) fiscal environment which necessarily impacts on timely, efficient, equitable access to justice and facilitation of judicial decision-making. Equally, reported increases in case complexity and changes to the client profile mean that the courts are operating in a new landscape which presents challenges to the timely, equitable and efficient administration of justice.

Presumably, in 2014, a Liberal coalition government initiated the KPMG report. At the time the KPMG review of all three courts projected budget deficits for the financial year 2014-15, and it was recognised that there were entrenched structural funding issues. Amongst other things, the KPMG review concluded:

The current funding model for the Courts is not sustainable. The question of sustainability cannot simply be addressed through the injection of additional funds or one-off cuts, rather it requires more fundamental amendments to the model.

To achieve the current budget across the forward estimates for all three Courts would require significant cuts to service and staffing levels. Such cuts to administrative services are unlikely to form a sustainable basis or driver for long-term efficiencies.

There are 37 pages of information from the Parliamentary Library, which state in relation to the PwC report:

In 2018, the Attorney-General's Department commissioned PwC to review the operations of the courts in relation to family law matters. The PwC report measured the performance of the Family Court and the Federal Circuit Court in the following ways:

I said at the start that I'm not really across this issue per se, but the various submissions I have seen and the Parliamentary Library's Bills Digest tell me there's a huge problem here. When you look at the Senate reports, the joint committee reports and the position of respective organisations outside of the party—and Senator Sterle commented that there were 1,700 submissions—the majority of which don't appear to be in support of the government's position, you have a huge problem which is being fixed by government in a way that won't please anybody. If it doesn't please the legal fraternity, you may be able to say that they have a vested interest. But if it doesn't reduce the time taken to get matters delivered and if it doesn't reduce the amount of money litigants have to pay then how is it going to be more efficient? I think that's a question Minister Porter hasn't quite answered in this debate. I didn't hear any comments of note from the other side of the chamber.

The Labor Party are opposed to this. I understand Senator Hanson has a different view. I understand the Australian Greens are going to oppose it. The crossbenchers will do what the crossbenchers do—they'll either support, oppose or transact on it. That's the way the parliamentary system works.

I really do think that, if people are in the unfortunate situation of not being able to deal with family separation or family court matters in an amenable way and it does result in appearances at court and the use of lawyers and judges, then that should be an open, fair and transparent process. I can't imagine a family with three children going through 18 months of litigation about who has access to who, but that sort of stuff is happening. I think we are a better nation than that. People should have access to a jurisdiction that is eminently fair, reasonably inexpensive and adequately resourced so that the impacts that may be felt by children in these awful situations is minimalised.

To sum up, from our position this is a very, very complex area. It's, if you like, a Labor Party legacy from Gough Whitlam's day. We've heard about people having their divorce published in the paper and the reasons why. No-one wants those days back, but we do want an open, transparent and fair system which allows access to justice, and it shouldn't cost you an arm and a leg; it shouldn't cost you half the family home. People should be guided into solutions. It isn't all that complex, and most people, when they sit down, could work it out themselves, but that's not the system we have and this won't make it any better.