Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

I inform the Senate that at 8.30 am today six proposals were received in accordance with standing order 75. The question of which proposal would be submitted to Senate was determined by lot. As a result, I inform the Senate that the following letter has been received from Senator Burston:

Pursuant to standing order 75, I propose that the following matter of public importance be submitted to the Senate for discussion:

The need to finalise the terms of reference to the Australian Law Reform Commission for the review of the Family Law Act and its judicial administration, and the allocation of sufficient funding to support that review.

Is the proposal supported?

More than the number of senators required by the standing orders having risen in their places—

I understand that informal arrangements have been made to allocate specific times to each of the speakers in today's debate. With the concurrence of the Senate, I ask that the clerk set the clock accordingly.

Brian Burston (NSW, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

Nelson Mandela once stated there can be no keener revelation of a society's soul than the way in which it treats its children. What does it say about us as a society when we allow so many men and boys to commit suicide, an entirely preventable outcome? Why do we provide almost no support for males? Why do we provide almost nothing for male victims of domestic violence, preferring to sweep it under the carpet along with male suicide rates? Why do we continue to cling to the paradigm that men cannot love their children as much as women can and do?

One Nation recognises and appreciates the unique and exceptional role that both mothers and fathers play in the lives of ordinary Australian families. However, the history within the Family Court of Australia has been marked over many years by controversy and criticism regarding the handling of family law matters, particularly domestic violence issues; the long waiting times; and staff shortages. Further, the Department of Human Services organisation the Child Support Agency has a long history of financially gutting non-custodial parents in a relentless strategy that seems aimed at rendering their victims insolvent.

The legislation is fairly sound and does not need to be changed much if applied correctly and fairly. The problem is it often is not applied fairly. It is not a gender issue but, because the majority of non-custodial parents are fathers, men usually end up being the ones most affected by the actions of this group of individuals. At a societal level, one of the unintended side effects of marriage breakdown is the high incidence of suicide. It is one of the most pressing issues of our time and predominantly impacts males. It depletes our productivity and destroys families. It cannot totally be eradicated, but it can be substantially reduced.

For many years the Family Court of Australia has been in effect a constitutional free zone. Today we see tens of thousands of Australian children being allowed or forced to experience such abhorrent trauma at the hands of the Family Court. Many children are growing up without one of their parents or other loving family members. Often children are forced to live in a psychologically abusive environment as a direct result of the actions or inactions of our adversarial Family Court system. In addition, many more are left in physically abusive environments by a system that does not have the expertise to make the life-changing decisions that it makes each and every week.

While it is a sad and unfortunate reality that relationships do break down, it is vitally important that we find the best way forward in dealing with marital breakdowns to minimise the damage, particularly to children. Throughout our Family Court system, our children are being forcibly removed from innocent parents and grandparents on false allegations every day in Australia. Some of these children are being forcibly adopted while children in need of intervention and protection are being ignored and left in unsafe environments to suffer further harm. The child safety authorities in Australia are not being held accountable for their actions, and this breeds incompetence and corruption. Families in need of support are not being given the help they need and their families are being ripped apart, resulting in unnecessary trauma.

The Family Court of Australia, as it operates today, is not a safe place for parents, who care about their children, nor is it a safe place for children. One Nation considers that the current family law system needs an overhaul, and we welcome the current announcement by the government to review and reform the Family Law Act 1975. However, in saying that, I think there is an urgency to finalise the terms of reference to the Australian Law Reform Commission for this review to progress immediately.

Kimberley Kitching (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

I rise to speak on Senator Burston's matter of public importance. We do agree this is a significant issue that does need to be looked at. We would look at the statement from the Attorney-General, Senator Brandis, at the time of the May budget this year, when he asked the Australian Law Reform Commission to review the Family Law Act 1975. I would note they do say that this will be the first comprehensive review of the family law system since the commencement of the Family Law Act in 1976 and that this is a necessary examination of that system. So, it's not only for frontline family law services but also for family violence services. I do question, as Senator Burston does, whether the government is taking this seriously. No further announcements have been forthcoming, other than Senator Brandis saying on 20 August that the terms of reference would be announced soon—but no further detail.

I would also note that, on Thursday last week, at the state memorial service for Australia's first Minister for the Prevention of Family Violence—Fiona Richardson, who was also the Victorian Minister for Women—the Commonwealth Minister for Women did not attend that state memorial service. She may well have had other duties to attend, but it was a shame that she couldn't be there. Fiona Richardson made a great contribution in this space. The royal commission that the Victorian government held in this area was of great importance, and Senator Burston may well be aware of that royal commission.

In relation to the timing, I think this has fallen by the wayside. Since May, we haven't had any announcement other than it will be soon. The Family Law Act was a great reform of the Whitlam Labor government, and we believe that the act has generally worked well. It may well be that, after 40 years of the act's operation, there will be aspects of the act that do merit review. There are serious issues relating to family and domestic violence and to the capacity of the Family Court to deal with the backlog of cases that it has, and the ALRC might well usefully examine that backlog.

I want to go to a particular part of the funding, which is around the parenting management hearings. One of the problems is that what that might actually be has been a little vague. It has been budgeted for $12.7 million. It has caused great confusion in the legal fraternity. As senators would be aware, there are many family law practitioners, so they specialise in that area of the law. They are very confused about exactly what a parenting management hearing will be or what it might entail. It also appears that some government members, and perhaps even the Attorney-General himself, are unclear about this measure. He described it in his media release after the budget announcement as being 'a forum to resolve simpler family law disputes between self-represented litigants'. However, during Senate estimates, Senator Brandis said that he wanted to deal with the most difficult and intractable of those matters that come before the family law system—children's matters at the start. The member for Corangamite has also given some form of definition to 'a parenting management hearing', and that is that they would not include contested matters. But, in his media release, the Attorney-General said:

… those managing the hearings will run inquiries and gather evidence to inform their decisions.

The description in the budget papers says that parenting management hearings 'will be given powers to make binding determinations'. However, during Senate estimates, Senator Brandis said that determinations will need to be embodied in a consent order, so you can see why family law practitioners and litigants alike might well be confused. If the determination of this parenting management hearing is embodied in a consent order, as Senator Brandis suggested during estimates, before it becomes binding, then it won't have much weight. Parents would essentially have to agree with the determination after the hearing and then sign a consent order confirming that they agree. I just can't see that working in the family law system.

Part of the other problem has been that when judges in the Family Court have retired they have not been replaced. There are currently a number of judicial vacancies in the Family Court and the Federal Circuit Court. That is inexcusable, and it's a disgrace. The reason for that is that you can't complain about the fact that there are all these matters not being dealt with and, when it's within your purview to actually replace judges, then not do so. I do think that the Attorney-General has made this situation worse. The family law system has become worse because we have, of course, seen his attack on free legal assistance, the resisting of cross-examination reform and the creation of crushing backlogs in the work of a court system. So, really, to say that this money and this budget measure is going to save the family law system is a little galling, to be frank.

I think the Attorney's own inexplicable failure to appoint judges to vacant positions is causing ongoing pain to families, and this terrible situation is not fixed by any measure of any budget announcement. There are five vacant positions. Because of the delays in appointments, some families are having to wait up to three years to even have an initial hearing for their cases. For a child caught in a custody dispute, that can be a lifetime. Remember, this is a judicial system that is really trying to put the child at the centre of those hearings, so this is a total systemic failure of this legal system. There may well be, also—this is also unclear, and perhaps the Australian Law Reform Commission may look at this as well—a quasi-judicial panel of counsellors, lawyers and social workers who will be given the power to investigate custody disputes and make binding rulings. There's no information, however, available as to how these appointees will be accredited, how the system will be regulated and what safeguards would be in place to ensure the hearings are run responsibly. We would be concerned that the decisions would only be reviewable by the Federal Court, which does not normally deal with family law matters. Part of the problem as well of that is that the scale costs can be prohibitive in the Federal Court.

Parents would not be permitted legal representation at the parental management hearings, so this would be a serious concern for about one-in-five family law matters where domestic violence is involved. As you can imagine, people who are going to hearings that involve their partner, at the hands of whom they may have suffered domestic or family violence, are put in a terrible position if there is no safety net or no representative. They are dealing naked, as it were, with their partner or their former partner, who may well have committed acts of family violence. This is also a concern, obviously, for children involved in those cases and those situations.

One of the simpler solutions, of course, would be to appoint more judges, and this is a very easy solution for an Attorney-General to effect. At the very least, the longstanding vacancies should be filled. We would welcome an Australian Law Reform Commission inquiry. We feel that there would be a number of responsible submissions and that it would address gaps in the act that weren't so readily seen when the Family Law Act was first introduced and legislated. (Time expired)

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

I thank Senator Burston for raising this matter of public importance regarding the Family Law Act, because this is of course an ongoing matter of great public importance. Having said that, I might say to the mover that it is perhaps a fraction early or a fraction superfluous, because the terms of reference for the Australian Law Reform Commission's review will be announced by the end of this month. So, whilst this debate today will signify the urgency and that this chamber appreciates the need for this review, it is happening and will happen.

I will just mention that this is an area to which the government has given a lot of attention. In May this year $26.8 million was announced as a package of measures to provide additional support for our family law system. That comprised $12.7 million to establish the parenting management hearings, $10.7 million in new funding for the family law courts to engage additional family consultants, another almost $3½ million to expand the domestic violence unit's program and, as I mentioned before, the comprehensive review of the family law system to be done by the Australian Law Reform Commission. The government will be directing the commission to undertake the first comprehensive review of the family law system since the commencement of the Family Law Act.

I'm one of the few, in my case former, practitioners who still remember the old Matrimonial Causes Act, which pre-dated the Family Law Act. I remember that to get a dissolution of a marriage in those days you more or less had to crawl through a window with a camera to catch people in compromising situations to substantiate the cause for the dissolution of the marriage. Anyone who practised in that area at that time—not that it was a big part of my practice—had to do those things or engage private detectives to do it.

So, the Family Law Act was an improvement, but I smile to myself these days when I hear of the complexity in the family law system, because originally Mr Whitlam announced that this was to be a system in which you didn't need lawyers. In fact, there were, I think, rules—or if not rules it was certainly talked about—that lawyers would be banned from dealing with the Family Law Act, because it was to be something whereby the parties would get together with some counsellors and everything would be solved and questions of divorce and settlements and particularly children would all be worked out in a collegiate manner. But of course that didn't happen. Practitioners in the field today tell me this is one of the most complicated areas of law and one that does, as has been mentioned, engage the courts in a huge amount of time. It has been mentioned that there are judges awaiting appointment. Senator Brandis rightly addresses this at estimates. It's always raised at estimates. Senator Brandis has given indications of appointments being made and, in some cases, the reasons they have not been made. I know that this is foremost in Senator Brandis's mind and that appointments will continue to be made as appropriate and as necessary.

This review will focus on ensuring that the family law system meets the contemporary needs of families and effectively addresses family violence and child abuse. I guess these problems were always around but it does seem to me that we as a society are less tolerant and less concerned, and less able to adjust our own behaviours, to ensure that we can live with people who we have entered into a legal arrangement with, and the children who are the offspring of those arrangements. It just seems that society has got worse and worse and worse when it comes to the breakdown of relationships and the way children are treated. After the Family Law Act had been in place for some time I did a little bit of family law work but quickly got out of it because I couldn't, even in those days, cope with the fact that many parents would use the children simply as a weapon to attack the other party. It's a very difficult area of law and it can be quite emotional. What has gone wrong with society as a whole is perhaps more the question we should be asking in debates like this one. The more 'relaxed' lifestyle we have, the less tolerance we have for discipline and the norms of life, seems to breed these situations where, unfortunately, many families, many children, live in crisis, and one can only think that society has gone backwards.

I return to the budget measures. Additional funding of $14 million over three years will be provided from the Public Service Modernisation Fund to transform and digitise processes for the Federal Court, the Family Court and the Federal Circuit Court, including lodgement of case management, ensuring the courts' ongoing financial sustainability. These improvements in the processes we hope will deal with the backlog in the Family Court. The government is committed to ensuring that family courts have the resources they need to provide access to justice and to help families resolve their disputes with a minimum of delay. We continue, as a government, to monitor the ongoing resourcing and funding of federal courts to ensure that families are supported in difficult times. The Chief Justice of the Family Court and the Chief Judge of the Federal Circuit Court are responsible for allocating available judicial resources, and I know that's something that is often raised in the budget estimates, rightly, by senators who have indicated an interest in this area.

Prior to the 2015-16 budget, family courts were projecting massive deficits of more than $44 million over the forward estimates. Without the 2015-16 budget rescue package, major cuts to frontline court services would have been inevitable. There have been ongoing savings from new administrative arrangements, and the government is pleased to note that almost $10 million over six financial years to 2020-21 and $5.4 million annually after that time are being reinvested. These are savings made by government initiatives. They are being re-invested into the federal courts to enhance their capacity to provide services, particularly in family law.

Again, I say thanks to Senator Burston for raising this important matter in this matter of public importance debate. But, as I say, the basis of the motion before the Senate is to finalise the terms of reference for the Australian Law Reform Commission's review. That is happening as we speak. I'd be very confident that, within the next few weeks, those terms of reference will be published and the commission can start its valuable work.

Anne Urquhart (Tasmania, Australian Labor Party) Share this | Link to 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.

Eric Abetz (Tasmania, Liberal Party) Share this | Link to this | Hansard source

The Family Law Act 1975 is one piece of legislation with which you do not want to interact. If the Family Law Act becomes relevant to your activities, you know something has gone wrong—terribly wrong. Family law disputes often expose the rawest of emotions, the deepest of personal hurts and the worst of human behaviours. Disputes lead to the loss of contact with your own flesh and blood and with your children, loss of business and employment, suicide and even murder. In fact, sadly, the history of the Family Court of Australia has shown that judges themselves are not immune to the latter.

Whilst practising as a lawyer, I saw the lot. As people grapple with their interpersonal grievances—sometimes egged on by unscrupulous lawyers, family members and friends—perjury with false, horrendous allegations seems to become the stock in trade. Make no mistake, it's not easy to legislate in this minefield of emotions, grievance, hurt, and betrayal. By its very nature, legislation is a one-size-fits-all approach. To seek to regulate and legislate in this fraught area, which exposes the frailty and fallen nature of human kind, requires the wisdom of Solomon on steroids. Legislation drafted—as it is—by people will never be perfect. Loopholes will be found and oversights will be uncovered, together with provisions that were well-meaning but have unintended consequences. Any parliamentarian worth their salt will have received representations on the perceived, if not actual, failings of the Family Law Act and its administration.

So, having said all that, it is appropriate that there be a full review of the Family Law Act and the family law system. The coalition government, in recognition of these factors and community representations indicating concern about the Family Law Act and its administration, has initiated the first comprehensive review. The task has been given to the Australian Law Reform Commission. I wish it well. I note that domestic violence and child abuse are going to be key areas of this review. Both are a blight on our society. As someone who helped establish, and was honorary legal adviser to, a women's shelter for a number of years, I saw many a victim of these vile activities. They are often life-wrecking and, indeed, life-threatening. The consequences cannot be overstated.

Sadly, in this area we also have opportunists who are willing to make serious allegations to intimidate, to get the upper hand and to avail themselves of a bargaining tool. These allegations are often thrown around like confetti in the family law system. Protection of women and children should rightly be a high priority of the system, and it's been designed to protect the vulnerable. Yet, the cynical abuse of such priority provisions undermines the very integrity of the system, gives it a bad name and demeans the issue. Specific provisions and penalties for false claims may be worthy of consideration. It would reduce perjury and help protect actual victims. Too often, initial allegations, which usually are against the father, are simply 'not pursued' or are allowed to be dropped—the tactical purpose having been achieved, or used as a bargaining chip for a later property settlement.

Having said all that, let's remember that most families are functional, that their dads and mums do a great job and won't need the family law system. But this discussion—a very worthy one, might I add, and I thank Senator Burston for bringing it forward—is a reminder that, as a government and a parliament, we should do everything to keep our families together. As that great Tasmanian, Dame Enid Lyons, so pithily opined:

The foundation of a nation's greatness is in the homes of its people.

To keep our families together, we need to relieve them of the scourge of unemployment and we need to keep household budget pressures down by providing them with reliable and cheap energy—just to mention two examples.

We need to salute the role of families as well, including fathers, so we need organisations like Free TV to desist from banning TV advertisements because they celebrate the role of fathers. To suggest that the recent advertisement by Dads4Kids required authorisation defied any logical explanation. Those wonderful advertisements, extolling the importance of fathers in the lives of their children, have been graciously run as a community service announcement for 15 years. Now we are told Free TV didn't ban them; they just required authorisation. With authorisation goes the free airing of the advertisement, thereby effectively banning them, given the charity clearly does not have that sort of money. So Free TV didn't ban them, they just used the system to ensure that they can't afford to run them.

Dads4Kids is known to be against changing the definition of marriage. Belatedly, Free TV, desperately trying to justify the unjustifiable, claimed this was the reason for requiring authorisation, because if someone went to their website they might stumble upon a submission supporting marriage as a man-woman bond, which was made to a parliamentary committee some years ago. By that standard, from now on can we expect Qantas advertisements to be required to carry authorisation as well? I dare say not. That is where Free TV has a lot of explaining to do. This unacceptable bias against Dads4Kids needs to be called out for what it is: political correctness gone mad, and another none-too-subtle attempt to punish those who are concerned about the consequences of changing marriage.

Suffice to say, it is overwhelmingly the fathers that claim systemic bias against them and their important role when it comes to the administration of the family law system. Often the claim is that fathers are not treated with any recognition whatsoever other than when it comes to maintenance, and then their importance is all of a sudden overestimated. Again, I stress, say and note that the vast majority settle these matters relatively amicably, but there have been—and there are—cases where livelihoods have been ruined and debts amassed, in circumstances where a better administration of the law may have led to a less charged situation.

Let's recognise that family law deals with the most intimate of relationships, the rawest of emotions. It is therefore wise for there to be a review of the Family Law Act and the system in which it operates. That is exactly what the government is undertaking with its commissioning of a root-and-branch review of the family law system. I trust the operation of the Child Support agency will be included in that. I'm sure that every senator in this place has had numerous representations in relation to the agency. I simply say that when I started in this joint 23 years ago the number of complaints was huge in comparison to now, so you can imagine how bad the system was then.

Soon this review will be underway, and I encourage everyone to submit their experiences, concerns and suggestions. To have a better functioning family law system would be a social good and an economic good. It would enhance our legal system's reputation. It would be fairer and more just to the individuals involved if we could reduce the conflict and the opportunity for inflaming this emotionally charged area. I congratulate the government on this initiative and I wish the Australian Law Reform Commission well in its endeavours.

Derryn Hinch (Victoria, Derryn Hinch's Justice Party) Share this | Link to this | Hansard source

When I was a print, radio and television reporter and commentator, before I jumped the shark and came here, I received hundreds, maybe thousands, of emails. There were two words that you dreaded in an email detailing family problems or legal scandals. Those two words were, and still are, 'Family Court'. It meant, as a journalist, there were legal areas you couldn't touch and stories you just couldn't touch, even though there were details of children going through hell as their mothers and fathers fought their way through the Family Court; children being treated like pawns in a game of heartbreaking and cruel human chess; hard-earned savings and assets disappearing, lost to the lawyers as cases dragged on for years. These days, with a shortage of judges and two out of three marriages ending in divorce, some cases don't even get to court for three years. Ultimately it is the children of these families that go to court who are being hurt the most. These prolonged delays result in uncertainty and instability in the lives of mere children.

We all know the family law system is broken. This information is not new. Unless there is significant reform, the family law system will remain broken. We need this review. That is why I offer the Justice Party's full support for a fully funded review conducted by the Australian Law Reform Commission. I have met personally several times with the Chief Justice of the Family Court, Chief Justice Bryant, and she has echoed many of our concerns. I'm hoping that when she retires in a couple of months time she'll echo some of them even more.

I know the government has budgeted for some more court registrars, but that's not enough. I know that several national parties, including One Nation and the Justice Party, have been pushing for a royal commission into the continuing failures and frailties of the Family Court system. I know I criticised Pauline Hanson at the Melbourne Press Club last year, not because of her fears about court failings—as though her fears weren't well founded—but because she was advocating the abolition of the Family Court, to be replaced by a citizens' tribunal. I opposed that and still oppose it on the grounds it would be unconstitutional. That veteran child protection advocate Hetty Johnston, the founder of Bravehearts, has also called many times for a royal commission into the family law system. When she heard this morning that this issue was going to be raised here today, brought on by One Nation, she texted me and said: 'Get stuck into them, Derryn. I'm speaking right around the country these days, and I never miss a chance to get stuck in. Brandis lied to me and to every child in this country when he said he "couldn't" have a royal commission because of the Constitution, when the truth was that he "wouldn't"—and that's not good enough. The government, I believe, lied to every child in this country, and they stole the futures of many, many thousands of them in refusing to have this royal commission. So don't let the government off the hook. Children's lives literally are at stake, Derryn. This is no time for niceties. Let them have it.'

So I would say today that, in the absence of this much overdue royal commission, this Law Reform Commission review is the next best thing we can have. To be effective, this review, conducted by the Australian Law Reform Commission, needs to have specific but broad-ranging terms of reference and must be sufficiently funded. For that reason, and those reasons, I back this proposal.

Pauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

I congratulate Senator Burston on raising this issue today in matters of public importance. It is very dear to my heart. I hear Senator Macdonald say, 'It's a bit late—we've actually got the review going'; or Senator Urquhart gets up and says, 'This is just basically political grandstanding by One Nation and it was going to happen and we don't want to rush this and slap it together.' Slapped together? It has been 40 years since the Family Court was introduced. Nothing's happened. Then Senator Urquhart blames the coalition for not doing anything in the last four years since they've been in government in this place. Then I could ask the question: what has the Labor Party done about it? Absolutely nothing!

Australians have been screaming from the rooftops to have something done about the family law courts. It was quite interesting when Senator Abetz mentioned the number of complaints that came across his desk 23 years ago —it was the same thing with me. More than twenty years ago in this place, in 1996, I raised the family law court in my maiden speech. I raised it again in my maiden speech 20 years later in this place. The family law courts are very important to me, and this has had devastating effects on many families across this country.

The reform of the Family Law Act, and the family law court generally, is of primary importance to me, One Nation and my colleagues. In this regard, I have held a number of meetings with the Attorney-General. At the first meeting with the Prime Minister, I raised the Family Law Act, putting forward proposals that might alleviate the cost, the delay and the heartbreak that is symbolic of actions before the Family Court of Australia and the Federal Circuit Court of Australia in its application of the Family Law Act. I have met with the Chief Justice of the Family Court and numerous interest groups, including the Law Council of Australia, who have presented their concerns as well as potential solutions.

It is a complex matter dealing, as it does, with volatile, emotional family issues that often affect the lives of children. Too often one hears of another tragedy, another domestic-violence incident, another lost life or another family torn apart by division. Domestic violence orders are mainly issued in the various state Magistrates Courts and often are used simply as a tool by one parent to stop the other parent having access to their children. Yes, it's quite disgusting! Parents use their children as pawns and vengeance against the other parent. Often they are abusing our court process. A party can make allegations of abuse to the police, and the police will normally take out a domestic violence order against the accused parent. The domestic violence order is often used as a weapon of vengeance by litigants to the detriment of the other parent as well as their children by denying that parent access. But the police have little choice when confronted with claims of abuse. They have an obligation to protect the vulnerable, as we all appreciate, but often there is a very low standard of proof required before such an order is made. Once made, it is on the record, and that record is given serious consideration by the courts in reaching its determination on parental access orders.

In this review of family law, the issue of domestic violence orders for parties currently before either the Family Court or the Federal Circuit Court must be taken into consideration, as is the case in Western Australia. By doing so, orders are given by judges who are familiar with the litigants and who are better placed to understand the true motive behind such an application. Equally, that judge is always in an informed position throughout the matter. Therefore, it is incumbent on the government to provide the necessary funding for the appointment of further judges as well as for doubling the number of registrars to hear these applications as fast as possible. It is incumbent on this government to ensure that equal access for both parents is not simply a section in the act as a primary premise but is carried out in court decisions.

It is incumbent on this government to end the excessive delays caused by underfunding of the courts. The time delay between the filing and commencement of a trial in the Family Court averages 18 months in most capital cities and an incredible 24 to 36 months in Sydney, Parramatta and Brisbane. The Federal Circuit Court of Australia is worse, and this is a court that was meant to overcome delays in the Family Court.

The entire Family Law Act and its administration must be reviewed with a fresh outlook, without being mired by the past. The urgency of finalising the terms of reference for the Law Reform Commission is paramount. Those terms of reference must be in conjunction and consultation with all parties and interest groups and not at the sole discretion of the Attorney-General.

It is time for politics to be put aside and for every political party to agree to work for a substantive review of family law for the betterment of the Australian society—because the family is the most important element. Not finalising the terms of reference immediately will only prolong these family issues, creating further pressure on government departments and the courts generally. For the Law Reform Commission to successfully undertake this major review, the Attorney-General must make the necessary funds available; otherwise, the review will not happen in the foreseeable future. I will ask the Attorney-General to finalise the terms of reference and to undertake to provide the funding that is necessary for the success of this overdue review.

Let me add in this debate that, apart from the many Australians that I meet when I move around Australia, this is a personal matter for me as a mother and as a grandmother. I've been through the court systems, and I've had to watch my sons go through the family law courts and how they were treated by their ex-spouses. I've seen DVOs put on them that were not warranted. I feel for the men out there that are going through this, because it's unjustified. They have no recourse, they are missing seeing their children and they are devastated by it to the extent that they suicide. How many men do we know that suicide because of this? They are heartbroken. That is their children's world. Not only that but we have a legal system that is making, according to the figures that I've heard, possibly as much as $40 billion a year out of the family law courts.

They talk about terms of reference, saying, 'We don't want to rush into this.' I have spoken to Senator Brandis quite extensively, and to judges. What really needs to be done? We need more judges. The judges that are on sick leave? It is not good enough. These judges are not being replaced. They're on long sick leave, and the court system is suffering because of it. We need more registrars to actually take the workload off the judges and have their input into the mentions, which will alleviate the pressure on the courts. DVOs need to be addressed as well and heard in family law courts, not other courts, so that the judges have a clear understanding of the litigants.

I do believe that prenuptial agreements should be drawn up and presented before the courts so that both parties will have an agreement about their properties and also about their children.

We need more centres so that, once the courts allow supervised visits, we don't have organisations like Relationships Australia denying men access to their centres, as I know can be the case. But, also, the fact is that men—or women, on the odd occasion—should not have to wait months before they can actually see their children. I think it's disgraceful, and I know of cases where they only see their children for a few hours a year.

Also, legal aid needs to be addressed. People cannot afford these costs, and they are actually trying to represent themselves in these courts.

I finish on this note. Everyone's screaming for marriage equality. Well, how about divorce and parental equality?

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

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