Murray Watt (Queensland, Australian Labor Party, Shadow Minister for Northern Australia) Share this | Link to this | Hansard source

The Family Court of Australia is a proud Labor legacy. It shares that in common with most of the great social reforms that have occurred in Australia, like Medicare, our world-leading superannuation system, the antidiscrimination law framework and the provision of free legal assistance services to Australians in need. These reforms have something else in common, and that is that the Liberal Party never misses an opportunity to attack or undermine them. The Liberals are always looking for ways to undermine Medicare and the principle of universal health care in Australia, even as they pretend to support it. The Liberals are always looking for opportunities to attack superannuation. Look no further than the Morrison government's policy to force Australians to raid their retirement savings, in the middle of a global pandemic, to make ends meet. One doesn't have to look far for examples of the Liberal Party attacking the legal assistance sector or seeking to water down Australia's antidiscrimination laws. The Labor Party is the party of doing. The Liberal Party is the party of wrecking. That brings me to the bills before the Senate today, 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 Family Court was established by the Family Law Act 1975. That act instituted two major and complementary changes: it instituted no-fault divorce and it established the Family Court of Australia, a specialist, multidisciplinary court for the resolution of family disputes. In 1974 the Senate Standing Committee on Constitutional and Legal Affairs, which had been tasked with reviewing the family law bill, said that the Family Court would be 'essential to give substance' to key aspects of the Family Law Act, including no-fault divorce. Shortly after the passage of the Family Law Act, the then Labor Attorney-General Kep Enderby wrote:

In public discussion of the Family Law Act, most of the attention has understandably, and quite properly, focused on the ground of divorce and, to a lesser extent, the maintenance provisions. While not underrating the magnitude of the reforms to the divorce and maintenance laws, I feel sure that, in time, the provision for the establishment of Family Courts will come to be seen as a reform of equal importance.

Kep Enderby was right: the Family Court's essential distinguishing feature is that it deals only with family law matters. This bill would rob the Family Court of it essential distinguishing feature by collapsing it into one of Australia's busiest, most poorly resourced and most overburdened courts, the Federal Circuit Court.

The reason why specialisation is so important is that family law matters are not like other matters that generalist courts tend to deal with. The parties to family law matters are not like the parties that generalist courts tend to deal with. As Gough Whitlam said in 1974:

The essence of the Family Courts is that they will be helping courts. Judges will be specially and carefully selected for their suitability for the work of the court. There will be attached to the court a specialist staff, notably marriage counsellors and welfare officers, to assist the parties at any stage—and even independently of any proceedings. These courts will therefore be very different from the courts that presently exercise family law jurisdiction. The Family Court will, of course, determine legal rights, which it is bound to do as a court, but it will do much more than that. Here will be a court, the expressly stated purpose of which is to provide help, encouragement and counselling to parties with marital problems, and to have regard to their human problems, not just their legal rights. Parties will not be driven to the court by their own despair as a last resort; they will be encouraged to come to the welfare and counselling staff of the court whenever they have a matrimonial problem, even if they are not contemplating proceedings of any kind. This help would also be available after divorce proceedings, and this would, as I have already indicated, be of great importance where there were young children.

The Whitlam government's vision of a specialist family court was of a court with interrelated co-located services and resources. It was not just about specialist judges; it was about creating an environment that would have regard to what Whitlam described as the 'human problems' of couples and families, including children, and not just their legal rights. I observe that anyone who has been near a building of the Family Court will have seen that efforts are often made, even in the design of those courts, to ensure that they have an inclusive atmosphere to address the very real emotional issues that family law matters stir up in participants of those proceedings. The realisation of that vision has never been more important, especially for vulnerable children and families who need a family court system that is not only efficient but also safe and sensitive to their needs and vulnerabilities. The bills before the Senate today are fundamentally at odds with the vision of the Whitlam government, and that is because this government's radical proposal to merge the Family Court and the Federal Circuit Court is fundamentally at odds with the principle of specialisation. You don't have to take Labor's word for it; just ask the experts.

The experts say that these bills will exacerbate many of the problems in the family law system and address none of them. The very first Chief Justice of the Family Court, Elizabeth Evatt AC, has warned:

Merging the Family Court into a generalist court will undermine the integrity and the structural specialisation of the Family Court. The impact of losing this institutional specialisation is not properly understood, and has been downplayed.

The increasing number of cases in which issues of family violence and child abuse are raised has led to an even greater need today for family law jurisdiction to be vested exclusively in specialised judges who can give their full attention to the needs of family law clients without being diverted to exercise other unrelated jurisdictions. The current bill undermines this principle, is not in the public interest and should not be enacted.

Alastair Nicholson, the second Chief Justice of the Family Court, who served in that position between 1988 and 2004, has expressed disbelief about the government's proposal. It is worth quoting him in full, and I urge those opposite and, indeed, those on the crossbench, to take note of his remarks. Mr Nicholson has 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 am firmly of the view that the passage of the Family Law Act 1975 … and the setting up of the Family Court was some of the most significant social legislation ever to be passed by the Federal Parliament.

What those proposing this merger do not seem to understand is that family law is complex and nuanced, and it is not to be judged by the output by numbers of cases as if the Courts are sausage machines. Throughput is important, but so is the quality of the decisions made.

Cases can be extremely complex and require specialist knowledge of the type that has always been available in the Family Court, which has provided leadership in the proper interpretation and principles to be applied by other courts with family law jurisdiction.

Many involve the determination of important issues relating to children, including their rights and need for protection, not only from individuals, but also from government in its myriad forms. Many also involve problems of family violence and the effects of it upon the parties and their children. Others involve extremely complicated property disputes either alone or combined with the above issues and requiring other important specialist levels of legal knowledge, whilst understanding the important family issues that may be affected by the decision.

The Family Court is a Court that has been envied throughout the common law world and its judgments have often been cited with approval by the courts of many countries including New Zealand, UK, Canada, the USA and others. Its significance as the only specialist Family Court set up as a superior Court of Record and particularly that of its Appeal Division cannot be over emphasised.

It is not just former chief justices who are opposed to this proposal. Over 110 family law experts ranging from the Law Council of Australia to Women's Legal Services, Community Legal Centres, Aboriginal and Torres Strait Islander Legal Services, child protection advocates and Disability Services from across Australia have called on the government to abandon this proposal. That is a pretty solid effort to unite that many different groups against a piece of legislation.

The President of the Law Council of Australia, Pauline Wright, has said that the proposed merger would result in the effective abolition of the Family Court of Australia, a respected, specialised and focused court dealing with family law issues. The 2019 merger bills, if passed, would also mean that Australian families and children will have to compete for the resourcing and hearing time with all federal matters—that is, other matters like migration, bankruptcy and those sorts of things that federal circuit courts and the federal courts deal with. There must be an increase, not a decrease, in specialisation in family law and violence issues. This is critical for the safety of children and victims of family violence.

Family law experts have tried to engage constructively with the Morrison government on this bill. They have even offered an alternative proposal to restructure the Family Court and Federal Circuit Court. Under that alternative proposal, which has been described by the New South Wales Bar Association as 'Family Court of Australia 2.0', firstly, a specialist and standalone family court would be retained; secondly, judicial officers who currently hear family law matters in the Federal Circuit Court would be relocated into a second lower division within the Family Court; and, thirdly, the Federal Circuit Court would continue to exist in its current form, except that it would only hear general law matters. Appeals from that court would continue to be heard by the Federal Court. In other words, unlike the government's proposed merger, the alternative proposal would mean increased specialisation in the family law system.

The Family Court of Australia 2.0 model warrants careful consideration. Instead, it has been ignored completely by the Morrison government. Given what is at stake for Australian families, including children and some of the most vulnerable adults in the country, that is nothing short of a disgrace. None of this is to say that our current family law system is perfect, but abolishing the Family Court is the wrong solution. After seven years of neglect under the Liberals, there is no doubt that the family law system is in crisis. For contested family law matters in the Family Court, it is currently taking on average 19.9 months from the date a matter is filed to the date on which the trial even commences. In the Federal Circuit Court, the average is 17.8 months and, even after trials come to an end, Australian families are having to wait many months for judgements to be delivered. These sorts of delays are not mere statistics.

In the Australian Law Reform Commission's landmark 2019 report on the family law system, which the government has so far ignored, the commission referred to a number of concerns associated with the present delays in the Family Court system, including: the potential for children and parents to spend long periods living in limbo while waiting for trial; the safety risks to parties and children arising from delayed resolution of disputes that involve protective concerns, including contributing to homelessness; the scope for delay and uncertainty to exacerbate conflict; and the potential for clients to consent to outcomes that fall short of the security and protection a court order could provide.

Having deprived the family law system of resources for seven years, the Prime Minister and his Attorney-General claim that these bills will fix the mess they have presided over. The Morrison government claims that merging the Family Court and the Federal Circuit Court will reduce delays and backlogs by creating a single point of entry for federal family law matters, ensuring the development of common rules of court, forms, practices and procedures. But, like so much else with this government, this justification does not withstand even the slightest degree of scrutiny. The creation of a single point of entry and the development of common rules, forms, practices and procedures across the Family Court and the Federal Circuit Court is widely supported, and all of those things can be and are being achieved without these bills. The Attorney-General knows this and the Prime Minister knows this. They do not care.

The Morrison government claims that the proposed merger has been informed by independent reviews and inquiries over a decade. The Attorney-General's Department website lists five reports under the heading 'The evidence base for the reforms'. The only problem with that is that none of the reports listed on the website recommended these radical reforms—none. The evidence base for the reforms, according to the Attorney-General's Department website, is blank. None of those reports even considered these reforms. In fact, the only one of the five reports that recommended restructuring the Family Court and Federal Circuit Court recommended the alternative proposal I referred to earlier—an entirely different model that would have maintained a standalone family law court.

The Attorney-General and the Morrison government ignore all of this. The arrogance of this government is breathtaking. Australian families deserve so much better than this. Labor will oppose this bad law. I move:

Omit all words after "that", insert:

", the bill be referred to the Legal and Constitutional Affairs Legislation Committee for further consideration, including examination in detail of the alternative 'Family Court 2.0' model proposed by the NSW Bar Association in 2018 and also recommended by the 2008 Future Governance Options for Federal Family Law Courts in Australia Report by Mr Des Semple (the Semple Report) and endorsed by a large number of stakeholders, which would relocate judicial officers hearing family law matters and the family law jurisdiction of the Federal Circuit Court into a second division within the Family Court, with a reporting date of no earlier than 20 May 2022."

Lidia Thorpe (Victoria, Australian Greens) Share this | Link to this | Hansard source

I rise to speak against 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 and to make absolutely clear that the Greens will be voting against the proposals in these bills. What the Morrison government is trying to do by merging the Family Court with the Federal Circuit Court is outrageous. No-one asked for this merger. No-one wants this merger. This merger is almost universally opposed. Yet here we are with this absolutely brainless plan to abolish the Family Court of Australia.

It was the Whitlam government that had the visionary idea of establishing the Family Court. This was back in the day when we knew what the Labor Party actually stood for. The Family Court was established to protect the people before it, particularly children, families, and survivors of family and domestic violence. The Family Court did this by being a standalone specialist family law court working in a system of collaborative, culturally safe and co-located services. The model that the Family Court operates under is unique and has been held up as a model of best practice internationally. The radical and misconceived changes in these bills would effectively put an end to that.

The government is claiming that this merger will help reduce delays and backlogs in the Family Court, but there is very little evidence to suggest that this will actually happen. The government always trot out their completely discredited PwC report as proof that this merger will be more efficient. That PwC report is nothing more than a six-week desktop review of operational data by two accountants. Yes, the family law system needs fixing, but these bills are not a fix at all.

I know firsthand from my own personal experience that the system needs fixing. I know what it's like to rock up at the Family Court not having childcare facilities and going with your children to fight for them and for your rights and your protection. I know what it's like to stand in a queue, have your name called out over a loudspeaker and feel embarrassed about that. I know what it's like to be put in a little room because a perpetrator is in the building and so is his family. I know what it's like to feel scared. I know what it's like to be a victim of family violence and certainly a survivor of family violence. We do have a lot of work to do in the current system, but getting rid of the current system is not the answer.

We know we need to have more culturally safe support services for women and children. We know that there's not enough funding and resourcing available for good, competent, culturally safe services to get women and girls to safety as well as provide counselling, financial counselling and safe and secure public homes. What the Family Court actually needs is more resourcing, more public money, to employ more judges and to have better support services, particularly for the women and children who are appearing in these courts, many of whom are victims of family and domestic violence. This proposal won't fix the problems in the family law courts which have grown largely out of Labor and Liberal governments' neglecting of the Family Court. Better alternatives have not been considered; otherwise, we wouldn't be having this discussion.

What families need and what they look to the parliament to provide is safety, security and as much certainty as possible during the pandemic and beyond. At the core of so many of the issues confronted by the system is a chronic and sustained lack of proper funding and resources for the Family Court and the Federal Circuit Court and a mismanagement of resources. This includes a failure to appoint and maintain sufficient and appropriately experienced judges and associated staff and insufficient funding to maintain the counselling and assessment services previously provided by the courts. Failing to strengthen the system has produced unacceptable delays and costs that directly impact on the accessibility and quality of justice. In my own personal situation, I waited two years for any justice and any letters back from the system that was meant to be there to protect me.

Unlike the flawed merger proposal in this bill, the government should have properly considered the much better Family Court 2.0 model, the model that is actually favoured by key stakeholders, the people who actually work this every day. This is what they're saying:

This model proposes a straight-forward "lift and shift" of the Federal Circuit Court's family law jurisdiction and judges into a new lower division within the stand-alone, specialist Family Court.

This would mean that the Family Court judges would be in division 1 of the Family Court of Australia and Federal Circuit Court judges who are hearing family law matters would move across to division 2 of the Family Court of Australia. This model has been in force for many years in the Attorney-General's own state of Western Australia. It was good enough for him when he was the Attorney-General of Western Australia, but somehow it isn't now? Go figure. This Family Court 2.0 model was also recommended by the 2008 Semple report and has been endorsed by key stakeholders—again, people who know their job better than the people in this place—including the Law Council of Australia, Women's Legal Services Australia and former Chief Justice of the Family Court Elizabeth Evatt AC.

Unlike the government's merger proposal, the Family Court 2.0 model would have the significant advantage of promoting safety for children and adults by preserving access to the services of a specialist family court. It is particularly important that we build the safest, strongest, most caring system for the groups of people that are disproportionately impacted in the family law and family violence systems, like Aboriginal and Torres Strait Islander women and children.

The need for increased and culturally safe specialisation of courts to improve decisions and outcomes for families is supported by the evidence of the many inquiries into the family law system. The Family Court 2.0 proposal would instead produce what people clearly expect of their legal system: a single specialist family court to address the needs of families within an integrated system of collaborative, culturally safe and responsive support services. The alarming prevalence of family violence in the system makes specialisation critical to promote safe engagement for survivors with the courts and our justice system from the time a matter is filed, through appropriate triage, active case management and quick resolutions, all while providing excellent, culturally safe wraparound services. A specialist family court must not be destroyed on a mirage that this will fix problems which, in reality, require more resources and holistic reform.

The merger proposals in these bills are nonsense, and you cannot make sense out of nonsense. If the government were serious about fixing the issues in the family law court system, then they would be properly considering the alternative of Family Court 2.0, which is supported and preferred by stakeholders. They would be giving an additional $310 million a year in funding for legal assistance providers as identified by the Law Council—Aboriginal and Torres Strait Islander legal services, community legal centres, women's legal services—to make up the shortfall of successive cuts.

I will read out a statement that was put out 35 minutes ago by the legal fraternity, which has come together to protest against the merger of the Family Court with the Federal Circuit Court:

More than 155 stakeholders in Australia's family law system have now signed an Open Letter to the Attorney-General opposing the Government's flawed bill to abolish the specialist, stand-alone Family Court.

These signatories represent a range of professions and community organisations who work with Australian families and include 11 retired Family Court and Federal Circuit Court (FCC) judges, in addition to former Chief Justices the Hon Elizabeth Evatt AC and the Hon Alastair Nicholson AO RFD QC.

The merger bill would collapse the Family Court into the generalist, chronically under-resourced and over-burdened FCC. The bill was listed without warning overnight as the first item of Government business on Tuesday, despite not being included on the Government's draft legislative program for the Senate this week.

Stakeholders have called for three years for the merger not to be passed out of concern it would have devastating impacts on families, result in a loss of structural, systemic specialisation and dismantle the appeal division.

My final word is: who are the experts in this space? Why aren't we listening to them? The Australian Greens will not be supporting the bills.

Matt O'Sullivan (WA, Liberal Party) Share this | Link to this | Hansard source

I rise today 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. These bills bring together the Federal Circuit Court and the Family Court into a new court, which will be known as the Federal Circuit and Family Court of Australia. This is a change which has been called for by many parts of the family law sector and which cannot be achieved without legislation. Unlike what previous contributors to this debate have falsely asserted, this change cannot be achieved without this legislation. In just one example of support for this change, the New South Wales Bar Association has stated:

… the experiment of sharing jurisdiction between two federal courts and running family law matters in separate courts with separate rules and procedures has failed.

As a senator for Western Australia, I welcome the government's commitment to this change. The consequential amendments bill will facilitate the transition for court users from the Family Court of Australia and the Federal Circuit Court of Australia to the new FCFC as soon as the provisions commence.

The bills do not abolish the Family Court, as some are falsely claiming. Nor do they reduce the specialisations of the courts. The Family Court will continue to exist as Division 1, and the government has committed to a minimum of 25 Division 1 judges, consistent with the recommendation of the Semple review. The FCFC will be an improved and streamlined process for those who need to access it and will provide the significant benefit of creating a single point of entry into the federal family law courts. This structural reform has the potential to allow for up to 8,000 cases to be resolved each year, and it will significantly reduce the delays currently experienced by families, which, of course, burden families with so much frustration. That's more than 8,000 families each year who will be able to readily access the dispute resolution provided by this court, thanks to the administrative and structural changes that this legislation provides for. So this is a big change for those that need to access justice. This will make an enormous difference to Australian families, and it will be a far more accessible court for Australian families to resolve their matters with as little complexity as possible. It will be simpler, more efficient and more effective.

Most importantly, I should note standing here today that I've been involved in the review undertaken by the Joint Select Committee on Australia's Family Law System. In the 18 months or so that I've been here, I've seen the work that this very diligent committee does. It comprises members and senators from all sides of politics, and they have applied themselves to this process. It has been one of the most confronting aspects of my role since coming here, because you hear the stories and you hear about the trauma and the difficulty that so many families have faced in dealing with separation. The vast majority of separations, as difficult and tragic as they are, are dealt with privately and without needing the court system. But for those that do find themselves needing to go through the system, it's an incredibly frustrating, incredibly time-consuming and very, very costly process. These amendments won't solve all of the issues that have been identified. I look forward to the tabling, soon, of the report at the culmination of the work of the committee. The report will outline a whole range of recommendations that will go to improving the system more generally. But this change will go a long way to providing some of the relief that is necessary, particularly around streamlining and ensuring that there are efficient processes for families to avail themselves of.

The Morrison government is committed to ending the unnecessary costs and delays for thousands of Australian families that arise from a split Federal Court system. The structural reforms of the federal Family Court that are outlined in this legislation will ensure that families are able to have their matters dealt with as efficiently as possible. The reforms enabled by these bills will improve user experience for those Australian families that unfortunately need the assistance of the courts to resolve their disputes and will promote improved practices by both courts and legal practitioners.

By way of history, neither the Commonwealth nor the states or territories have exclusive jurisdiction over family law matters. The Australian Constitution gives the Commonwealth the power to make laws with respect to marriage, divorce, matrimonial cases, and in relation to parental rights and the custody and guardianship of infants. The states have referred their state powers to the Commonwealth, with the exception of Western Australia, my home state. This has had the effect of the federal parliament having jurisdiction over marriage, divorce, parenting and family property upon separation, while the state and territory governments have retained jurisdiction over adoption, child welfare and same-sex couples.

Two federal courts currently deal with matters under the Family Law Act: the Family Court of Australia and the Federal Circuit Court of Australia. As I said, Western Australia established a state family court, the Family Court of Western Australia, which exercises both federal and state jurisdiction. The structure that exists introduces unnecessary duplication and complication for families. The merging and streamlining of these courts will make a significant contribution to reducing the burden that families face when needing the support of the courts to adjudicate their separation matters. The government does not pretend that these changes, to be enacted by the passage of these bills, will be a silver bullet, nor does it suggest that this will magically fix the issues that are present within the family law system—as I've already said, issues which necessitated, and that we're dealing with through, the family law inquiry. But it is an important step forward.

The structural failings of the current split family law system are widely agreed upon. Continuing to do nothing to fix this problem is not the solution, is not an option. Reform for any longstanding structural problem is challenging; there's no doubt about that. Whether it be laws relating to taxation or family law, big reform is never easy. This is, perhaps, the most sensitive area of all reform. There is no doubt that families dealing with separation experience some of the most traumatic moments of their life. The stress that it imposes upon families and their children, where children are involved, is immense. Having sat on the family law committee, which is looking at the system, we heard a number of testimonies. I recall that we had over 1,500 submissions—it's one of the most subscribed committee submissions processes, as I understand, that this parliament has seen in a long time. And every single one of those cases is, of course, very challenging.

While very streamlined, the proposed reforms are the least radical path to end the unnecessary confusion, additional costs and unnecessary delay that have arisen for thousands of Australian families by virtue of this split system. It's necessary for these bills to pass to help streamline the court system. There are some bigger issues that must be dealt with, but this is just one thing that can be done to alleviate some of the pain and frustration, and, of course, the cost and the delays that are preventing people from ultimately moving on with their lives.

We heard the previous speaker called for more funding, resources and public money. The government has actually been delivering that. The government has funded the establishment of the family advocacy and support services. Since 2016, we've committed over $48.9 billion in funding for the family advocacy and support services. Those services operate in Family Court registries across Australia to offer integrated duty lawyer and social support services to persons affected by family violence who have had cases in the family law courts. This includes, in the 2019-20 budget, the $7.8 million that was committed over three years for dedicated men's support to be engaged in all FASS locations. It is, of course, very critical that everyone, including men, is supported when dealing with the challenge and the stress of separation. I'm an advocate for even more support for men, for women and, of course, for children. For all parties involved, support needs to be there. This government stands proud of providing that support.

As part of the 2018 Women's Economic Security Package, the government provided funding for family law services and initiatives, including funding to 65 family relationship centres across Australia—on an ongoing basis, to help families reach agreement about splitting their property after separation—and to legal aid commissions in each state and territory for a two-year trial of law-assisted mediation for property matters with asset pools up to $500,000, excluding the debt.

As I've stated already in this speech here today, this is by no means a silver bullet. No-one in the government, from the minister down, is calling this the panacea to the challenges that are faced, but it certainly will make a significant difference. It certainly will make a significant difference in streamlining the process for families that need to deal with the multiplicity of challenges and issues in a separation, enabling them to deal with it in a more efficient way; in a less complicated way; importantly, in a more cost-efficient way; and, ultimately, in a way that enables them to process the challenge that they're facing—a very private matter—in relation to their family, their living situations and their children. Being able to do that through a streamlined court process—an amalgamation; a centralisation of that—will go parts of the way and in many respects a long way to helping families deal with it and be able to move forward in their lives without that unnecessary burden of a very complicated system.

Helen Polley (Tasmania, Australian Labor Party) Share this | Link to 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.

Rex Patrick (SA, Independent) Share this | Link to 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.

Kim Carr (Victoria, Australian Labor Party) Share this | Link to 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.

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

We're debating 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. Over the past year it has been an immense privilege to be the role of Deputy Chair of the Joint Select Committee on Australia's Family Law System. The work of the committee has revealed what many of us know—that the proceedings, structure and systems of the Family Court profoundly impact more Australians than any other part of our legal system and too often that impact has devastating effects.

I first brought up many of these issues and problems in and around the Family Court back in 1996. I have never wavered in my belief that the Family Court requires a far-reaching and thorough overhaul if it is to properly serve the millions of Australians who come under its influence. These bills and the changes recommended are close to my heart. I speak with the benefit of firsthand knowledge. I have personally experienced and survived the Family Court first as a wife, then as a mother and later as a grandmother. Yes, I have experienced domestic violence. I have described the scope of these impacts previously in this place and I can think of no better way to focus our minds on the human motivation for this legislation than to quote my words from Hansard. I said:

The family law system has been, and continues to be, plagued by deep emotions, sadness, financial hardship and bankruptcies, long-term psychological damage, abuse, stress, suicides and, in some cases, murder—

including the murder of children by both male and female parents and extended family members—

Unfortunately, there are those in the community who thrive on the pain of those going through separation and the courts, lawyers who charge exorbitant fees to the point of bankrupting clients, feminists who relish the toxic anti-men rhetoric and jaded partners who will stop at nothing to use their separation and the court system to crush their rivals, including unfounded claims of domestic violence. Unfortunately, they are also harming their children in the process.

…   …   …

Put simply, we need to revamp the system to make it better for everyone involved. The Family Court is in an unusual position of being a rigged, formalised judicial body that is tasked with overseeing challenges that are human, all unique, emotional and characterised by vulnerability. As I've said previously, a one-size-fits-all approach in this arena will always fail.

Participation in the Family Court system, whether willingly or when a person is dragged in and compelled to defend allegations, has taken an all too often terrible toll on potentially millions of people in this country.

This bill is the product of a series of reviews that began with the Semple review in 2008. The Semple review produced a report titled Future governance options for federal family law courts in Australia: striking the right balance. This report found:

… there exists a significant level of duplication of administrative structures and corporate services across the Family Court and the FMC.

The report found that the structure and costs were not financially sustainable. It also found the structure took up a resource that could have been used more effectively to assist people appearing before the court.

The 2012 Skehill review looked at a number of options for action designed to improve the efficiency and effectiveness of court administration. The 2014 KPMG review found the current funding model for the courts was not sustainable and that simply throwing money at the problem was not a solution. In 2018 there was yet another review: PwC looked at the operations of the courts in relation to family law matters. That brings us to 2019, when the Australian Law Reform Commission review, commissioned by then Attorney-General Brandis, handed down its report. If, following report after report and review after review, you didn't already think there was reason enough to be here today, just listen to the commission's report, which said:

… the family law system has been deprived of resources to such an extent that it cannot deliver the quality of justice expected of a country like Australia …

The report went on to say:

There is a chronic lack of funding for the appointment and proper training of judicial resources … court-based social services professionals (including Family Consultants and Indigenous Liaison Officers), and legal aid services (including Independent Children’s Lawyers). As a consequence, children and families are deprived of sufficient time and attention being given to their matter at all stages of the process, with the obvious risks that this entails.

A decade of reports and reviews confirmed time after time that the system, the structure and the funding of the courts in this most critical of areas were all wrong. They proved that tinkering at the edges left a trail of devastated families in its wake.

At the time of its interim report last October, the Joint Select Committee on Australia's Family Law System, on which I serve as deputy chair, had received more than 1,500 individual submissions as well as 169 submissions from organisations, academics and other professionals. All of this brings us today to the bill before us.

We are told by the Attorney-General that the structural reforms contained within the bill will help Australian families to resolve their disputes faster, provide appropriate protection for vulnerable people and ensure suitably qualified and experienced professionals are available to support families in need. I also note that the proposed structural reform of the federal courts is intended to:

We are also told that the long overdue structural reform has the potential to allow an extra 8,000 cases to be resolved each year. That's 8,000 cases—just last year we had 45,000 cases come before the Federal Circuit Court. It will resolve an extra 8,000 a year, which, no doubt, will reduce the significant frustration felt by so many families. There has been criticism of the bill from some legal quarters. That does not surprise me. I believe it's fair to say that being appointed a judge of the Family Court of Australia has, until now, been regarded as a golden ticket within the legal profession. Any alteration to the current system will probably upset the long-term retirement and pension plans of some in the profession. I don't doubt that's where a lot of the squealing and resistance is coming from.

This legislation will provide a single pathway for Australian families to have their family law disputes dealt with within the federal courts. Our first priority is the people of this nation that are not only going through the hurt and pain of a separation from their loved ones, their families and their children but also have to face our family law courts. They are our main priority. If we could address this system, clean it up and make it easier for them, that is our job. I'm not interested in what the law fraternity want or their comments. It's all about the people in Australia. Under this reform, there will be a single set of rules, procedures, case management and practices. But, as the law currently exists, these changes cannot occur without a majority of judges in each court agreeing to respective rules. That's why these bills have been drawn up; they can't come to any decision because it may affect them personally. That's why we have to make the decisions on behalf of the people of this nation.

I've explained to a lot of people in this chamber that I've gone through the family law courts as a wife, as a mother and as a grandmother, and I've seen my children go through pain and anger during the process that they've had to go through. How many in this chamber have actually experienced that? How many have actually experienced domestic violence? Those are questions that we need to ask. People need to know, because some sit here in judgement of people when you've never worn their shoes. People tell me this all the time. They pull me up and say: "Please do something. I can't see my children. The system has made me wait this long." They can't get to see their kids or they see them under supervision. People feel pain and anger. There are suicides, murders, the murders of children, filicide.

I constantly talk about the fathers out there, because in many cases they are the forgotten ones. That shouldn't be the case. We talk about filicide, which I've raised in this chamber. The stats show that filicide is committed by women more than men. Filicide is the murder of your children. But, no, don't discuss that. These facts need to be made public, because I will not have any man wrongly accused, pointed at or downtrodden by feminist organisations or people with their own agenda. It's not about the sex of the person; it comes down to the children. It's about the marriage break-ups and what's happening. We have to address all this as a whole so that we can find the answers to it. This action takes it out of the hands of judges, who have been appointed for life, and puts it in the hands of the people through their elected representatives, us. In other words, it takes it out of the hands of those who have a vested interest in maintaining the system and retaining extraordinarily well-paid jobs for life, and puts it in the hands of politicians who remain directly answerable to the electorate.

This restructuring, we are told by the Attorney-General, will not lead to a diminishing of specialisation. In fact, in the federal circuit courts we have about 63 judges, and 50 of those judges are specialised. They have an average of 25 years experience in family law, and a lot of the Federal Circuit Court judges go on to become family law court judges. They hear an extraordinary number of cases each year; not only family law cases, but migration cases, civil matters and other matters as well. In the family law court, they don't have the same workload as do the others in the Federal Circuit Court. If you want a decision in the family law courts, you're waiting over 26 months. In the Federal Circuit Court, the average is 23 months for a decision to be handed down. No wonder there are so many suicides, so much depression and so many problems. And it's not only the parents who're going through it but the children who are going through it as well, because they don't have contact with their parents. They're denied that right.

I've got to say that it was One Nation that brought to the government's attention over three years ago the Lighthouse Project, which has now been installed in the court system. This is working to help with domestic violence. It was One Nation that actually brought that in, because I could see the potential and that it was a wonderful thing. It's being utilised now, and I'm pleased to see that.

I will be proposing many other changes to the committee that I'm deputy chair of, but this needs to happen. We need to merge the two courts. The restructuring has to happen. I can't accept that this restructure will in any way diminish the experience or the expertise of judges involved going forward. The restructuring proposal in the bill is long overdue. Its intended relief for families before the court is urgently required. I have maintained my efforts to reform the Family Court for over 20 years, and I am genuinely happy to strongly commend and congratulate the Attorney-General for presenting this bill in its current form. It represents a significant step forward, and I confirm that One Nation will be supporting the bill.

Paul Scarr (Queensland, Liberal Party) Share this | Link to this | Hansard source

Firstly, I'd like to say that I take it as given that every single person in this chamber simply wants to do their best to make sure that Australian families going through family law issues get the best outcomes for themselves and for their families. Secondly, I want to say that I deeply respect the legal practitioners who have raised concerns with respect to this bill and I've considered those concerns. However, upon reviewing the Federal Circuit and Family Court of Australia Bill 2019, I cannot help but come to the conclusion that this is a necessary reform. I say that for six fundamental reasons.

Firstly, at the moment, family law matters are being dealt with by two courts: the Family Court and the Federal Circuit Court. That's the reality now. Those listening outside of this place to this debate, if they are listening to some of the contributions being made, would think that we have a system where all family law matters are being dealt with in the Family Court. They simply aren't. Nearly 90 per cent of matters dealing with family law are being dealt with in the Federal Circuit Court—not the Family Court, the Federal Circuit Court. That's a fact today. One of the fundamental aspects of the reform which is contained in this bill is to provide a single entry point, when claims are made or proceedings initiated with respect to family law matters, and that's important.

Secondly, it will provide a single set of rules. I cannot understand why we cannot have a single set of court rules dealing with family law matters. At the moment, we have the Federal Circuit Court Rules. Then we have the Family Law Rules. Why can't we have one single set of rules, on the basis that this will promote efficiency and decrease cost? It's common sense.

Thirdly, specialist family law skills will be maintained. They are maintained under this bill. That is not put in jeopardy by this legislation at all.

Fourthly, all of the services which are currently provided in the context of family law matters by the Family Court will continue to be provided and, in fact, are already provided in the Federal Circuit Court when it's dealing with family law matters.

Fifthly, there will be a more efficient appeal system. As Senator Patrick commented, I cannot see why, in the family law jurisdiction, judges who are hearing appeals cannot also hear matters at first instance. That occurs in the Federal Court. I see absolutely no reason why it should not happen in all family law matters. That reform will be brought about by this legislation.

My sixth reason is a really fundamental point in this legislation, and it deals with the legal profession. The bill will create a new obligation imposing a duty on parties to act consistently with the overarching purpose of facilitating:

… the just resolution of disputes according to law, and as quickly, inexpensively and efficiently as possible …

I want to read that again:

… facilitate the just resolution of disputes according to law, and as quickly, inexpensively and efficiently as possible …

I was listening very carefully to Senator Watt's contribution to this debate, as I always do. I couldn't help but notice that, when he referred to the terms 'efficiency' and 'throughput', he did so with a measure of disdain, as though we shouldn't be totally concerned with throughput and efficiency. We need to be absolutely concerned with throughput and efficiency. We need family law matters to be dealt with as efficiently and as quickly as possible so that the families and family members can get on with their lives and not spend years in the system, chewing up family assets and going through a process to try to get resolution. The current system is simply not working for hundreds of thousands of Australians.

Two important amendments were made to the legislation in relation to specialisation and the formulation of court rules. Senator Patrick touched upon these two important amendments. I wholeheartedly support these amendments, and I congratulate the members in this place who made representations seeking those amendments. Firstly, there will be a minimum of 25 Division 1 judges. That's the division which constitutes a continuation of the Family Court. It will have to continue to have a minimum of 25 judges. It's not in the regulation; it's in the legislation. That's important. I support that amendment 100 per cent. Secondly, there will be a period of only 18 months, on a transition basis, for the Chief Justice to develop one set of court rules. Then, after that 18-month period, the position will revert to the usual situation with respect to input and decision-making across the judiciary. Again, that is as it should be. I support that amendment. I can see absolutely no reason why those opposite would oppose a situation where there is a merger of the Family Court with the Federal Circuit Court, which deals with nearly 90 per cent of family law matters. Then, on a transitional basis, the Chief Justice has an opportunity to develop one set of court rules to apply to the merged entity. To me, it's absolute common sense. I can't see the downside in terms of this reform. I've truly looked for it, but I find it extraordinarily difficult to find any downside whatsoever. I can find a downside if I go back to 2010, which those opposite, the Labor Party, proposed. I know that my friend Senator Watt wasn't in this place in 2010, but there are those opposite who were. That was an abolition of the Federal Circuit Court—an abolition of a court rather than a merger of two courts. Of course, that was a failed reform which got no currency, no traction and was not proceeded with. Those opposite should reflect quite carefully on the history of these matters before they attack this reform.

The second point I would like to make in relation to Senator Watt's contribution is that, as I stated, he talks about throughput with almost disdain: 'We don't need to consider the throughput of our court system.' The efficient delivery of justice to Australians seeking orders that can be legally enforced to allow their families to move ahead in their lives is absolutely crucial, and that is not occurring at the moment. We need to do something to correct the efficiency of the system. As I stated, the Family Court is not the only court that deals with family law matters; nearly 90 per cent of family law matters are dealt with in the Federal Circuit Court. This is not a case where we have only judges in the Family Court dealing with family law matters. It's been mentioned by previous speakers that close to 50 judges on the Federal Circuit Court have over 25 years experience in family law matters.

Scott Ryan (President) Share this | Link to this | Hansard source

Order! Senator Scarr, you will be in continuation. We'll move to questions without notice.