Kimberley Kitching (Victoria, Australian Labor Party, Deputy Manager of Opposition Business in the Senate) 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. Labor is proud to have established a standalone specialist family court under the Whitlam government. Today we stand here to defend its ongoing existence. These bills threaten the existence of a specialist family court in Australia and so should be opposed. Together these bills represent the most significant reform of the Family Court since its creation in 1975.

What these bills seek to do is combine the Federal Circuit Court and the Family Court into one court with two divisions. That court would then be called the Federal Circuit and Family Court of Australia. The current Family Court of Australia would become Federal Circuit and Family Court of Australia (Division 1), while the Federal Circuit Court of Australia would become the Federal Circuit and Family Court of Australia (Division 2). Like the courts that they would be replacing, the Division 1 court would deal exclusively with family law matters, including the most complex matters, while the Division 2 court would deal with family law and other federal law matters. Both divisions 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 appeals division of the Family Court would not be replaced with anything. Instead, all Division 1 judges would be able to hear appeals either as a single judge or as part of a full court.

The proposal to merge these courts is not based on any consultation with Australian families or family law experts. Instead, it is based on an inadequate review from PwC that cites evidence from other reports put together not by experts in this area but rather by bean counters at Ernst & Young and KPMG. Rather than a merger or amalgamation of courts, the evidence actually points to the need for a specialist family court to be more pronounced and better resourced. The Australian Law Reform Commission noted, in its 2019 report on the family law system, that, when the court was established, it could not have been foreseen that it would be seeing the level or growth in incidents of family violence and child abuse that it does now. But, as we know, it is typical of this government to commission an expert review only to then completely ignore it and allow it to collect dust on the top shelf.

The realisation of Whitlam's vision of a specialist family law court with interrelated co-located services and resources was about creating a structure that could deal not just with the legal rights of those appearing before it but also with their unique human problems. Finally realising this vision, not backing away from it, has never been more important than now. Vulnerable children and families need a system that is not only efficient but also safe and sensitive to their particular needs and vulnerabilities.

This is not to say that there are not problems with the Family Court as it exists today. There are. The Australian Law Reform Commission report that I previously mentioned notes that the system:

… has been deprived of resources to such an extent that it cannot deliver the quality of justice expected of a country like Australia, and to whose family law system other countries once looked and tried to emulate.

We recently heard the word 'neglect' used in relation to the aged-care sector when the royal commission released its interim report. But this is not the only area that this government has neglected. Under this government, the Federal Court and family courts have been wilfully neglected—first by the Abbott government, then by the Turnbull government and now by the Morrison government. They have starved them of funding, sat on new appointments and ignored a stream of sensible reviews that flagged problems along the way. A cynic might think that all of this has been a deliberate effort of systematic deterioration in order to justify the courts' merger. This government has ignored any opportunity to fix the family law system and instead is pursuing its ill-advised structure that is sure to make an already bad situation worse.

There has been next to no consultation on these bills, at least not in any meaningful sense—no consultation with legal professionals; no consultation with counsellors or psychologists, especially those working with children; and no consultation with family specialists or families with experience of the system, not to mention the already mentioned dismissal of numerous expert reports, including that from the Australian Law Reform Commission. And, apart from the Chief Justice, the government did not even consult with the judges of the Family Court. The government are not interested in implementing evidence based policy. Instead, they are pursuing ideological pet projects, even when they put the health, safety and wellbeing of Australian families at risk.

These bills have a list of opponents longer than a month of Sundays. More than 100 different stakeholders, from the Law Council of Australia to various community legal centres, Aboriginal and Torres Strait Islander legal services, child protection advocates, disability services and women's legal services have all written to the Attorney-General and asked him to abandon his plans as outlined in these bills. He has ignored their expert advice.

The government have ignored their advice that the abolition of the Family Court will harm already vulnerable children and families in need of specialist family law assistance. They have ignored the advice that the abolition of the Family Court will place further stresses on Federal Circuit Court judges, who are struggling under unsafe, unsustainable and unconscionable workloads. They have ignored their advice that the abolition of the Family Court will increase, rather than decrease, cost, time and stress for families and children in the family law system. And they have failed to address any of the fundamental problems plaguing the family law system, including the risk of family violence survivors falling through the cracks.

No-one likes this legislation. No-one in the system thinks this legislation is a good idea. Just listen to what eminent experts have said of the proposed merger of the Family Court and the Federal Circuit Court.

An honourable senator: Point of order: I don't know that you're allowed to use your phone to take photographs in the chamber.

Sue Lines (WA, Deputy-President) Share this | Link to this | Hansard source

Yes. Sorry. Please continue, Senator Kitching.

Kimberley Kitching (Victoria, Australian Labor Party, Deputy Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

The first Chief Justice of the Family Court of Australia, the Hon, 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.

The second Chief Justice of the Family Court, the Hon. Alastair Nicholson AO, RFD, QC, who served in that position for 16 years from 1988, backed up Ms Evatt's arguments, noting:

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.

That's the Hon. Alastair Nicholson, one of the most experienced people in this jurisdiction. He went on to say:

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.

The National Aboriginal and Torres Strait Islander Legal Services noted these bills will:

… disproportionately impact the most vulnerable including Aboriginal and Torres Strait Islander children and families who need the most support.

Pauline Wright, the President of the Law Council of Australia, said the Family Court is 'a respected, specialised and focused court dealing with family law issues', before she posited that its abolition would mean:

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 the Federal Circuit Court and the Federal Court 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.

The Law Council of Australia, Community Legal Centres Australia and Women's Legal Services Australia have variously said that these bills are a 'terrible gamble with the lives of children and families', that they are 'a retrograde step', that they will 'expose survivors of family violence to unnecessary risk' and that the focus of the government should be on 'ensuring the safety and best interests of the child and the safety of adult victims-survivors of family violence in family law proceedings'.

Despite the government's protestations, there is no real rationale for these bills. Currently, there are two separate courts, a specialist Family Court of Australia and the non-specialist Federal Circuit Court of Australia, that hear family law matters in Australia. The government is claiming that these bills will help reduce delays and backlogs in these two courts by creating a single point of entry for federal family law matters. Frankly, this is nonsense. The people I have quoted are of the opinion that the delays are a direct result of actions by this government. It is a government that is causing unacceptable delays in the family court system—delays caused by the starvation of funding, delays caused by the refusal of new appointments and delays caused by wilfully ignoring numerous sensible expert reviews. Average waiting times for the production of a family report by a family consultant have blown out. As at 12 March 2020, it was 11 months and six-to-nine months respectively for the Federal Circuit Court and the Family Court in Sydney, it was 7.5 months and five-to-seven months respectively in Melbourne, and it was 4.25 months for each court in Hobart.

The Morrison government and what they are doing here today is only part of the problem. This goes back seven years. It spans three Liberal governments and a series of deliberate measures to undermine the family court system. As the experts have made clear, this merger proposal will do nothing to address delays in the family court system. There's nothing in this bill that will increase the number of judges, registrars and other court staff. There's nothing in this bill that will force the Attorney-General to do his job, even something as basic as appointing new judges as vacancies are created. There's nothing in this bill that will help Australian families. There is nothing in this bill that will help the most vulnerable in our society.

Louise Pratt (WA, Australian Labor Party, Shadow Assistant Minister for Manufacturing) Share this | Link to this | Hansard source

Today we again see misplaced so-called reform come before this chamber. The government has been intent on merging the Federal Circuit Court and the Family Court of Australia, and we know that these bills, 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, were previously rejected by the Senate. I can't remember if they were actually put, but we went through a complex Senate inquiry that looked in detail at the issues raised by the desire to merge the two courts and it was found that this merger was not supported by the evidence. Minister Porter has gone ahead with pushing this merger while he's yet to act on the substantial issues raised by the Australian Law Reform Commission's report into family law in Australia.

What we have here is legislation that impacts on the most vulnerable families at a time when they need support, at a time when they need dispute resolution most and at a time when we see, across our country, family violence and abuse on the rise. What we see here is, in effect, the Family Court of Australia ceasing to be a specialist, standalone superior court. It would be collapsed into Australia's busiest and most overburdened court—that is, the Federal Circuit Court—which deals with a great diversity of issues. We've known since the creation of the Family Court that the vision for the court was as a specialist family court with interrelated, co-located resources and services. As our late, great Prime Minister Gough Whitlam said, a court with regard to the 'human problems' of couples and families, 'not just their legal rights'.

What we have here are not general issues that other generalist courts deal with; they are of the most fundamental nature to our being. The court makes life-changing decisions about children's lives. It is essential, in my view, that the distinguishing feature of the Family Court, which is its specialisation in families, must not be abolished; it must continue to exist. It is bizarre and ridiculous to me that the government think they can merge this court into a much busier court and retain the same emphasis on the services required. But I guess I'm not surprised, because I haven't seen any evidence yet of the government's desire to put more specialist services into the Family Court. I know that in particular communities around Australia they have done some trials looking at innovative ways of resolving Family Court disputes, but there isn't systemic support for what is a nationwide problem.

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 of a country like Australia, and to whose family law system other countries once looked and tried to emulate.

They are telling words indeed. The first time this legislation came forward, the Australian Law Reform Commission was newly commissioned to undertake a review. Nevertheless, Minister Porter sought to push on with this court merger as if it were a great priority. Again, it is not just the reform of family law issues but the very resourcing of the courts and services that has been underdone. What the government has done is, frankly, to blame the family law system for being inefficient, when the statistics do not back up that argument.

This merger is taking place without consultation with family specialists, like counsellors and child psychologists—no-one other than the Chief Justice. It's taking place without any judges of the Family Court being able to participate. I know from my previous experience in Senate inquiries on these issues that judges have to be very circumspect about making appearances before Senate committees because of the separation of powers. It wasn't seen as proper that they talk to us directly, but enough judges have put their voices up for us to hear very clearly what their views are.

We very much need in our nation a specialised court that provides a system that is safe and sensitive to the particular needs and vulnerabilities of children and families. I very much recognise that this legislation undermines that need. I come from the state of Western Australia, where we have our own Family Court that hasn't been merged with the federal system. As a result of that we were able to do things like same-sex de facto recognition back in the early 2000s. We have a court system that tries to focus, not only in law but also in the way it is resourced, on responding to the needs of the community.

Right now almost 70 per cent of matters before the Commonwealth Family Court involve allegations of family violence. We really need a system that bolsters specialisation in this critical area. I have to say that this legislation does nothing but undermine that. It's a bad situation for families. It's a bad situation for victims of family violence. We need cultural competence and we need resources in our Family Court.

As I highlighted before, WA is the only state with a state based Family Court. In WA we have effectively two divisions—magistrates and judges—operating seamlessly to determine family law issues. I would very much be the first to recognise that that state system has its challenges with resourcing et cetera, but, as Minister Christian Porter would know, as a former Attorney-General of Western Australia, Western Australians value the expertise and focus of that court. The last thing that would be acceptable to the state of WA is some kind of generic court system. Minister Porter would know that. It would never have been something he would have put forward at the state level and it should not be put forward now.

The 2008 Future governance options for federal family law courts in Australia report, which is called the Semple report, recommends that kind of system. It has been endorsed by stakeholders, including Women's Legal Services Australia and the Law Council of Australia. Again, the Attorney-General should know this. I guess Minister Porter is just looking for some things to put his stamp on, because he's not capable of engaging properly with the kinds of cultural and legal issues that are really at the core of enhancing people's rights and protecting their vulnerabilities. We know that family violence is on the rise and we in this place want to be promoting safety for children and safety for adults by preserving access to this specialist Family Court.

Over the last seven years of the Liberal government we have had a family law system that has been one of neglect. I think these bills makes that much worse, putting people into a much bigger melting pot of the legal system. We have a government that's cut funding to legal assistance, failed to replace retiring judges in a timely way and failed to respond to the dozens of recommendations that have been made by experts to improve the family law system. So we have a family law system that has been underresourced and a family law system that has failed to have the kinds of laws within it that are necessary for a quality system, and yet this Attorney-General has sought to blame the Family Court itself for some of these problems.

We have seen an increase in the number of unrepresented litigations, and these typically take longer to resolve. Why? Because of a lack of resourcing. The Law Reform Commission completed the most comprehensive review into the family law system that's ever been conducted. It did not recommend this merger, and the government has failed yet to even respond. So what flimsy evidence is the government basing this on? Instead, it's the discredited six-week desktop review by PricewaterhouseCoopers, by two accountants. That's the evidence base for these radical reforms.

We quizzed PricewaterhouseCoopers about these reports in the Senate committees, and, indeed, the statistics don't take account of the complexity of matters. They simply looked at time lines in the statistics for the resolution of cases. So, once you account for those factors, if you were to take into account complexity, then there is no evidence base at all to say that one court is more efficient than the other, especially in an environment where you've got unrepresented people before the court, especially in an environment where legal services have been defunded and especially in a system where the law reform itself that should be embedded in these courts hasn't been addressed.

There's a clear consensus among experts that collapsing the courts is a bad thing. It's a bad thing in terms of harming vulnerable children and families in need of specialist family law assistance, increased cost, increased time and stress for families and children in the system, and increased stress on Federal Circuit Court judges, who are already under unsustainable workloads. I recognise that Federal Circuit Court judges do currently deal with family law matters, but this is not their area of expertise, and it is an area of expertise that we should be supporting the growth of in terms of specialist courts and a specialist system.

Evidence from experts on this merger proposal is that it will increase costs and increase time and stress for families and children. It will place further stress on Federal Circuit Court judges, and I also find that alarming. We have a family law system that is already in crisis in this country, and this so-called reform and merger of the courts is the last thing the court system and families of Australia need.

Larissa Waters (Queensland, Australian Greens) Share this | Link to this | Hansard source

I rise to speak in extreme opposition to this proposal to merge the Family Court and the Federal Circuit Court. This government bill, the Federal Circuit and Family Court of Australia Bill 2019, has been brought on today in an awful hurry after, it seems, one of the crossbenchers changed their mind about their view on the bill. This bill, together with the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019, has been hanging around for years and it's been a bad idea since the day dot.

I don't think there's anyone who thinks the Family Court is working terribly well at the minute. We hear harrowing stories of justice delayed, and I'm sure every knows that justice delayed is justice denied. There is a lack of proper training for judicial officers and support staff in spotting and responding to domestic violence and supporting those affected, and there is desperate underfunding of community legal centres and other folk who support people seeking to access the Family Court, but merging the Family Court and the Federal Circuit Court won't fix either of those problems.

I'm just baffled as to why the government thinks that this is a good idea. It was a friendless proposal until this morning. I think it's One Nation and Senator Patrick who have decided to support this legislation. No-one else in the profession thinks this merger is a good idea. None of the constituents I've spoken to on this matter think this will fix any of the problems they have in getting their issues properly dealt with in the Family Court. The fact is that the court is underresourced and there's a massive backlog. You don't fix that by adding it in with a different jurisdiction; you fix it by properly resourcing the court, hiring some more judges. The court themselves have a proposal to hire some more registrars to deal with some of the less legally intense aspects. It seems a meritorious suggestion, as long as more judges are hired as well. There are so many things that could, and should, be done to fix up the problem. This is the wrong solution to the right problem. It's baffling to me that the Attorney-General, in the face of so many letters, so many submissions and so many experts saying, 'Wrong way; go back,' is persisting with this nonsense proposal that won't fix anything.

The safety of children needs to be paramount in the Family Court, and one of the advantages of the Family Court is that it is a specialist jurisdiction. It is a superior court, as it's called in the legalese, with specialist expertise. Merging it with a generalist court can only, logic would hold, reduce specialisation. In this day and age, when we have an epidemic of violence against women and their children and when many of the cases that end up in the Family Court in fact feature it as an element, why on earth would you reduce the specialisation of the courts to deal with that matter? Yes, of course we need more training for the judges, registrars and other support services that surround the victims of violence who are seeking to access justice through the Family Court, but we will have less of that when we reduce the specialisation of the Family Court. It genuinely beggars belief that the government could think this is in any way a good idea, for anyone. So we strongly oppose this legislation. Of course, it is not the first time the government has sought to bring these bills on. They've been hanging around since 2018. Everyone recommended against them and they're still recommending against them now, but that's falling on ears that just will not hear sense.

As part of a separate but related inquiry into family law matters, I attended a briefing in recent times and was told of the reforms that the court is already undertaking. There is already a process to harmonise court rules. So whatever administrative efficiencies can be gained and whatever closer associations there need to be are already happening. We do not need this merger to deliver administrative efficiencies, and it certainly won't deliver justice. It will reduce specialisation. It is an overly complex and ill-fitting solution that does not address the real problems.

We are concerned about the loss of specialisation in the Family Court. We are concerned that survivors of domestic violence will continue to be retraumatised through the justice system and will now have an even less appropriate forum in which to raise those matters. Women's organisations oppose this legislation. Even a bevy of former Family Court judges oppose this legislation. I might take this chance to highlight some of those concerns. I have a letter here that was signed by more than 150 professionals in this space. Some of them are ex-judges. The Law Council is a signatory. Many of the women's support services have signed on. It's a letter to the letter to the Attorney-General and I'm going to quote selectively from it. One paragraph says:

Any reform should strengthen a system, not lead to the diminution of specialisation. If the Government's proposed reforms proceed, we will lose a stand-alone specialist superior family court.

It goes on to say:

We … support having a single entry point to the family courts and common rules so the … system is easier for families to navigate.

But—

… this can be done without abandoning the benefits otherwise available to children and families from a properly resourced and specialised court system.

They've referred to the fact that those rules are in the process of being harmonised, and they too support that process. But we do not need to be merging these two courts and diluting the specialisation of the Family Court in order to achieve those administrative efficiencies.

Indeed, what should the driver be here? It should be the safety of children and people seeking justice, and it should be facilitating affordable access to justice, not simply a box-ticking exercise for the Attorney-General. Those signatories to the letter go on to say:

We believe an increase in specialisation in family law and family violence will increase the safety of children and adult victims-survivors of family violence … The need for increased specialisation of courts to improve decisions and outcomes for families is supported by the evidence of many inquiries.

…   …   …

The safety of children and adult victims-survivors of family violence requires increased specialisation. The proposed merger serves only to undermine that important need.

This is a ludicrous proposal. It has no friends, bar a couple of folk on the crossbench who happen to have the balance of power in the Senate. This will further delay the delivery of justice. It will further reduce the ability of the courts to acknowledge and address family violence. It will continue to disenfranchise people seeking justice from the courts. It doesn't fix the underfunding of community legal centres and other support services. It doesn't fix the understaffing of courts, when it comes to the numbers of judicial officers and the workload that they have. It doesn't fix the problem of costly applications to the court. It doesn't fix any of those real problems, which have real impacts on real people's lives. It is the most shameless and disappointing of proposals to hold out false hope, when this isn't going to solve anything. In fact, it's going to make it worse.

So we oppose this legislation with the strongest possible might of our party. We have much support in that regard but, sadly, it seems that, with the change of one vote from a crossbench member, this bill may well pass the Senate today. We will be doing everything we can to stop that because we believe that justice should be accessible, that specialisation is appropriate and necessary and that more resourcing for the Family Court—not a dilution of its specialisation with this merger—is what's needed to protect women, children and others seeking access to the family law justice system.

Carol Brown (Tasmania, Australian Labor Party, Shadow Assistant Minister for Infrastructure and Regional Tourism) Share this | Link to this | Hansard source

Today the parliament is again considering the Morrison Liberal government's attempt to dissolve the specialist Family Court of Australia as a standalone superior court. Should the parliament accept this legislation, it would be a sad end indeed to a decades-old institution which has served Australia well. The Family Court of Australia, of course, is an institutional legacy of the Whitlam Labor government. It has a proud legacy and has served our nation well. The enactment of the Family Law Act 1975 saw two significant social reforms for the nation. It brought about the key milestone for Australian women of no-fault divorce and it established, finally and with much need, a standalone multidisciplinary court designed specifically to consider disputes arising within the family.

The Federal Circuit and Family Court of Australia Bill 2019 and Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019 represent the most significant change to the structure of family law in this nation since that time, 46 years ago. So it is more than appropriate that this matter be given the sort of consideration and debate worthy of the institution and the critical matters it deals with.

Let us briefly consider some of the history of family law and the court in Australia. I know that other senators have spoken about the work of former Labor Attorney-General Kep Enderby, but it is important that the Senate hear these words again. This is a critical piece of legislation that needs to be defeated. Shortly after the passage of the Family Law Act in 1975, Mr Enderby said:

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.

Mr Enderby later said that the essential distinguishing feature of the Family Court is that it would be dealing only with family law matters. This has been critical. Yet the proposition before us today would abolish this essential distinguishing feature. It would roll the Family Court into one of Australia's busiest and most poorly resourced and overburdened courts, the Federal Circuit Court. And what of the modern-day role of the Family Court in Australia? Much has been said about its pivotal role and vital need as an important institution.

In 2019, the Australian Law Reform Commission delivered a landmark report on the family law system. It should be noted in this place that, whilst the government commissioned the report, it has completely ignored it. In the report, the commission noted that, at the time of passage of the Family Law Act, the Whitlam government did not, quite reasonably, foresee the growth in the incidence and awareness of family violence that would come. Thus the need for a specialist court to deal with these sensitive matters has only grown. We must consider what 'specialisation' actually means. At the time of its establishment, the specialised court was envisaged as one in which the environment would have regard to the human problems, as Whitlam described it, of couples and families, not simply a clinical and sanitised institution that solely considered legalistic matters and requirements. It was to be a court with interrelated and co-located services and resources for families. This is a critically important distinction, especially for vulnerable children and families in need of a safe and sensitive environment.

It is universally understood and accepted that the family court system, at present, suffers from serious deficiencies. We need only look at the findings from the Australian Law Reform Commission, which determined that 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, and to whose family law system other countries once looked at and tried to emulate.

That's a sad indictment indeed of the current state of affairs for families in need of a swift and quality judicial experience.

The last seven years, in particular, have brought about such neglect. It would be hard to consider it to be anything other than deliberate—a deliberate trashing of Australia's system of family law from successive conservative governments. It started with deliberate cuts and neglect by the government led by Mr Tony Abbott. It continued with further cuts and neglect by the government led by Mr Turnbull and now Mr Scott Morrison. How has that neglect manifested itself? It started with the failure to replace judges of the Family Court and the Federal Circuit Court in a timely manner. Despite increased demands for services, funding has not been delivered to meet that demand. The recommendation of repeated reviews has been continuously ignored—parked on the bench to gather dust.

After all of that, the government's solution is this legislation before us. Instead of working to fix the family law system, these bills will only make this situation much worse, and that is bad news for Australian families and vulnerable people, including vulnerable children.

The government's bills seek to combine two distinct courts into one. They trash the concept set forth by the Whitlam government of a single, standalone and specialised family court designed to deal with the sensitive human problems of family law. In combining the Federal Circuit Court and the Family Court, both these divisions would share the same single Chief Justice and Deputy Chief Justice. They would share a single set of rules and a single point of entry. Worryingly, the Appeal Division of the Family Court would not be replaced with anything. The same bench of judges would hear matters both in the original jurisdiction and on appeal.

When this merger was originally proposed by the government, the Attorney-General said that he would stop appointing new judges to Division 1 as they retire. That would obviously amount to a gradual abolition of Division 1—that is, the Family Court of Australia—over time. Whilst he backed away from this proposition after sustained public criticism, there is nothing in this legislation that would prevent him from reverting back to his original position. He can, once again, have a change of mind and simply stop appointing judges. We are supposed to simply take him at his word. Unsurprisingly, there are few who do when it comes to this Attorney-General. Even if changes were made to this legislation to guarantee the continuation of the proposed Division 1, the Family Court, it would not address the fundamental problem at the heart of this legislation—that is, the abolition of specialisation within our Australian system of family law.

So, why such a radical departure? Perhaps the government are relying on a quantum of supporting evidence. Perhaps they've consulted widely to reach and form this view. No, and no—no such evidence, no such consultation. The Morrison government claims that the proposed merger has been informed by independent reviews and inquiries over a decade. On his departmental website, the minister, the Attorney-General, has named five reports under a heading that reads 'The evidence base for the reforms'. However, unfortunately, like most of the work produced by this Attorney-General, it doesn't even make sense. Not one of the reports he lists has recommended these radical reforms. In fact, none of those reports have even considered these reforms. Just one of the reports recommended restructuring the Family Court. However, the model recommended would have maintained—would have maintained!—a standalone specialised court. Not once in almost 70 reviews of the family law system undertaken since 1974 has it ever been recommended that the family court system of Australia should be restructured in the way proposed by this government. These reviews and reports are all listed in appendix 3 to the interim report of the Joint Select Committee on Australia's Family Law System, but the Attorney-General continues to ignore all this, continues to ignore the evidence cited by his own department and this parliament. But senators in this place should not ignore the evidence.

What evidence does the government rely on? Amazingly, the most radical change to the structure of family law in Australia has been done off the back of a six-week desktop review of data by two accountants. That's it. It should be noted that this review has been widely panned and thoroughly discredited. And what about consultation on this legislation? There has not been any meaningful consultation with the legal profession or with any other family specialists, like counsellors or child psychologists. There was no consultation with users of the family law system—Australian families—other than with the Chief Justice. The government did not even consult with the judges of the Family Court. Such a radical reform should not be undertaken with such scant regard for consultation. Yet, it is no wonder the government did not wish to consult, because they would have come across naught but an avalanche of opposition.

Let's look at some of the commentary, opinion and analysis on this legislation. A letter that was sent to all members of parliament indicates it's opposed by over 155 stakeholders, including 13 retired judges. Signatories also include community legal centres, the Law Council of Australia, Aboriginal and Torres Strait Islander legal services, child protection advocates, women's legal services, disability services and many more. They've written to the Attorney-General, asking him to abandon this proposal. They have been silenced; their views have been ignored. To the last, these opponents have made it clear that it is their combined view that this proposal will increase, rather than decrease, cost, time and stress for families and children in the family law system; harm vulnerable children and families in need of specialist family law assistance; place further stressors on the Federal Circuit Court judges, who are struggling under unsafe, unsustainable and unconscionable workloads; and fail to address any of the fundamental problems plaguing the family law system, including the risk of family violence survivors falling through the cracks.

The very first Chief Justice of the Family Court of Australia, Elizabeth Evatt AC, has said:

The proposed merger of the Family Court and the Federal Circuit Court (FCC) will lead to undesirable outcomes for children and families.

The Hon. Alastair Nicholson, the second Chief Justice of the Family Court, who served in that position between 1988 and 2004, has fully supported Ms Evatt's remarks. Mr Nicholson has also said, in biting criticism:

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.

He went on to say, in pointed remarks:

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.

There are so many groups, organisations and experts in this field that have asked the government to stop with this reform and stop with this legislation. But the government has been unprepared to listen and unprepared to back down, and it's not good enough. We know that this legislation, if enacted, will lead to worse outcomes for very vulnerable families. I believe that, amongst the people that have written to all the senators and members here, there are a number of highly specialised expert organisations from South Australia. We've got the Coalition of Women's Domestic Violence Services of South Australia. We've got the Family Violence Legal Service Aboriginal Corporation (SA). There is JusticeNet SA, the South Australian community legal centres—and it goes on. So I ask those senators to look to their own, to look to their state experts as to what they are saying— (Time expired)

Jess Walsh (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

I too rise to speak on the government's Federal Circuit and Family Court of Australia Bill 2019 and a related bill. Let's be very clear about the government's intention with this bill. This bill would destroy the Family Court of Australia, leaving families and children at risk. This government has been hard at work for some time running down the Family Court. There have been unacceptable delays in replacing retiring Family Court and Federal Circuit Court judges. Funding has not increased in response to increasing demand for Family Court services. Review after review with critical recommendations has been ignored by this government. And, instead of fixing the family law system, the government wants to restructure the Family Court and the Federal Circuit Court in a way that would make a bad situation even worse for so many Australian families and leave Australian children vulnerable. The Law Council of Australia has described the government's proposal as 'a terrible gamble with the lives of children and families'.

This government's bill is just another chapter in this government's long, long story of builders and wreckers. It's Labor that builds and protects our most significant national institutions. It was Labor that laid the foundation for Australia's world-leading Family Court system. We created Medicare, delivering free universal health care to every Australian. We invest in education and training so that our young people can fulfil their potential. We established a universal superannuation system so that working people have dignity in their retirement. We introduced the NDIS, making sure people with a disability are properly supported, and we built the social safety net that is so important for vulnerable Australians. But the Liberals, on the other side, the wreckers, are always trying to tear these institutions down, and this bill is no exception. Why do they do that? Because they just don't understand ordinary Australians, the working families and young people who are trying to build a good life and get ahead, the retirees and the pensioners. They just don't understand the people of Australia.

Labor Prime Minister Gough Whitlam first introduced the bill to establish the Family Law Act back in 1975 in response to what he described as an overwhelming demand for reform. The Family Law Act instituted no-fault divorce and it established the critical Family Court of Australia, a specialist, multidisciplinary court for the resolution of family disputes. In 1975, Mr Whitlam said the Family Law Bill was an achievement reflecting the Labor government's:

… fundamental social and human priorities. The Family Law Bill … has completely refurbished the marriage and divorce laws of Australia and done away with the medieval concepts of guilt and fault. The Bill has established a Family Court of Australia which will … protect the rights of all parties in divorce proceedings in an atmosphere of dignity and humanity.

I'll repeat this for the wreckers on the other side of the chamber: Labor's family law reforms were, and remain, a reflection of Labor's fundamental social and human priorities—priorities which, with this bill, are in such clear deficit on the other side of the chamber.

Labor's reforms transformed outcomes for generations of families and, critically, for women and for children. In 1974 the Senate Standing Committees on Legal and Constitutional Affairs described the Family Court as 'essential' to give substance to key aspects of the Family Law Act. The bill before us would collapse the Family Court into one of Australia's busiest, most poorly resourced and overburdened courts, the Federal Circuit Court. The bill would erode and ultimately abolish the Family Court of Australia as a specialist court. That specialisation is intended to prioritise the safety of children. It's intended to prioritise the safety of adult victims-survivors of family violence. Eminent Australian and the first Chief Justice of the Family Court, the Hon. Elizabeth Evatt AC, has said that merging the Family Court will undermine the integrity and structural specialisation of the court:

The Family Court was designed purposely as a world-leading, specialist, stand-alone Court to deal only with family law matters, with the support of a dedicated multi-disciplinary team of counsellors and mediators. Its stand-alone nature is one its greatest attributes, providing protections for vulnerable people in need of family law assistance …

Her comments are fully endorsed by the Hon. Alastair Nicholson, the second Chief Justice of the Family Court. He has said that it is unbelievable that the government would propose the dissolution of the Family Court. Let me repeat that word of his: 'unbelievable'. It is unbelievable that the government would propose the dissolution of this court. He also says that the court's specialisation is absolutely necessary to deal with cases that can be extremely complex, involving the determination of issues relating to children, including their rights and need for protection not only from individuals but also from government in its myriad forms.

Who here in this chamber today doesn't understand the need to protect Australia's vulnerable children? Who here doesn't understand the advice that is coming from these eminent jurists? It's clear that the wreckers on the government benches just really don't care about taking advice or considering the overwhelming evidence on this bill. This bill does not have the support of people who work within our family law system, the very people who work to protect Australia's vulnerable children, who work to protect Australia's separated families, who work to protect victims-survivors of family violence.

Community Legal Centres Australia have said that moving away from a specialist family court model would be 'a retrograde step' from this government. They say it would expose survivors of violence to unnecessary risk. Women's Legal Services Australia's opposition to the government's legislation is, in their words, centred on ensuring the safety and best interests of the child and the safety of adult victims-survivors of family violence in family law proceedings. And there is this damning observation offered by an eminent family law practitioner, who says: 'It can't be anything other than ideology, because there are so many groups opposed to it.'

Consultation with stakeholders on this bill, on the substance of the government's plans to abolish the Family Court in this bill, has been absolutely terrible. It has been missing in action. There has been no meaningful consultation with the legal profession or with other family specialists like counsellors or child psychologists. There has been no consultation with users of the family law system—Australian families. And, other than with the Chief Justice, the government did not even consult with the judges of the Family Court. Over 100 stakeholders, 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 the country have written to the Attorney-General to ask him to please abandon this proposal. Their pleas have fallen on deaf ears.

This is what they have told the Attorney-General. They say that this proposal will harm vulnerable children and families in need of specialist family law assistance. They say the proposal will increase rather than decrease cost, time and stress for families in the family law system, families who are already under extreme stress. They say this proposal will place further stresses on Federal Circuit Court judges, who are already struggling under unsafe, unsustainable and unconscionable workloads. And they say this proposal will fail to address any of the fundamental problems plaguing the family law system. Again, this bill will fail to address any of the fundamental problems plaguing the family law system, including the risk of family violence survivors falling through the cracks. Women's Legal Services Australia has said:

Government commissioned inquiry after inquiry has recommended increasing specialisation of the family law system in family law and family violence. The safety of children and adult victims-survivors of family violence and ongoing consideration of risk must be foundational in the family law system. If the courts are to merge, we recommend retaining the specialist stand alone superior family court.

Likewise, Victorian Women Lawyers does not support the government's bill, observing that there has been overwhelming opposition to the bill by family law experts and stakeholders, including a vast number of submissions from law societies and legal professionals, calling for the bill to be rejected.

In particular, VWL is concerned that:

● the Bill prioritises the efficiency of hearing and resolving family law matters over and above the safety and wellbeing of families and children:

● the Bill seeks to reduce the operating costs of hearing family law matters at the expense of ensuring the appropriateness of judicial outcomes;

● the proposed merger of the Family Court and the Federal Circuit Court lacks sufficient justification weighed against the interests of parties to family law proceedings, and goes against the recommendations of family law specialists.

I want to make particular mention of the government's proposal in the COVID context. While parts of Australia remain in lockdown and remain at risk, for some people home is not always the safe place that it should be. A survey by the Australian Institute of Criminology has revealed more than half of women who had experienced violence before the COVID-19 crisis said the violence had become more frequent, more severe, since the start of the pandemic. COVID lockdowns and self-isolation, increased job insecurity and financial pressures are increasing the risk of family violence and family breakdown in our country today. That is why it's so astounding the government would decide to pursue this legislation now.

More than ever, it's time for us to actually strengthen and properly resource a standalone specialist Family Court, not tear it down. But the wreckers on the other side, the wreckers on the government benches, are not listening. This bill, all the evidence says, will do nothing to help Australian families. Instead, the experts tell us that this bill will put Australia's vulnerable children at even greater risk. This bill will put Australian families already struggling, already under immense stress, at harm. That is what the experts are telling us about this bill.

Australian families deserve better from their government. They deserve protection from their government. They deserve a government that backs them up and supports them, not a government that tears down vital institutions that exist purely for the protection of Australian families. Australian families deserve better.

Jacqui Lambie (Tasmania, Jacqui Lambie Network) Share this | Link to this | Hansard source

Well, it's a whole new low for the Liberal Party today, isn't it—eh? I tell you who is gaining something out of this and it isn't always the experts out there who said, 'Do not do this, do not do this,' because they would know it's gone from a lawyer's picnic to a lawyer's banquet. They're going, 'You beauty, bring in the money; bring her in, baby.' That's exactly what is going on here. My goodness, like there isn't enough heartache going on in our family court system. Right now it's underresourced and understaffed. If you think the heartache and the suicides that are going on out there right now are bad enough, if you have half a conscience over on that side, wait until you see what is coming, because it is a train wreck in action. What is wrong with you people? You're playing with people's lives. By the time people get to the Family Court they are vulnerable. The mums and dads are vulnerable, and the poor kids—my goodness!

Where is your conscience? Goodness me.

Just take a moment and picture a judge hearing a case in an Australian court. Do me a favour and call up an image of it in your own mind for just one moment—and, if you can get a slight feeling from it, that would be great. If you're one of the lucky people who's never had anything to do with our legal system, you probably expect that the process is fast and fair. I tell you what, it is not. And it's not because of the judges, not because of the people who work in our courts, but because of decisions that have been made up here—the under-resourcing, the understaffing. It is absolutely atrocious. The harm you're going to bring and what you're already doing to these families is disgusting. No conscience whatsoever—I've never seen a government like this one, not in my lifetime. You should be ashamed of yourselves.

You might picture something like what you see at the end of a cop show on TV. Maybe you're thinking of a system where the bad guys get locked up and the good guys are quickly let go. In the back of your mind, you possibly have an idea that everybody has a high-powered lawyer in an expensive suit—and, my goodness, are they expensive. At the very least, you probably figure that normal people will get decent professional help to navigate through it all. When it comes to someone's day before the judge, maybe you imagine that they have a lawyer who uses clever language and careful questions to get to the bottom of their case. If that's what you're thinking, you aren't alone; that's how I used to think our court system worked as well. Oh dear. It's funny when you have life experience of something—not just in one year, two years, three years and four years. It's an amazingly different picture that you actually get, because I've come to realise that this isn't true and that's how things are. It's a fantasy, an absolute fantasy.

Our courts don't look like the courts on TV or in movies. The truth is that the process is messy and it is slow and it is incredibly expensive and it is becoming out of reach for many normal Australians out there. That's where our justice system is going, and that is so unfair. Here's the great divide between the rich and the poor. Even if the system finds the right answers eventually, it can take a lot of pain to get there.

The Attorney-General knows this is a problem. He knows that the courts are running too slowly; they're too ineffective. People like to say the first step towards fixing a problem is admitting you have one, and you've got to give it to the Attorney: he has made the first step. Where he's gone wrong is in how he wants to fix it. He says that we need to merge the Family Court and the Federal Circuit Court to clear out the backlog. I don't know where you've been, mate, but you've seen the backlog in the Federal Circuit Court and you want to merge them? I don't know what planet you're sitting on, Attorney-General, but come back to earth—because it's causing great harm to many Australians out there. Our court system, the whole lot of it, is in dire straits, and now you're going to throw this Family Court system in with the rest of it. Seriously? Seriously, mate?

These bills don't do anything to fix what's going wrong for so many Australian families who find themselves before the courts. Merging the two courts that deal with family law matters won't take the pressure off the judges to get through the hundreds of cases at a time and it won't get people the legal assistance they need to have the best chance that their day in court will go well for them. If the Attorney-General was really committed to making our courts faster and fairer, he'd put his money where his mouth is, once and for all, and resource them, because that's what's missing here, mate. Family law cases should be dealt with more quickly and more efficiently so there is less harm done to the family unit, and that's not being done. Now you're just stretching it out, and like I said, I hope you can wear it, mate, and you can sleep at night, because you're going to see a lot more hurt going on in these families, and more suicides. Quite frankly, you disgust me.

Some judges in the Circuit Court have over 600 cases on their books. It isn't humanly possible for them to get through that kind of workload in a reasonable amount of time, let alone try and get through every case and understand it. The delays leave people stuck in limbo, waiting for hearing dates that are months away, years away. When they finally get their hearing, they'll again have to wait months for the judges to deliver their findings, because they're so overstacked. These sorts of delays across all levels of courts are causing the real harm to people and their families.

The time it takes to get things resolved is time in which people aren't getting justice, either to have their defence upheld or to have their complaint acted upon. For families in the court system, it can mean months or years of waiting to be able to move on from a nasty marriage breakup which has already caused havoc in the family unit itself—let alone the destruction it's doing to our Australian kids, our future. It means that a five-year-old could end up waiting a third of their life before the courts finally figure out whether they're going to stay with mum or dad. And you wonder why our kids are having bloody psychological issues out there!

This isn't a problem that merging the courts will solve. It's happening because the government isn't giving the courts the funding they need to be able to get through the work that they have to do. It's happening because our judges are overworked. Family Court judges are working well into the night every night to get through cases that often involve children who are at risk of abuse and violence. As hard as they work, they have to churn through them as though they're on a production line, and that is not the way our courts were set up to deal with things. We're asking judges to work as if they're someone in a burger joint—just chuck on a bit more lettuce, double the cheese; great, no worries!—rushing about to get your orders filled and out the door as fast as possible. How is that justice? How is that bringing justice to any Australian, let alone Australian families?

Sometimes judges in the Federal Circuit Court have to deal with 70 legal matters before 10 in the morning. That's 70 decisions they have to make before most people have even had brunch or their second cup of coffee. That's what we're dealing with. How can any judge give those cases the consideration and care that they deserve? I don't care how good they are at their job; they're human. They could be the best in the world and they wouldn't be able to get through all that properly. Nobody could, unless they have some sort of superpower. These judges have inherited that somehow, and I don't recall you giving them that, Attorney-General.

Every person who's behind a legal case like that has a story to tell, but the judges don't have time to hear them. Instead, they're in and out as quickly as possible. That's not how you give broken families justice. All you're doing is bringing them more hurt and more misery. I didn't sign up to be a politician to do that. Obviously the Attorney did though, because the churn of the cases going through the courts means that the chambers end up feeling like a shopping centre. It's a ride up and down the escalators—no worries!—in and out, get your purchases and back out the door.

One lawyer spoke out and said that being in the Federal Circuit Court was like being in a zoo. We're sending Australian families into a zoo and expecting them to get a fair hearing. That's why we're asking the legal system to figure out how to look after vulnerable kids. We're asking them to look after our vulnerable kids, and they can't even keep up with the cases. How much do we need to ask of them? I don't think there's much left. I don't think there's anything in reserve. They're overstacked and they're underresourced, and this is not the way to fix it. Parents are supposed to get a fair hearing on whether they can get custody of their children. Instead, they're running around in a zoo or waiting for the burger. That's what is going on here.

The people who are copping it the most are the families who can least afford it. It's getting further and further away from them, and that's got to bring destruction. It's got to bring destruction to the nation. So the people losing out here are the good old Aussie family, those who are already doing it tough more than likely, the ones who don't have the money to fight these cases in the courts, the families who don't have the money to pay for lawyers' banquets. The Attorney knows that. My word he does! He's got to know that, because apparently he's the Attorney. He's educated—apparently well educated—so why doesn't he know that? He says people shouldn't have to fork out buckets of money to get before a judge. He's right. That there's a problem in itself. At least you've picked that up. But talking the talk ain't walking the walk, is it?

You're not doing anything to fix it; you're actually making it worse, which is really soul destroying, to be honest with you.

Hundreds of people are going through the Family Court on their own. One study on the Family Court and Federal Circuit Court counted nearly 250 hearings where at least one of the parties was self-represented, and that is an absolute disaster in itself. Those people might not be getting the legal advice they need, and many of them won't get the best chance to make their case properly to a judge. It makes it harder for judges to get through their huge workload, because those cases usually take longer to get through.

Yes, the top-up of funding of legal assistance programs last year was welcome, but we've had successive cuts to legal aid funding for decades. A one-off injection isn't going to cut it. It's not even close. You haven't even got to sharpening the knife; I can assure you. If the Attorney were really committed to keeping costs down, he wouldn't be hiking up court fees for people in the Federal Circuit Court like he is doing. I'm very worried about the recent fee increases for migration cases in that court. They're going to be paying five times what they were paying before. It is the thin edge of the wedge. It's coming. If you think it's only going to happen to those immigrants, I can assure you: it's coming.

Will families be forced to pay five times more than what they are already having to pay now? How many people will lose their chance to get before a court because of those fee hikes? It's terribly worrying. How much more damage will be done to families? Justice shouldn't come more easily to people who can pay for it. This merger won't fix our broken court system. The problems that we have don't come from the Family Court being inefficient and they don't come from confusion about where to lodge a case; the issues are much bigger than that and they go much deeper than that. To push complex family law matters through the Federal Circuit Court is going to end up in absolute disaster, it is going to end up in misery, it is going to take people's lives, and it is going to cost the economy a lot more. Spend, and it won't cost you more. Fix it in the first place and fix it properly, because you'll save in the long run. Weren't you taught that growing up, Attorney? Was it all just out of a textbook for you? Get some life experience, because you need it.

The Federal Circuit Court is one of the busiest in the country. Along with family matters, it deals with things like migration cases, bankruptcy, intellectual property rights, workplace law, consumer issues and so on. We can't get families the support and services they need if we're sending them into a zoo to get their cases heard. They are having to represent themselves to judges who are overworked, tired and don't have the time to hear their stories and their background. We're talking about some of the worst moments of these people's lives and their kids' lives, and they deserve a lot better than that. What is going on here today is so un-Australian.

Everybody should have a right to legal representation and fairness. That is what this country is about. You just stuck that knife in today, Attorney, and you twisted it, didn't you? My goodness. Here you go, you most vulnerable families in Australia: take that; thanks for coming! The bills do not get to the heart of where the problem is, because, to fix the problem, the government will need to put a lot more money into it. They're not doing it and they're not going to bother to.

Tim Ayres (NSW, Australian Labor Party) Share this | Link to this | Hansard source

When Australian families break down, this place and the system that we deliver for them should be fair and should provide families, mums, dads and kids, with the love and support of a community that's going to provide them with the assistance to get the result that is in the best interests of them and, in particular, the best interests of Australian children. I think what we've seen over the course of the development of these bills, 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 their passage through the parliament and over the course of the last 12 months with this Attorney just establishes that you can go to the best schools in the country, you can have the best education and you can be given the best opportunities in life that any young person could expect, but it doesn't guarantee that you'll come to public life with any measure of empathy, any measure of a capacity for concern and any measure to discharge your responsibilities as the Attorney in the interests of families and, in particular, the interests of children.

The abolition of the Family Court really says two things. Firstly, it is a catastrophe for Australian families and in particular Australian children. Secondly, it will be an enduring symbol of everything that is wrong with this parliament and everything that is wrong with this government. Firstly, it shows us that we've got a government with no plan for the Australian people and no mobilising vision for itself—and nowhere is this more clear than in this area of family law. This party used to claim the dual mantle of progress and conservatism but now stands for nothing. The Prime Minister stands for nothing, but he's prepared to do anything in his narrow political interests or the government's narrow political interests. We're seeing that unfold with this legislation and we're seeing that unfold over many issues, including some of the issues that the parliament has had to confront this week. The government stands for nothing but is prepared to do anything. It is dedicated to only one thing—continuing to occupy the treasury bench. It is dedicated to only one interest—its own narrow, venal political interest.

The second thing that's wrong with this legislation, this place, this government and in particular this chamber is the role that the One Nation party is playing, with government support, to dismantle good protections for Australian families. The One Nation party are hanging out with the black-shirted men's movement grievance brigade. That's what they support. It is barely disguised misogyny and hostility to the interests of Australian children. It is no mystery that this backward nativist outfit supports the abolition of the Family Court. The real mystery is why on earth the government is supporting them. Why on earth would anybody with a shred of common sense or decency support this legislation?

I noticed that former Senator Boswell was in the chamber the other day. I can't imagine the sense of disappointment that he must feel after being a leader of the National Party in this place when it took the courage to stand up to One Nation—he tried to provide a different political voice for his constituents and the constituents of the National Party—and defeated the creeping backward nativist political voice, only to have this government bring them back. The responsibility for this resurgent right-wing nasty brigade is all on you. It's your preference strategies, your activity in this chamber and your legislative haggling that has brought it back, and the consequences for Australian families and in particular Australian children are very serious indeed. We have a weak, supine government that stands for nothing and is prepared to incorporate extremists in its electoral strategy.

I have to register my deep disappointment with the decision of Senator Patrick to support this legislation. He was elected by people who had lost faith in the major parties and wanted to vote in a way that registered a protest. But this is all about horsetrading. It's entirely about transactional politics. It's entirely about secret deals, with mealy-mouthed justifications. It is so transactional that some on the crossbench have lost their way entirely and lost perspective entirely. All taken together, there's a dysfunctional chamber and a government that has lost the capacity to govern in the interests of all Australians because it's so obsessed with itself. In this case, it's bad law—the abolition of the Family Court of Australia—and, in general, it has no plan for Australia. It's time for a new government that's actually prepared to be on the side of Australians, to be on the side of Australian families and Australian children.

The Family Law Act in 1975 instituted two major changes: (1) no-fault divorce and (2) the establishment of the Family Court of Australia, a specialist, multidisciplinary court for the resolution of family disputes that it was envisaged would support families through the process. The establishment of the Family Court and the Family Law Act did away with the brutal inquisitions, the dehumanising inquisitions, that characterised proceedings under the Matrimonial Causes Act. These two reforms were and are inseparable. They come together, and it is not possible to separate them.

It is clear that the agenda, supported by the One Nation Party, is also to do away with the other. I assume, from the government's connivance with them over this legislation and the committee that led to this bill, that there are people in the government who support it. In November 1974 my predecessor in this place Senator Lionel Murphy, the then Attorney-General, made the case for change which has endured until now. He said:

The existing law and administration of divorce, custody and other family matters is too humiliating, too complex and too costly. The laws should be changed so that they may be characterised by dignity, simplicity and inexpensiveness. …A broken down marriage should no longer be a prison which can be escaped from only by adultery, cruelty or the like.

Prior to the Family Law Act, the Matrimonial Causes Act 1959 set out 14 grounds for divorce, including adultery, desertion, habitual drunkenness, imprisonment and insanity. To get a divorce, one party had to prove that the other party was at fault. The provisions for divorce were costly, protracted and involved indignity and humiliation to the parties because an inquiry into fault was the foundation for the dissolution of a marriage.

It doesn't appear that the Morrison government is proposing to reinstitute fault based divorce yet. That, I'm sure, will be the subject of another dirty deal with One Nation some time in the future. But what it's proposing to do is to undo the second of the major changes introduced by the Family Law Act—the establishment of the court. It's a change being proposed in the absence of a shred of evidence to support it. I heard Senator Lambie's account of the experience of Australian families in the Family Court, and I agree with her that the answer to improving the experience of families in the Family Court is to provide them with more support to ensure that there are sufficient justices and sufficient staff to do their work.

I imagine that there are very few people who leave their experience in the Family Court of Australia happy. I'm sure that most people leave it with some sense of unhappiness and a sense of grievance. I'm sure that is true. That is no basis to abolish the court. That is not a reason for the kind of perverted reform that the government proposes here.

The government claims that the proposed abolition has been informed by independent reviews and inquiries over a decade. No such thing has occurred. The Attorney-General's Department's website lists five reports under the heading 'The evidence base for the reforms'. The only problem with that claim is that none of those inquiries or reports recommended these reforms. None of those reports even thought that this kind of reform was worthy of consideration. None of them. Appendix 3 to the interim report of the Joint Select Committee on Australia's Family Law System—what's called the 'Hanson family law inquiry'—lists almost 70 reviews of the family law system that have been undertaken since 1974. Not one of those 70 reports or inquiries listed the abolition of the Family Court as a sensible reform.

The Attorney-General and the Morrison government, of course, aren't interested in sensible reform. They're not interested in improving the lives of families and, in particular, supporting children and getting the best answers for children. The only possible explanation is a continued engagement and dalliance with the One Nation party. That is a grave political mistake. That is a long-term error of judgement from a group that have lost the capacity for good political judgement in the interests of Australian people.

It's the One Nation party that resents the existence of the Family Court. It's this government that selected Senator Hanson to co-chair the joint select committee along with the soon-to-be-former member for Menzies. That was a disgrace and it has led us into this place. True to form, Senator Hanson hasn't provided a shred of evidence to support her statements. In a Facebook discussion with self-appointed men's rights activist Leith Erikson, along with Las Vegas stripper aficionado Mr Dickson, Senator Roberts accused the Family Court of being responsible for men's violence towards women. He said:

I know you agree with me Leith on that and you've counselled people against that. But when you're a father, and you can't get access to your kids, and you can't get access to the legal system properly, what else is there to do other than check out or hurt the other person?

It's that kind of misogyny, the kind of thinking that would have been out-of-date at any point in the 20th century, that mobilises the government's thinking and its position of abolishing the Family Court. It's that kind of approach from this government that has mobilised one of the worst pieces of legislation that I've seen come before this Senate. It's one of the most retrograde, regressive pieces of legislation that is taking this country backwards and is damaging the interests of Australian families and, most of all, Australian children. This should be sent back to where it belongs.

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

Three days ago the President of the Law Society of Tasmania went to the media warning that the federal government's failure to appoint another judge to hear Family Court cases in Tasmania is leading to delays and angst for families. He said that one judge in Launceston was doing the work of two judges after a judge retired last November. This means that Tasmania is left with one specialist judge tackling difficult issues including family violence, child abuse and mental health. When the President of the Law Society made this comment, the Attorney-General Christian Porter refused to say if or when the appointment was likely. This scenario is playing out all around Australia and it's been playing out that way for many years now. The family law system in this country is in crisis. It is buckling under so much work that some judges are dealing with more than 600 cases and there is a glacial parade of desperate and troubled people.

The court is being starved of resources, and, in some Federal Circuit Court and Family Court registries, it is taking, on average, 12 months for court appointed family consultants to produce family reports. A family report is a critical document that provides an independent assessment of issues in a case. Those reports help judges to make life-changing decisions about arrangements for children. If anything, the need for a specialist Family Court has become more pronounced over time. As the Australian Law Reform Commission noted in a report the government commissioned but then completely ignored, the Whitlam government, which established the court, could not have foreseen the growth in the incidence and awareness of family violence and child abuse since 1975. Yet the Morrison government persist in refusing to own up to what they are seeking to do with this legislation. They are seeking to abolish the Family Court as a specialist and standalone superior court. This would be a profoundly retrograde step. It would harm Australian families and, in particular, children at their time of greatest need.

On this side of the chamber, we view the Family Law Act 1975, which established the principle of no-fault divorce and established the Family Court of Australia, as part of the proud Whitlam legacy. 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 admirably. That distinguishing feature of specialisation is so important, because family law matters are not like any 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. They are often very, very vulnerable.

Vulnerable children and families need a family court system that is not only efficient but also safe and sensitive to their particular needs and vulnerabilities. The Whitlam government's vision of a specialist law court was of a court with interrelated co-located services and resources. It was about creating an environment that would have regard for what Gough Whitlam described as the human problems of couples and families, not just their legal rights. This legislation would rob the Family Court of that essential distinguishing feature by merging it into one of Australia's busiest, most poorly resourced and most overloaded courts, the Federal Circuit Court. To be frank, that's just crazy. It's senseless and it's also a friendless idea. But don't get me wrong—there are serious problems in the Family Court at present, but the main cause of those problems is no mystery.

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 of a country like Australia, and to whose family law system other countries once looked and tried to emulate.

And it's getting worse. Over seven years of Liberal governments under Tony Abbott, Malcolm Turnbull and now Mr Scott Morrison, right around the country Family Court judges have not been replaced in a timely manner. In response to increasing demand, the court has been starved of funds, and review after review, making considered and measured recommendations, has been ignored. Who is suffering in all this? Apart from dangerously overburdened court and support staff and judges, it's the families and it's children in crisis situations: children experiencing trauma, children who deserve the best service and support that we can provide for them in times of huge anxiety. This government's disgraceful level of neglect in letting these children down so badly should be a cause of national shame. Yet our Attorney-General, Mr Porter, persists in defying logic, ignoring those in crisis and need, relentlessly refusing to appoint judges and provide adequate resources and, with no evidence that it will improve the situation, pushing on with his agenda to collapse the court into the Federal Circuit Court in a way that will make a bad situation worse for Australian families, including vulnerable children.

I will summarise the intent of this legislation. It will 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. Both divisions would operate under the leadership of a single Chief Justice and a Deputy Chief Justice, with a single set of rules and a single point of entry. The Appeal Division of the Family Court would not be replaced with anything. Instead, all Division 1 judges would be able to hear appeals either as a single judge or as part of a full court. A number of other consequential amendments will be made.

When the government originally proposed this merger, in the 45th Parliament, the current Attorney-General said that he would stop appointing new judges to Division 1 as they retire. That would obviously amount to a gradual abolition of Division 1—that is, the Family Court of Australia—over time. The Attorney-General has now backed away from that position and promised to keep appointing judges to Division 1. But there's nothing in this bill that would guarantee the continued existence of Division 1. The Attorney-General made his intentions for this merger very clear in the last parliament, yet now the Attorney-General says, 'Trust me.' All the while, judges are retiring and new appointments are not being made to the Family Court, as we have so recently seen in Tasmania.

Even if the bill were amended to guarantee the continued existence of Division 1, that would not address the fundamental problem with this bill, which is that, instead of increasing specialisation in the family law system, the Morrison government is going to water it down by effectively abolishing the Family Court. Some would argue that Mr Porter is trying to kill off our specialist family court by stealth, but he has made his intention clear over two parliaments. As I've said, his intention is friendless. In fact, it has an overwhelming number of highly credentialled and respected opponents. This is a list of just some of them. There are no less than 110 stakeholders, ranging from the Law Council of Australia to women's legal services, community legal services, Aboriginal and Torres Strait Islander legal services, child protection advocates and disability services from across Australia, who have written to the Attorney-General to ask to abandon this proposal, and they have all been ignored.

These opponents to the proposal have stated that it would harm vulnerable children and families in need of specialist law assistance; that it would increase rather than decrease the cost, time and stress for families and children in the family law system; that it would place further stresses on Federal Circuit Court judges, who are struggling under unsafe, unsustainable and unconscionable workloads; and that it would fail to address any of the fundamental problems plaguing the family law system, including the risk of family violence survivors simply falling through the cracks.

The very first Chief Justice of the Family Court of Australia, Elizabeth Evatt AC, has said:

The proposed merger of the Family Court and the Federal Circuit Court will lead to undesirable outcomes for children and families.

Ms Evatt has also warned:

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.

The Hon. Alastair Nicholson AO, RFD, QC, the second Chief Justice of the Family Court, who served in that position between 1988 and 2004, has fully supported Ms Evatt's remarks. Mr Nicholson has also 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.

  …   …   …

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.

He went on to say:

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 President of the Law Council of Australia, Pauline Wright, has said of the proposed merger:

It 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 the 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.

The Law Council of Australia has also said that the proposed merger:

… is a terrible gamble with the lives of children and families.

Communities Legal Centres Australia has said:

… moving away from a specialist Family Court model would be a retrograde step and expose survivors of family violence to an unnecessary risk.

Women's Legal Services Australia has said its opposition to the proposed merger is:

… centred on the safety and best interests of the child and the safety of adult victim-survivors of family violence in family law proceedings.

The National Aboriginal and Torres Strait Islander Legal Services has said that the proposed merger:

… will disproportionately impact the most vulnerable including Aboriginal and Torres Strait Islander children and families who need the most support.

The list of statements in opposition to this legislation from those who know this system well, those who have daily experience with it, those who deserve our respect and those who should be listened to, goes on and on and on. The absolute arrogance of this Attorney-General, Mr Christian Porter, in dismissing these concerns is breathtaking. He's beyond listened and beyond reasoned, and he is blindly followed by those opposite, who should be seeking to question his reasoning and his blind determination to make this move. Australian families deserve better; Australian children deserve better. Those opposite intend to smugly stand by while the vision of this human centred court, so profoundly important to our country and to Australian families, is desecrated and abandoned.

As the experts have made clear, this merger proposal will do nothing to address delays in the family court system. There's nothing in this legislation that will increase the number of judges, registrars and other court staff. There's nothing in this legislation that will force the Attorney-General to do his job—even something as basic as appointing a new judge as vacancies are created. And these bills will do absolutely nothing to help Australian families.

Deborah O'Neill (NSW, Australian Labor 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 will seek to abolish the independent Family Court of Australia. It's a proud legacy of the Whitlam government. Instead of honouring that legacy and properly investing in it, this government seeks to replace it with a Frankenstein amalgam of the Federal Circuit Court and a rump of a court dealing with family law matters. Reform is needed. A new approach to family law is needed. But this legislation will only increase the problems currently experienced in the family law system. We need to improve efficiency in the family law system. We need to increase auxiliary services for families in need, caught up in the need for the services of the family law system. We need to ensure that specialist services are there for children and women fleeing violence.

These bills follow a clear pattern for this Liberal government and its two predecessors in undermining a public institution, running that public institution into the ground and then clamouring for reform to fix the very mess that they themselves have made. The Whitlam government set up the Family Court as part of a suite of reforms, including no-fault divorce, that revolutionised the family law system in Australia. When introducing the family law bill to establish the courts, Mr Whitlam remarked:

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.

Mr Whitlam went on to say:

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.

What a visionary statement, and what a practical, authentic response to the challenges that face us as human beings in our relationships with one another. There is none of that vision in what this government is advancing. The Whitlam reform was passed to give better access to justice to women and children across Australia, and to support a system that would work in a conciliatory manner to sensitively decide the personal matters of Australians. The auxiliary services that it provided will be further cut and diluted by these bills and the proposed amalgamation.

In 2019 the Australian Law Reform Commission completed a report on the family law system in Australia. They made their inquiry, and it was an extensive, highly consultative one. They made over 60 recommendations for reform. They noted that the family law system in Australia:

… has been deprived of resources to such an extent that it cannot deliver the quality of justice expected of a country like Australia, and to whose family law system other countries once looked and tried to emulate.

They roundly condemn what this government and its withdrawal of resource capacity has done to the Family Court. The Australian Law Reform Commission did not make the recommendation to amalgamate the Federal Circuit Court and the government did not even bother responding to that very important report—60 recommendations ignored by the government, and they come up with a recommendation that was not in that very august report.

The government, instead, bases the major reform that they're proposing on nothing more than a six-week desktop review by two PricewaterhouseCoopers accountants. Even that doesn't endorse this drastic proposal. In a response to the Senate committee inquiry into the bills, PwC said they were told not to even consider detailed reform as part of their report. The Attorney-General's website cites five reports as the basis for this reform, yet not even one—not a single one—of the five reports that it claims it bases this legislation on considered, let alone recommended, the drastic change that the government is seeking to push forward with these bills today. Only one report recommended restructuring the Family Court, but in a way that would still leave a standalone, specialist family law court. The interim report of the Joint Select Committee on Australia's Family Law System, initiated by Senator Hanson, also noted that among the 70 reviews into the family law system in Australia since 1974, not one—not one!—has recommended that family law courts be structured in the way that the government is now seeking to make happen.

The bill even prejudges the work of Senator Hanson's committee inquiry, which is not due to report until next week. You would think, if the government actually valued the work of that committee, which has been travelling around Australia hearing evidence, advanced by Senator Hanson herself, it could have paused the biggest reform in the family law system in 40 years to hear the recommendations of her committee, to give some semblance of respect to the work of the senators who have been travelling around the country and to give some sense of hearing the testimony, which was, in many cases, traumatic for witnesses to deliver. But, instead, the government is advancing with this particular massive reform not recommended anywhere and is ignoring the finalising of that very important report. It's profoundly disrespectful to Senator Hanson and the committee not to wait that one week to hear the report the committee has spent years preparing.

Anyone who has been involved with the Family Court will have an opinion on this, and I'm sure they won't land where the government has landed. The question is: is there really any point, is there really any effectiveness, in jamming two different court systems together? It's not going to decrease the lengthy process times. Do we think that removing specialist services like child issue report writers will lead to more truthful and more lasting resolutions to matters? Do we think that further disruption to the Family Court will decrease the escalating distrust and anguish that many in the system are currently feeling? Can we trust this Prime Minister on this issue? We all know he's much vaunted as a family man; he cares about his family. Well, that may be the case but he doesn't seem to care about yours.

This abysmal state of affairs is solely the result of the successive Abbott, Turnbull and Morrison governments gutting the funding of all aspects of the family law system. Matters have ground to a halt. I've heard anecdotally that matters in Sydney will now take 2½ years to be fully heard. I come from a great state but it's burdened with the trauma of these delays that are impacting family life, impacting children and impacting children's learning at school. If you're in Newcastle, it will take 18 months. Where a full report into an abuse would take one month, so denuded of resources is this entire system that it now takes four to five months to get a report, and this is despite divorce rates dropping nationwide to their lowest level since no-fault divorce was introduced. This is not an issue of the institution being broken; this is an issue of the resourcing being completely underdone.

Family courts deal with matters of child welfare, they deal with sensitive matters of family breakdown, and they need the appropriate resources to serve the needs of Australians. We've seen a degradation of public services across our country in the last 7½ years by this government at scale that's absolutely breathtaking. People pay their taxes to ensure that, when they need them, public services are there and operating in an efficient way. How will reducing services help anguished mothers, fathers and children? How will cutting funding to the bone for child report writers help inform the courts on sensitive matters of child abuse and violence?

The primary goal of the family law courts in Australia is to work in the interests of the child. Can anyone really kid themselves into believing this bill, as constructed by the government, will be in the best interests of the children of Australia? This bill will only compound the government's neglect of the family law system; it will make a bad situation worse.

The bill, if passed, will do the following things. It will combine the Federal Circuit Court and Family Court into one court with two divisions, and that court will be called the Federal Circuit and Family Court of Australia. The current Family Court of Australia would become Division 1, while the current Federal Circuit Court of Australia would become Division 2. Both divisions would operate under the leadership of a single chief justice and a deputy chief justice with a single set of rules and a single point of entry. The Appeal Division of the Family Court would not be replaced with anything. Let me just say that again. The Appeal Division of the Family Court would not be replaced with anything. Instead, all Division 1 judges would be able to hear appeals either as a single judge or as part of a full court. And, of course, there are a number of other consequential amendments that will be made.

In the last parliament, the Attorney-General refused to commit to replacing Division 1 judges as they retire, amounting to a gradual abolition of the specialised Family Court. Due to public pressure, he's now committed to appointing judges to Division 1, though there is nothing in this government's bill that would actually guarantee this.

There are 110 stakeholders, among them Aboriginal and Torres Strait Islander legal services, community legal centres, women's legal services, child protection advocates and disability service providers across Australia, who have formed a chorus of opposition to this bill. And I trust their voices. I trust their lived experience. I trust advocates for people who find themselves in a family crisis that engages them with the courts. Those families have the support of those community service agents who are walking the walk with them—because this government, as much it bleats about its care, is always missing when the work has to be done. When the hard work has to be done, they're missing in action. Those great advocates believe this reform proposed by the government will increase bills, time and stress for families in the system. The advocates I trust say that this bill will remove specialist family law support services for vulnerable children and families; it will increase the unsustainable workloads of Circuit Court judges, who, on average, have 337 matters on their dockets; and it will ignore the major systemic issues of chronic underfunding and victims falling through the cracks.

The family law system is a proud monument of the Australian legal system, and Christian Porter and Scott Morrison want to run a bulldozer over it. Once they have crushed this institution, it will be very difficult to put it back together in any way. The government bill is friendless, recommended by no independent report. It will devastate the most vulnerable in our community, it prejudges a year-long report into the family law system by a week and it is rushed in at a point when the government clearly thinks it has the numbers in this place to push this incredible level of reform through. Like all Morrison government initiatives, this bill is a facade. It cloaks the hollowing-out of a proud and vital public institution in the gilded glamour of reform. It speaks to the sheer arrogance of the Prime Minister, Mr Morrison, who ignores the interests of vulnerable Australian families in order to chalk up at least one policy win this week in an otherwise barren agenda. This bill is a wrecking ball through our legal system, and I urge all senators to reject it.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

As has been made abundantly clear by previous speakers from the Australian Greens, we will not be supporting this 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 cover an area where large numbers of Australian people are directly impacted by the decisions that we in this place make, and we have to get this right. In this case, the government has not only not got it right; it's got it badly and tragically wrong.

The sad thing is that it's Australian families, Australian people, who are interacting with Australia's family law system who are going to pay the price for the terrible mistake that this Senate is about to make, thanks to Senator Patrick deciding to support this legislation and therefore give the government the numbers for it to be passed by this chamber. Those Australians who are going to pay the price for this terrible mistake are Australians who are already dealing with significant challenges in their lives—challenges like the breakdowns of their relationships and challenges like decisions over custody of children subsequent to the breakdown of a relationship. Those things are difficult enough to deal with of themselves and they can be highly traumatising to people, but for those matters to be dealt with by people in a system that will be reformed in the way that this legislation seeks to reform our family law system will make it even harder for people who are interacting with that family law system.

I might add: these so-called reforms follow a classic Liberal-National party strategy where they starve an institution of resources—and undoubtedly our family law system has been starved of resources through successive Liberal-National governments in this country. When those massively reduced resources start to bite on the effectiveness of an institution, whether it be our Family Court system or whether it be an institution like the ABC, the government comes out and says: 'See! We've got to do something because the organisation's not running properly.' Well, Earth to the LNP: it's not running properly because you deliberately starved it of resources. That's why it's not running properly. That's the major reason it's not running properly.

No-one is going to get up and argue that our current family law system and the courts that are involved in our family law system are running perfectly. Of course they're not. Anything that humans set up is going to run imperfectly, and the challenge for people in our place and people who work in those institutions is to try to continually improve them. I'll talk a bit later in my contribution about how the Australian Greens believe that we could actually improve the way our family law system works. But, let me be abundantly clear about this, the proposals that are currently before the Senate are not the way to make improvements, and ultimately they will make our family law system more difficult to interact with, they will make it more complicated and they will mean that Australians who are interacting with our family law system will be significantly disadvantaged.

The Australian Greens approach this legislation with the principle that the strongest protection for children, for families and for survivors of family and domestic violence is to maintain and strengthen a standalone specialist family law court involving a holistic specialist system of collaborative, culturally safe, timely, co-located services and resources. And, in general terms, that was the intention when the Family Court was created.

The Greens believe that significant changes to the family law system, like the ones proposed in these bills, should meet a basic test—that is, they must strengthen the system, move it to being a person focused system, ensure that it is a trauma informed system, ensure that it is a collaborative system, ensure that it delivers outcomes in a timely way, ensure that it is a holistic system and, very importantly, ensure it is a culturally safe system because there are people in this country from a massive range of cultural backgrounds who interact with our family law system.

We have to make sure that it is culturally safe and appropriate for people from a range of cultures, whether they are our First Nations people—and remember that they were here for many tens of thousands of years before white people even arrived—or more recent arrivals from around the planet who come from places where families and family law systems are differently conceived than they are in this place. It has to be a culturally safe system that reflects the diversity of the cultural backgrounds of those who interact with it.

The tests that the Australian Greens propose are not met by these bills. It's not just the Australian Greens saying that these bills are undesirable; more than 110 stakeholders and interested parties of the family law system agree that the merger proposed in these bills is not the solution and they oppose this legislation because it will put families at risk. It's important to say that a significant number of those stakeholders prefer the Family Court 2.0 model proposed by the New South Wales Bar Association. Unlike the merger proposal that's currently before this chamber, the Family Court 2.0 model proposes a straightforward lift and shift of the Federal Circuit Court's family law jurisdiction and judges into a new lower division within the standalone specialist Family Court. 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.

Interestingly, this model has been in place for many years in the Attorney-General's own state of Western Australia. This system was also recommended by the 2008 Semple report and has been endorsed by stakeholders, including the Law Council of Australia, Women's Legal Services Australia and former chief justice Elizabeth Evatt AC. Unlike the government's dangerous and fatally flawed merger proposal, the Family Court 2.0 model would have the significant advantage of promoting safety for children and adults by preserving access to services of a specialist family court. An increase in specialisation in family law and family violence will increase the safety of children and adult victims and survivors of family violence. This is particularly the case for groups that are disproportionately impacted in the family law and family violence systems, including Aboriginal and Torres Strait Islander people.

The need for increased and culturally safe specialisation of courts to improve decisions and outcomes for families is supported by the evidence of the multiple inquiries there have been over a number of years into the family law system. The Family Court 2.0 model proposed by the New South Wales Bar Association would actually produce what Australians have consistently said they want from their family law system—a single specialist family court to address the needs of the country's families within an integrated system of collaborative, culturally safe, responsive and timely support services.

We absolutely do not support this legislation being passed. We're extremely disappointed that Senator Patrick has caved on this issue. The government moved with indecent haste to bring these bills on once it believed it had the numbers in this place, even to the extent that the inquiry it stitched up with One Nation into Australia's law system hasn't reported yet. Let's make no mistake, that inquiry was stitched up between the LNP and One Nation as an exercise by the LNP in stakeholder relationships with One Nation and now they're burning One Nation and all the work that has been done in that inquiry by moving pre-emptively before that inquiry has had the capacity and time to report. So we're not going to support this legislation. We believe the government should withdraw it, and we believe the government should move forward in a consultative and collaborative way around the development of an alternative like the Family Court 2.0 system, which is actually supported and preferred by almost all stakeholders in this area.

I mentioned the starving of funding that this government has engaged in over many years in regard to our family law system. Something else that the Australian Greens are calling on the government to do is properly fund the system. The delays that we all know about in the family law system—because we've had submission after submission after submission about those delays—are unconscionable. To say to Australians that, in some circumstances, you have to wait for two or three years before your matter can be addressed through the family law system—well, we are dealing with real people, who are living real lives. They have real families, they have real children and they have real challenges in their lives. It is incredibly traumatic to go through a relationship breakdown or family break-up—losing access to your child. These things are traumatising in themselves. People don't need another layer of trauma put onto their shoulders in the form of having to wait for years before the family law system can actually address their issue.

The government needs to commit at least another $310 million a year in funding for legal assistance providers, as identified by the Law Council, to make up for the shortfall of successive cuts that have been faced by a range of organisations inside our family law system and also by organisations—like Aboriginal and Torres Strait Islander Legal Service, community legal centres, women's legal services and legal aid commissions—who actually support people who are engaged with our family law system. We also need to make sure that substantial funding increases are made available to the social and support services that families and survivors of family and domestic violence require.

The government needs to far better resource the community legal sector. I'll make the point again that, over a number of years in this place, the government has slashed funding to the community legal sector, and the government needs to properly resource our family law system. The Australian Greens hold dear the principle of access to justice. Your capacity to access our justice system—whether it be the criminal justice system, the civil justice system or our family law system—should not be determined by the thickness of your wallet or the size of your bank balance. It shouldn't be determined by those things. But, tragically, too often it is determined by those things.

So these bills are a terrible, terrible mistake, and it is the Australians who are interacting with the family law system—who, in almost all cases, are already traumatised by events that they've been through—who are going to pay the price for this government's terrible mistake. I urge the government to reconsider. I urge the government to listen to the stakeholders who work in this system every day. I urge the government to think rationally about the impact that these bills will have on ordinary Australians going about their day-to-day lives with the significant challenges that they are facing. Withdraw this legislation, and let's work collaboratively to come up with a better approach.

Jenny McAllister (NSW, Australian Labor Party, Shadow Cabinet Secretary) Share this | Link to this | Hansard source

I'd like to start with a tale of two family law reforms. The first reform was promised by the government in their first Women's Economic Security Statement. I remind you that that was back in 2018. It's a relatively simple proposal, and it would make dividing super assets easier and fairer. It's supported by lawyers, by academics and by women's groups. The government promised, back in 2018, that they would have this reform up and running by July 2020—last year. Where do you think that reform's up to? Nowhere. It hasn't been debated in this parliament. It's been eight months after that system was due to have commenced, and the government hasn't even drafted legislation for consultation. Why? When we asked about it in Senate estimates, we were told by officials that this was not a priority for the government.

Let's go to the second reform. That's a proposal, the one before us, to abolish the specialist Family Court, and it's contained in this legislation. It's a reform that is opposed by lawyers, by judges, by experts and by the users of the family law system. It has been recommended by precisely no inquiries and no policy process, and the government seems willing to commit endless resources to make this happen. We should remember this the next time the government tells us that something is too hard, because in this case the government seems willing to punch through community opposition, through policy advice and through the objections of experts to say nothing to the cost and disruption caused by the change like the one they're proposing. Nothing is quite as powerful as this government just deciding that it wants to do something.

Why is the government so committed to abolishing a specialist family law court? I suspect, at least in part, it is because the family law system is one of Prime Minister Whitlam's great legacies. The family law reforms undertaken by the Whitlam government improved the lives of millions of Australians. The introduction of no-fault divorce freed men and women who had otherwise been trapped in marriages that were unhappy or worse. The creation of a specialist family law court was an essential part of this vision. It promised the delivery of a type of justice in a different type of court to that which had been previously available. In speaking about the bill back in November of '74, Prime Minister Whitlam told the other place:

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 … 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 … 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.

There is no denying that more needs to be done to make the family law court live up to that vision. Too many men, women and children have been left feeling let down by a system that is increasingly difficult and expensive to navigate, but the answer is not to abolish the specialist family law court and fold it into one of the busiest and most overworked courts, the Federal Circuit Court.

At the start of this year, there was one federal circuit court with over 600 cases on its docket. There are more than 25 judges across the country with more than 400 cases each. We know that men and women across the country are hurt by lengthy delays in contested family law court hearings, and delays hurt children most of all. The Australian Law Reform Commission referred to a number of concerns associated with the present delays in the family law 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. But the answer to these shortcomings isn't to have matters like this jostling for space alongside hundreds of migration and other matters on the docket of already overworked Federal Circuit Court judges. As experts have made clear, this merger will do nothing to address delays. In fact the evidence from the experts, which the government should listen to, is that this merger proposal will increase cost, time and stress for families and for children.

We know that the first step to a better-functioning family law system is to invest in it. 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 of a country like Australia, and to whose family law system other countries once looked and tried to emulate.

A specialist family law court is important because family law matters are very different. The parties to family law matters are not like the parties that generalist courts tend to deal with—they are far less legally sophisticated than commercial parties. It will often be the first time that either party has been in a courtroom. These people are more vulnerable and are in the midst of the most stressful and emotionally difficult period of their lives. Abolishing the specialisation of the Family Law Court is not the right response to this challenge. The President of the Law Council said: 'This is a terrible gamble with the lives of children and families.' Community Legal Centres Australia said:

… moving away from a specialist family court model would be a retrograde step and expose survivors of family violence to unnecessary risk.

Women's Legal Services Australia has opposed the merger on the basis of:

… ensuring the safety and best interests of the child and the safety of adult victim-survivors of family violence in family law proceedings.

NATSILS have said that the merger will:

… disproportionately impact the most vulnerable including Aboriginal and Torres Strait Islander children and families who need the most support.

When I was in the Northern Rivers last week, the family workers who are working with women and children subjected to violence were horrified that this appears to be the law reform priority that is highest in precedence for this government.

The government has tried to defend this bill by saying that it will reduce delays and backlogs in these two courts by creating a single point of entry for family law matters, by developing common rules of court, by enhancing judicial appointment criteria and by streamlining appeals. All of these are worthy aims; not one of them requires this bill to be implemented. The Chief Justice of the Family Court told a Senate committee last year that all of this could be achieved without legislative change and certainly without abolishing the specialist Family Court. In fact, if the government were looking for ways to improve the experience of families, they could do a lot worse than look at the recommendations of the 2019 Australian Law Reform Commission report, which has been sitting forlorn, unloved and unattended-to on the Attorney-General's desk for years. It was sitting there while Senator Hanson's inquiry was pursued—another misplaced priority.

The Family Court itself hasn't been sitting still. It has initiated a project to allow early determination of family violence matters. It initiated a COVID list that has allowed matters to be held virtually and has helped to improve accessibility for users.

There's another thing the government should do. At the start of my remarks, I mentioned a super-splitting proposal that the government promised would be in place by July last year. It hasn't been progressed because it's not a priority for them right now. Failures like this have consequences, as I'll explain. There is a separate program which is designed to divert people away from lengthy and costly divorce hearings. Instead parties may go to mediation where a more amicable settlement can be reached more quickly and more cheaply. Separation is never easy but this makes it quicker and cheaper to divide assets and reach a compromise that both parties can live with. But there's a problem: it turns out that proceeding with mediation around property settlements requires both parties to trust that all of the information they need to fairly divide property at mediation is on the table, and that requires the super reform that the government has been sitting on, which would allow the ATO to provide that information directly into the process.

The government's failure to deliver on its promise—the promise that it made back in 2019—to have this super reform in place by July last year is stopping families from being able to mediate their family law disputes. The Women's Legal Service has written to the Attorney-General about this. They have briefed the Minister for Women. But here we are, years later, and there is no action. This was a concrete plan. It was developed on the basis of evidence. It was supported by experts and family advocates. It would make family law proceedings fairer and easier for men and for women. And there is no progress on this at all by the government and no sign, no indication, of when it will be progressed. The minister has said, 'As soon as practicable,' or some other such diversion. But, as the minister and her officials told us at estimates last year, I guess it is just not a priority for the government.

Tony Sheldon (NSW, Australian Labor Party) Share this | Link to this | Hansard source

These related bills, 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, are an abuse. They are an abuse, in that the government's reckless agenda, an agenda that seeks to overturn almost 50 years of specialised legal practices, is wrapped up in a fake notion of reform. It ignores the experts and it ignores the voices of everyday Australians. This government must own up to what they're really seeking to do here: abolish the Family Court, a proud and lasting legacy of the Whitlam government. When it was put to the floor back in 1974, debate on the Family Law Bill lasted 28 sitting hours spread over six days. It was important. There were disagreements, there was debate, and lasting momentous change was made.

The Family Court is a Labor legacy, an Australian legacy, a parliamentary legacy—one that I'm very proud of. It's one that Labor is proud to defend in this chamber. The Family Court of Australia is a single standalone court, one with real knowledge, real expertise and real understanding of the delicacies and importance of matters before it. Family law is not like any other aspect of law. It's emotionally charged. Judgements have real, deep repercussions. There's no doubt that in some areas it does require reform. But, instead of a scalpel, of course the government is using a sledgehammer. This 500-page bill is the most significant change to the Family Court since it was established almost 50 years ago. As my colleague Senator Lambie rightly pointed out in this chamber moments ago, this bill has gone from being a lawyer's picnic to a lawyer's banquet. Like most of the legislation this government puts to the Senate, it is legislation that is not reliant on research, not reliant on the advice of experts, not reliant on the voices of everyday Australians. It is legislation based on a six-week desktop review conducted by a pair of accountant from PwC and a host of other consulting firms.

What will this legislation do? It will effectively abolish the Family Court by merging it into the Federal Circuit Court, a single court with two divisions. It will abolish the appeals division of the Family Court, so, instead of a scalpel, there will be a sledgehammer. As I've said, there is no doubt that the family law is in need of reform. As the Australian Law Reform Commission noted only two years ago in a report on the family law system, no-one could have foreseen the growth in the incidence and awareness of family violence or child abuse—none of us here. These are twin plagues within the fabric of Australian society. Without a court that can specialise in these incidents and that can see them day in and day out—a court that contains the interrelated, co-located services and resources that families in distress are desperately in need of, dealing with not just the legal issues but the human issues—we will not provide the care and support that families in distress need.

Whitlam envisaged the Family Court in this way: a court that deals with people not as legal matters but as human beings. The realisation of Whitlam's vision has never been more important. The vulnerable children and families of Australia need a court that is not only efficient but also safe and sensitive to their needs, to their vulnerabilities.

What did the Australian Law Reform Commission find in its report? It found:

… 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, and to whose family law system other countries once looked and tried to emulate.

Those damning words are a product of years of neglect. Under Tony Abbott, there was neglect. Under Malcolm Turnbull, there was neglect. Under Scott Morrison, there is further neglect and a failure to act appropriately. There have been eight years of Liberal neglect.

It is outright vandalism that judges in both the Family Court and Federal Circuit Court have not been replaced in a timely manner. Funding has been frozen despite review after review highlighting the increasing demand for Family Court services. In a classic move by the Liberal Party, they pick a service they want to undermine, that they want to underfund, they ignore calls to support it, let it wither on the vine overwhelmed by demand and under-resourced, and the response is always the same—a reckless attack dressed up as reform.

This government is ploughing ahead with a sledgehammer to this court, to its purpose and to its role. This bill will make a number of changes to the courts. It will combine the Federal Circuit Court and Family Court into one court with two divisions. The current Family Court of Australia would become Division 1, while the current Federal Circuit Court of Australia would become Division 2. Both divisions 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 will be abolished and replaced with nothing. Instead, all Division 1 judges will be able to hear appeals either as a single judge or as part of a full court.

When this new structure was first proposed in the 45th Parliament, the current Attorney-General said it would stop appointing new judges to Division 1 as they retire. This would effectively lead to the abolition of a division—the division of the Family Law Court of Australia, slowly but surely under this government. Those opposite may be trying to back away from this now but we know his tactics. We know he'll pursue his ideological pursuit relentlessly, ongoing. This is just a tactical step back whilst he continues to pursue that position of not replacing experienced, knowledgeable judges, people who have the expertise and the capacity to deal what is often for many people human drama and human pressure in their lives. As I say, this ideological pursuit will be pursued relentlessly.

Some might ask why this government is so hell-bent on this proposal? It must have some great evidence up its sleeve to proceed with the abolition of an institution like the Family Court. As my colleague Senator Ayres highlighted earlier, the Morrison government has claimed this proposed merger is informed by 'independent reviews and inquiries lasting over a decade'. The Attorney-General's website lists five reports under the heading 'The evidence base for the reforms' yet not a single one of the reports listed recommends this bill—none of them, not even one of them! None of these reports consider anything as radical as what is contained in this 500-page bill. Is this how legislation is conducted in this country in important areas that affect so many people in our country and will affect so many into the future?

It has even relied on a hollow, fake report. They're just outright citing evidence that has nothing to do with the bill. The interim report published by the Joint Select Committee into Family Law says that 70 reviews of the family law system have been undertaken since the court was established. Not a single one of these reviews calls for anything like what the Attorney-General is proposing—not a single one. This is a bit like the science of climate change: despite all the evidence saying one thing, the government are focusing on minuscule pieces of evidence to confirm their predetermined view, a prejudged view, that doesn't have any relationship to the evidence that was provided by so many experts. They're resting their entire 500-page bill on a six-week review of data by PricewaterhouseCoopers. Well, you get what you pay for, don't you! It was a desktop review conducted in the space of a little more than a month. Isn't that pathetic on a matter that is so important to so many of us in this country! It was one six-week desktop review against 70 comprehensive reviews, none of which recommended this bill.

Maybe the government has consulted on this bill. The senators present would be surprised to hear there has not been any meaningful consultation, of course, in relation to what would be the most significant change to the Family Court in its history. There was no consultation with legal professionals, with family specialists or with counsellors or children's psychologists. It's just simply outrageous to hear there was not consultation with a single judge who sits on the Family Court—the absolute arrogance of the Attorney-General and this government! They believe they know so much better than the people who have dedicated their lives and careers to making the Family Court work.

Since the government chose to ignore the judges of the court, as they have many of my fellow senators, let me quote a few of the things these judges have said about the government's proposal. These are the experts, the people who have been dealing with these matters for such a long period time—people like Elizabeth Evatt AC, the very first Chief Justice of the Family Court of Australia—who have criticised the proposed merger. She warns us:

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—

I repeat: '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.

She goes on to say:

The current bill undermines this principle, is not in the public interest and should not be enacted.

Then there is the Hon. Alastair Nicholson, who, from 1988 to 2004, was the second Chief Justice of the Family Court. Now, what did he have to say? He said:

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.

I think that's just so telling. The judge said the court should not be judged by output, by simply a number of cases, as if the court is a sausage machine.

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 resourcing and hearing time with all federal matters—that is, other matters like migration, bankruptcy and those sorts of things that the Federal Circuit Court 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 the victims of family violence.

The National Aboriginal and Torres Strait Islander Legal Services said those that oppose the bill— (Time expired)

Nita Green (Queensland, Australian Labor Party) Share this | Link to this | Hansard source

Courts are daunting places. There's a secret code when you go to them that no-one tells you about. There are specialised rules that even some of the lawyers have a hard time figuring out. They are adversarial places and they are incredibly difficult to navigate if you're going through a family breakdown or, worse, going through a family breakdown that involves family violence. I know lawyers get a bit of a bad rap, particularly in this place, but I decided to go back to university when I was a bit older and study law, and my motivation for doing that was that I had spent a week with a friend in the court system throughout the time of a hearing, and it occurred to me that the system had not been built by women or for women experiencing sexual and family violence and that, to understand and to change the systems, we needed to get more involved in that conversation.

There have been steps taken by state governments and federal governments over time to build specialised courts, including the Family Court, to deal with the very difficult experience that families have when they go through a breakdown and family violence is involved. But this 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, is a backward step, because it abolishes the Family Court of Australia and it means that we will no longer have a specialist standalone family court.

In other parts of the country—in Queensland, I know—we're actually creating more specialised domestic violence courts, but the government want to go in the other direction. They say right now that there are two separate courts—the specialist Family Court of Australia and the non-specialist Federal Circuit Court—and they both hear family law matters. The government claim that this merger will help reduce delays and backlogs in these two courts, by creating a single point of entry for family law matters. The creation of a single point of entry, though, and the development of common rules, forms, practices and procedures—making these courts easier to navigate for women and for family members that come to them—are being done and can be done without legislative change. You do not have to take my word for it. The Chief Justice of the Family Court told the Senate committee last year that all of those changes can be achieved without legislative amendment.

So what is this really about? Why is this government pushing ahead with a merger which abolishes the Family Court of Australia?

You can understand that Labor is very defensive of the Family Court and of all of the reforms that were introduced in 1975 that made the lives of families, particularly women, better. The Family Court was established as the dedicated legal forum for resolution of family law matters through the Family Law Act 1975—a proud Whitlam government legacy. It was formed to provide a less adversarial forum for the resolution of cases concerning family law. It was structured to foster an informal, supportive atmosphere with proceedings based on the notion that family law matters should be perceived as matters of interpersonal relationships rather than morality. The Family Court's resolutions were to be informed with input from the social science experts, social workers and in-house counselling, and were services structured into the court. These features were designed to move administration of family law away from a model which primarily sought to assign blame in interpersonal relationships.

The Family Court continues to function as a specialised court right now, but this government wants to get rid of it. In passing the Family Law Act 1975, the Whitlam government ushered in a major change to divorce law as well. Before the passage of this legislation, a marriage could only be dissolved if one party could prove that the other was at fault in the marriage breakdown. Matrimonial offences such as adultery, cruelty or desertion had to be proven before divorce could even be allowed. These things, according to Whitlam, were symptoms rather than causes of marriage breakdown. In introducing no-fault divorce, Whitlam argued that the process also reduced the chance of the parties having any sort of workable relationship after the divorce and that this was against the interests of children that the couple might have. It was the first instance where the interests of the children were being considered as the primary reason, purpose, for the family law system.

There was vocal opposition to this reform at the time. Some argued that it would increase marriage breakdown and relationship instability, while others argued that it would encourage promiscuity and destroy the institution of marriage—haven't we heard that before! The law abolished the requirement for blame to be assigned and in doing so made sure that many women in violent relationships would be able to leave.

The family law system is in crisis right now, but this bill will not fix it. In Cairns and Townsville, the North Queensland Women's Legal Service provides an amazing service to women living in regional Queensland, and I meet with them regularly. The first time I met with them I thought there would be a range of issues that they wanted to discuss, but the No. 1 thing that Kate and her hardworking team wanted to talk to me about was this government's proposed merger of the Federal Court system, because they feared it would mean more delays, more increased costs and less justice for women in the family law system.

In some Federal Circuit Court and Family Court registries, it is taking on average 12 months for court appointed family consultants to produce family reports. We know the delays are there. A family report is an absolutely critical document that provides an independent assessment of issues in a case, and those reports help judges to make life-changing decisions about arrangements for children. The average waiting times for the production of family reports in Cairns are up to three months, and, in Townsville, they're also up to three months.

The Law Reform Commission spoke specifically about the importance of family consultants and the need to ensure that family reports were produced as quickly as possible. It is essential for all those involved in family law proceedings, but particularly for children, that family reports are thorough and prepared as quickly as possible so as to avoid delay of any attempts at settlement or ultimate adjudication of the matter. These family reports are essential, but the delays in producing them are impacting heavily on families and children across the country. It's completely unacceptable. This legislation won't fix those delays; resourcing will fix those delays. But this government is not in the practice of producing the resources that the family law system needs. In producing this merger legislation, they're actually creating more work for fewer judges.

There has been no evidence yet to support these changes. Instead, after giving their firsthand experience on this matter to the government, the overwhelming evidence from stakeholders—who work hard and slug it out in this system day in, day out—is that this is not the way to go and that what is required is for the family court system to be specialised even further.

Some of the other speakers, particularly Labor senators, have spoken today about the sham consultation process that this government undertook to justify this change. But we know that no fewer than 110 stakeholders, 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 written to the Attorney-General asking him to abandon this proposal. But they have been ignored. Some of the most vulnerable people in our society and the people that act for them every day have just been completely and utterly ignored by this government. Those letters and these pleas made clear that these changes will harm vulnerable children, increase rather than decrease costs, place further stress on the Federal Circuit Court and fail to address any of the fundamental problems plaguing the family law system, including the risk of family violence survivors falling through the cracks.

You really have to wonder what the government's motivation is to bring in legislation like this and to undo years of progress. It occurred to me that this has been one of Senator Hanson's and One Nation's pursuits for some time, as is well known. And, because it is central to One Nation's pursuits, it is now central to this government. This government needs to own the platform that they have given the One Nation senator to devalue the Family Court. I want to read a speech that Senator Hanson gave on this matter. These are the comments that this government must own. In characterising the family court system, she described it as:

… 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.

Really—that's what this government is supporting? She goes on to say:

How many in this chamber … have actually experienced domestic violence? Those ar e questions that we need to ask … People feel pain and anger. There are suicides, murders, the murders of children …

Labor will always stand up on this side of the chamber against comments like these. I want to make it clear: the family court system is in crisis because of this government, but there is never ever an excuse for family violence. Nobody is 'pushed' to commit family violence by the delays in the system that this government has created. It is not a justification, and this government and these ministers must own these comments. Twelve months on from the murder of Hannah Clarke and her children in Queensland, this government is taking our family law system backwards. The Queensland government today announced changes to introduce coercive control as a crime in Queensland. But this government is teaming up with One Nation, with those horrible comments, and taking us backwards.

Well, Senator Hanson, I have experienced domestic violence, my family has experienced domestic violence, and I stand with every victim of family violence today, to call out this government's nasty processes—that they will put politics before people and that they will do deals with crossbenchers to get this legislation through this week, instead of waiting and listening to the people that it actually impacts. That's what this government stands for.

Anthony Chisholm (Queensland, Australian Labor Party) Share this | Link to this | Hansard source

It's a pleasure to follow on from Senator Green and echo her sentiments around domestic violence in particular, which I know have had an impact on this chamber, particularly in her first speech. Domestic violence is something that she continues to advocate about, and it is important that all of us in this chamber advocate about it when we have the opportunity.

The reality of what we're dealing with today, when it comes to the Family Court, is that we're dealing with people at their most vulnerable. We are dealing with people who are going through this when they are actually confronting it with the people they care about the most. You would think, given that scenario that families are confronting, that the government would be providing the evidence to actually back up these changes—given what those families out there in Australia are confronting going through the Family Court process.

I feel for any families caught up in this system. I'm sure we've all heard, through our offices, some of those terrible tales about how long these things have dragged on and the terrible impact it's had on families and the impact it's had on children. Obviously, there is the human emotion that goes into this as well. It's quite remarkable that the government have pursued these changes now. Let's face it: they've pursued these changes over the course of many years, because they have an agenda. But they have not provided any evidence that this is actually going to make things better for those families—that it's actually going to speed up the process so that families can get a resolution quicker. It's not going to make what can be an expensive process cheaper, either.

All of the legal experts who deal with this system have condemned the changes; they've said they're not going to make a difference. All of those support groups out there that provide support to families going through the Family Court process have criticised the changes and said they are not going to make things better.

The government have not even bothered to try to justify it. We know they've set up the select committee with Senator Hanson, who has been pursuing this—as Senator Green says—for a number of years now. They're not even waiting for the final report to pursue this. They feel as though they've got the numbers, and they just want to plough on through and do it without providing any evidence that it is going to improve things.

It's remarkable that the government solution to a crisis of their own making—they made the Family Court system worse; they have deliberately run it down—and this is the way that they're treating people at their most vulnerable. At the end of the day, this is typical of an arrogant government, an arrogant Prime Minister and an extremely arrogant Attorney-General, who has been pursuing this for years with zero evidence. There is absolutely zero evidence that these changes are going to improve the system. The Attorney-General and the government have pursued what they wanted to see through, and that's what they've gone about doing. They feel like they've got the numbers in the Senate so they're going to try and get it done this week.

There is a problem in the Family Court system, but these reforms are actually going to make it worse. We know that there have been almost 70 reviews of the family law system undertaken since 1974. Many of my colleagues have talked about the history, and the proud Labor history, of the Family Court system. And, of those 70 reviews, not one has ever suggested that the Family Court be structured in the way that the government is proposing, yet the government are going ahead with their changes. They should be honest about their plan, which is seeking to abolish the Family Court as a specialist and standalone court.

Labor is proud of its record of establishing the Family Law Act in 1975, which instituted two major changes. It instituted no-fault divorce and it established the Family Court of Australia, a specialist, multidisciplinary court for the arbitration of family disputes. This was one of the many proud Whitlam legacies, from Medicare and our world-beating superannuation system to free legal assistance for Australians in need.

The Australian Law Reform Commission also conducted a review into the Family Court system prior to the Joint Select Committee on Australia's Family Law System inquiry. The Australian Law Reform Commission 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, and to whose family law system other countries once looked and tried to emulate. There is a chronic lack of funding for the appointment and proper training of judicial resources (including judges, judicial registrars – none of whom are currently employed within the courts, and registrars), 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 …

That is from the Australian Law Reform Commission.

Over the last seven years, the story of the Australian family law system has been a story of neglect by Liberal governments—neglect by Prime Minister Tony Abbott, neglect by the Liberal government under Malcolm Turnbull and the ongoing neglect by the current Liberal-National government under Prime Minister Scott Morrison. In my own state, the Queensland Law Society have said the changes would not improve the system. The Queensland Law Society president, Ken Taylor, speaking on behalf of the society's 13,000 solicitors, said he was concerned that a lack of expertise in family law could result in erroneous decisions and poorer outcomes for families. He said:

It is a significant risk that the quality and propriety of family law decisions will be compromised where determinations are made by judicial officers without family law expertise …

That's from Ken Taylor, the Queensland Law Society president. The chair of the Queensland Law Society's Domestic and Family Violence Committee, Deborah Awyzio, said:

In our view, the Society does not agree that the structural changes will produce efficiencies or reduce delay or that the changes will reduce complexity or legal costs in the family law system …

The society has long warned that Australia's family law courts were in crisis, calling for further resources to the courts to avoid lengthy delays of trial dates and judgements. It's exactly the point that we've been making consistently and in these speeches—that the evidence from the experts and those who deal with the system is that the changes that are proposed aren't going to speed up the process and aren't going to reduce costs for the families involved. Mr Taylor went on to say:

We cannot expect our judges to perform miracles – they require adequate resourcing …

The solution is not this merger of the courts, it's ensuring that the correct level of experience and specialisation is paired with an adequate number of judges.

Again, that is from the Queensland Law Society president.

An open letter that was sent to the Attorney-General, opposing the merger of the family and circuit courts, co-signed by 157 prominent groups within the legal profession. As the Law Council reports:

Stakeholders continue to oppose the bill out of concern the merger will increase cost, delay and stress for families. Even before the COVID-19 pandemic, the Family Court and FCC were facing delays of more than a year's worth of cases each. Two in three FCC judges already have more than 300 matters in their dockets, some more than 600. The Chief Judge of the FCC has previously indicated that the ideal number should be around 100 each.

They are a long way off that mark. The Family Court and the Federal Circuit Court—

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

Senator Chisholm, please resume your seat. You shall be in continuation. It's now time for senators' statements.