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Wednesday, 28 March 2018
Page: 2340

Senator GRIFF (South Australia) (10:16): How can it be that the entirety of these documents is damaging to the public interest? The Australian already has a copy of the KPMG report. Excerpts and summaries of the report have been published in the paper. Consequently, they are already in the public domain, and the government's ability to support the court does not appear to have been undermined by that publication. The minister representing the Attorney-General's response shows a complete disregard for families navigating their way through the family law system—a system that, in the words of the former Chief Justice of the Family Court, Diana Bryant, is 'letting the people down'. The former Chief Justice went on to say:

The whole system suffers from a lack of resources to get through the work in a satisfactory way.

Those statements were made in 2017, and now, in 2018, very little, if anything, has changed. Only last week, in a ceremonial listing for senior Family Court Judge, Justice Thackray, His Honour said:

… I've been burning to say these things for years.

His final address to the profession was a searing indictment of this government's continued failure to provide the court with the funding it needs to do its job properly. His Honour called out the government for taking years to replace retiring judges and added his voice to the deafening chorus of calls for an urgent injection of funds to deal with the growing case load and inordinate delays. So we have a senior judge and the former Chief Justice publicly voicing their long-held and very real concerns about the parlous state of the Family Court's funding. How is it then that this government can continue to ignore the repeated calls for funding? How is it that this government thinks that all will be fixed with piecemeal and tokenistic gestures?

Let's take the extra funding allocated to the court for registrars announced in the 2017 budget: three registrars across three courts and seven states and territory—only three registrars for all three courts. That hasn't even scratched the surface. In the words of former Chief Justice Diana Bryant, matters continue to:

… just sit in the list. That's appalling.

Those are not my words. Those are the words of the former and highly respected Chief Justice of the Family Court, who, in October 2017, called the delays 'appalling'. Barely six months ago, the then Chief Justice of the Family Court was pleading for more funding for a system that is overworked and underresourced—but I don't want to reduce this debate to balance sheets and budgets.

Let's just pause here for a moment and actually think about what is at stake. Let's think about the children and the parents who spend years having their most intimate details laid bare for social scientists, lawyers and judges to dissect and determine. We're not talking about large multinationals crossing swords over abstract contractual principles. These are desperate families dealing with a breakdown in the family unit and all the emotional, financial and logistical complications that flow from that. Delays in the system due to the lack of sufficient resources can only serve to further inflame the conflict.

Family law disputes are necessarily the consequence of failed hopes, dreams and plans for a shared life. The legal profession and the judiciary, including the former Chief Justice, have all identified the government's failure to replace judges quickly—or, indeed, at all—as a significant factor in the current delays. Let's take Adelaide, my home capital city, as an example. Following the retirement of Justice Dawe, South Australian families have been waiting for over 12 months for a replacement judge. So there is now only one judge available to decide the state's most complex matters—one judge.

Last week, the Attorney-General confirmed that there was a full complement of judges in the court for the first time in years. How do you then explain to the people of South Australia what one judge will actually do when there used to be two? How do you explain to the people of South Australia that they will have to wait twice as long to get before a judge? Or does the government simply expect the one remaining judge in Adelaide to work twice as hard? Remember, these are complex cases often involving intractable parenting disputes, including allegations of serious physical, sexual and psychological harm or complex property settlements where mum is barely scraping by on welfare payments and child support while she waits for the property settlement to be determined by the next available judge.

The government needs to acknowledge the failure to replace judges quickly and that the continued failure to replace Justice Dawe has had a snowball effect on separating families. I know this because I've heard too many stories of South Australian families suffering financially and emotionally while they wait and wait and wait on the list. It is not uncommon for matters to spend two years on the Federal Circuit Court waiting for their trial only to be kicked upstairs to the Family Court where they must start once more at the bottom of a very long queue. This is occurring because of the limitations of the FCC and the complexity of certain matters. With only one judge now sitting in the Family Court in Adelaide, matters are taking well over three years to determine.

We know from the various state and territory law societies and the Law Council of Australia that these stories are not unique to Adelaide. For example, in the Sydney and Parramatta courts, families can wait over three years to get to the final hearing. And what is so frustrating is that we absolutely know that this is not a new problem because, unlike the Senate, TheAustralian actually managed to get a copy of the 2014 KPMG report. What was reported paints a sobering picture of the nation's three federal courts. In an article published on 29 August 2014, The Australian reported an expected $75 million budget as a consequence of the court's structures and complex and increasing caseload. The article said:

The 127-page report, which was handed to the government in March, reveals court costs are rising faster than the money set aside to pay for them, and not enough potential savings remain to cover the shortfall.

"The current challenge now lies in that the pool of potential 'efficiencies' has already been tapped and that it does not appear possible to continue to produce them at the same pace ... without a significant restructure or decline in service levels …

That report was completed four years ago, and there is no indication that the service levels have improved in the meantime. Remember, this is not a customer satisfaction survey for a retail chain. The court is providing a service to separating families. That service is to hear and determine their matter in a fair, efficient and cost-efficient manner.

Our attention then turns to the term 'restructure'. We know the government amalgamated the administrative functions of all three federal courts in order to claw back costs, but what other changes is the government planning? We know from Senate estimates that the Attorney-General has met with the courts to discuss reform. Are the proposed parenting management hearings just the first part of a broader reform that was proposed back in 2014, or is this a quick-fix idea, a last-ditch attempt by the government to salvage a broken system after years of repeatedly ignoring pleas for funding? Remember that these calls for funding are not the disgruntled murmurings of the few; sustained calls for more funding have come from the judiciary, the legal profession, legal aid centres, academics and social workers. And they are based on the limited information available to us from KPMG.

This is not the first attempt that has been made to seek a copy of the report. We heard during the recent Senate estimates that there was, at that time, an FOI request pending, and, during question time in November 2016, Senator Hanson requested a copy of the report. In response, the then Attorney-General, Senator Brandis, made two points that I'd like to highlight. The first was that the department had relied on these documents to achieve useful efficiencies, and the second was that he would consult with the secretary of his department to see what he could make available. So, here we are, 18 months later, and we must now all surely be questioning what impact, if any, the so-called useful efficiencies have had on the current logjam in the courts.

But that is the point: we simply do not know. We don't have the full picture, and the government does not want us to know. So, how can we be expected to consider the Family Law Amendment (Parenting Management Hearings) Bill in a vacuum, when the government has sold this bill to the Senate as a new justice model, promising swift and cost-effective dispute resolution for all? And it is for all, notwithstanding Senator Brandis's response to my question in December 2017: these parenting management hearings will in fact be used in cases of family violence.

The government's proposal is a significant departure from existing family court procedures. It is an untested social experiment being thrust upon unsuspecting participants that is binding on them and their children. These are people who will have to deal with the consequences for many years to come. It may be a pilot program for the government, but make no mistake: for the estimated 500 families and the 1,000 children affected, it will be permanent. It also comes at a significant cost of over $12 million—just for a pilot program.

I asked the former Attorney-General, George Brandis, about the timing of the reforms in December 2017, and yet again I find myself asking: why is the government choosing to legislate now, before the Australian Law Reform Commission has completed the long-awaited review into the family law system? If the government were serious about the review and about helping vulnerable Australians through one of the worst periods of their lives, it would wait for the recommendations of the ALRC before thrusting yet another layer of complexity on an already overburdened system, especially when we know that, as part of its terms of references, the ALRC will be looking at 'the appropriate, early and cost-effective resolution of all family law disputes' and 'the pressures, including, in particular, financial pressures, on courts exercising family law jurisdiction'. I would expect that, as part of that investigation into financial pressures facing the courts, the government will ensure that the KPMG and Ernst & Young reports are provided to the ALRC.

The government has available to it two presumably comprehensive reports which set out the financial pressures the Family Court is facing, and presumably the range of possible options that were available to the government at the time. The time has now come for the government to produce the reports: first, to the Senate, to enable a proper consideration of the merits of the parenting management hearings bill, and, second, to the ALRC, to better enable the commission to consider the financial pressures facing the family law system pursuant to its terms of reference.