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Monday, 26 November 2018
Page: 11400


Dr FREELANDER (Macarthur) (16:18): I rise today to speak on the Federal Circuit and Family Court of Australia Bill 2018 and related bills. It is a little daunting to speak after the member for Berowra—a very eminent lawyer in this House—but I think my perspective is slightly different. I will outline why I think that this bill has been rushed through and why I think we could do better. What the government is proposing through this legislation is the most significant change to the Family Court since it was first established in 1975 by the Whitlam government—one of the many reforms enacted by the Whitlam government that changed Australia for the better for many, many decades. Of course, one of the other outstanding reforms of the Whitlam government was the development of Medibank, later to become Medicare—again, another social revolution in my own personal field of medicine that changed Australia for the better for many decades.

Because this legislation is a major change, it needs to be very carefully considered and carefully thought out. These bills, which total almost 500 pages in length, will subsequently make amendments to 125 further bills. As I have learnt over many years, in my work as a paediatrician, family law is a very complex matter, and the matters that family law deals with are themselves very complex and require expertise of a high level to resolve.

As a member of the House of Representatives Standing Committee on Social Policy and Legal Affairs, I've recently taken part in an inquiry that considers aspects of our judicial system and, in particular, the family law system. As part of this inquiry, the standing committee held a number of hearings all over the country, spoke to countless stakeholders and visited a number of different courts across the land. I must say that some of the evidence that we heard was quite harrowing and one could not fail to be impressed by the courage of some people and some of the difficulty they had faced in their family law matters, and by the enormous patience and expertise of the court officers and the judicial officers involved in the family law system. However, it was also apparent that there was clearly a need for reform. That reform will need to be in many different areas.

The committee, through its investigations, uncovered some truly disturbing aspects of our judicial system and our family law system. Whilst we saw that the legal system in family law urgently needs reform, the Labor members of the committee want to ensure that this legislation is carefully considered and looked over with a fine-tooth comb. If it's not, and we are left with changes to the law that do not significantly improve how the system functions at the present time, we would have grave concerns for the families and, in particular, for the children involved in the family law system.

This bill, put forth by the government, seeks to combine the Federal Circuit Court and the Family Court into one court, establishing the new Federal Circuit and Family Court of Australia—the FCFC. This effort to streamline and further compact our justice system brings the courts into a single entity, having both covered under one umbrella. This means that two currently separate entities will be given a single Chief Justice and Deputy Chief Justice, a single set of rules and a single point of entry.

While the two amalgamated entities will undertake the same roles and functions under this legislation as they currently do, it's worth noting that the Attorney-General has expressed an intention not to appoint new judges to FCFC division 1 as they retire. This is a division that, under this legislation, will effectively replace the existing Family Court. This is a major concern. What this means, in not so many words, is that this legislation would amount to a gradual abolition of the Family Court over time. This bill, as it stands, will result in the work of the Family Court being absorbed by FCFC division 2, which presently stands as the Federal Circuit Court.

The Morrison government should come clean and own up to what it is clearly doing here. Through this bill, the government is trying to abolish the Family Court—one of the great legacies of the Whitlam Labor government. It is a great legacy. Whilst we saw evidence of need for reform, the Family Court system itself as a separate entity, we feel, is very important to preserve. What is truly disturbing is that the government is trying to do this under a cloak of secrecy. Disgracefully, it appears that those opposite haven't even bothered to consult with families currently in the system or with many of the judicial officers working in the system. They are effectively seeking to get rid of the Family Court and haven't bothered to consider the families who have used it or who are using it.

As I said, my role in the aforementioned standing committee, my role as a local MP working with local constituents and my experience as a paediatrician have collectively shown me that our legal system is in dire need of reform. It's undeniable that the Family Court presently is in need of attention and is facing significant problems. Issues such as backlogs are increasingly unacceptable, because delays in the court system are not only not helping but damaging people who are caught up in the system. The reality is, though, that the Abbott-Turnbull-Morrison government is at least partly to blame for this. I don't think you'll hear those opposite admitting to this, but much of the existing backlog has arisen due to the failure of the coalition government to adequately fund the court system, their failure to adequately fund the legal assistance services and their failure to appoint replacements for judges upon their retirement. I could say that the government have botched all due process, especially in their failure to consult the broader community on this proposed legislation.

I think it's worth noting that the feedback that the government is now receiving from key stakeholders on its 500-plus page bill has been almost entirely negative. These, of course, are only the early responses, and I suspect that, with reflection and with time, the feedback will be even more caustic. Most of the feedback has been negative, and that's in the early days of this legislation, and I think that says it all, really. Once again, it appears that this government is engaging in policy on the run without consulting the experts.

While the fact that these bills are around 500 pages long might suggest otherwise, the government's pathetic excuse of a solution to fix the ongoing issues of the Family Court speaks for itself. Under these bills, the government is planning to get rid of all the specialist expertise that presently exists in the Family Court. Yes, it is true that the majority of cases are heard and handled within the Federal Circuit Court. However, what the current Attorney-General, Christian Porter, is agreeing to do with this legislation is to hand over all legal matters pertaining to family law to the generalist Federal Circuit Court. The one thing we learnt with our committee work was that it requires a great deal of expertise to deal with some of these very complex family law matters. As I've said, many matters that are presently handled in the Federal Circuit Court are especially complex and are difficult to deal with unless someone has expertise in these areas.

The court is appropriately presided over at the present time by personnel who are equipped to deal with such complex matters. They are specialist judges with the appropriate level of experience required to hear such cases. It's also partly because of the complex nature of these select cases that matters that are referred to the Family Court can take a long time to resolve. There are often no shortcuts. The specialist skill and detailed consideration that is required to hear such cases is no reason to simply get rid of the Family Court altogether. Here the government appears unwilling to acknowledge and accept the fact that specialist judges should be hired to consider complex family law matters in detail. This, it appears, is mere semantics to the government. With the swipe of a pen, they can approve the abolishment of a crucial establishment and with it its institutional knowledge and its capabilities.

I just want to go back briefly to the government's complete failure to undertake the appropriate level of consultation. Be assured this legislation is significant. It is of major significance to many in my electorate, to many of the families I've dealt with over a long period of time and, in particular, to many of the children—sometimes they're not thought of in complex family law matters. The Liberal-National government should have at least attempted to get some input from the wider community and the relevant stakeholders. This has not happened. They've handled this whole debate and the development of their legislation very poorly. They've not even bothered to pretend to engage with the people and the groups who are in the family law system every day. They've neglected the family groups, the registrars, the legal assistance services, the lawyers, the judges, the family assessors, the psychologists et cetera that have a big role to play in family law matters.

Seemingly aware of their complete and utter failure to consult key stakeholders, the government have tried to ram this legislation through the parliament. What they were doing was clear to all of us. The government were intent on making sure that nobody would have the opportunity to look into their proposals. They didn't want any oversight. They didn't want to have to consult. They didn't want any scrutiny of this major change to our family law system. That was evident through all their ill-conceived attempts to place restrictions on the time available to make submissions on these matters, which they initially wanted to be over and done with in just three weeks. I think that is appalling, given the complexity and the society-changing nature of this legislation.

Labor saw this coming. We wrote to the Attorney-General back in June requesting that the government do the right thing and come clean with an exposure draft of the bill, but—surprise, surprise!—they refused to accommodate our request. We are firmly in favour of adequate consultation, especially on such significant matters. The issues that are presently plaguing our judicial system in family law should be addressed. The government cannot hope to do that without reaching out to stakeholders. Instead, they are abolishing the Family Court. I am firmly of the opinion that all stakeholders, whether or not they're in favour of the changes, should get the opportunity to have their say on these very complex matters.

To me, the government's failure here demonstrates their laziness. Rather than actively engaging with the broader community, hearing about people's experience in the Family Court and having appropriate discussions with the experts, they've decided to rush this legislation through. It's appalling. Rather than trying to solve the underlying problems, the government appear to be attempting to brush the issues under the carpet in the hope they'll go away. Any discussion, or attempted discussion, from the Labor Party about family law matters is met with a whole range of cliches from the Prime Minister, who does nothing but shout and make very negative comments about any constructive attempt to address this legislation.

The Attorney-General and this out-of-touch government can pretend all they like that adequate consultation has been undertaken, but the evidence says otherwise. You only have to look at the Australian Bar Association and the Law Council of Australia, the two eminent bodies representing all legal practitioners in Australia, who provided the disturbing revelation they were given an early draft with only two days to respond and strict limitations on who they could discuss the draft with—again, another appalling piece of government manipulation. Indeed, it appears that the government's consultations were limited merely to the Chief Justice of the Family Court and the Chief Judge of the Federal Circuit Court. This is complex legislation that takes around 500 pages to outline, with amendments to 125 other bills, effectively axing an essential institution, yet it seems the government think it's okay to consult with two people. This is a travesty, and I would be highly embarrassed to be sitting among those opposite. I could liken this style of governance to a toddler having a temper tantrum, throwing his toy across the room because it doesn't work, and wanting to get another one. Make no mistake; that is what the government are doing. Rather than dealing with the issues facing the Family Court in a responsible, logical manner, they're choosing to throw the whole situation aside.

As a member of the Standing Committee on Social Policy and Legal Affairs, I was part of the inquiry that looked into family law. The inquiry, though truly eye-opening, reinforced what I already knew to be true, which is that the government have underfunded the family law system for a long period of time, and that has contributed to most of the problems. As a paediatrician, I've had a great deal of exposure to the legal system; in particular, to the Family Court. I've known for years that our legal system is overrun, our judges are overburdened and our courts are underresourced. We need to expand and improve our legal institutions, not merely abolish them. I doubt there was ever a more apt application of the phrase 'cutting off the nose to spite the face' than what we're seeing here. These bills represent the greatest changes to the family law courts since they were formed in 1975 and they need to be properly assessed.