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Monday, 26 November 2018
Page: 11437


Ms SHARKIE (Mayo) (18:55): Before I discuss the Federal Circuit and Family Court of Australia Bill 2018 in detail, I want to make it clear that, while Centre Alliance will support the passage of this bill through the House, that should not be interpreted as an acceptance or approval of the proposed reforms. My Senate colleagues and I have not yet formed a position on these bills, but we accept without reservation that the need for careful and considered reform of the family law system is needed. I say again that our support today should not be read as an endorsement for these reforms but rather as an acknowledgment of the importance of the Senate committee process. Our Senate colleagues fought hard to ensure the committee could conduct a thorough investigation of the bills, unfettered by arbitrary reporting deadlines initially proposed by the government. We make no apologies for disrupting the government's proposed timeline. These bills will impact on everyday families, and we need to satisfy ourselves that the reform is required and that it is indeed appropriate. Having campaigned long and hard for a proper process of scrutiny, we will now closely monitor the submissions to the inquiry, the evidence adduced during the public hearings and any recommendations of the committee.

In that regard, these bills are no different from any others that we consider as a party, but family law disputes are unlike any other form of litigation. These disputes are not a result of commercial failures, questionable taxation practices or criminal misadventure. These disputes are the consequences of abandoned plans for a life shared, and at the centre are individuals struggling to come to terms with the breakdown of their family unit and all of the emotional, financial and logistical complications that flow from that. These are families at their most vulnerable, and because of that we owe it to them to ensure that the family law system is working as efficiently and as effectively as possible.

Given the deeply personal nature of the disputes, it is unlikely that any family court system can win the praise and approval of the parties subject to its rulings, but to prolong a family's journey through the family court system only serves to further inflame the conflict. Delay may be costly and frustrating for adults, but the continued exposure to conflict can have a profound and lasting impact on children—particularly young children. And we know that that is happening now. We know that too many families are left waiting for their matter to be heard and determined by a judge with the appropriate skill and that these delays are causing much harm to many Australian families. In recognition of the challenges facing those who rely on and work in the family law system, the former Attorney-General directed the Australian Law Reform Commission to undertake the first comprehensive review of the family law system since its inception in 1975. The review was welcomed by the legal profession, the judiciary and those who work in the family violence space. That report is due to be completed in April 2019.

I've also made a point to move beyond the legal sphere and talk at length with my constituents who have firsthand experience of family law litigation. Divorce does not discriminate. I spoke with men and women, both young and old, and many of them shared the same concerns: costs, delays and conflict. The government says that this package of bills will significantly reduce the delays experienced by Australian families, which in turn will help to reduce the costs incurred by parties. It is intended that structural reform will achieve improved case management efficiencies, resulting in an additional 8,305 matters being resolved each year. The veracity of that claim is yet to be tested.

There are a number of proposed changes, but I want to address two points—namely, the future of the appellate function of the Family Court and the relationship between the Family Court and the Federal Circuit Court. First, appeals from the Federal Circuit Court and the Family Court are currently heard by specialist appeal judges, who sit on the full court of the Family Court. The bill will in effect remove the appellate function of the Family Court, with appeals to be dealt with by the single judge of the Federal Court instead. It has been suggested that there is a real and significant risk that such a measure could lead to an erosion of the specialist knowledge developed by the court over many decades. This specialist knowledge goes beyond the legal reasoning that is to be expected of a superior court of record and extends to the unique understanding of family violence and how it permeates every aspect of a case.

Second, and in broader terms, the Family Court and the Federal Circuit Court would become division 1 and division 2 of the proposed new Federal Circuit and Family Court of Australia, the FCFCA, to create a single point of entry for parties looking to commence proceedings. The Attorney-General has indicated that further appointments to the division 1 court, currently known as the Family Court, are unlikely, with the practical effect being that, as Family Court judges retire, the Family Court will eventually cease to exist.

There are many vocal critics of the bill, including current and former judges, who say that too much weight has been given to efficiency statistics alone, without having regard to the complex nature of the disputes, the current resourcing constraints or the quality of justice delivered. For example, the International Framework for Court Excellence assesses a court on a broad range of indicators—quality, fairness, impartiality, independence of decision-making, competence, transparency, accessibility, timeliness and certainty—yet the reports commissioned by the government, in particular the 2018 PricewaterhouseCoopers report, focused almost entirely on efficiency, being the rate of disposals.

Any serious restructure or reform of the family law courts should be the product of evidence based policy. The primary purpose of such a policy must be to improve the experience and outcome for parties rather than simply as a way for government to save money. This is a significant reform and one that should not be undertaken lightly. I can think of no other court that interacts with all sections of our society on such a regular basis or on such intimate terms. Without proper considerations, any possible repercussions from the loss of a superior specialist court restructure may not be known until the Family Court is barely operational or no longer exists. In our view, the proper consideration will occur through the Senate committee process, and, for that reason, we support the passage of the bill in this House and wait for the outcome of the Senate committee. Thank you.