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Thursday, 5 December 2019
Page: 7054

Mr PORTER (PearceAttorney-General, Minister for Industrial Relations and Leader of the House) (09:58): I move:

That this bill be now read a second time.

It is with great pleasure that I introduce to this parliament a package of legislation that will reduce the costs and delays that thousands of Australian families experience as a result of a split federal family law court system. This legislative package will create greater efficiencies in the federal family law court system and, in turn, assist families navigating the court system during what can be some of the most difficult and distressing times of their lives.

The government first introduced this bill package into the parliament in August 2018; it lapsed when the parliament was prorogued. Since then, the government has worked to strengthen and improve the suite of measures to respond to some of the concerns raised, while still fundamentally delivering a structural reform of the federal family law courts that will assist families to have their matters dealt with quickly, efficiently, cheaply and as safely as possible.

The Federal Circuit and Family Court of Australia Bill brings together the Family Court of Australia and the Federal Circuit Court of Australia as an overarching, unified administrative structure to be known as the Federal Circuit and Family Court of Australia. The Family Court will continue in existence as the Federal Circuit and Family Court (Division 1), and the Federal Circuit Court will continue in existence as the Federal Circuit and Family Court (Division 2).

This bill creates a consistent pathway for Australian families in having their family law disputes dealt with in the federal courts. Under the government's reforms, there will be a single point of entry for the federal family law jurisdiction and, ultimately, a common set of rules, procedures, practices and approaches to case management. The reforms enabled by these bills will improve user experience for those Australian families that unfortunately need the assistance of the courts to resolve their disputes and promote improved practices by both courts and legal practitioners.

The structural reforms and legislation to give them effect have been developed and informed by a number of substantial inquiries over the last decade, including the 2008 Semple review, the 2014 KPMG review, the 2015 EY report, the 2017 House of Representatives Standing Committee on Social Policy and Legal Affairs inquiry, and most recently a 2018 PwC report, and these were all tabled in the parliament when the bills were first introduced.

Since the bills were last before the parliament, the government has carefully considered the comments made and issues raised by court users, legal and other professional stakeholders, House of Representative members, the Senate Legal and Constitutional Affairs Legislation Committee and members of the general public.

And, while there was disagreement about what approach the government should take, there is widespread recognition that the current structural arrangements in the courts are simply not working to the benefit of Australian families. The government remains committed to resolving these structural failings.

To address some of the key concerns identified by stakeholders, the government has made several changes to the package as it was before the last parliament.

The government will no longer create a family law appeals division in the Federal Court. The bill, instead, preserves the existing Family Court's appellate jurisdiction within the FCFC (Division 1). While the bill will retain the appellate jurisdiction in the FCFC (Division 1), the bill provides that there will no longer be an appeals division for select judges to be appointed to but, rather, Division 1 judges will be able to hear appeals, both as individual judges and as members of a Full Court.

Further, the bill will enable the court to deal with appeals more efficiently, as appeals from decisions of the FCFC (Division 2) will be ordinarily dealt with by a single judge from Division 1. The Chief Justice will have the ability to convene a Full Court to hear an appeal from Division 2, where appropriate. This will provide flexibility for a Full Court to hear appeals involving novel or complex questions of law.

Both of these changes reflect the approach taken in the appellate jurisdiction of the Federal Court, which successfully exercises a substantial and diverse appellate jurisdiction. This approach will enhance the courts' ability to resolve family law matters.

The bill also now makes much clearer how the single point of entry for first instance family law matters in the Federal Circuit and Family Court will operate by providing that all original jurisdiction family law applications should be made to the FCFC (Division 2), with matters able to be transferred to Division 1 as appropriate. Implementing a single point of entry in this way is a significant and long called for reform to improve the user experience with the family law courts and enhance the unified identity of the Federal Circuit and Family Court. Coupled with the harmonisation of rules and case management approaches, it will reduce confusion and create a much simpler pathway for resolving disputes.

Another recommendation of the Senate Legal and Constitutional Affairs Committee was to require judicial appointments to the FCFC (Division 2) to involve consideration of whether the person has the appropriate skills, knowledge, experience and personality to undertake family law matters. The Australian Law Reform Commission made a similar recommendation for the appointment of judicial officers exercising family law to involve consideration of the person's knowledge, experience, skills and aptitude relevant to hearing family law cases, including cases involving family violence.

The bill now provides that for a person to be appointed to the FCFC (Division 1) or appointed to the FCFC (Division 2) and expected to deal with family law matters, the person is, by reason of knowledge, skills, experience and aptitude, suitable to deal with family law matters, including matters involving family violence.

In addition, the bill now provides for:

a time-limited period for the Chief Justice and Chief Judge of the FCFC to be empowered to make rules of court that ensure they are consistent across both divisions. After a period of two years, the power to make rules will revert to the judges of each court or a majority of them;

retaining the existing parities between the Family Court of Western Australia and the federal courts; and

requiring the legislation to be reviewed five years after commencement.

The reforms are consistent with the parliament's powers to create and invest federal jurisdiction in courts other than the High Court under chapter III of the Constitution. No existing court is being abolished as a result of the legislation. Current judicial appointments will continue in the new structure, with no changes to the terms or conditions of existing judges. The bill ensures that the Federal Circuit and Family Court (Division 1) is considered a superior court of record and a court of law and equity, and the Federal Circuit and Family Court (Division 2) is considered a court of record and a court of law and equity.

The government, as part of this reform, has also committed to providing:

an extra $4 million in funding to the federal courts to review court rules and assist with implementation of the reforms; and

an extra $3.7 million over the forward estimates for an additional FCFC judge.

However, while the government is committed to ensuring that the courts are appropriately resourced, it is not a good use of taxpayer funds to simply appoint additional judges without first addressing the fundamental structural problems that have existed within the courts.

The reforms enabled by the legislation introduced today also build on the measures the government has already taken to improve the family law system, and this government's commitment to ongoing improvements.

The reforms in this bill are a valuable and vital piece of family law reform, and will play an important role in providing Australian families with an effective and much improved experience when navigating the family law system.

Debate adjourned.