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Wednesday, 17 February 2021
Page: 755

Senator KITCHING (Victoria) (09:31): 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.

The DEPUTY PRESIDENT: Yes. Sorry. Please continue, Senator Kitching.

Senator KITCHING: 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.