BILLS - Federal Circuit and Family Court of Australia Bill 2018

November 26, 2018

Mr HAYES (FowlerChief Opposition Whip) (16:49):  I rise to make a contribution on the Federal Circuit and Family Court of Australia Bill 2018 and the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018. These bills represent one of the most significant changes proposed to the Family Court since its establishment in 1975 under the Whitlam government. The Federal Circuit and Family Court of Australia Bill 2018 contains the main provisions of the government's proposed changes. Basically, it will consolidate these two courts. The related bill will basically make consequential amendments to, as I understand it, 125 bills. In summary, this bill combines the Federal Circuit Court and the Family Court into a new amalgamated court, the FCFCA. Effectively, it involves merging two existing structures under the one umbrella, giving them to a single Chief Justice and Deputy Chief Justice; a single set of rules; and a single point of entry. So far, that all sounds quite palatable. The existing Federal Court will become Division 2 of the new body and the Family Court will be Division 1.

While a separate Family Court has been allocated to the new amalgamated court, there has been an intention expressed by the Attorney-General that there'll be no new appointments to judges in Division 1. In other words, no new appointments to judges in what would have been considered the Family Court. What we see is the gradual abolition of the Family Court; the winding back of what was ventured back in 1975, to have a specialised court to deal with issues of matters of the family. Further to these changes, the bill seeks to abolish the appeals division of the Family Court, transferring the appellate jurisdiction to the Federal Court.

I want to make it clear: we will be opposing this legislation. We'll be opposing it on the basis that there has been inadequate consultation with the various stakeholders, which I'll go through in a moment. This is being rushed through. In spite of what the previous speaker just said, this is an economic drive. It does nothing to enhance the actual performance of the respective courts, and I'll deal with that as well. I want to make clear that we are opposing this legislation. The government has had the opportunity to review the performance of the Family Court. It has made various criticisms, as colleagues opposite are making at the moment.

But, Mr Deputy Speaker Howarth, you have to look at how they have resourced the Family Court. The former Attorney-General, who's now ensconced happily over in London, went on for years refusing to replace judges in the Family Court. The dilemma of the Family Courts, the backlog, was partly due to the lack of resources. You see that in the appointment of registrars, court staff and, importantly, judges. I find this a little bit bewildering, wanting to rush this piece of momentous legislation through before it has had the opportunity for the appropriate stakeholders to be properly consulted. By the way, the only stakeholders that were consulted—except for PricewaterhouseCoopers, who wrote the 500 page report—were the Chief Justice and Chief Judge. It wasn't exactly going to the users of the court system: the people who are representing families; people who are engaged in the issues, particularly in the Family Court; those supporting the mental health welfare of participants; and the Law Council or the Bar Association. None of those were actually consulted. None of those were asked, 'What would make a more efficient court system for the end user?'

I accept that those opposite see this as a bit of a cash grab: 'We can merge these two bodies together and, as a consequence, they'll spend less money on the Federal Court and the Family Court,' but I'm not sure that that is precisely what we want to be putting out there within the community. When I look around here, all electorates—like yours and mine, Member for Werriwa—have families which have been impacted on by the Family Court. We all have families that have levels of discord, regrettably. It takes time. We all have families that have relied on the specialisation of that court to seek justice. This has all been fast-tracked, as I say, simply in respect to the economics of that Federal Court system—the Federal Circuit Court and the Family Court. This is not about what's best for end users.

The government should take responsibility and own up to what they have done to the Family Court. This was a great initiative under Gough Whitlam. Regrettably, we understand what the divorce rate is in this country. Regrettably, many of those divorces are very contested and emotional dramas. The view in 1975 was, 'We do need a specialised court, with specialised judges, to be able to actually help people through this.' That is what they are trying to throw out now. Even though, as I say, in Division 1 there will be the Family Court provision, if you aren't going replace any of the judges there, if you're not going to replace the Registrars and if you're going to have a single set of rules and a single point of entry, it can mean only one thing. This is eventually going to be the Federal Circuit Court effectively doing all the Family Court matters.

I know a lot of my colleagues appear regularly in the Federal Circuit Court, and I know it deals with a lot of family matters as it is now. But when matters get very complex and very specialised, they are then referred to a judge in the Family Court. That's the way it works in practice now. But this legislation will effectively put these into one court—the Federal Circuit and Family Court of Australia. It will diminish the specialists in the Family Court. They will be merged as effectively one new court without that level of specialisation in family matters.

I'm okay if the other side want to come in and say, 'Family matters are less and less important to us now.' But they haven't been honest in doing that. They've said this is about efficiencies. It seems to me the inefficiencies—the backlogs—that we see in the Family Court have been very much at the hands of this government through the lesser allocation of funds. A good colleague of mine from my former days is Morry Bailes, who is now the President of the Law Council of Australia. He said:

Australia's family court system today is under immense pressure but rushing through changes without proper consultation is not the answer.

…   …   …

We owe it to the people caught-up in the family law system not to give the most significant court changes since 1975 a mere cursory glance, or a simple tick-and-flick.

I don't know what the government thinks of the Law Council of Australia these days, but I think Morry's view is quite right there—this is being rushed through. The lawyers weren't consulted on this.

We acknowledge that there have been significant problems in the Family Court, but a lot of these unacceptable delays get down to the levels of resourcing and, as a consequence, this is at the hands of this government. We certainly don't hear the government talking about the backlog. We don't hear them talking about the inadequate funding. As I said, former Attorney-General George Brandis was quite forthright in his position that you didn't have to replace retiring judges. In other words, this government have actually contributed to the problems they're trying to escape from now by simply amalgamating these two legal institutions.

Many of us participated in the debate earlier today about White Ribbon Day and the issue of domestic violence. Regrettably, that's something that impacts on all of our electorates. It's just a fact of life that matters of domestic violence disproportionately affect women. It has been one of the central aspects of the current Family Court because, invariably, domestic violence repeatedly is part of the more complex cases dealt with by the Family Court. If these matters were formally before the Federal Circuit Court they would be then allocated to a specialist judge in the Family Court. You all know the statistics on the prevalence of domestic violence, so you must understand the impact of not having matters of such gravity heard before a specialist legal institution. I want to read the words of the President of the Australian Bar Association, Noel Hutley SC:

The Family Court of Australia and its specialist judges perform important work in difficult and complex family law cases, but the court has been under-resourced for many years. The ABA remains of the view that the court should not be dismantled after 40 years of operation without careful consideration of the value that maintaining a properly-resourced specialist family court would bring.

This proposal from the government is based simply on what I would call the 'desktop research' of PricewaterhouseCoopers. They are a pretty formidable research based organisation, but it is their research that the government is relying on to say, 'If we do this, we're going to have that amount of greater efficiency within our court system.' The report, in my opinion, makes some far-fetched assumptions, including that there would be an equivalent level of complexity between the Family Court and the Family Circuit Court. As I said a little earlier, I think that's a ridiculous notion, but it's not surprising that those who are not directly involved in those respective jurisdictions would come to that conclusion. They did not talk to the Bar Association and they did not talk to the Law Council of Australia, yet they have made that 'desktop conclusion', if you like, that the complexities in both those legal jurisdictions would be very similar.

I just think that the notion of putting this through with this degree of haste is wrong. We do need the Senate to review this piece of legislation, and I think the reporting time of 15 April next year is a good time for the Senate to come back on this. It also gives us the opportunity to hear from the Australian Law Reform Commission's landmark inquiry into the family law system, which, I understand, is due on 31 March. We on this side are interested in having proper processes protecting family law matters. We've been critical of the way this government has treated the Family Court and the way it has inadequately resourced it, and we are very, very critical of the way this government's trying to ram this piece of legislation through, clearly without adequate consultation with stakeholders—whether they be for or against the change, for that matter. As a consequence, we'll be voting against this on the basis of reserving our position after reviewing the Senate Committee report. (Time expired)