SHADOW MINISTER FOR CONSTITUTIONAL REFORM
MEMBER FOR ISAACS
Federal Circuit and Family Court of Australia Bill 2019
Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019
30 NOVEMBER 2020
Like most of the great social reforms that have occurred in Australia—including Medicare, our world-leading superannuation system, the anti-discrimination law framework and the provision of free legal assistance services to Australians in need—the Family Court of Australia is a proud Labor legacy. Australians are used to the Liberal Party attacking and seeking to undermine these and other great social reforms introduced by Labor governments.
Australians are used to the Liberal Party attacking Medicare. The Liberals never miss an opportunity to undermine the principle of universal health care in Australia, even as they now pretend to support it. Australians are used to the Liberal Party attacking superannuation, whether it's the Morrison government's recent policy to force struggling Australians to raid their retirement savings to make ends meet or the nasty and self-serving campaign by Liberal backbenchers to delay the increase to the superannuation guarantee. Australians are used to the Liberal Party attacking the legal assistance sector and the Commonwealth's anti-discrimination framework. Look no further than the Liberals' virulent but failed campaigns against Australia's longstanding protections against racist hate speech, as introduced by Labor and contained in section 18C of the Racial Discrimination Act. And, yes, Australians are used to the Liberal Party neglecting, undermining and attacking the family law system in Australia, including the Family Court. When it comes to the great social reforms in Australian history, the Liberal Party is the party of wrecking. The Labor Party is the party of action and creation. And that brings me to the bills that are before the House today.
The Family Court was established by the Family Law Act 1975. That act brought two major and complementary changes to our nation: it instituted no-fault divorce and it established the Family Court of Australia, a specialist, multidisciplinary court for the resolution of family disputes. These were major reforms, and they were understood to be major reforms at the time. Before the Family Law Act, the Matrimonial Causes Act 1959 set out 14 grounds for the grant of a divorce. Those grounds included adultery, desertion, habitual drunkenness, imprisonment and insanity. To get a divorce, a spouse had to prove the other party was at fault. Private investigators did very well out of divorce law as it existed prior to the Family Law Act, but Australian men and, especially, Australian women did not. As Gough Whitlam said in the House of Representatives on 19 May 1975:
Let us keep in mind that marriage is essentially a human relationship between 2 people. It takes 2 people to make a marriage but it takes only one to break it. Idealists might wish that it were otherwise, but it is not. It is time society acknowledged that simple fact. We have no right to condemn 2 people to live together in misery and suffering for a moment longer than necessary. Ultimately the only test of a marriage is whether both parties agree to maintain it. If one party is unwilling to maintain it the marriage has broken down.
Since the commencement of the Family Law Act in January 1976, the only ground for divorce in Australia has been that the marriage has broken down irretrievably. This can be established if the parties have lived together separately and apart for a continuous period of 12 months. Spouses no longer have to go through the pain, expense and humiliation of trying to prove that the other person was at fault. In other words, the state no longer condemns two people to live together in misery and suffering for a moment longer than necessary.
Thankfully, the Morrison government is not proposing to reinstitute fault based divorce in Australia, but it is proposing to undo the second of the major changes introduced by the Family Law Act, which was the establishment of the Family Court of Australia as a specialist superior court. In 1974, the Senate Standing Committee on Constitutional and Legal Affairs, which had been tasked with reviewing the Family Law Bill 1974, said that the Family Court would be 'essential to give substance' to key aspects of the Family Law Act. Shortly after the passage of the Family Law Act, the then Labor Attorney-General Kep Enderby wrote this:
In public discussion of the Family Law Act, most of the attention has understandably, and quite properly, focused on the ground of divorce and, to a lesser extent, the maintenance provisions. While not underrating the magnitude of the reforms to the divorce and maintenance laws, I feel sure that, in time, the provision for the establishment of Family Courts will come to be seen as a reform of equal importance.
Kep Enderby was right: the Family Court of Australia is no ordinary court. Its essential distinguishing feature is that it only deals with family law matters. This bill would rob the Family Court of its essential distinguishing feature by collapsing it into one of Australia's busiest, most poorly resourced and overburdened courts: the Federal Circuit Court. The reason why specialisation is so important is that family law matters are not like other matters that generalist courts have to deal with, and the parties to family law matters are not like the parties that generalist courts tend to deal with. As Gough Whitlam said in 1974:
The essence of the Family Courts is that they will be helping courts. Judges will be specially and carefully selected for their suitability for the work of the court. There will be attached to the court a specialist staff, notably marriage counsellors and welfare officers, to assist the parties at any stage—and even independently of any proceedings. These courts will therefore be very different from the courts that presently exercise family law jurisdiction. The Family Court will, of course, determine legal rights, which it is bound to do as a court, but it will do much more than that: Here will be a court, the expressly stated purpose of which is to provide help, encouragement and counselling to parties with marital problems, and to have regard to their human problems, not just their legal rights. Parties will not be driven to the court by their own despair as a last resort; they will be encouraged to come to the welfare and counselling staff of the court whenever they have a matrimonial problem, even if they are not contemplating proceedings of any kind. This help would also be available after divorce proceedings, and this would, as I have already indicated, be of great importance where there were young children.
If anything, the need for a specialist standalone family court is even more important than it was in 1974. As the Australian Law Reform Commission noted in its landmark 2019 report on the family law system, a report this government commissioned but has completely ignored, the Whitlam government could not have foreseen the growth in incidents and awareness of family violence and child abuse since 1975. The Whitlam government's vision of a specialist family law court was of a court with interrelated, co-located services and resources. It was not just about specialist judges; it was about creating an environment that would have regard to what Whitlam described as the 'human problems' of couples and families, including children, and not just their legal rights. The realisation of that vision has never been more important, especially for vulnerable children and families who need a family court system that is not only efficient but safe and sensitive to their needs and vulnerabilities.
Under this government's reckless proposal, what was once a superior court, sitting alongside the Federal Court of Australia in the national hierarchy, would effectively become a junior court, reflecting this coalition government's view about the importance of family law and its failure to prioritise the issues of family violence and child abuse that the Family Court of Australia and its staff have developed special expertise and jurisprudence to deal with.
I will not pretend, and nobody on this side of the House will pretend, that the Family Court of Australia in 2020 is fulfilling its original objective and Gough Whitlam's vision—far from it. The family law system today, including the Family Court, is in a state of crisis. The system is not serving the interests or addressing the needs of Australian families in the way that it should. Far from being the helping court that Whitlam envisioned, the Family Court—and the Federal Circuit Court for that matter—is beset by delays.
The caring and hardworking judges of both courts are hopelessly overburdened by their caseloads because of the chronic underfunding of those courts by this government. The Senate Legal and Constitutional Affairs Legislation Committee, which inquired into this bill, heard evidence that two Federal Circuit Court judges, one in the Brisbane registry and one in the Wollongong registry, had over 600 cases on their dockets. That is, over 600 cases for each of those judges at the same time. Three other Federal Circuit Court judges have between 500 and 600 cases, and 21 judges of the Federal Circuit Court have between 400 and 500 cases each. The average number of cases across all Federal Circuit Court judges is 337 at present. That's an average of 337 cases per judge.
For contested family law matters in the Family Court, it is currently taking on average 18.6 months from the date a matter is filed to the date on which the trial commences. In the Federal Circuit Court, the average is 17.5 months, and that, of course, is just to get to trial. Once a trial has concluded, families are waiting many months for the courts to hand down their judgements, and that course is entirely understandable when you reflect again on the sheer number of cases that each of these judges has on their docket.
In some Federal Circuit Court and Family Court registries, it is taking on average 12 months for court appointed family consultants to produce family reports. That's the average amount of time it takes. Many, of course, are taking far longer. In a custody dispute, a family report is a critical document that provides an independent assessment of the issues in a case. Those reports help judges to make life-changing decisions about arrangements for children.
These sorts of delays are not mere statistics. In its landmark 2019 report on the family law system, which the government refuses to even respond to, the Australian Law Reform Commission referred to a number of concerns associated with present delays in the Family Court system, including the potential for children and parents to spend long periods living in limbo while waiting for the trial to commence; the safety risks to parties and children arising from delayed resolution of disputes that involve protective concerns, including contributing to homelessness; the scope for delay and uncertainty to exacerbate conflict; and the potential for people to consent to outcomes that fall short of the security and protection a court order could provide.
So, what will these bills do to address these and other problems in the family law system? The experts say that, at best, these bills will do nothing to alleviate any of the fundamental problems plaguing the family law system. But worse, the experts also tell us that the government's proposed merger will exacerbate many of those problems. This is because fundamentally this bill will cause harm to vulnerable children and families in need of specialist family law assistance by undermining the very principle of specialisation in the family law system. It is no small thing for two former Chief Justices of the Family Court to come out in opposition to a government bill. The very first Chief Justice of the Family Court, 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.
Alastair Nicholson, who served as the second Chief Justice of the Family Court for 16 years between 1988 and 2004, has expressed disbelief about the government's proposal. It's worth quoting Alastair Nicholson's comments in full. I urge those opposite to take note of his remarks. He said:
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.
I am firmly of the view that the passage of the Family Law Act 1975 … and the setting up of the Family Court was some of the most significant social legislation ever to be passed by the Federal Parliament.
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.
Cases can be extremely complex and require specialist knowledge of the type that has always been available in the Family Court, which has provided leadership in the proper interpretation and principles to be applied by other courts with family law jurisdiction.
Many involve the determination of important issues relating to children, including their rights and need for protection, not only from individuals, but also from government in its myriad forms. Many also involve problems of family violence and the effects of it upon the parties and their children. Others involve extremely complicated property disputes either alone or combined with the above issues and requiring other important specialist levels of legal knowledge, whilst understanding the important family issues that may be affected by the decision.
The Family Court is a Court that has been envied throughout the common law world and its judgments have often been cited with approval by the courts of many countries including New Zealand, UK, Canada, the USA and others. Its significance as the only specialist Family Court set up as a superior Court of Record and particularly that of its Appeal Division cannot be over emphasised.
It is not just former chief justices who are opposed to this proposal; over 110 family law experts, including the Law Council of Australia, Women's Legal Services, community legal centres, Aboriginal and Torres Strait Islander legal services, child protection advocates and disability services from across Australia, have called on the government to abandon it. The Morrison government has arrogantly and disgracefully ignored all of them. In his smug arrogance, the Attorney-General has dismissed concerns with a wave of the hand because, apparently, he knows best.
You would expect that a proposal as radical as this one would be based on sound evidence and would have only been put forward by a government following a lengthy and detailed consultation process, but that is not what has happened. As alluded to by Alastair Nicholson in his remarks, neither the Attorney-General nor his department undertook any meaningful consultation in relation to these bills—no consultation with the legal profession or with other family specialists like counsellors or child psychologists; no consultation with the users of the Australian family law system, Australian families; and no consultation with the judges of the Family Court, other than with the current Chief Justice of the Family Court of Australia. This Attorney-General thinks he knows more about the needs of Australian families than the people who work with and for those families every day. This Attorney-General thinks he knows more about the needs of Australian families than Australian families themselves, none of whom were consulted in the development of this legislation. The arrogance of this government is breathtaking.
So why is the government doing this? What is its justification? As I hope everyone in this House knows and as I have noted already today, there are currently two Commonwealth courts that hear family law matters: the specialist Family Court of Australia and the non-specialist Federal Circuit Court of Australia. The Morrison government's central justification for these bills is that merging the Family Court and the Federal Circuit Court will reduce delays and backlogs, by creating a single point of entry for federal family law matters and by ensuring the development of common rules of court, forms, practices and procedures.
Like so much else with this government, this justification does not withstand even the slightest degree of scrutiny. It is essentially a marketing stunt intended to make this government look like they're acting on a problem rather than a sound policy to actually respond to the problem.
The creation of a single point of entry and the development of common rules, forms, practices and procedures across the Family Court and the Federal Circuit Court is widely supported, and all of these things can be, and are being, achieved without these bills. You do not have to take Labor's word for it; the Chief Justice of the Family Court told a Senate committee last year that all of these changes can be achieved without any legislative amendments at all, and in fact all of those changes are in the process of being implemented by the courts right now without any legislative change. In short, the justification for this merger proposal does not stack up.
So what evidence is the government relying on? What is this proposal based on? I've already explained that the government engaged in virtually no consultation before introducing these bills, but the government still claims that these reforms are based on evidence. In fact the Morrison government claims that the proposed merger has been informed by independent reviews and inquiries over a decade. The Attorney-General's Department has listed five reports under the heading 'The evidence base for the reforms' on its website. I can only assume that the government is hoping that nobody actually opens any of these reports, because if they did they would see that none of the reports listed on the government's website recommended these radical reforms. None of those reports even considered these reforms. In fact, the only one of the five reports that made any recommendation about restructuring the Family Court and the Federal Circuit Court recommended an entirely different model which would have maintained a standalone specialist family law court—in other words, a model that would be consistent with the principle of specialisation rather than a model which would completely undermine it.
The only report that even comes close to recommending the abolition of a standalone specialist Family Court is a six-week desktop review of operational data by two accountants—and that is the report that the government is actually relying on. That is the report that the Attorney-General cites every time he is asked about this merger. I am not making that up. By the Attorney-General's own admission this entire proposal is based principally on the findings of a desktop review by two accountants—a review, by the way, that has been widely panned and thoroughly discredited, not least of all because the two accountants made a series of heroic assumptions, including that there was an equivalent level of complexity between the matters being heard in the Family Court and the matters being heard in the Federal Circuit Court. That is patently a ridiculous assumption to make and it undermines the findings of the report, which, unsurprisingly, were that the Family Court was less efficient at dealing with matters than the Federal Circuit Court.
Yet, despite the findings of the two accountants' desktop review being based on obvious and fundamental errors, the Attorney-General and the Prime Minister are now proceeding with radical changes to our court system based on the same erroneous assumptions. It seems astonishing that any government could behave in such a destructive and arrogant manner in ignoring all evidence and pressing ahead regardless of the harm they are told their policies will cause, but this is the same Attorney-General and the same Prime Minister who designed and then gave our nation the economic, political and human catastrophe that was robodebt—so maybe we shouldn't be surprised. Australian families deserve so much better than this. Australian children deserve so much better than this.
While the creation of a single point of entry and the development of common rules, forms and procedures are positive changes—and, to repeat, those changes are happening now without these bills—those changes will not address the main problem with the family law system, and that problem is no mystery. As the Australian Law Reform Commission found:
… the family law 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.
Over the last seven years in particular, the story of the Australian family law system has been a story of neglect, neglect and more neglect—neglect by the Liberal government led by Tony Abbott, neglect by the Liberal government led by Malcolm Turnbull and neglect by the current Liberal government led by Scott Morrison.
Family Court and Federal Circuit Court judges have not been replaced in a timely manner, funding has not increased and review after review—including many dozens of sensible and measured recommendations—continue to be ignored. As I speak to you today, the Australian Law Reform Commission's landmark report into the family law system is gathering dust in the Attorney-General's office and the findings and recommendations of many other reports continue to be ignored. The government's record on the family law system is a disgrace. But instead of contrition, we get arrogance, instead of fixing the problems, we get this dangerous and misconceived proposal. All of this from a party that likes to pretend that it is the party of family values. When the Family Law Bill 1974 was debated in the House of Representatives over 45 years ago, nearly half the House, a total of 59 members, made speeches. The House spent 28 sitting hours debating that bill. There was disagreement, there was debate, but across the political spectrum, members of this House took the reforms seriously and the legislation that that debate produced has served Australia well. Australian families deserved no less then and they deserve no less today. Yet how many people on the other side of the House are going to speak on these bills today? Do Liberal backbenchers even know what they're voting for? Do they care? For all the reasons I have just set out Labor opposes this bill. I move:
That all words after "That" be omitted with a view to substituting the following words:
"whilst not declining to give the bill a second reading, the House:
(1) recognises the critical importance of the family law system to the wellbeing and safety of families across our nation;
(2) notes that:
(a) the Family Court of Australia was established in 1975, and has served Australian families for 45 years;
(b) after seven years of neglect by Liberal Governments, the family law system is in a state of unprecedented crisis; and
(c) if passed, these bills will cause further harm to vulnerable children and families in need of specialist family law assistance; and
(3) calls on the Government to withdraw these dangerous bills and to instead get to work doing things that would actually help Australian families in times of need, including:
(a) responding to the sixty recommendations of the Australian Law Reform Commission’s landmark 2019 review into the family law system;
(b) increasing resources to the Family Court of Australia and the Federal Circuit Court in order to reduce case backlogs and the stress current delays are causing to families;
(c) increasing resources to legal assistance services that provide vital help to vulnerable families in crisis, including Legal Aid Commissions, Family Violence Prevention Legal Services, Aboriginal and Torres Strait Islander Legal Services, Women's Legal Services and other Community Legal Centres; and
(d) consulting with experts and progressing meaningful reforms to improve the experience of all users of the family law system"