Federal Circuit and Family Court of AustraliaSpeech
I stand to oppose the Federal Circuit and Family Court of Australia Bill 2019. This bill, this reckless plan, should be thrown out.
It is based on a six-week desktop review by two accountants, with no consultation with the communities and families who need it most. The Morrison government should own up to what they are seeking to do with these bills. They are seeking to use this legislation to abolish the Family Court as a specialist and standalone superior court. The Family Court of Australia is a proud Whitlam legacy, like most of the great social reforms that have occurred in Australia. From Medicare to our world-leading superannuation system, to free legal assistance services for Australians in need, the Family Court of Australia is an institution that has served our nation admirably.
The Family Law Act 1975 instituted two major changes. It instituted no-fault divorce and it established the Family Court of Australia, a specialist multidisciplinary court for the resolution of family disputes. When the family law bill 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 the House took the reform seriously. Australian families deserve no less. How many people on the other side of the House have spoken on these bills today—one, two? Do Liberal backbenchers even know what they're voting for? Do they care? Do they understand what this will mean for families facing separation and divorce?
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. The essential distinguishing feature of the Family Court is that it only deals with family law matters. These bills 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. In other words, these bills would abolish the Family Court of Australia.
Specialisation is so important, because family law matters are not like other matters that generalist courts tend to deal with. If anything, the need for a specialist Family Court has only become more pronounced over time. As the Australian Law Reform Commission noted in its landmark 2019 report on the family law system—a report the government commissioned but has completely ignored—the Whitlam government could not have foreseen the growth in the incidence and awareness of family violence and child abuse since 1975. Specialisation does not just mean specialist judges. The Whitlam government's vision of a specialist family law court was of a court with interrelated co-located services and resources. It was about creating an environment that had regard to what Whitlam described as the human problems of couples and families, 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 also safe and sensitive to their particular needs and vulnerabilities.
Everyone accepts that there are serious problems in the Family Court at present. 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.
But, instead of working to address this fundamental problem and fix the family law system, the government remains determined to restructure the Family Court and the Federal Circuit Court in a way that will make a bad situation worse for Australian families, including vulnerable children.
In brief summary, the government's bills would combine the Federal Circuit Court and the Family Court into one court with two divisions. That court would be called the Federal Circuit and Family Court of Australia. The current Family Court of Australia would become Division 1, while the current Federal Circuit Court of Australia would become Division 2. 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. When the government originally proposed this merger in the 45th Parliament, the current Attorney-General said that he would stop appointing new judges to Division 1 as they retire. This would obviously amount to a gradual abolition of Division 1 over time. The Attorney-General has now backed away from that position and promised to keep appointing judges to Division 1. But nothing in the bills would guarantee the continued existence of Division 1. The Attorney-General made his intentions for this merger very clear in the last parliament, but now this Attorney-General says, 'Trust me.' Even if the bills were amended to guarantee the continued existence of Division 1, that would not address the fundamental problem with these bills.
With that said, instead of increasing specialisation in the Family Court the Morrison government is going to water it down to effectively abolish it. We will see families who rely on the court doing it tough. It is time these bills were thrown out. It is time for this parliament to listen to families and make the decision to throw these bills out. This reckless plan must go.Share Tweet