Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019


Peter Khalil: I know that in this place it’s all about politics and sometimes—or often—about ideology when bills are put forward and when policies are pushed forward by the government. That plays a big part in it. This is a political place. We are political representatives. But sometimes it becomes a little bit bewildering why a government would insist on certain changes when it’s quite clear, based on what’s before them, the damage that it would cause. It’s actually bewildering to me. What is the reason behind what they are trying to do with the Federal Circuit and Family Court of Australia Bill and the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill?

They should own up to what they’re seeking to do, which is basically abolish the Family Court as a specialist and standalone superior court. Why? Is it ideological? Is it because the Family Court of Australia is a proud legacy of the Whitlam Government? Is that what it is? Is it simply the same old, tired ideological fight that the Liberal Party often plays and has played for decades? Whether it’s any of the great social reforms that have been put in place by Labor governments in the past; whether it’s Medicare, which they never agreed with and always try to tear down; whether it’s superannuation, which they’re trying to tear down now right before us; whether it’s free legal aid and assistance; or, in this case, the Family Court of Australia, an institution that since being put in place and being established has actually served our nation admirably—what is the reason? Can it be something else beyond ideology or pure political game playing? I can’t see it if it’s there. That’s why I’m bewildered.

We know that the Family Law Act 1975 instituted two major changes: it instituted no-fault divorce and it established the Family Court of Australia, that specialist multidisciplinary court for the resolution of family disputes. The Family Law Bill 1974, back then, was debated in this House over 45 years ago and nearly half the House—a total of 59 members—made speeches. The House spent 28 sitting hours debating that bill. It was a clear and open debate with reasoning put forward and arguments put forward in the best traditions of our parliamentary democracy. Of course there was disagreement within that debate, as there would be, as there should be—we represent different views in this place. But, right across the political spectrum, members of this House took those reforms seriously, whether they were in government or in opposition, obviously. Exactly what Australian families deserved and still deserve today were the reforms that the members in this place debated all those years ago, yet today, this week—what have we got?—we’ve got a handful of speakers from the government benches on this bill. Sorry, how many?

Mr Josh Wilson: Two.

Peter Khalil: Two speakers, I hear from the member for Fremantle. Maybe we might get a third if they’re so ashamed of watching the current—I wouldn’t even call it a debate, it is a one-sided expose—exposure of what is a pathetic ideological attempt to tear down something that has been so successful in the Australian legal system. Do the Liberal backbenchers even care? Do they even know what they’re voting for? Have they even looked at the bill and what it means? Because, really, if they’d done their homework, they would understand that this bill proposes to undo what was the second of those major changes that was introduced in that Family Law Act 45 years ago, which was the establishment of the Family Court of Australia as a specialist superior court.

I will say, as other speakers have said on this side, that such a change would be a profound and catastrophic step backwards. It will harm Australian families and, in particular, it will harm children. And my bewilderment at this bill extends to not really understanding why, beyond the ideology and the political point-scoring, members on the other side, who are part of this debate—their party was, at least, all those years ago—could not see the damage that would be done. They do not even have a conscience to think about the damage that would be done to families and children in Australia.

What makes the court so essential to our legal system is the very specialisation which they’re trying to rip away and tear down. Family law matters are not like any other matters. We know how deeply complex they can become. Of course other elements of the law are complex, but, in the family law space, the complexity also has a deep level of trauma and emotion, and serious consideration has to be given to those elements that require the specialisation to deal with them. These are matters that generalist courts don’t tend to deal with because they don’t have that expertise. They don’t have the child psychologist. They don’t have the lawyers and the court officials who have experience in these areas of law and the complexity of that law. The parties to family law matters are not like parties the generalist courts tend to deal with.

While some of the sentiments sound somewhat outdated in 2020, I think it’s probably true to say that few said it better than the great Gough Whitlam, former Prime Minister, when he argued in favour of the establishment of specialised family courts back in November 1974. He spoke in this House—well, over the water in the old House—and he said the following:

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.

That’s the difference—that vision that Gough, the former Prime Minister, had. It went beyond the ideological; it was about help, it was about assistance, it was about empathy—something completely lacking on the government benches. It is about an understanding of the need for specialised staff to deal with complex, emotional, traumatic and very specialised legal problems and human problems. The sense of humanity, just from that quote from former Prime Minister Gough Whitlam, tells you everything you need to know about the intention and the motivation for the reform that was debated in this House 45 years ago with respect to the Family Law Act.

If anything, the need for a specialist Family Court has only become more pronounced over the decades, as the Australian Law Reform Commission noted in its landmark 2019 report on the family law system—a report that the government commissioned but has completely ignored. The Whitlam government obviously could not have foreseen the growth, the incidence, the additional reporting and awareness that we as a society have around issues of family violence and child abuse that have occurred since 1975. Specialisation does not mean just 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 would have regard to what Whitlam described as those human problems that he described with such a degree of empathy in this place—the empathy to understand the needs of families, of couples and their children; not just their legal rights. There was a genuine care about people’s emotional wellbeing and their mental state. They wouldn’t have called it that back then, but that’s what it was. It was a degree of kindness that was demonstrated in this place that was translated from a bill into an act of law. This government wants to tear that down and rip it apart. It wants to rip away the empathy, the regard for others, the care and the specialisation that come with the Family Court. The realisation of the vision that occurred has never been more important, especially for the vulnerable children and families who need that Family Court system, a system that has been not only efficient but also safe and sensitive to the particular needs and vulnerabilities of people who are suffering from those issues.

Everyone accepts that there are serious problems in the Family Court at present. I don’t think there’s a denial of that. The main cause of those problems is not a mystery. 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.

In other words, the government have run it down, cut its funding and depleted its resources. It’s not good enough to want to tear down a system and a court with specialised staff who deal with those human problems. No, they have to go further than that. They just want to run it down as well, even before they chop it.

What they’ve put forward in this bill has no evidence. There’s no evidence base. There was no consultation with stakeholder groups. The claim was that the reforms were informed by a series of independent reviews and inquiries over a decade, and on the Attorney-General’s website he listed five reports under the heading ‘The evidence base for the reforms’. The only problem with that is that none of those reports listed on the website recommended any of these reforms that the government are suggesting—none. None of those reports even considered the so-called reforms that they’re suggesting. Only one of those reports hinted at restructuring the Family Court, but it recommended a different model which would have maintained a standalone specialist family law court. So did the Attorney-General pull it out of thin air? Did he just decide some afternoon: ‘You know what? We don’t really like what Whitlam did. We don’t like what Labor’s done in the past, so we’re not only going to go after superannuation and all of the other great social reforms that Labor governments have put in place but also go after the Family Court. We don’t care what it will mean for families and children’?

All of the stakeholder groups that matter—and, as previous speakers have alluded to, there are over 110—have stated what they thought about this, whether it was the Law Council of Australia, women’s legal services, community legal centres, Aboriginal and Torres Strait Islander legal services, child protection advocates or disability services from across Australia. They all wrote to the Attorney-General, and they were ignored. What they said, in summary, was that these changes will harm vulnerable children and families in need of specialist family law assistance; increase rather than decrease cost, time and stress for families and children in the family law system; place further stresses on Federal Circuit Court judges who are struggling already under unsafe, unsustainable and unconscionable workloads; and fail to address any of the fundamental problems plaguing the family law system, which basically arise from the depletion of resources that I mentioned earlier, including the risk of family violence survivors falling through the cracks. That’s what they said. That’s what they put to the Attorney-General, who ignored them. These are the very people who dedicate their lives and work to help others in this space, and in his arrogance the Attorney-General dismissed those concerns.

In the face of overwhelming opposition from family law experts across this country, instead of taking note of their lived experience as practitioners and understanding the needs of those experts to improve the family law system for the benefit of Australian families, the Morrison government has instead decided to bet everything on the findings of a discredited six-week desktop review by a couple of accountants. That was what it referred to as their so-called evidence base. That’s not the way to do law. This government doesn’t understand that it’s not just about ideology and politics. What was done here 45 years ago was a testament to the best of this House. These changes are catastrophic and will impact so many children and families, and we oppose them.