Abolishing the Family Law Court risks harm to vulnerable women and children

Published on Mon 30 November 2020 6:44pm

No-one would say that the existing system is perfect, of course it’s not—there isn’t any system that’s perfect—and there are always ways in which reform can be considered, but you have to ensure that the reform that you’re thinking about actually addresses the problems that exist. There is nothing in any of the evidence that suggests that abolishing or dissolving the Family Court will deal with some of the problems that have identified, such as delay. None of the five reports listed on the Attorney-General’s website as informing this bill actually recommend the change that the government is making.

Mr Wilson (6:44pm) – Through 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, the government seeks to abolish or dissolve the Family Court. That is a massive change to our judicial architecture. It’s a change that affects the administration of a particularly important area of law. It’s not a change that should be made lightly, particularly when you consider, as the member for Scullin has just pointed out, the very serious concerns that have been raised by expert stakeholders. You can’t be more of an expert than former chief justices of the Family Court, the Law Council of Australia, the Australian Law Reform Commission and so on. They’ve raised very, very serious concerns.

If you are going to come along at the very end of a difficult year and make such a radical change to longstanding judicial architecture in such a critical area, you’d want to do so on a pretty careful and substantial basis. Yet, as we’ve seen so often this year, bills like this come along and seek to make radical change—I think, in this case, to perpetrate a kind of vandalism upon the way things have worked, and worked quite well, in this country for a long period of time—without any convincing argument being made for that change. There’s no convincing argument in the material. The Attorney-General hasn’t been able to advance any convincing argument, and we’re not seeing any convincing argument in this place.

I’ll be prepared to accept a different view if someone in the government wants to point to who exactly on that side of the parliament has come in here and taken stock of the abolition and dissolution of the Family Court of Australia and explain exactly why that’s going to occur in the shadow of Christmas 2020. I haven’t seen a single member of the government come in and make that argument, and that should be cause for concern. I don’t know what parliament is for if it’s not for us, on behalf of the people we represent in the best interests of Australia, to look closely at these kinds propositions—to examine them carefully, and, in debate, flesh out exactly what the basis for making such a radical and far-reaching change is and whether or not there are any wrinkles or barnacles on what is proposed to be launched. I don’t think you’d have to look too closely at this to see those kinds of barnacles.

Australian society has had the benefit of its Family Court and its exclusive focus on family law since the reforms of the Whitlam government. All of us will have had some experience of the importance of family law matters either in our own lives or in the lives of our extended families and close friends and certainly through our work as representatives. I don’t think you could be a representative in this place for more than a month or two before you would hear from someone in your community who is going through a family law matter. They are by their nature very difficult. They stem from the instability, conflict and disagreements that sometimes are part of even the closest of human relationships. So having something supportive in place to allow those conflicts to be considered and resolved—mediated or dealt with in another way that allows the people in those relationships to move on to something different in a way that is orderly and safe and considerate for men, women and anyone who’s part of a partnership, particularly for children—is so important. It’s so important that that part of our legal system and our judicial system is of the highest quality, and yet what’s being proposed here is the abolition of what has been a foundation stone, institutionally, of that area of law.

The reforms of the Whitlam government—institutions like the Family Court—have without doubt made a contribution to better dispute resolution in families and to fairer outcomes, I would say, especially for women; to less conflict; and, in many cases, to much safer and healthier outcomes for children. I had reason to go back and look at what Prime Minister Whitlam said in 1974: ‘The essence of family courts is that they will be helping courts. That’s what they’re designed to do.’ He said:

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 vision of the Family Court and related family law reforms has been part of Australian life now for 40 years. It was part of my life as a young person. My parents parted ways when I was five—my brother was three and my sister was one. I’ve had some experience of going through those processes. I know that they’re difficult, but I also know that the system we have in Australia, particularly since those reforms, has meant that those processes, that hurt and those kinds of disputes and complicated matters that need to be resolved at least have a framework and structure through which that can occur, which is much better than the kind of law of the jungle that would prevail otherwise.

No-one would say that the existing system is perfect, of course it’s not—there isn’t any system that’s perfect—and there are always ways in which reform can be considered, but you have to ensure that the reform that you’re thinking about actually addresses the problems that exist. There is nothing in any of the evidence that suggests that abolishing or dissolving the Family Court will deal with some of the problems that have identified, such as delay. None of the five reports listed on the Attorney-General’s website as informing this bill actually recommend the change that the government is making. When the Joint Select Committee on Australia’s Family Law System provided its interim report, it referred to 70 separate reviews that were germane to the issue of the good function of family law and the Family Court. Not one of the 70 recommended the abolition or dissolution of the Family Court and the other changes that are contained in this bill.

So to the extent that there’s a need for reform or improvement in relation to things like delay or harmonisation of administrative and procedural matters—great; get on with it!—that’s what the Attorney-General should have been doing in some of the previous seven years. But there’s nothing in the abolition of the Family Court itself which will address those problems. In many areas this government bowl along, often at the last minute, doing considerable harm to the way things have worked reasonably well, and certainly better than under their administration, without attending to what clearly are the real problems. Often those real problems have a similar thread or theme. In this case, when it comes to Australian family law, 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.

One of the key issues with the way that the system works at the moment is that it has been under-resourced. It has been defunded. A defining feature of this government is the art of the self-fulfilling prophecy. Starve an institution of resources, and then if it underperforms, use that as a basis to chop it down, as a basis to knock it over. We’ve seen the same thing in the area of the environment. The government looks at delays when it comes to environmental decision-making and then sees that as a reason to cut green tape and weaken protections for our environment, when it has cut 40 per cent in funding to the department of the environment, a cut that perfectly coincides with the period in which the delay has increased. We see the same thing here. The Australian Law Reform Commission makes it plain that the chief problem is under-resourcing of the system as it stands, not any structural or institutional problem, and yet following that path of ignoring and neglecting, as the member for Scullin pointed out—neglect is another theme of this government, unfortunately—in turn becomes the basis for doing further radical harm.

Back in my local government days, you’d occasionally have people who would have a building with some sort of heritage quality that they wanted to demolish altogether. We on the council would tell them—I think quite rightly—’No, this has significant community heritage. You own the property, and in that sense you are a custodian of that heritage going forward. You need to look after it.’ So what they would bloody-mindedly do, in some cases, is just leave the property to get worse and worse over time. In some cases they seemed to partially redo the roof so that there was a fair bit of rain coming in, and various other things.

An opposition member: Demolition by neglect.

Exactly—demolition by neglect. And that’s one of the ways in which this government, sadly, has worked, rather than focusing on systemic issues that can be improved, that can improve delays in the family law system and through the Family Court. Reviews have identified ways in which that can occur: through the timely provision of relevant reports, through proper resourcing and through the timely appointment of judicial officers. Those are how you address problems of delay. Those are how you improve administrative procedural consistency. Coming along and saying, ‘Guess what: it’s worked very well for 40 years, but we are going to abolish the Family Court,’ when not a single member of the government will come here and make that argument, is really astonishing.

A government member interjecting—

I don’t know. I’m told that there have been a few, but there must have been very, very few. When you don’t have—

A government member interjecting—

The member for Fisher—there you go. There was one. Sorry. There’s apparently been one, and there could have been more! We’re going to abolish the Family Court of Australia, and the government has managed to turn out one or possibly two members to make that argument. On the Attorney-General’s website, there are no reports that make this recommendation. In the 70 reviews referred to in the interim report of the Joint Select Committee on Australia’s Family Law System, there’s no reference to or recommendation of this. Two government speakers have come in and made the argument.

Is there any opposition? There is, yes! There is a bit of opposition. I have already talked about the Australian Law Reform Commission. I have already talked about previous heads of the Family Court. No fewer than 110 stakeholders made submissions in opposition to what’s being proposed. As the member for Scullin said, the second Chief Justice of the Family Court 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 …

It is unbelievable! The Law Council of Australia said that the proposed merger ‘is a terrible gamble with the lives of children and families’. Community Legal Centres Australia said:

… moving away from a specialist family court model would be a retrograde step and expose survivors of family violence to unnecessary risk.

These are not trifling matters; these go to the very core of a government’s responsibility to keep people safe. I don’t know if we ever get told anything more vehemently by those on the government side than that the No. 1 priority and the No. 1 responsibility of government is to keep people safe. This is a change that the Law Council of Australia describes as ‘a terrible gamble with the lives of children and families’. The National Aboriginal and Torres Strait Islander Legal Services said it ‘will disproportionately impact the most vulnerable, including Aboriginal and Torres Strait Islander children’. That is what the government is proposing to do—without any basis, not connected to any of the existing problems that they might get on with and address, not on the foundation of any evidence or any decent analysis, in the shadow of Christmas, with one or two people who are prepared to come up and say something good about it. It is not the way to make radical, harmful change to Australia’s family law system

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