Federal Circuit and Family Court of Australia Bill 2018, Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018 Second Reading Speech

November 26, 2018

In the last few days, Elizabeth Evatt, the first Chief Justice of the Family Court of Australia, has shared her views on the decision by this government to combine the Federal Circuit Court and the Family Court into one. In a Sydney Morning Herald interview, she describes it as a 'personal disappointment' and points out:


When we set it up the Family Court was provided with internal counseling and mediation services. It was meant to be a place where you would get your issues resolved without having to resort to litigation but all those services have been reduced and, as they say, privatised.


She is absolutely right that many of the things that really were pivotal to this being a huge reform of the Whitlam government have been weakened in recent years. There is no doubt that there are problems and things need to change.


The Family Court system is a source of pain to many of my constituents. The main complaints are the long time it takes to have matters dealt with and the huge cost involved in resolving child custody issues. It can take years, not months—years when people are in limbo before they get a resolution. I've seen dads in pain at the prolonged separation from their children. I've seen mothers in agony at this limbo in their lives. I've seen grandparents torn by the loss of contact or upheaval in their grandchildren's lives. The mental toll it's taking is unacceptable. At the heart of it all, while I don't personally get to see it because they don't walk into my office or email me or stop me in the street, I know there are children whose futures are being changed by the long delays and tortuous process that their parents go through. I'm concerned about the dangers of doing things that will make the current situation worse.


These bills, taken as a whole, represent the most significant changes proposed in the family law courts since they were created in 1975 by the Whitlam government. Basically, the Federal Circuit Court and the Family Court become a single structure under the one umbrella, with a single chief justice and deputy chief justice, and a single set of rules. While they now have separate divisions and, we understand, will carry on the same roles they have now within this umbrella structure, the Attorney-General has expressed an intention not to appoint new judges to the division handling Family Court matters. That amounts to a gradual abolition of the Family Court over time. The appeals division of the Family Court would also be abolished and transferred to the Federal Court. These are not minor changes. Let's be clear about this: this is abolishing the Family Court, a legacy of the Whitlam government, without even bothering to speak with the families who are currently in the system. Any changes really should require wide consultation because getting this wrong impacts so profoundly on so many lives.


I do want to make it absolutely clear: I believe there are serious problems with the Family Court system. In May 2017, the then Chief Justice Diana Bryant said that the court was letting families down because of huge backlogs and lack of resources. At that time she said that, while overall delays were 17 months from filing to hearing, some people were having to wait three years to get their case heard. She also said the court was so underresourced that it had no ability to provide post-order checks on whether family orders were even being complied with. The reality is that much of the backlog is due to inadequate funding of the court system, inadequate funding for legal assistance services and the failure of the former Attorney-General, George Brandis, to appoint replacement judges as Family Court judges retired.


If the changes being proposed were part of a well-researched, well-examined process, I might not stand here with the concerns that I have. I am well aware that at the moment the Federal Circuit Court handles the majority of family law cases, but the most complicated and difficult cases are reserved for the Family Court, and it has specialist judges with appropriate experience to hear those cases.


The only evidence the government has provided that their changes will work is the report it commissioned PwC to do, which involved six weeks of what's known as 'desktop research' and consultation with senior stakeholders.



Let's be clear what 'desktop research', the management consultant jargon, is. It means you literally sit at your desk, you review data, you review information and you draw conclusions. It has a place, but not in a system like this. There was no requirement for these people even to walk into a court—let alone to sit through the intricacies of cases—to consult with families in the processes or to consult with the lawyers working on those cases. They haven't spoken with registrars, legal assistance services, the peak bodies of the professions involved or the organisations that advocate for victims of family violence, nor have they spoken to a wide range of judges themselves. I think this is really the Achilles heel of the plan: the lack of consultation with the people who are experiencing the current delays and challenges of the Family Court system.


There's no doubt in my mind that we do need to vastly improve the way families navigate the system, so that they face fewer delays and much less trauma. But for this government to have tried to ram these bills through the Senate was never going to be in the interests of sound legislation. As the Law Council said back in August, the truncated three-week time frame for the public to scrutinise the bills was 'deeply concerning', and that puts it mildly. As Law Council of Australia president, Morry Bailes, said:


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 couldn't agree more. I think the significance of the Family Court and the challenges its judiciary face in their determinations cannot be underestimated. There is no doubt that their decisions can be life changing and I, for one, would like to know that the expertise is deep in that bench, not dividing its time between the full range of Federal Circuit Court matters.


There is no good reason to rush this through the House, and the Senate inquiry which is currently underway needs to be given the time to do the work this government has failed to do in writing the legislation. The Law Council and the Australian Bar Association have both called for much more thorough consultation, as has virtually every group involved in this part of the legal process, and we would agree on this side of the House. I'm pleased that the Senate has decided it would not allow this to be rushed through. This House should wait for the outcome of the Senate inquiry too, as well as the completion of the landmark Australian Law Reform Commission review into the entire family law system.


I'm not a lawyer and I've never had personal involvement with the Family Court. My first awareness of the Family Court was a very, very public tragedy. I was a final-year university student when the aunt of one of my close school friends was killed by a bomb at her home in July 1984. Pearl Watson, the wife of Family Court judge Ray Watson, was one of four people murdered in a series of attacks between 1980 and 1985 that targeted the judges of the Family Court and their families. A lawyer and another citizen were also killed. A trial is currently underway and a man has pleaded not guilty to the charges, so I don't intend to say any more about the actual events. All I know is that even in the very best of situations, judges of the Family Court carry a huge responsibility.


As a parliament, we have an equally huge responsibility to make sure this system is well resourced, well structured and in the hands of experienced people so that families are safe and supported as they go through such difficult processes. These bills give me absolutely no confidence that that outcome would be achieved, and I cannot support them.