Federal Government's plan to abolish the Family Court is a retrograde step that will do nothing to help Australian families

17 February 2021

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


I rise to speak against 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. These bills will 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. This merger is being proposed without a sound policy basis and against expert advice.

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—no-fault divorce and the establishment of the Family Court of Australia, a specialist, multidisciplinary court for the resolution of family disputes. This legislation is proposing to undo the second of the major changes introduced by the Family Law Act—the establishment of the Family Court of Australia as a specialist superior court. This would be a profoundly retrograde step that would harm Australian families and in particular children at their time of greatest need.

The Morrison government claims that the proposed merger has been informed by independent reviews and inquiries over a decade. The Attorney-General's Department website lists five reports under the heading 'The evidence base for the reforms'. In fact, none of the reports listed on the website recommended these radical reforms—none whatsoever. None of those reports even considered these reforms. In fact, the only one of the five reports that recommended restructuring the Family Court and the Federal Circuit Court recommended an entirely different model that would have maintained a standalone specialist family law court.

The proposal to merge the Family Court with the Federal Circuit Court is not based on any consultation with Australian families or family law experts. More than 155 stakeholders in Australia's family law system have now signed an open letter to the Attorney-General opposing the government's flawed legislation to abolish the specialist standalone Family Court. These signatories represent a range of professions and community organisations, from the Law Council of Australia to women's legal services, community legal centres, Aboriginal and Torres Strait Islander legal services, child protection advocates, and disability services from across Australia. They also include 11 retired Family Court and Federal Circuit Court judges and chief justices, the Hon. Elizabeth Evatt AC, and the Hon. Alastair Nicholson AO, RFD, QC. Individuals and organisations oppose this proposal because they believe that it 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 under unsafe, unsustainable and unconscionable workloads; and fail to address any of the fundamental problems plaguing the family law system, including the risk of family violence survivors falling through the cracks.

Northern Territory stakeholders who have signed onto that letter include representatives from the Darwin Community Legal Service, the Central Australian Women's Legal Service, the Central Australian Family Violence and Sexual Assault Network, the Katherine Women's Legal Service, Dawn House, Northern Territory Council of Social Service and the Sex Worker Outreach Program Northern Territory. National Aboriginal and Torres Strait Islander Legal Services have said that the proposed merger 'will disproportionately impact the most vulnerable, including Aboriginal and Torres Strait Islander children and families who need the most support'. They say:

From our experience, as Aboriginal organisations, we say that mainstreaming does not achieve efficiency or better outcomes for our people and that specialisation in the law is important and it works. Our main call is for more specialisation and more resourcing into the cultural competence of the family court system. The introduction of specialist Aboriginal Courts in the family law system has seen an increase in Aboriginal participation. We implore the Parliament to do the right thing by our communities and reject this bill which does not address the root causes of these problems. We fear, in the middle of this global pandemic, the bill will exacerbate the issues that our communities are facing.

The CEO of Community Legal Centres Australia, Nassim Arrage, said the merger 'would move away from a specialist family court model, exposing survivors of family violence to unnecessary risk'. Law Council president Dr Brasch QC said:

As the impacts of the devastating shadow pandemic of family violence experienced during the COVID-19 pandemic continue, now is not the time to proceed with an unnecessary, risky bill that has been opposed by all non-government members of the House of Representatives.

As signatories have said, if anything, there is in fact more need for a specialist Family Court. 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.

Here in the Northern Territory, the Central Australian Women's Legal Service, a signatory to the open letter, agrees that action can be taken now to further increase family violence specialisation in the family law system. Women's legal services across Australia work on the frontline to represent family violence victim-survivors in all state and territory justice systems. They recognise that the core business of the family law court is family violence, yet the family law system is not adequately protecting the safety of women and children.

Aboriginal and Torres Strait Islander families experience family violence at higher rates than other Australian families. In comparison with other Australian women, First Nations women are 34 times more likely to be hospitalised as a result of family violence and 10 times more likely to be killed. Here in the Northern Territory, we have one of the highest rates per capita of domestic and family violence in Australia. We know this because we have mandatory reporting of domestic violence in the Northern Territory. It was something that I introduced as Minister for Children and Families in 2009. We did this in order to recognise that we needed to change attitudes towards family and domestic violence and that it is everyone's problem.

The National Aboriginal Community Controlled Health Organisation, NACCHO, points out that there remains significant fear amongst First Nations people about engaging with the family law system as a result of the historical legacy of the forced removal of children and forced resettlement of communities. As my colleague Senator Dodson has said in his response to this bill, we've only seen again and again, in the reports this week of the stolen generations, the continued trauma of families of First Nations children throughout the country.

NACCHO recommend that legal education, information options and processes be made more accessible to Aboriginal and Torres Strait Islander people in First Nations languages, plain English and formats appropriate to particular communities and age groups; and that Aboriginal community controlled health organisations, ACCHOS, are funded to provide family dispute resolution practitioners programs.

English language and literacy issues have presented a barrier to Aboriginal and Torres Strait Islander people accessing the family law system and related services, particularly when English is not a first language or when there are literacy difficulties. I have stood in the Senate on so many occasions to express the enormity of the different languages that we have here in the Northern Territory—the nearly 100 First Nations languages that are covered under the Aboriginal Interpreter Service system here. While appropriately trained and qualified onsite interpreters can be critical to mitigating communication barriers, the availability of interpreters, particularly in First Nations languages, can be severely limited. Further compounding and complicating communication barriers is the need for interpreters to be of a particular gender or age—even a particular relationship to the client. Technical legal terms and processes, the relationship between a client and their lawyer and conflict-of-interest issues also make some interpreters inappropriate.

Without adequate legal representation, clients may not understand their legal options and may not convey their case effectively in court. We know that there are problems in the Family Court, and these have led to unacceptable delays for families and, in particular, for children, but these issues do not arise out of its specialisation or even its structure. The reason why the family law system is not performing as it should is that for seven years the Liberal government has cut funding to legal assistance services like ATSILS, family violence prevention legal services and other Aboriginal community controlled organisations. It's failed to replace retiring judges in a timely manner and failed to even respond to the dozens of recommendations that have been made by experts to improve the family law system. 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.

This does have impacts for most Australians, but particularly for my constituents here in the Northern Territory, where getting to court and accessing legal services can be difficult for people in rural and remote regions, most of whom are First Nations people. The Central Australian Aboriginal Family Legal Unit points out that, due to geographic and economic restrictions, many First Nations families have limited or no access to family law services. In Alice Springs, for instance, the federal Family Court sits only three or four times a year. The local court does not exercise family law jurisdiction. This presents significant challenges to the ongoing safety of First Nations families experiencing family violence who require urgent family law orders. Will this bill help solve this issue or, as the evidence from experts points out, will this merger proposal in fact increase the cost, time and stress for families and children and place further stress on Federal Circuit Court judges?

As the experts have made very clear, this merger proposal will do nothing to address delays in the family court system. There is nothing in this bill that will increase the number of interpreters, judges, registrars and other court staff. There is nothing in this bill that will force the Attorney-General to do his job, even something as basic as appointing new judges as vacancies are created. There are many things that need fixing within the family law system, but this bill will do none of it. This bill will do nothing to help Australian families.