30 November, 2020
I rise today to speak on the Federal Circuit and Family Court of Australia Bill and the associated consequential amendments bill. These bills seek to unify the administrative structure of the Family Court of Australia and the Federal Circuit Court of Australia to create a Federal Circuit and Family Court of Australia comprising Division 1, which would be a continuation of the Family Court, and Division 2, which would be a continuation of the Federal Circuit Court.
Much has been said about this legislation, and there's nothing particularly good that can be said about this legislation. It's a merger of two overstretched courts without substantial additional resources to support them. It can't even be described as a bandaid solution because I don't think it even counts as a bandaid. I strongly oppose this merger. The courts are overrun, and judges are overwhelmed. Many are taking mental health leave and some are physically collapsing. Those who leave are often not replaced. We have parties who are distressed and who are attending the courts to seek an early resolution of issues that go to the heart of their sense of self, of their family unit, of their relationship with their children or of their ability to house themselves and meet their bills, and they're often told they have to wait months to get before a judicial officer. Instead of responding to the experts and implementing some changes and amendments that would actually help the system, this legislation really is not going to address any of that. The Senate Legal and Constitutional Affairs Legislation Committee supported the implementation of this bill and, in response to that—that was a highly bipartisan approach—the President of the Law Council of Australia said:
The report on the merger by Government Senators is entirely unsatisfactory because it does not engage in any meaningful way with concerns raised by more than 110 stakeholders who work in the family law system and witness daily, the impacts on children.
The family law and legal community more broadly are united in their doubt that these changes will achieve their stated objective. The Attorney-General's Department explained that the legislation's primary purpose is to improve justice outcomes for Australian families and make the federal law court simpler and easier for families to access. But the Law Council, the Australian Women Against Violence Alliance, the Queensland Law Society, the Community and Public Sector Union, Community Legal Centres Australia and the New South Wales Bar Association, amongst so many others, questioned whether these bills would achieve these objectives. The National Aboriginal and Torres Strait Islander Legal Services instead indicated the bills would not address the problems of delays and inefficiencies in the family law system and should be rejected.
The argument has been mostly based, it appears, on a six-week desktop review of potential efficiencies conducted by PwC. Is this really what it's come down to—potential efficiencies that will impact the lives of so many people that have to engage with the family law system? They're distressed. Their emotional distress is being brought down to 'potential efficiencies' by some pen-pushers at PwC. In 2018, the authors of the report appeared before the Senate committee, and their claimed deficiencies were absolutely dismantled by the Senate committee questions. Even the authors of the report ultimately walked away from the numbers. The desktop review lasted only six weeks. It didn't interview any lawyers or families with experience of the family court system, and the headline efficiencies are not supported by evidence and did not result from meaningful engagement with those who know and use the system.
The principle of a single point of entry is something that is worthy of discussion, but many have argued that that's not necessarily what's going to be achieved with this bill. And, if the price of a single point of entry is losing the specialisation of the Family Court, that is absolutely the wrong direction. The court's annual report shows that the current caseload is unbelievably stretched. I must say that, before joining this place, as a family law barrister, I experienced firsthand that caseload. I know what it's like to turn up to court with a client and wait for hours, and have a judge, completely overwhelmed by their caseload and the numbers of files before them, simply tell clients that they're very sorry, but they will have to come back, often in two to three months time, with their issues completely unresolved. There was additional funding provided in this year's budget, but the funding won't translate into a meaningful reduction in the strain on the system unless we make meaningful amendments to the system. And, in fact, these bills will exacerbate the problem. According to the Family Court's 2019-20 annual report, 21,054 applications were filed in 2019-20, which was the highest number of filings in five years. The Family Court's annual report confirmed that there continues to be a backlog of more than a year's worth of cases, with more final orders applications pending at the close of this year than were finalised within the financial year. The wait is getting longer. The Federal Circuit Court disposed of 62 per cent of final order applications within 12 months, falling significantly short of its target of 90 per cent, for the second year in a row.
The Family Court warned that the impacts of COVID-19 will continue to be felt by the system, litigants and judges in the year to come. Hearings that were scheduled months in advance to occur in 2020 are now being cancelled by email and rescheduled, with some final hearing dates now not being available until 2022. Just stop for a moment and think about that: a party going to court to assist with resolving an incredibly sensitive issue is being told they will wait two more years before even getting a chance to argue their case. Proceeding with the amended merger bill at a time when the Federal Circuit Court is already struggling due to chronic under-resourcing and underfunding to manage its family law load, alongside a crushing and growing migration workload, is reckless, and it will put both litigants and judges at significant risk.
The Productivity Commission 2020 Report on government services revealed that, between 2012 and the close of 2019, the backlog of all pending non-appeal applications in the Family Court grew by 34 per cent, while the backlog of all pending applications in the Federal Circuit Court grew by 63 per cent. The Law Council has argued that, while the increased legal assistance funding provided by the National Legal Assistance Partnership announced in June this year is certainly welcome, the funding contained in this year's budget is insufficient to address the significant unmet need in the system and the courts, and a one-off injection cannot rectify a decade of chronic under-resourcing.
We need to be clear what COVID-19 has done to this system. The number of urgent applications filed over four weeks in March and April alone increased by 39 per cent in the Family Court and 23 per cent in the Federal Circuit Court. The courts told the merger inquiry hearing on 6 November that, during the COVID-19 pandemic, urgent family law application filing had increased by 142 per cent in the Family Court and 63 per cent in the Federal Circuit Court. As of 6 November 2020, two in three Federal Circuit Court judges have more than 300 matters on their dockets, 27 judges have more than 400 cases on their dockets and five judges have more than 500. One judge has 659 cases. In the Family Court, two-thirds of judges have more than 300 cases on their dockets and five judges have more than 500 cases. To put this into perspective, the 2017 House inquiry into the better family law system recommended reducing docket sizes to something like 100 cases per judge to significantly reduce delays. This means we need a significant increase in the number of judicial appointments. What we really need the government to do is increase the number of appointments—the number of judge positions available. It's not about just filling vacancies, because we know the existing number of positions is inadequate.
The first and former chief judge of the Family Court, the Hon. Elizabeth Evatt AC, warned:
… the proposed merger of the Family Court and the Federal Court is likely to undermine the integrity of the Family Court and lead to undesirable outcomes for the parties. It is inconsistent with the original aims of the Family Court, which was established as a specialist Court.
She also said:
With increasing numbers of cases in which issues of family violence and child abuse are raised, there is an even greater need today for family law jurisdiction to be vested exclusively in specialised judges who do not exercise any unrelated jurisdiction.
The second and former chief justice of the Family Court, the Hon. Alastair Nicholson AO, RFD, QC, said:
… the passage of the Family Law Act 1975 (Cth) and the setting up of the Family Court was some of the most significant social legislation ever to be passed by the Federal Parliament.
He said, 'We should be proud of that, instead of trying to dismantle it.' He also said:
What those proposing this merger do not seem to understand is that family law is complex and nuanced, and it is not to be judged by the output by numbers of cases as if the Courts are sausage machines. Throughput is important, but so is the quality of the decisions made. Cases can be extremely complex and require specialist knowledge of the type that has always been available in the Family Court, which has provided leadership in the proper interpretation and principles to be applied by other courts with family law jurisdiction.
We're actually the envy of so many other countries. The Family Court is the court that's been envied throughout the common law world, and its judgements have often been cited with approval by the courts of many other countries, such as New Zealand, the UK, Canada, the USA and others. So its significance as the only specialist family court set up as a superior court of record, particularly that of its appeal division, cannot be overemphasised. The former justices have joined more than 110 stakeholders on the front line, urging the parliament to vote against the merger bill, scrap it, go back and come back with some good legislation. This merger will only increase costs, delay and stress for families.
The Family Court and the Federal Circuit Court are really distressing places. I've appeared as a counsel for both mothers and fathers. I can't begin to convey the distress parties experience at being told that it will take months from filing to get before a judge for a decision. The practical aspect of this means the party might go without contact with their child for an extended period of time until allegations can be properly heard and assessed. It means the party may remain in serious financial difficulty and may even find themselves homeless until their case can properly be assessed. That's not acceptable, and this bill doesn't remedy that at all.
These issues impact every electorate. In Warringah we are the same. The problems of the family law system reach everywhere. A domestic violence pop-up shelter was set up in March with the onset of COVID-19. That shelter is housing 70 women and children who would otherwise be suffering or homeless. The Family Court and Federal Circuit Court are dealing with complex issues and they require the support of more specialised counselling services and also of specialised courts to deal with the issues. The Family Court is the only court that can support such complexity, and it needs to be staffed with specialists qualified to deal with the issues at the highest possible standard of care.
The Australian Law Reform Commission in May 2017 made a number of recommendations. The report was delivered on March 2019 and included 60 recommendations which would go a long way towards addressing the reform required in the family law system. Yet the government has still not responded to the ALRC recommendations that would improve the family law system. This merger was outside the scope of the inquiry, but we still have silence from the government on the ALRC recommendations. That's not acceptable. During the family law inquiry that I have been part of this year, we've heard from so many parties who have been let down by the system. If we genuinely want to address the problems, we must start with the recommendations of the ALRC. The Law Council president, Pauline Wright, said:
No amendment to the bill can cure what remains a flawed and dangerous proposal without evidentiary foundation.
There is no doubt we need reform in the family law system, but the merger is the wrong move. Lawyers, judges and families are united in their opposition. We need to help the courts better service distressed families, we need specialisation of professionals and we need to make sure that it is properly resourced and funded. We need more legal aid in the system so both parties to disputes can have access to assistance. We need more counselling for men and women. We need more funding for specialist judges and experts. So I urge the government: Please, this is a system that is a highly distressing court system. Everyday Australians are impacted by what happens in the family law system, and it actually needs proper structural assistance, not a merger and a shortcut.