Federal Circuit and Family Court

House of Representatives, BILLS - 26 November 2018

Watch Matt's speech here

Mr KEOGH (Burt) (17:19): The two bills before the House today, the Federal Circuit and Family Court of Australia Bill 2018 and the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018, seek to make the most significant changes to the administration of family law in this country since 1975, well before I was even born. Together these bills run to almost 500 pages and ultimately seek to convert two separate court structures into one single court structure.

Before coming to this place I was a lawyer. Some say there are too many lawyers in this place, but in actuality, while there are many members of this House and the other place with law degrees, a much smaller number have practised law and a much smaller number again have practised and had experience outside of the area of industrial relations. I started my legal career working in a small outer-suburban practice. The office is on the same block as my electorate office is now. The majority of the work done in that legal practice in my formative professional years was in the area of family law. As a new lawyer in our community, I was also a member of the board of Starick Services, a local community service that runs refuges and other services for victims of family and domestic violence in the electorates of Burt, Swan and Hasluck in Perth's south-eastern suburbs. Subsequently, I was a member of the executive and then President of the Law Society of Western Australia and a Director of the Law Council of Australia.

Across these roles I have worked with women and men navigating the family law system—women, children and even men that have had family and domestic violence perpetrated against them—the frontline staff supporting women and children fleeing family and domestic violence, and many experienced family law practitioners across Western Australia and Australia, as well as the Family Court judiciary both at a state and federal level. And, of course, this has been followed by many friends, family and constituents who have spoken to me about their experiences of navigating the family law system across Australia. So I think I make my contribution to the debate on this legislation with some insight.

The first point to acknowledge here is one of process. Ordinarily, where a government is looking to effect significant legislative and structural change with detailed and lengthy legislation, you would see wide and lengthy consultation with all stakeholders. In this case you would assume that there would have been consultation with the legal profession, judiciary, court administrators and, importantly, Family Court user groups and representatives of the families who have to navigate the Family Court system—in particular, those who can give insight into navigating such a system when not represented by a lawyer, as is the case for so many parties of family disputes. You would also expect consultation with those able to provide views on behalf of the so many children whose lives are affected by the work of the Family Court every day, and all of this would take considerable time.

You would also think that, when considering the biggest changes since the introduction of the Family Court in 1975, some 43 years ago, the government would have been keen to ensure that it gets the changes right, but in this case—and I think you know where I'm going to go with this—no. The government's handling of these changes and these bills is so poor, and their contempt for the users of the family law system so high, that they haven't bothered to talk to any of these groups. Instead, they have sought to ram the legislation through the parliament before Christmas to have a new replacement Federal Circuit and Family Law Court of Australia up and running by January. Not only is this process too swift, but it ignores that the former Attorney-General of this government, Mr Brandis, had commissioned the Australian Law Reform Commission to conduct a landmark inquiry into the family law system, which is scheduled to report at the end of March next year. How on earth can it be a good idea to seek to rush through massive structural changes to the Family Court before the government has the recommendations for reform to the family law system from the Australian Law Reform Commission? I can tell you: it's not a good idea.

The concerns about this, though, are not just mine. The Law Council of Australia has said that they are deeply concerned by the truncated three-week time frame for the public to scrutinise the recently introduced merger. The President of the LCA 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.

The Australian Bar Association have also stated the Family Court:

… should not be dismantled after 40 years of operation without careful consideration of the value that maintaining a properly resourced specialist family court would bring.

Key here, of course, is the emphasis on the description of such a court, whichever court, as being 'properly resourced', but I'll return to that later. In response to such process concerns, Labor and the crossbenchers in the Senate have voted to provide the Senate committee reviewing this legislation through to April to review and report. This timing will ensure that consideration can be given to the findings of the Australian Law Reform Commission's inquiry as well as to allow extensive consultations and hearings by that committee around Australia.

Let's now turn to the content and effect of these bills, which is to abolish the Family Court of Australia and to rename the Federal Circuit Court—previously the Federal Magistrates Court of Australia—as the Federal Circuit and Family Court of Australia. But don't let that name mislead you. There will be the creation of a new division of the renamed Federal Circuit Court, division 1, which will have the original jurisdiction of the Family Court. Its judges will be transferred to that division. This will make the remainder of the existing Federal Circuit Court division 2 of the new court to be established. The appellate jurisdiction of the former Family Court will be transferred over to the Federal Court. The new Federal Circuit and Family Court of Australia will have new rules and a combined registry. As someone who has been involved in the review of court rules, this is no trifling exercise in and of itself, and yet we seek to rush the legislation through.

As a Western Australia, I can see merit in the merger of the work of the Family Court of Australia and the family law jurisdiction of the Federal Circuit Court into one court, because that is what we have in the Family Court of Western Australia. The benefits of that model are clear and it's easy for all to see. Indeed, the singular court of this nature was recommended by a review commissioned during the time of Attorney-General McClelland about a decade ago. But that is not what is happening here. Instead, the government is proposing to make the current Family Court a mere division of the Federal Circuit Court, with the new merged court continuing to have the general federal jurisdiction. Many, including myself, would say that this is not a good model in and of itself.

But it gets worse, because the Attorney-General has stated it is the intention of this government to no longer appoint new judges to the new division 1—that's the family division—of the Federal Circuit and Family Court of Australia as they retire. The effect of this will see not only the eventual removal of a dedicated family law division of the court, but also much worse. It will see a movement away from and eventual abolition of specialist family law judges. Just so this point is abundantly clear: understand that at present to be appointed a Family Court judge, not only must the usual qualifications for judicial appointment be met but also the person must be, by reason of training, experience and personality, a suitable person to deal with matters of family law.

Let's be clear here: the Family Court and the practice of family law is a specialist area of jurisprudence and jurisdiction. It was created more than 40 years ago for a very important reason—that is, recognising the delicate nature of family proceedings. These are not commercial disputes. These are not criminal proceedings. These are dealing literally with people's lives and with their most intimate relations, whether they merely continue to be married and it's for how they dispose of property between themselves or, more regularly, for how they will continue to care for their children and how their children will have access to their parents. In way too many cases, we have the overlay of family and domestic violence involved as well. So to remove the concept and to remove the idea of a specialist Family Court from our nation's jurisprudence is a significant and, I think, negative thing. But not only that, the government proposes to do it on a whim by creating a merged federal jurisdiction by no longer having specialist judges appointed in this area of law. One may say, 'Thank God for the Family Court of Western Australia,' where we will keep that separate specialist system.

I've mentioned the concerns that have been raised by some in the legal profession. In fact, it's even the case that the judges in the Family Court have complained about this process and about what is proposed. Concerning to them, as I think it is concerning to many, is that the government has based its proposal for this merger of courts on a desktop review of statistics which does not in any way understand the fundamental differences of the two courts that are proposed to be merged or have any understanding whatsoever of the nature of Family Court disputes. As I said, I have sympathy for and can see the benefit of a singular Family Court in Australia as we have in Western Australia, but that is not what is actually proposed here. What is actually proposed here is the abolition of a specialist Family Court and, over time, the abolition of any specialist Family Court judges operating in a federal jurisdiction whatsoever so as to leave it to general law judges in the federal sphere, whether they be in the Circuit Court or on appeal in the Federal Court. That is an unacceptable situation, and I see no basis for it. No-one has put forward any basis for it. The government wishes to proceed with it without the benefit of any information coming from the Law Reform Commission, who won't proceed until March.

While we're here, the government says, based on its desktop review, that there should be efficiencies and that the delays are too long. Absolutely they are right; the delays in the family law system are too long. They create injustices in themselves, they create retraumatisation in themselves and they make situations that are clearly already bad within a family much worse. But the key to solving that issue is fundamentally different. The issue there is one of resourcing. It's one of resourcing for the courts. It's one of resourcing for family mediation services. It's one of resourcing, critically, for legal aid and other legal assistance services.

To give you a very solid example of the way in which family law and the administration through our courts has in no way been assisted and in which the funding has been constrained, in 1975, when the Family Court was established in Western Australia—it is a joint federal-state jurisdiction—there were five judges of that court. Fast forward 43 years. You might imagine there's been some population growth in that time, but how many judges are there in the Family Court of Western Australia? Five. We have seen no increase in the number of judges whatsoever in Western Australia. There has been an increase in numbers in some of the other Family Court registries around Australia, but in no way have those increases kept pace with the increase in population or the increase in the number, nature and complexity of the cases that are now being dealt with in family law courts around Australia.

We also have a situation where this court, understandably, often—in fact, in probably the majority of cases—involves at least one side not being represented legally. What that presents is cause for delay, misunderstanding and injustices. Despite some of the rhetoric that get from those on the other side of the House, on the government benches—you would think that at least the Attorney-General, of all people, would know better—particularly in the family law jurisdiction, it is the lawyers that are doing the hardest work in nearly all cases to try and make these matters come to resolution more quickly and more justly. They understand the system. They understand the issues. They understand the evidence that needs to be pulled out. They understand the work that needs to go into presenting a full case before the court and meeting resolution. Very often it's because of the work of those lawyers, when they're available to do that work, that these matters can be resolved by consent and don't require trial in the first place. But very often, because at least one of the parties can't get that legal representation and advice, many matters which probably could have been resolved earlier are dragged out, do have to be deferred, do have to be adjourned, and eventually still have to go to trial.

There is a resolution available here, and it's about making sure that we have a properly funded legal aid and civil litigation system and that we are providing that legal assistance to those who need it. One of the most traumatic things that can happen in a person's life is having to go through the family law system, so the government should actually pay attention to the real issues instead of stuffing this around.