Family law reform

By Terri Butler MP

30 November 2020

There are a few things that families need when there's been a family breakdown and where the parents or, in cases where there are not children, the couple who are dissolving their marriage cannot agree on the resolution of that dissolution. There are a few things that they need and, of course, chief amongst those is a system that is responsive to their needs in which they have access to justice. If someone is in a marriage breakdown, particularly where there are children involved, sometimes the reason that resolution can't be reached between the parties without the need of external assistance can be that people are just unreasonable. But in a lot of cases that's not the source of the lack of private resolution. In a lot of cases there's a difference in power, in status or in financial means. In a lot of cases there are genuine reasons why external assistance through the court system is needed. In a substantial proportion of those cases that are disputed, family and domestic violence is a feature. This is an issue that was raised by the former Chief Justice of the Family Court and has been a hallmark of a number of the inquiries in relation to family law in this country—the fact that a large proportion, not a majority but a large minority, of cases that are disputed, that are unable to be resolved between the parties, have family violence as a feature.

Another thing that families need as well as access to justice is a system that is responsive to and understands the dynamics of family and domestic violence. What they have at the moment is not meeting those needs; it is not. Cases are delayed. The court system is difficult to navigate. It is expensive. It is under-resourced. A feature of the under-resourcing is that judges, who are only human, don't necessarily have the time that they would perhaps like to have to devote themselves to updating their knowledge in relation to family and domestic violence dynamics, because this is a field that is evolving all the time. There is always new research in relation to understanding family and domestic violence. That's the situation at the moment.

These bills, 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, don't address those problems. They don't address the lack of access to justice or the need for improved information within the system about family and domestic violence dynamics; they do not. Instead, they do something that no stakeholder of any significance supports; they collapse the Family Court into the Federal Circuit Court. The Law Council of Australia has said:

… the merger would abolish the existing specialist, stand-alone, multi-disciplinary Family Court system dedicated exclusively to family law matters … What currently exists as a stand-alone, superior court ecosystem would be collapsed into a division of an inferior, generalist, over-worked and under-resourced Federal Circuit Court, to the detriment of families' wellbeing. The Federal Circuit Court already struggles to manage the workload of less complex family matters alongside nine other diverse areas including migration and workplace law.

This is not in the interests of families or judges. That's from the Law Council of Australia. That is a succinct description—and I hope members opposite consider that when they think about their vote on these bills—of what this legislation does.

I might say it is important that the Law Council says this is not in the interests of families or judges. It is important to recognise the immense pressure and burdens on judges of the Family Court and judges of the Federal Circuit Court. The judges in the Federal Circuit Court have massive workloads. The people before them are often unrepresented. They are appearing in things like bankruptcy matters; immigration matters—they are unrepresented in immigration matters, often not having English as a first language; discrimination matters under human rights legislation; and, of course, family law matters. And these judges have huge numbers of cases on their dockets. If you think about this, there are a couple of judges of the Federal Circuit Court who have more than 600 individual cases on their dockets alone, there are a few who have got 500 to 600 cases and then you've got 21 judges of the Federal Circuit Court in this country who have between 400 and 500 cases on their dockets. And the average is 337 cases per judge. An immense workload of cases, diverse areas of law, often unrepresented litigants—it is no wonder that Federal Circuit Court judges are facing incredible stress and pressure. We have seen some of the pressure and some of the stress manifest recently, including in my home state of Queensland.

This government could be addressing that problem. They could be saying, 'Instead of trying to collapse the Family Court into the Federal Circuit Court, we should be addressing the access-to-justice problems that come with overworked, under-resourced court systems, and we could be addressing the impact that that has on judges as well.' In fact, the Productivity Commission, about six years ago, released a substantive report in relation to access to justice in this country. The government could be revisiting that report to consider what further steps could be taken, consistent with the recommendations in that report, in relation to access to justice for both family law and all other forms of federal law, particularly.

The government could also be turning to the Australian Law Reform Commission report into family law that came out last year. It's a report they are completely ignoring, if this bill is anything to go on. It clearly laid out something in the order of 60 recommendations to this government about what they could do to improve family law. They could also look, because of the nexus between family and domestic violence in family law, to the excellent and bipartisan work done by the House Standing Committee on Social Policy and Legal Affairs, under the leadership of now Senator Sarah Henderson and our member for Newcastle, Sharon Claydon MP. They are people who are able to work together to find opportunities for bipartisanship on reforms that could serve the interests of women—who are generally the victims and survivors of family and domestic violence—and their children, and of all parties before the Federal Circuit Court or the Family Court of Australia, in relation to family and domestic violence.

They could revisit that piece of excellent work, which also produced so many recommendations. There's been Law Reform Commission work on family violence. There's been a Senate inquiry on family violence. There are so many pieces of work laying out for this government a very clear set of recommendations about what they can do to make things better for people, particularly people who are facing family and domestic violence and—on top of the danger and the injury and the humiliation of the violence—having to go through the retraumatisation that occurs when you then have to litigate because the ex-partner is using the tools at that person's disposal to cause them further harm, as is often the case.

We have some excellent community legal centres in this country. Women's Legal Service Queensland in Brisbane is one of them. They speak out for victims and survivors of family and domestic violence, and a lot of their work is in relation to family law. Women's Legal Service Queensland opposes these changes, as do so many other stakeholders. In fact, the Law Council of Australia says that more than 110 stakeholders in the family law system agree that the merger is not the solution and they oppose the bill because it will put families at risk. The government's bill is putting families at risk. They're putting families at risk. What's worse, as the member for Macnamara said, not only are they putting families at risk they're not even willing to defend their reasoning for doing that.

Where are they? Why is the chamber virtually empty of coalition MPs? Are they ashamed of the legislation? They should be. Is that why they're not here to defend it? Is that why the speaking list is so bereft of government MPs willing to at least explain why they would support this policy, this bill, instead of standing up for and speaking out on what is needed to be done to protect vulnerable people, particularly women and children, through this country, in relation to family and domestic violence? Is that what the problem is? They should be here. They ought be here to explain to the people of Australia why they support this bill, but they're not.

Labor's speakers are here because we have grave concerns about this bill and we oppose it. We call on those who support families to oppose it as well. If the bill reaches the other place, we call on the senators to think very carefully about the impact their vote might have on families in this country, particularly vulnerable families, particularly families facing violence, particularly in a situation where there are big differences in power between the partners who are separating. I do call on them to think very carefully about this bill. It ought not be supported, and I ask that people oppose the legislation.