The Family Court Must be Maintained

26 November 2018

Ms BUTLER (Griffith) (19:09): I want to take issue with something the member for Petrie just said. He said that the opposition is calling for the status quo in relation to family law, and that's just not the case. We have at the table the member for Corangamite, who, along with the member for Newcastle, led a bipartisan process looking at reform of family law, particularly for people who are victims and survivors of family violence. That bipartisan process that the member for Corangamite and the member for Newcastle undertook was excellent. They did great work together in a bipartisan or, in fact, non-partisan way—because the Standing Committee on Social Policy and Legal Affairs has crossbenchers on it as well. That committee report looked at a range of ways that family law could be improved for victims and survivors of family violence. So it's just not the case that the opposition have a position of keeping the status quo when it comes to family law. We certainly don't.

In fact, I was the shadow parliamentary secretary in relation to domestic violence at the last election. We announced a suite of policies, the most important of which, in my view, at the time was family law reform to protect victims of violence from being personally cross-examined by their abusers. We did that. I think it was a very sensible policy position to take. It reflected a recommendation made by the Productivity Commission in 2014. We have been calling on the government since that report and throughout this term to implement this measure. We did it in a way that would include, with the policy announcement, some $43 million worth of additional legal aid funding because, if someone can't cross-examine personally, you can't deny them natural justice. The parties should then have lawyers to do the cross-examination. They should have people who have ethical obligations to the court and who can be disciplined if they don't conduct themselves ethically to do the questioning for them. It is a very different proposition to the abuser personally grilling the victim or survivor of domestic violence throughout the course of the case. We were very proud to make that announcement.

I know that the government has, this year, in recent sitting weeks, brought forward its own cross-examination law reform legislation in relation to family law. It is something that we welcome, but I have to say that we are concerned about the absence of additional legal aid funding for the parties in that situation. But it was a step in the right direction. It's an example of a situation where all parties have acknowledged the need for law reform in relation to family law.

You certainly can't stop there. One of the other announcements that we took to the last federal election was on appointing more judges. I'm very concerned for all judges in the Federal Circuit Court—not about them but for them. They're asked to do a massive amount of work in a variety of disciplines. They might have an industrial law matter. They might have a human rights law matter. They might have a matter of immigration, bankruptcy or, of course, family law. Some of them do specialise, and that's a great thing. But, even in those situations where you're seeing judges in that court trying to do this work, even those who are doing mostly or exclusively family law, they still have a lot of impediments to being able to move things through quickly. Some of them can have hundreds of cases on their dockets. When judges aren't replaced after they retire, that puts a greater workload on existing judges. And I am aware that a large proportion of the people who appear before them are unrepresented. Of course, people have a right to appear unrepresented if they can't afford lawyers, but that does tend to slow things down a little bit because you're dealing with people for whom it is an unfamiliar environment. Weird forms, difficult rules and hard-to-understand requirements mean that people struggle to come to grips with what they're doing in the Federal Circuit Court when they're unrepresented.

Of course, there are discrepancies in power in the courts when one party is able to afford expensive lawyers and the other party isn't. I've got a constituent in my electorate whose daughter is in constant family law battles because her ex is himself a lawyer, has plenty of money and has many friends. It's really the kids who suffer when they have these protracted, drawn-out applications and directions hearings which are, whether intended or not, bleeding her dry of money as she puts up with this constant, repeated use of legal practice and court forms to delay, obstruct and obfuscate the real issues.

It is not the case that all is well in Federal Circuit Court land. Of course it's not. As I said, it is not a reflection on any judges or any judge's professional conduct. They, though, face structural and resource based impediments to being able to run things in a quick way. There are structural access-to-justice issues that affect parties before the Federal Circuit Court in family law proceedings. If the government wants to look at what can be done, I would suggest the bipartisan report of the Standing Committee on Social Policy and Legal Affairs, led by the member for Corangamite and the member for Newcastle, would be a really good place for the government to start. I'd also suggest that looking at the understaffing of the courts is really important. Of course, that means making sure we have enough judges, and not just enough judges in the cities but also enough judges who can service the Federal Circuit Court obligations in regions and in non-metropolitan areas.

In my view, it's also important that judges become a little more diverse. We have had a historical problem with women being under-represented amongst the judiciary in the Federal Circuit Court. That, of course, can be improved. Similarly, it being a generalist jurisdiction, judges can be taken from any discipline. They might have been a barrister or a solicitor, but they might have been practising in commercial law or something entirely unrelated to family law. I was a lawyer for a long time, but I wouldn't purport to be able to understand family law. It's never something I practised in; it was never something that I sought to involve myself in. I can imagine that, for someone who goes onto the bench, it's a massive responsibility to then have to pick up and understand family law. It would be very daunting. I congratulate the judges who are doing a good job, of course, but it would be useful to continue to make sure that there are people with family law backgrounds when they are in practice, before they go into the judiciary, represented amongst the Federal Circuit Court. You don't need to merge the Family Court with the Federal Circuit Court to make that happen. In fact, one of the risks we're concerned about with the merger is that you might end up losing speciality and expertise in relation to family law through the failure to replace Family Court judges with senior judges with a family law background. It is something that we do think is concerning.

There must be a good representation of judges with family law experience on the Federal Circuit Court. Similarly, we need our judges to have a better understanding of the dynamics of family violence. If you've been a lawyer in private practice for a long time and then you go onto the bench, you don't necessarily have the cutting-edge knowledge of the dynamics of domestic violence. We have a great national organisation in this country, Australia's National Research Organisation for Women's Safety—ANROWS. I think there would be a great opportunity for judges to keep their non-legal knowledge of family violence and what we know about family violence up to date if they had the time to do that, if they had the opportunity to do that. But with crushing workloads and unrepresented litigants, and a failure to come to grips with access to justice issues, that is a pretty big ask of judges. So if we could deal with the issue of judicial workloads, if we could deal with the issue of judicial expertise prior to going into the judiciary and if we could build up those links between those in the research and social sectors and judges and other court officials then that would help to make the court a better place for people who are victims and survivors of family violence, and also a better place for everyone.

Of course, it's never going to be wonderful going to the Family Court. It's the sort of place you only go after a family breakdown. It's already a difficult time and, by definition, if you're in a protracted legal battle in the Federal Circuit Court or the Family Court of Australia then you have been unable to reach agreement with your former partner. These are tough cases—tough, emotional, personal cases—mostly involving children. It's never going to be an easy thing to make the experience of going to that court a good one. But the problems of access to justice—the unlevel playing field between people who can afford expensive lawyers and people who can't, the difficulties of being a self-represented litigant in that court, or an unrepresented litigant in any court—all of those things can make a difference.

I also wanted to say that I think it's really great that the Family Court of Australia and the Federal Circuit Court worked on family violence principles a few years ago. The last time I looked, those principles were out of date. Sorry, the principles were not out of date. That's not really an accurate way of describing it. The principles were unrevised. It would be great to see some work going into revising those principles and keeping them up to date with current knowledge.

The courts also had a family violence action plan, which is out of date—it has expired—so of course it would be really wonderful to see the courts continuing to work on their action plan in relation to responding to family violence. But we have to remember that, for all of these things that we ask the courts to do, we as a parliament do need to make sure that they're adequately resourced to be able to do them. I would think those things would be a fairly rich field of options for a government to look at if it were looking for ways to make family law work better for everyone—especially people with particular vulnerabilities such as victims and survivors of family violence, whether as partners or as children of a relationship.

We do have concerns about the prospect of the abolition of the Family Court of Australia. It is the court that deals with the more complex family law issues—the more complex law or the more complex situations. They are longer trials. They take more intensive work. And so it is the case that cases take longer in the Family Court of Australia than in the Federal Circuit Court, but that's because the lower court handles the matters that can be dealt with more promptly, more efficiently, more expeditiously. So we are quite worried about what this will mean for the ability of the court to deal with those complex matters. You don't want to end up making things worse and more expensive because expertise leaches away and there is not the availability of a specialist jurisdiction. You actually don't want that to cause greater cost to the parties instead of what this is intended to do, which is reduce costs or at least make the proceedings more efficient. So we are concerned about that.

We will look forward, of course, to making sure that stakeholders get an opportunity to have some feedback, some input into the Senate process. You'd be aware that most of the stakeholders reacted very negatively towards this proposal—some very vehemently and very negatively. I saw the Women's Legal Service on the south side of Brisbane soon after the proposal was made public. This was not quite in my electorate; it was in the electorate of Moreton. They were very concerned about what they saw as the abolition of the Family Court, and I'm sure you would be aware of some concerns raised by the Law Council of Australia and others.

There must be an opportunity for adequate consultation. I understand that the government at first tried to restrict the time given for submissions to the Senate process to just three weeks. The bills are nearly 500 pages long, so a three-week submission process is just not fair to stakeholders. It's not appropriate for something so detailed. So I'm pleased that there's now a 15 April 2019 reporting date that must allow for consultation to occur with stakeholders. Stakeholders have much greater expertise than, frankly, anyone in this chamber right now, with the possible exception of the member for Blair, in terms of the way the courts and family law work, so we do need their input in relation to this bill, and the government really needs to do its homework in terms of that stakeholder engagement. I suspect that, if the government does continue to talk with women's legal services, family violence prevention organisations, lawyer groups, law consumer groups and people who are currently involved in litigation themselves or who have got experience, they will find that there is a great appetite in the community for reform in family law. I think it's fair to say there's a great appetite across this parliament for reform in family law.

So we're not in a position where we don't want to see reform in relation to family law, but this reform seems not to be directed towards the problems that have been most clearly articulated to us by stakeholders. It seems to be trying to solve a different problem. The real problems are the processes of the courts, the resources of the courts, the ability of judges to keep themselves up to date in relation to family violence dynamics and thinking more broadly and, of course, all of all the access-to-justice issues that are forcing people to be self-represented, which leads to greater inefficiency but, more importantly, to really distressing experiences for people in the family law system. It needs to be improved and, if we work together, we can find ways to improve it. We look forward to the Senate process being reported upon.