I acknowledge the traditional custodians of the land on which we meet, and thank them for their strong and continuing stewardship.
Thank you for the opportunity to address you today.
I’ll just say from the outset that, while I am a lawyer, I have not practised in family law; I practised in commercial, estate and industrial law.
However, during my time as Parliamentary Secretary to the Shadow Attorney-General, Mark Dreyfus QC MP, I spent a lot of time talking with many of you and your colleagues; I even spent a day sitting in the back of courtrooms in both the Family Court and the Federal Circuit Courts, just across the river from here; watching and listening to what you see and hear every day. I appreciate the work you do; and the particular difficulties that family law presents to those who practise in the area.
Throughout the last two Parliaments I have worked closely with the Shadow Attorney-General, and other colleagues, developing family law policy. Some policies were taken to the last election as Labor policy and remain our position today.
I continue to have a strong interest in family law policy. I understand that the system must work; for those who practise in family law; for those who determine family law disputes; and especially for those whose lives necessitate that the whole family law system works.
I have been asked to speak to you today about the Bills currently before Parliament that propose to fundamentally change the operations of the Family Court of Australia and the Federal Circuit Court.
Effectively, what these Bills will do, over time, is abolish the Family Court of Australia.
Where are the Bills up to:
Before I get into the nuts and bolts of the Bills themselves, I would just like to outline how they are progressing through Parliament. It has not been uncontroversial so far.
There are actually two Bills:-
- Federal Circuit and Family Court of Australia Bill 2018; and
- Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018
Both Bills were introduced into the House of Representatives on 23rd August 2018.
On the same day (23rd August) the Senate referred both Bills to the Legal and Constitutional Affairs Legislation Committee for inquiry. The reporting date set down by the Senate was 15th April 2019 – the Ides of April.
Sensibly the delay would allow the Australian Law Reform Commission to hand down their report into the family law system before the Legal and Constitutional Affairs Committee reported on the Bills.
But things have become somewhat farcical since then.
This Government led Committee then used its numbers to change the date for submissions to mid-September this year and the reporting date to November 26.
In a muscled show of democracy, the Senate then voted on a Motion to extend the deadline for submissions to November 23.
The Committee refused to extend their reporting date of November 26, leaving just three days after submissions were due to make this report. The Committee intended to hold hearings prior to receiving submissions.
The Senate has voted on another motion - the third motion on these Bills so far – to instruct the Government that it cannot hold hearings for this inquiry until after submissions are due.
So where does that leave the Family Law Bills?
- Submissions to the Committee Inquiry are due on 23 November;
- Hearings cannot be held until after that date – the two weeks following 23 November are Parliamentary sitting weeks, with the last sitting day on 6 December. Thus , no hearings can be held outside Canberra until after 6 December.
- The Deputy Clerk of the Senate has indicated that as it currently stands – “the bills would continue to be unavailable for the Senate’s consideration until the reporting date set by the Senate”; i.e. 15 April 2019.
The Attorney-General has now conceded that his rushed start date of 1 January 2019 cannot be met.
I can assure you that this is not how Bills are usually dealt with by Committees – this tussle between the Government led Committee and the Senate has been astonishing.
I will come back to the ‘whys’ about that a little later.
These two Bills run for more than 500 pages.
If passed, this will implement the most radical change to the family law system since the Family Law Act in 1975.
Structure of the Courts:
The Bills will alter the current structure of the courts.
They don’t merge the two courts; there will still be two distinct divisions.
The Family Court will become Division 1 of the new Federal Circuit and Family Court of Australia (FCFC); and The Federal Circuit Court will become Division 2 of the new FCFC.
Family Court judges will remain as judges of the Division 1 court.
And Federal Circuit Court judges would remain judges of the Division 2 court.
Despite the Attorney-General saying to you at this conference that this reform is not radical, and that it does not abolish any court; the Attorney-General has stated publicly that he will not be appointing or replacing any Family Court judges – essentially tolling the death knell for the Family Court.
That is a radical reform.
Moreover, the Appeal Division of the Family Court will be abolished immediately. Appeals would be moved to the Federal Court. Only appeals from, the soon to be extinct, Division 1 would be heard by three judges. All appeals from Division 2 would be heard by a single judge.
This is radical reform; and I am deeply troubled by the intended abolition of the Family Court and the Appeal Division being moved into the Federal Court.
Family Court history:
As you are well aware, the Family Court of Australia was set up in 1975 as a specialist court with specialist judges to resolve the most complex of legal family disputes.
It was a Whitlam Labor reform.
The Family Court of Australia is a superior court of record.
When the Family Law Bill was progressing through the Parliament back in 1974 it was also sent to a Senate Committee. That Committee made some significant recommendations including a recommendation to establish the Family Court of Australia.
It also made a recommendation about the way Family Court judges were to be appointed. The Committee recommended that appointees must be “by reason of training, experience and personality… suitable to deal with matters of family law.”
Nearly all of the Committee’s recommendations were given effect including these two examples. Section 22 of the Family Law Act, which is still in operation, gave effect to, what has become the essential feature of the Family Court: specialist judges.
The Senate Committee considered that the creation of the specialist court would “put Australia in the forefront of family law reform and will ensure that other facilities and remedies provided in the Bill can have effective implementation.”
The creation of the Family Court of Australia has been a success. The work of the Family Court is recognised very favourably internationally.
Reform to create Federal Magistrates Court:
In 1999 the then Howard Liberal Government Attorney-General, the Hon Daryl Williams, in his second reading speech on the Federal Magistrates Bill; the legislation that created the Federal Magistrates Court, now known as the Federal Circuit Court, said that the creation of this new second tier court would provide a ‘quicker, cheaper option for litigants’ in family law matters.
It is now widely acknowledged, even by the current Liberal Attorney-General, whose party created it, that the two court system has ‘failed’.
And so the current Liberal Government is forging ahead with more reform. Mr Porter is unscrambling his Party’s omelette and calling it a piece of cake.
In May this year at a press conference after the announcement of the ‘merger reform’, Attorney-General Porter said:-
“So this reform is designed to have people spend less time in court and less time on legal fees.”
The very same reasons the Liberal Party used to set up the Federal Magistrates Court in the first place.
Of course, in between the establishment of the Federal Magistrates Court and the recent proposal to abolish the Family Court of Australia, the Semple review was commissioned by a Labor Government, ‘Future Governance Options for Federal Family Law Courts in Australia: Striking the Right Balance’.
The recommendation of that review was to create a single family court with two separate judicial divisions.
Interestingly, that review recommended that Family Court judges constitute the Superior and Appeals Divisions and Federal Magistrates with family law expertise be offered appointment under a different title in the Family Court General Division.
Essentially, it would have been an enlarged Family Court of Australia with a specialist lower division.
That proposal in 2008 was opposed by the Liberal and National Party in Opposition.
The Attorney-General in his address to this conference on Wednesday listed the recent reviews, including the Semple Review; the three reviews his Government has commissioned from accountants; and a Parliamentary Committee report.
In a strange glaring omission, what he didn’t mention in that list was the current inquiry being undertaken into the family law system by the Australian Law Reform Commission.
Surely, radical reforms like abolishing the Family Court of Australia are the obvious remit of the ALRC to consult and report on before such changes are implemented.
I mentioned earlier the Senate Committee report into the Family Law Bill in 1974, and the significant recommendations made. One of those recommendations was for the creation of the Family Law Council. That recommendation was implemented by s115 of the Family Law Act .
The Family Law Council’s function is to “advise and make recommendations to the Attorney-General on the workings of the Act, Legal Aid and other family law matters”. The Council is to report to Government annually.
However, the last report to Government was for the 2014-15 year.
The Family Law Council has been left to wither and die by this Government. It currently has no members.
So I am perplexed to see in the discussion paper by the ALRC, that one of their recommendations is for a new statutory body – a Family Law Commission – to “oversee the family law system.. to ensure that it operates effectively in accordance with the objectives of the Family Law Act”.
Maybe the Attorney-General needs to look at the system he already has in place.
It’s a bit like owning an old car. If you don’t replace the parts as needed; you don’t put oil in the engine, and fill it up with petrol regularly; put air in the tyres – it’s not going to work efficiently, and eventually it won’t work at all.
The shiny new car might look attractive, you might enjoy the new car smell for a while; but what you really should have done is maintain and look after the one you have.
The Australian made car was very well regarded internationally! [that’s a metaphor by the way]
I mentioned earlier that I would come back to the ‘why’ of these reforms and the Government’s urgency to get them through Parliament.
What many of you may not know is that abolishing the family court is not an original policy idea.
Until February 2017, the One Nation website included a policy which said:-
“The Family Law Court will be abolished and replaced with a Family Tribunal.”
That may explain not only this legislation, but the Parenting Management Hearing legislation as well.
Family law reform has been a constant plank in Senator Pauline Hanson’s Party’s platform.
In her first speech in 1996 she called for the Family Law Act to be repealed.
In her second first speech to the Senate in 2016, she said the whole family law system is unworkable and in desperate need of change.
I’m not sure why the policy to abolish the Family Court was taken down in February 2017, but it is clear that the views of the Leader of One Nation have not changed.
In an interview on Sky a couple of weeks ago, when it was put to Senator Hanson that family law reform was why she “came back to Canberra”, her answer was “it was”.
So, why would the Government care whether One Nation wanted the Family Court abolished?
Well, when the Attorney-General said on Wednesday that “Numbers do matter”, he was right in one respect: in the Senate numbers matter very much!
This is the make-up of the current Senate:
If Labor and the Greens vote together – and all other cross benchers vote with the Coalition – they can get their legislation through.
But if any of the cross-benchers vote with Labor and the Greens it becomes a very tight race.
Those two One Nation Senators can be the difference between the Government getting their legislation through or failing.
When the Senate voted in June on the Personal Income Tax Plan Bill this is how the votes came in.
It would have been a different outcome had One Nation not supported the Government. The votes would have been like this:
Appeasing the Senate becomes very important.
And what about the timing; the Attorney-General is going to great lengths to get this legislation through at speed.
Particularly remarkable when other issues around family law, such as replacing judges, has been attended to by this Government at a snail’s pace.
But the timing is important because there has to be an election next year – and the last date that an election can be held is 18th May 2019.
Working backwards, the election would need to be called 33 days before the polling date – making 15th April, the Ides of April, the last day the election can be called.
Any business the Coalition Government wants to get through Parliament has to be done before that date.
And, importantly, any deals the Morrison Government may have done to encourage preferences from minor parties e.g. the One Nation Political Party, need to be brought to fruition before that date.
Before I finish, I would just like to remark on a comment made by the Attorney-General on Wednesday about how the courts determine whether a matter is complex or not.
He said that he was surprised that he was not presented with a spreadsheet that calculated the details of a matter by pre-determined criteria which would enumerate various fields and come to a definitive measurement of complexity.
Messy family lives reduced to a spreadsheet!
Everyone in this room knows only too well that there are so many variations of family lives that they could never be confined to a spreadsheet.
And labels don’t always tell the whole story.
A family could have just one issue but that issue may be so complex to make it insurmountable for them to hurdle; or others have many issues but they are able to deal with them in an ordered way and not disrupt their family life too much.
You all would have seen examples of both I am sure.
Labels and names can be deceiving:
A “Christian” is often thought to be someone who will look after others.
A “porter” has carriage of something on behalf of others.
If we took those labels given him at birth at face value, the Attorney-General would be in danger of breaching Australian Consumer Law.
Finally, I would just like to say a couple of things in respect to some comments made at this conference this week:-
- Numbers don’t always reflect the worth of an organisation: As James Hacker and Sir Humphrey Appleby told us - The most efficient hospital in the world is one with no patients!
- No accountant will know whether a family law reform will make your client’s journey through the system better or worse – they can only comment on raw numbers not the real lives and real emotions that you all deal with every day; and
- Justice delayed can be justice denied, but I know enough about your work to understand that often for your clients – justice rushed is justice crushed!
Thank you for inviting me to speak today and I hope you enjoy what’s left of the conference.