Second Reading - Federal Circuit and Family Court of Australia Bill 2019

Second Reading - Federal Circuit and Family Court of Australia Bill 2019

I thank members for their contributions to this important debate. 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 bring together the Family Court of Australia and the Federal Circuit Court of Australia, to be known as the Federal Circuit and Family Court of Australia, or the FCFC. The consequential amendments bill will facilitate the transition to the new FCFC. The FCFC will bring together the Family Court of Australia as Division 1 and the Federal Circuit Court as Division 2. The FCFC will continue to comprise the existing judges of the Family Court, in Division 1, and the existing judges of the Federal Circuit Court, in Division 2. The FCFC will provide a consistent pathway for Australian families and have common, streamlined processes and procedures to operate consistently. It will be simpler, more efficient, more effective and a more accessible court for Australian families to resolve their matters, meaning that we increase the number of matters that can be finalised each year.



These proposed reforms have been developed in close consultation with the federal courts, including the heads of jurisdiction, and informed by a number of substantial inquiries over the last decade, including the 2008 Semple review, a 2014 KPMG review, a 2015 EY report, the 2017 House of Representatives Standing Committee on Social Policy and Legal Affairs inquiry and a 2018 PwC report. Under this legislation there will be a single point of entry for all Australian family law matters, with all matters to be filed in Division 2. This will be of significant benefit to Australian families because it will simplify the process and save time and effort for those navigating the system. This is a reform that has been long called for, but to date it has not been able to be achieved or delivered.

The bills will facilitate common and harmonised rules of court which will simplify forms and the case management process for the ultimate benefit of the Australian families who use the system. While there has been long-term agreement that there should be common rules and practice, this has never occurred under the current, existing, legislative arrangements. As part of the legislation, the Chief Justice will be invested with the power to make the rules of court for a limited period, after which the power will revert to judges, or a majority of judges, of each respective division. While the bills originally prescribed that the Chief Justice would have this power for two years, the government has agreed to reduce this period to 18 months.

The bills retain the appellate jurisdiction in the FCFC Division 1, but all Division 1 judges will be able to hear appeals, both as individual judges and as members of a full court. Further, the bills will enable the court to deal with appeals more efficiently, as appeals from decisions of the FCFC Division 2 will ordinarily be dealt with by a single judge from Division 1. The Chief Justice will have the ability to convene a full court to hear an appeal from Division 2, where appropriate. This will provide flexibility for a full court to hear appeals involving novel or complex questions of law. Both of these changes reflect the approach taken in the appellate jurisdiction of the Federal Court, which successfully exercises a substantial and diverse appellate jurisdiction.

I can't tell you, Madam Acting Deputy President, how unfortunate it is that so much of the debate on these bills mischaracterises them and the current system as a whole. Most notably, despite what has been said, the bills we are dealing with—and I make a point of this—do not abolish the Family Court. Judges appointed to the Family Court and the Federal Circuit Court will continue in their existing appointments, and the government had committed to a minimum of 25 Division 1 judges, in line with the recommendation of the Semple review. The government will also now entrench that minimum number of Division 1 judges in the legislation itself, so there can be no doubt.

It is also necessary to respond to claims that these bills will result in a loss of specialisation. That claim is false. The reality of our existing family law system is that the Federal Circuit Court deals with close to 90 per cent of family law parenting matters. There are around 40 judges of the Federal Circuit Court who hear only family law matters. It doesn't get any more specialised than that, and the average FCC judge hearing family law matters has, on average, 25 years of experience in family law. These judges have experience with matters involving families with complex needs, and the unfortunate reality is that they also have experience dealing with matters involving family violence.

There have also been suggestions that the Family Court provides some greater level of service to families than one can get in the Federal Circuit Court. However, the CEO of the Federal Circuit Court and Family Court told the recent Senate committee inquiry:

… for the avoidance of doubt, the court's internal family law services are shared between the courts. This includes registrar resources, family counsellors and registry staff.

There is no difference in the level of service provided between the two at present.

There have also been claims made by those opposite that the government has failed to provide funding for the federal family law courts and the family law system. That simply ignores the significant investments this government has made. Since 2015, the government has committed $84.8 million for specialist domestic violence units and health justice partnerships, whereby lawyers and social workers provide legal representation, advice and support to those experiencing family violence. The government has provided $48.9 million to establish family advocacy and support services which operate in family law registries to deliver duty lawyer and support services for people affected by family violence in their family law matters. We have banned the direct cross-examination of parties in family law matters involving allegations of family violence, and we have allocated over $20 million in funding for legal representation to those affected by the ban. We've allocated more than $56 million to help families resolve family law property matters, including funding for Family Relationship Centres to deliver mediation, for a two-year trial by legal aid commissions of lawyer assisted mediation for property matters and for the federal Family Court to conduct a two-year trial of simpler and faster court processes for resolving family law property cases. Since early 2020, the government has co-located police and child protection officials in family law registries to improve information sharing between state and territory agencies, implemented with a $10.4 million investment. We've allocated $13.5 million for the Lighthouse Project, which has commenced in the Brisbane, Parramatta and Adelaide family law registries to pilot a systematic approach to identifying and managing family safety. We've implemented a new National Legal Assistance Partnership worth more than $2 billion, with $248 million of that being additional funding. The largest recipients of this funding are legal aid commissions, and 93 per cent of the representation services they provide are for family law matters.

As part of the most recent budget, over $140 million in funding has been provided by this government to expedite family law matters and increase resourcing in the Federal Circuit Court. That includes funding for family law services; for the continuation of the current COVID-19 lists being operated by the courts; for improved and safer facilities for the Federal Circuit Court in Rockhampton and Launceston; and for additional Federal Circuit Court judges and registrars, including an extra family law judge and five new family law judicial registrars. The government has also previously committed to the appointment of an additional Division 1 judge, subject to the passage of these bills.

The government has always held the view that resourcing applied to what, up to this point, has been a well-recognised failed structure in these courts would ultimately represent a situation where these valuable resources won't have their maximum impact for the taxpayer or for users of the court.

As part of the implementation of these bills, the government will also provide a further Division 1 judge, two additional Division 2 judges and an extra judicial registrar to support the Adelaide registry; and an additional $14.3 million for further legal assistance in South Australia, to be used to establish a pilot program for family law matters. In addition, the government will re-establish the Family Law Council to provide further ongoing guidance on the family law system. The government recognises the advocacy and support of Senator Patrick for those initiatives.

The structural failings of the current split family law system are widely agreed, and continuing to do nothing to fix this problem is not an option. Reform of any longstanding structural problem is challenging. The proposed reforms are the least radical path to end the unnecessary confusion, costs and delays for thousands of Australian families that have arisen by virtue of this split system. The government is confident that these bills will deliver a significant improvement to the lives of the Australian families that are required to navigate the federal family law courts. I commend the bills to the Senate.