Opposition- opposed to the Gov’s proposed abolition of the Family Court

For those of us who attended the national family law conference in Brisbane, there was an element of controversy between the Government and Opposition. Attorney-General Christian Porter spoke at length about his desire to reform the Family Court by:

• consolidating the Family Court and Federal Circuit Courts into two division of the one structure
• making any appeals be heard by a single judge of the Federal Court.

The appeal proposal is radical as:

• • current appeals are dealt with by specialist appeal judges from the Family Court. No longer.
  • current appeals from the Family Court are heard by three judges from the Family Court. Again, no longer. Typically appeals around the country at that level are heard by three judges- no matter which court is dealing with the matter- so that matters can be dealt with thoroughly and fairly. It is perceived that the risk of having one judge hearing appeals has a level of risk. Many appeals from the Federal Circuit Court are dealt with by one Family Court judge now, but more complex matters are heard by three judges.
  • Federal Court judges have no expertise at all in family law. They do not deal with child support, parenting, property settlement or the nuances of domestic violence or sexual abuse. Instead, they deal with commercial matters such as bankruptcy, liquidation of companies, trade practices and defamation.And yet the Attorney’s view is that they should eb the judges to handle all these appeals.
  • No clue has been given that more resources will be supplied to the Federal Court to handle these appeals.

The Government is keen on having the laws pass, even though the Australian Law Reform Commission’s report into the family law system is not due until April 2019.

It is unlikely that the laws will pass this Parliament due to the lack of sitting days to the next election, and the Opposition being opposed to this proposal.

The position of the Opposition was put clearly at the national family law conference, and since then by Opposition MP Graham Perrett. This is what he recently said in Parliament:

“I rise to speak on behalf of the shadow Attorney-General and member for Isaacs, who is in an important intelligence committee meeting which unfortunately prevents him from being in the chamber. I will speak on two bills, 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.

I’ll say at the outset that Labor has always been strong on family law reforms. It was Labor, the Whitlam government, with Attorney-General Lionel Murphy, who created no-fault divorce in Australia. It was Labor and Gough Whitlam who created the family courts and has stood up for them ever since. Our family court system is considered a world-leading model, imperfect though it may be, which is something I will expand on later.

Reform should always be well considered, and that has not been the case here—not at all. These bills have been subjected to no consultation with stakeholders, no consultation with the very people who use the Family Court system, the people who live and breathe it, day in and day out—the families and those who advocate for them, the lawyers who are daily in these courts, the judges presiding over the courts, the peak bodies of the professionals who use the courts and the organisations that advocate for victims of family violence. None of them were consulted about these radical reforms before they were introduced. Instead, these reforms have simply been forced upon them, whether they like it or not. But we will not ignore what the people who know the most about the family law system have to say. That is arrogant and is no way to roll out any reform, let alone reforms that are the most significant changes proposed to the family courts since they were created 43 years ago in 1975.
Labor will not be supporting these bills in the House. We will not be supporting these bills for a number of reasons—firstly, due to the woeful process by which these reforms have come about. As I just mentioned, these bills are not the result of consultation—anything but. It’s been more like tin-ear-itis. These bills are the result of a management consultant’s report done in eight weeks by number-crunchers who have barely set foot in an operating family court. There is a pretty basic law in law making: if you don’t consult, you make bad law. When there are families and children’s lives at stake, this is not something that Labor can accept.

That brings me to the second reason why Labor will not vote for these bills in the House today. There is a Senate inquiry on foot into this proposed legislation. It is a Senate inquiry which it seems this government has been very afraid of. Initially, the government tried to have this Senate inquiry completed in November, giving just weeks for the stakeholders who had not previously been consulted to write submissions on a 300-page bill. Rightly, the Senate decided it would not allow that to happen. Through a series of votes, the committee has been instructed by the democratically elected Senate not to report on this bill until April 2019. That would allow for a proper amount of time for hearings and for the completion of the landmark Australian Law Reform Commission review into the entire family law system. Yet, even despite the clear will of the Senate for proper time to be given for the consideration of these bills, bizarrely, the government are putting them to the House today. This is clearly premature. Why would they do this? It is unclear why they have done this and why Attorney-General Porter chose this course of action. Perhaps the Morrison government have run out of other things to talk about?

The third reason Labor will not be supporting these bills is that the case for this particular change has not been made. That is partly due to, I suspect, the very poor consultation process. The Morrison government has little evidence, for example, for its heroic claims that 8,000 extra cases could be cleared each year if these reforms pass the parliament. It is also due to the blindness of this government to the other key factor in the problems in the Family Court—that is, funding. There has been a huge increase in demand on the courts, and funding has just not kept up.

A key suggestion of the former and very well-respected Chief Justice of the Family Court Diana Bryant for an increase in the number of registrars in the court has been completely ignored by Attorney-General Porter. Moreover, the systemic degradation of community legal services under this government has meant we have witnessed an increase in unrepresented litigants, particularly in family law. Sadly, unrepresented litigants clog up the legal system. Why aren’t we talking about these issues? It’s because the government doesn’t want to.

Unlike this Morrison government, Labor believe in consulting. After these bills were introduced, I hosted a roundtable forum in Brisbane with Senator Murray Watt. We invited family law professionals, peak professional bodies and family violence prevention advocates all to come together so that we could ascertain their initial response to the family law bills. Understandably, almost all of those in attendance had not had time to fully digest the bills and the explanatory memorandum, which together run to more than 1,000 pages. However, their first impressions were not good. Every person who attended my roundtable, all of them with years and years— in some cases decades—of experience with the work of the Family Court, had multiple concerns about many aspects of these bills. These bills, introduced by Attorney-General Porter before he completes his first year in the job, effectively herald the abolition of Gough Whitlam’s Family Court of Australia.

The Family Court of Australia was set up in 1975 as a specialist court with specialist judges to resolve the most complex of family disputes. It is a superior court of record. These bills purport to merge the Family Court of Australia with the Federal Circuit Court of Australia. Merge is a nice, soft word, but it contains a hard reality. The Federal Circuit Court is a lower federal court which has jurisdiction for not only family law but general family law jurisdictions as well, such as fair work and immigration law. The explanatory memorandum to the bill says the bill will bring these two courts together ‘into an overarching, unified administrative structure to be known as the Federal Circuit and Family Court of Australia’. However, in effect, they would remain as two distinct courts with different names.

The Family Court of Australia would be known as the Federal Circuit and Family Court of Australia (Division 1). The Federal Circuit Court of Australia would be known as the Federal Circuit and Family Court of Australia (Division 2). However, Attorney-General Porter’s vision is to have one court to hear family law cases. Attorney General Porter favours all family matters being heard by the lower-level Federal Circuit Court, or division 2, in his brave new world. He will kill off the superior Family Court of Australia by attrition. This is not fearmongering; we know this because Attorney-General Porter has said as much himself. He told the Australian newspaper in May this year:

Attorney-General Porter is, effectively, abolishing the Family Court of Australia, not amalgamating it. He’s abolishing it; he’s wiping it out. The Attorney-General is annihilating Gough Whitlam’s legacy. The Law Council in a media release said:

That’s a quote from the Law Council of Australia—very well respected. The current provisions of the Family Law Act provide that judges should not be appointed to the Family Court of Australia unless ‘by reason of training, experience and personality, the person is a suitable person to deal with matters of family law.’ That provision is repeated in the bill for judges appointed to division 1, except Attorney-General Porter is not intending to appoint any. But the corresponding provisions for judges appointed to division 2 do not require such specialisation of training, experience and personality for matters of family law. Rather than a specialist superior court of record to hear the most complex family law matters, we would be left with one generalist court to hear every family court matter, without the breadth of experience and training or the personality that is necessary to deal with the most complex of family law matters, including those that involve family violence. At stake are the most vulnerable families and, most importantly, the children who rely on such folk to provide them with a place they can call home. Surely they deserve to have a specialist making the decisions that will impact on them, often for the rest of their lives.

The Family Court of Australia currently has an appellate division with senior judges assigned to sit in that division and hear appeals from both the Federal Circuit Court and the Family Court. Appeals are heard by three judges unless the Chief Justice determines otherwise. Attorney-General Porter’s bills will fundamentally change the way family law appeals are dealt with. There will no longer be an appeals division of what is now the Family Court of Australia; that will be completely abolished immediately. Appeals from a decision of either a division 1 judge or a division 2 judge of the FCFCA will be heard by a single Federal Court judge. I repeat: those appeals will be heard by a single Federal Court judge.

Now, the Federal Court does not hear any family law matters; it has no family law jurisdiction. While I’m sure that the judges who sit on the Federal Court are extremely capable judges, they do not have any experience hearing family law matters and they will be hearing appeals as a single judge, not with the checks and balances that come with three judges sitting together. Unlike contract law, commercial law, conveyancing or most other areas of law, judicial discretion is almost always present in family law judgements. On appeal, the collective judicial wisdom and skill of three judges provide a check and balance to that discretion. If this bill passes, we will have a situation where one judge’s discretion may be replaced by another judge’s discretion on appeal, and that appellate judge may have no experience hearing family law matters at all. You can see the problem.

I particularly worry about developing areas of the law and how these changes will affect the progression of family law jurisprudence. The really difficult issues that come before the appellate division of the Family Court require not only a skilled legal mind but a breadth of experience of those issues and how they have been dealt with in the lower courts over many years.
I’ll give you an example of just one of the very difficult issues that this court has dealt with in the last year. It had long been a requirement that stage 2 treatment of gender dysphoria required an application to the Family Court for a determination of the child’s competence, known as Gillick competence, before any treatment could be undertaken by medical professionals. This was required even if the child consented, both parents had no objection and all of the treating medical practitioners agreed that the child was competent to understand the treatment. I should point out that, in this case, Australia was the only country in the world that required court approval— that is, a legal process—for stage 2 treatment, which is effectively a medical procedure. Nevertheless, Family Court judges had no choice but to follow previous decisions of the full court that the court’s authorisation was required. The only way to change that situation, bar a legislative change, was for the full court to decide that the previous full court decision was no longer good law.

That did happen in Re Kelvin, decided last year by a full bench of the full court of the Family Court. Five experienced Family Court appeal judges heard that case. That decision in Re Kelvin will not have any impact on the vast majority of Australians; I understand that. But, for some young Australians and their families, this change to the law will be life-changing. In some cases, it will even be life-saving. Decisions like those in Re Kelvin are not easy, and they are not straightforward. But they are very important for some Australian citizens.

Of course, parliament can always make changes to the law. But change such as occurred through Re Kelvin is not always readily taken up by political lawmakers. The previous Attorney-General, former Senator Brandis, was lobbied for a very long time to make that very change to the law. I must say: I thought he was very receptive to the change, but there was the problem of the political climate in which he was operating, especially around the same-sex marriage legislation.

As a co-chair of the bipartisan Parliamentary Friendship Group for LGBTIQ Australians, I, along with the member for Leichhardt, Senator Rice and the member for Indi, had called on the Attorney-General to make this, on one level, quite simple and quite appropriate change to the law. But it was actually the five appellate judges of the Family Court who bravely changed this law, not this parliament. That’s just one example of the importance of having an independent, specialist judiciary with a strong appellate division who are able to use their combined skill and experience to tackle the difficult issues that society will continue to throw at them.

With due respect to the Federal Court judiciary, I am deeply concerned that appeals will no longer be heard by the very experienced specialists of the appellate division of the Family Court and will mostly be heard by only one judge. Attorney-General Porter has said publicly:

If the proposed changes are merely cost-saving measures, this is short-sighted at best.
This year I was honoured to address the 18th National Family Law Conference, held in Brisbane in October. These bills were of course a hot topic of conversation at that conference. Attorney-General Porter also made an address to the National Family Law Conference. Remembering that this Attorney-General had not consulted stakeholders prior to the introduction of these bills, you would think he would have been at pains to explain to the attendees why it was necessary to make the changes he has proposed—in effect, to argue his case for change in front of a conference full of lawyers. Instead, Attorney-General Porter used his address to criticise the professionals who spend their lives supporting, advocating for or making decisions about the most vulnerable families in Australia.

One telling insight into his address was what Attorney-General Porter said in discussing when a matter is considered complex:

Essentially, what Attorney-General Porter expected was a spreadsheet that would neatly dissect the lives of those using the court system. Would any of us want our family lives to be reduced to a spreadsheet? Would it even be possible for a spreadsheet to reflect the innumerable possible combinations of complexities that some vulnerable families experience? How can the effect of any one issue on a particular family be reflected in a spreadsheet? Numbers mean something, but they rarely mean everything. In this case, Attorney-General, they mean nothing at all to families at breaking point. These families need a well-resourced, experienced, specialist court to hear their issues, ensure they are safe and protected in the process, and, where necessary, make a decision. I am not convinced these bills will meet the needs of Australian families.

Attorney-General Porter arrogantly concluded his speech at the National Family Law Conference by saying:

The problem is that Attorney-General Porter has not undertaken any process of reform other than introducing a bill that proposes radical changes to the family law system. We should wait for the proper process to occur. The Senate inquiry should be allowed to complete its hearing and report. The ALRC review should be completed and the report considered before radical reform like that which is proposed is undertaken. These are the many reasons why Labor does not support these bills.”

I took part in the family law roundtable in Brisbane- because I was asked and available. If the Government had asked me to participate in a similar roundtable to provide feedback, I would have done so too.