Labor Senators' Dissenting Report

Over the last seven years, the story of the Australian family law system has been a story of neglect, neglect and more neglect. Neglect by the Liberal Government led by Tony Abbott. Neglect by the Liberal Government led by Malcolm Turnbull. And neglect by the current Liberal Government led by Scott Morrison.
It is a terrible legacy.
And yet instead of mea culpas, the Government has produced 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 (the bills).
Instead of working to fix the family law system, the Government remains determined to restructure the Family Court and the Federal Circuit Court in a way that will make a bad situation worse for Australian families, including vulnerable children.
Australian families deserve better. Australian children deserve better.
Since being established some 45 years ago by the Whitlam Government, the Family Court of Australia has operated as a stand-alone, specialist court. The radical and misconceived reforms in the bills would effectively put an end to that. Labor Senators oppose them.
In early 2019, the Australian Law Reform Commission completed its comprehensive, landmark report on the family law system, including 60 recommendations for reform. Among other things, the Commission found that the family law system in Australia 'has been deprived of resources to such an extent that it cannot deliver the quality of justice expected of a country like Australia, and to whose family law system other countries once looked and tried to emulate'.
To date, the government hasn't even responded to that report.
Perhaps that is because the Australian Law Reform Commission did not recommend the restructuring of the courts in the way outlined by the bills. Indeed, nobody has recommended the restructuring of the courts in the way outlined by the bills.
The government's deeply flawed proposal is based on nothing more than a six-week desktop review of operational data by two accountants from PricewaterhouseCoopers.
And not even the PwC report endorses the Government's proposal. As the authors of that report told this Committee on 11 December 2018 during a previous inquiry, PwC was not even asked to consider detailed reform opportunities as part of its review.
The government's proposed abolition of the Family Court as a stand-alone specialist family court is not merely friendless. It has been almost universally condemned.
Over the last two years,1 this committee has received dozens and dozens of compelling and detailed submissions from family law experts outlining the harm that the proposed merger would do to vulnerable children and families.
By contrast, the Committee has not received any evidence – and certainly no persuasive evidence – that these bills would address any of the many problems plaguing the family law system.
Government senators themselves acknowledge – at pages 33 and 34 of this report – that there are weaknesses in the government's approach which ought to be addressed by amendments.
Senators were told in the hearing that one Federal Circuit Court judge is managing 659 cases at the same time – and that, on average, judges of that court have 337 matters on their dockets.
Attached to this dissenting report is an open letter to the Attorney-General regarding the government's misconceived proposal (Attachment A). It has been signed by more than 110 organisations, a number of which also made submissions to this inquiry. We encourage the Attorney-General, his Department and every member of the Australian Parliament to read that letter.
Like the signatories to that open letter, Labor Senators recognise that there are significant problems with the family law system and that doing nothing is not an option.
First and foremost, the Government should do more – much more – to address what the Australian Law Reform Commission has described as a 'chronic lack' of resources in the Australian family law system.
Second, the Government should finally deliver on its commitment to provide a comprehensive response to the Australian Law Reform Commission's landmark report on the family law system.
Third, the Government should abandon these bills and instead engage with stakeholders to develop different models for reforming the family courts – models that will result in increasing specialisation in both family law and family violence and address the needs of Australian families.2
Separately, we note that the Family Court and Federal Circuit Court failed to provide responses to over 50 questions on notice prior to the tabling of the Committee’s report. Those questions predominantly relate to the current workload in the two courts and the significant delays being experienced by Australian families. In other words, those questions go to the heart of the problems that the Government says the bills are designed to address.
It is deeply disappointing that the Committee has been deprived of an opportunity to consider the responses to those questions prior to the completion of this inquiry.
Labor Senators also note that the Chief Justice of the Family Court and the Chief Judge of the Federal Circuit Court, The Honourable Justice Alstergren, recently wrote a letter to the Committee (the content of which is confidential). Despite the letter being dated 12 November 2020, a copy of that letter was not provided to the committee secretariat until the morning of 20 November 2020.
As a result of it not being provided to the secretariat, the Committee was not able to properly consider that letter prior to the tabling of this report.
Senator the Hon Kim CarrSenator Anthony Chisholm
Deputy ChairLabor Senator for Queensland

Attachment A

  • 1
    Note that the Committee conducted an inquiry into the previous iterations of these bills, the Federal Circuit and Family Court of Australia Bill 2018 and the Federal Circuit and the Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018, in 2018–19. That inquiry received well over 100 submissions.
  • 2
    As a starting point, the proposal by the New South Wales Bar Association, which has received widespread support, warrants very careful consideration.

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