Division Description Changes — Bills — Federal Circuit and Family Court of Australia Bill 2019, Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019; Second Reading — 17th Feb 2021

Change	Division
senate vote 2021-02-17#8 Edited by mackay staff on 2022-07-15 09:44:28	Title Bills — Federal Circuit and Family Court of Australia Bill 2019, Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019; Second Reading Federal Circuit and Family Court of Australia Bill 2019 and another - Second Reading - Refer to committee Description ~~<p class="speaker">Patrick Dodson</p>~~ <p>I rise to speak on the Federal Circuit and Family Court of Australia Bill 2019 and the related bill and express my strong opposition to this misguided reform. The Family Court was established in 1975 under the Whitlam Labor government as a standalone specialist Family Court. The establishment of the court along with no-fault divorce put Australia at the forefront of developments in the field of family law. Whitlam's reform served as a model that was lauded and adopted around the world. This is a history and legacy we should be proud of and committed to constantly improving, not dismantling, and that is what this legislation seeks to do—to dismantle one of the most important components of our family law framework while at the same time failing to address the real issues plaguing the current family law system.</p> The majority voted against an amendment to the usual second reading motion. The usual second reading motions is "that the bills be read a [second time](https://peo.gov.au/understand-our-parliament/how-parliament-works/bills-and-laws/making-a-law-in-the-australian-parliament/)," which is parliamentary jargon for agreeing with the main idea of the bill. ### Amendment text > Omit all words after "that", insert: > *> "the bills be referred to the Legal and Constitutional Affairs Legislation Committee for further consideration, including examination in detail of the alternative 'Family Court 2.0' model proposed by the NSW Bar Association in 2018 and also recommended by the 2008 Future governance options for federal family law courts in Australia reportby Mr Des Semple (the Semple Report) and endorsed by a large number of stakeholders, which would relocate judicial officers hearing family law matters and the family law jurisdiction of the Federal Circuit Court into a second division within** the Family Court, with a reporting date of no earlier than 20 May 2022."* <p>This legislation would strip the Family Court of its essential distinguishing feature—its specialist nature as a superior court dedicated to family law. It would merge the Family Court with one of Australia's most poorly resourced and overburdened courts, the Federal Circuit Court. As Ms Pauline Wright, President of the Law Council of Australia, has explained, this merger would mean that Australian families and children would have to compete for the resourcing and hearing time with all federal matters—that is, on matters like migration, bankruptcy and those sort of things that the Federal Circuit Court and the Federal Court deal with it. The merger would result in the effective abolition of the Family Court of Australia, a respected, specialised and focused court dealing with family law issues. She said—and I agree—that there must be 'an increase, not a decrease, in specialisation within family law and violence issues'. This is critical to the safety of children and the victims of family violence. Family law matters are not like other legal matters that generalist courts tend to deal with. They involve complex relationships, power dynamics and, most importantly, the lives and wellbeing of children. These matters require nuanced, experienced and specialised responses, the kinds of responses that are made possible by a specialised court like the Family Court.</p> ~~<p>At the time the Family Law Bill was debated in 1974, Gough Whitlam recognised the importance of specialisations, when he said:</p>~~ <p class="italic">The Family Court will, of course, determine legal rights, which it is bound to do as a court, but it will do much more than that. Here will be a court, the expressly stated purpose of which is to provide help, encouragement and counselling to parties … and to have regard to their human problems, not just their legal rights.</p> <p>Recognising the importance of a specialised family court is not to deny the serious problems that currently exist in the family law system. Multiple reports over the last decade have explored these problems and diagnosed them as real causes. The Australian Law Reform Commission has conducted one of the most comprehensive inquiries into the family law system. Its landmark report, which this government has ignored, stated:</p> <p class="italic">… the family law system 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.</p> <p>Over the last seven years of Liberal government, the family law system has been neglected. Family Court and Federal Circuit Court judges have not been replaced in a timely manner. Funding has not increased to match growing demand. Legal assistance services that support children and the most vulnerable litigants have been squeezed of resources. But, instead of fixing these underlying issues, the government is determined to restructure the Family Court and the Federal Circuit Court in a way that makes a bad situation even worse for families and children. This legislation is not the solution. It is opposed by virtually all of the family law sector. Some 110 stakeholders have written to the Attorney-General asking him to abandon this legislation. They include judges, legal sector representatives, child protection advocates and First Nations stakeholders. To take just one eminent example, Elizabeth Evatt AC, the very first Chief Justice of the Family Court, warned:</p> ~~<p class="italic">Merging the Family Court into a generalist court will undermine the integrity and the structural specialisation of the Family Court.</p>~~ ~~<p class="italic">…   …   …</p>~~ <p class="italic">The increasing number of cases in which issues of family violence and child abuse are raised has led to an even greater need today for family law jurisdiction to be vested exclusively in specialised judges who can give their full attention to the needs of family law clients without being diverted to exercise other unrelated jurisdictions. The current bill undermines this principle, is not in the public interest and should not be enacted.</p> ~~<p>I want to speak briefly about the First Nations perspective. The National Aboriginal and Torres Strait Islander Legal Services has said that the proposed merger:</p>~~ ~~<p class="italic">will disproportionately impact the most vulnerable including Aboriginal and Torres Strait Islander children and families who need the most support.</p>~~ ~~<p>They've said:</p>~~ <p class="italic">From our experience, as Aboriginal organisations, we say that mainstreaming does not achieve efficiency or better outcomes for our people and that specialisation in the law is important and it works. Our main call is for more specialisation and more resourcing into the cultural competence of the family court system. The introduction of specialist Aboriginal Courts in the family law system has seen an increase in Aboriginal participation. We implore the Parliament to do the right thing by our communities and reject this bill which does not address the root causes of these problems. We fear, in the middle of this global pandemic, the bill will exacerbate the issues that our communities are facing.</p> <p>How often do the pleas and beggings of First Nations organisations have to be made in the chamber only to see them ignored? It seems you're only capable of hearing about what you can do to the First Nations peoples and not what you can do with us. Even with a First Nations minister, why is it so difficult for this government to listen and to respond to First Nations peoples?</p> <p>Only two days ago in this parliament, to mark the anniversary of the National Apology to the Stolen Generations, in my statement to this chamber I spoke of the terrible suffering and grief caused by the removal of children. I spoke of the continuing pain caused by the overrepresentation of First Nations children in out-of-home care today. Let me repeat some of those salient facts. First Nations children are nearly 10 times more likely to be living in out-of-home care than non-Indigenous children. There are currently over 20,000 First Nations children in out-of-home care in Australia. They make up 37 per cent of the total number of children in out-of-home care, despite representing only six per cent of the children's population. More First Nations children are in care than at the time of the <i>Bringing them home</i><i>report</i>, which was published more than 20 years ago. These figures are totally unacceptable, and they are worsening.</p> <p>While the child protection system is distinct from the family law system, there is a critical connection. The family law system plays an important part in diverting families from the child protection system. It is an avenue for families. It's an avenue they can use to raise issues early and enable family members to step in and seek care of their children without the intervention of the state. By accessing specialist courts proactively, aunties, uncles, grandparents and parents can protect their children and ensure they remain connected to family and country in ways that are made much more difficult once child protection services get involved.</p> <p>A bill that diminishes the Family Court and the Family Court system is a bill that does not serve the interests of First Nations peoples. Yet, again, this government shows its disdain for the views of First Nations peoples. A good family law system would take a human rights approach underpinned by principles of self-determination. A good family law system would see the appointment of specialist judges with the ability to decide cases in culturally appropriate ways. A good family law system would fund the preparation of cultural reports to aid those judges in their decision-making. A good family law system would adequately fund the legal assistance services to provide advice and representation to vulnerable litigants, including First Nations litigants. A good family law system would provide family support services that are culturally safe for First Nations peoples.</p> <p>All of these things our government can do, but will they do them? No. On the vote of a couple of people we're going to go down the road and destroy one of the best things done under the Whitlam government. It has proven to be one of our best institutions in this nation, despite the lack of resourcing. The government can do all of these things. Instead, they are intent on dismantling a core component of what once made our family law system the envy of the world.</p> ~~<p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>~~

~~Patrick Dodson~~
I rise to speak on the Federal Circuit and Family Court of Australia Bill 2019 and the related bill and express my strong opposition to this misguided reform. The Family Court was established in 1975 under the Whitlam Labor government as a standalone specialist Family Court. The establishment of the court along with no-fault divorce put Australia at the forefront of developments in the field of family law. Whitlam's reform served as a model that was lauded and adopted around the world. This is a history and legacy we should be proud of and committed to constantly improving, not dismantling, and that is what this legislation seeks to do—to dismantle one of the most important components of our family law framework while at the same time failing to address the real issues plaguing the current family law system.
The majority voted against an amendment to the usual second reading motion. The usual second reading motions is "*that the bills be read a [second time](https://peo.gov.au/understand-our-parliament/how-parliament-works/bills-and-laws/making-a-law-in-the-australian-parliament/)*," which is parliamentary jargon for agreeing with the main idea of the bill.
### Amendment text
> *Omit all words after "that", insert:*
>
> *"the bills be referred to the Legal and Constitutional Affairs Legislation Committee for further consideration, including examination in detail of the alternative 'Family Court 2.0' model proposed by the NSW Bar Association in 2018 and also recommended by the 2008 Future governance options for federal family law courts in Australia reportby Mr Des Semple (the Semple Report) and endorsed by a large number of stakeholders, which would relocate judicial officers hearing family law matters and the family law jurisdiction of the Federal Circuit Court into a second division within the Family Court, with a reporting date of no earlier than 20 May 2022."*
This legislation would strip the Family Court of its essential distinguishing feature—its specialist nature as a superior court dedicated to family law. It would merge the Family Court with one of Australia's most poorly resourced and overburdened courts, the Federal Circuit Court. As Ms Pauline Wright, President of the Law Council of Australia, has explained, this merger would mean that Australian families and children would have to compete for the resourcing and hearing time with all federal matters—that is, on matters like migration, bankruptcy and those sort of things that the Federal Circuit Court and the Federal Court deal with it. The merger would result in the effective abolition of the Family Court of Australia, a respected, specialised and focused court dealing with family law issues. She said—and I agree—that there must be 'an increase, not a decrease, in specialisation within family law and violence issues'. This is critical to the safety of children and the victims of family violence. Family law matters are not like other legal matters that generalist courts tend to deal with. They involve complex relationships, power dynamics and, most importantly, the lives and wellbeing of children. These matters require nuanced, experienced and specialised responses, the kinds of responses that are made possible by a specialised court like the Family Court.
~~At the time the Family Law Bill was debated in 1974, Gough Whitlam recognised the importance of specialisations, when he said:~~
The Family Court will, of course, determine legal rights, which it is bound to do as a court, but it will do much more than that. Here will be a court, the expressly stated purpose of which is to provide help, encouragement and counselling to parties … and to have regard to their human problems, not just their legal rights.
Recognising the importance of a specialised family court is not to deny the serious problems that currently exist in the family law system. Multiple reports over the last decade have explored these problems and diagnosed them as real causes. The Australian Law Reform Commission has conducted one of the most comprehensive inquiries into the family law system. Its landmark report, which this government has ignored, stated:
… the family law system 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.
Over the last seven years of Liberal government, the family law system has been neglected. Family Court and Federal Circuit Court judges have not been replaced in a timely manner. Funding has not increased to match growing demand. Legal assistance services that support children and the most vulnerable litigants have been squeezed of resources. But, instead of fixing these underlying issues, the government is determined to restructure the Family Court and the Federal Circuit Court in a way that makes a bad situation even worse for families and children. This legislation is not the solution. It is opposed by virtually all of the family law sector. Some 110 stakeholders have written to the Attorney-General asking him to abandon this legislation. They include judges, legal sector representatives, child protection advocates and First Nations stakeholders. To take just one eminent example, Elizabeth Evatt AC, the very first Chief Justice of the Family Court, warned:
~~Merging the Family Court into a generalist court will undermine the integrity and the structural specialisation of the Family Court.~~
~~…   …   …~~
The increasing number of cases in which issues of family violence and child abuse are raised has led to an even greater need today for family law jurisdiction to be vested exclusively in specialised judges who can give their full attention to the needs of family law clients without being diverted to exercise other unrelated jurisdictions. The current bill undermines this principle, is not in the public interest and should not be enacted.
~~I want to speak briefly about the First Nations perspective. The National Aboriginal and Torres Strait Islander Legal Services has said that the proposed merger:~~
~~will disproportionately impact the most vulnerable including Aboriginal and Torres Strait Islander children and families who need the most support.~~
~~They've said:~~
From our experience, as Aboriginal organisations, we say that mainstreaming does not achieve efficiency or better outcomes for our people and that specialisation in the law is important and it works. Our main call is for more specialisation and more resourcing into the cultural competence of the family court system. The introduction of specialist Aboriginal Courts in the family law system has seen an increase in Aboriginal participation. We implore the Parliament to do the right thing by our communities and reject this bill which does not address the root causes of these problems. We fear, in the middle of this global pandemic, the bill will exacerbate the issues that our communities are facing.
How often do the pleas and beggings of First Nations organisations have to be made in the chamber only to see them ignored? It seems you're only capable of hearing about what you can do to the First Nations peoples and not what you can do with us. Even with a First Nations minister, why is it so difficult for this government to listen and to respond to First Nations peoples?
Only two days ago in this parliament, to mark the anniversary of the National Apology to the Stolen Generations, in my statement to this chamber I spoke of the terrible suffering and grief caused by the removal of children. I spoke of the continuing pain caused by the overrepresentation of First Nations children in out-of-home care today. Let me repeat some of those salient facts. First Nations children are nearly 10 times more likely to be living in out-of-home care than non-Indigenous children. There are currently over 20,000 First Nations children in out-of-home care in Australia. They make up 37 per cent of the total number of children in out-of-home care, despite representing only six per cent of the children's population. More First Nations children are in care than at the time of the Bringing them homereport, which was published more than 20 years ago. These figures are totally unacceptable, and they are worsening.
While the child protection system is distinct from the family law system, there is a critical connection. The family law system plays an important part in diverting families from the child protection system. It is an avenue for families. It's an avenue they can use to raise issues early and enable family members to step in and seek care of their children without the intervention of the state. By accessing specialist courts proactively, aunties, uncles, grandparents and parents can protect their children and ensure they remain connected to family and country in ways that are made much more difficult once child protection services get involved.
A bill that diminishes the Family Court and the Family Court system is a bill that does not serve the interests of First Nations peoples. Yet, again, this government shows its disdain for the views of First Nations peoples. A good family law system would take a human rights approach underpinned by principles of self-determination. A good family law system would see the appointment of specialist judges with the ability to decide cases in culturally appropriate ways. A good family law system would fund the preparation of cultural reports to aid those judges in their decision-making. A good family law system would adequately fund the legal assistance services to provide advice and representation to vulnerable litigants, including First Nations litigants. A good family law system would provide family support services that are culturally safe for First Nations peoples.
All of these things our government can do, but will they do them? No. On the vote of a couple of people we're going to go down the road and destroy one of the best things done under the Whitlam government. It has proven to be one of our best institutions in this nation, despite the lack of resourcing. The government can do all of these things. Instead, they are intent on dismantling a core component of what once made our family law system the envy of the world.
~~Long debate text truncated.~~