Introduction
The Joint Select Committee on Australia’s Family Law System was appointed by resolution of the Senate on 18 September 2019. This inquiry follows 67 other inquiries and reports into family law since the Family Law Act 1975 (Family Law Act) commenced on 5 January 1976.
Prior to this inquiry commencing, Labor members had genuine concerns about yet another inquiry into family law being instigated while many recommendations from previous inquiries had not been acted upon and, in some cases, not even responded to by the government. Just the two most recent reports—the House of Representatives Standing Committee on Social Policy and Legal Affairs Inquiry into a better family law system to support and protect those affected by family violence report tabled in December 2017; and the Australian Law Reform Commission Family Law for the Future—An Inquiry into the Family Law System tabled in March 2019, have a combined 93 recommendations to the Government to improve the family law system. Most of these recommendations have not been acted on.
This committee has now tabled four reports, including this final report. In total this committee has made 52 recommendations to improve Australia’s family law system and the national Child Support Scheme.
Labor members, despite their initial reservations, have worked hard in the committee process to achieve majority recommendations that will, if acted upon by government, improve the family law system. These additional comments by Labor members are included in this final report to provide a fuller explanation to some of the themes raised in the final report.
Recent Developments in Australia’s Family Law System
The Abbott/Turnbull/Morrison Governments have effectively turned off the tap to resourcing Australia’s Family Law System for over eight years. The Coalition put their ideological aversion to the Family Court of Australia before the welfare of Australian families. The tap was only turned back to a trickle once the Coalition had effectively abolished the specialist Family Court of Australia, and the new generalist Federal Circuit and Family Court of Australia had been established.
The Abbott/Turnbull/Morrison Coalition Governments have had more than eight years to implement new developments to improve access to justice for families. Instead, the Coalition Government chose to starve the Australian Family Law System of resources. Families have suffered from delays in the court system. Harm and heartache and worse could have been avoided had resources been provided during those eight years. As the President of the Law Council of Australia told the committee, the:
… failure to make timely appointments of judicial officers and registrars. This has created a backlog of cases, produced delays and frustrated the proper management of the resources that the courts have.
It is disingenuous of the Coalition Government to now claim credit for any improvements in the Family Law System resulting from new developments that could, and should, have occurred many years earlier. It is even more disingenuous to claim that any improvements are a result of the merger of the Family Court of Australia and the Federal Circuit Court.
Merger of the Family Court of Australia and the Federal Circuit Court
The Family Court of Australia opened its doors on 5 January 1976 and was abolished by the Morrison lead Coalition Government on 31 August 2021. On 1 September 2021 the Federal Circuit and Family Court of Australia commenced operation.
The merger of the Family Court of Australia and the Federal Circuit Court was not recommended by any parliamentary inquiry or report, or any report by experts in family law. A desktop review by PricewaterhouseCoopers Australia (PwC) recommended a restructure in similar terms to the Merger Bill but with the caveat that stakeholder advice should be sought if the Australian Law Reform Commission (ALRC) did not make a similar recommendation. The ALRC did not make any such recommendation to merge the courts or abolish the Family Court.
This committee heard evidence that merging the two courts would cause harm to families, including from Ms Elizabeth Evatt, former Chief Justice of the Family Court, who said in her submissions to the committee:
… the proposed merger of the Family Court and the Federal Circuit Court is likely to undermine the integrity of the Family Court and lead to undesirable outcomes for the parties.
The majority final report of this committee lists a number of benefits from the merger, including:
A new case management pathway
Harmonised family law rules
New family law practice directions
A focus on dispute resolution
Enhanced child expert reporting processes, and
Each of the benefits listed above could have been achieved without abolishing the specialist Family Court of Australia.
The harmonising of the family law rules was already well underway in February 2020 when Mr Cameron Gifford from the Attorney-General's Department gave evidence to the committee and said:
At the moment, they're in what I would describe as the internal consultation stage. They're developing what would look like a single consistent set of rules.
There has always been a focus on dispute resolution under the Family Law Act 1975. Section 60I (1) states:
The object of this section is to ensure that all persons who have a dispute about matters that may be dealt with by an order under this Part (a Part VII order) make a genuine effort to resolve that dispute by family dispute resolution before the Part VII order is applied for.
A new case management pathway, new family law practice directions, enhanced child expert reporting processes, and a modernised website, could all have been achieved without abolishing the Family Court of Australia.
During the conduct of this Inquiry, the committee was briefed by the Family Court of Western Australia, a specialist stand-alone court combining the functions of a superior court and a lower court. Labor members were impressed with the depth of specialisation at every level of this court and the professional focus applied to the sole aim of the court: to provide access to justice to fractured families.
Time will tell just how detrimental the abolition of the specialist Family Court of Australia will be for families. The committee was warned about the possible consequences by the Law Council of Australia who said in their opening remarks to the committee that it would:
... mean that Australian families and children will have to compete for the resourcing and hearing time with all federal matters—that is, other matters like migration, bankruptcy and those sorts of things that the Federal Circuit Courts and the Federal Courts deal with. There must be an increase not a decrease in specialisation in family law and violence issues. This is critical for the safety of children and victims of family violence.
Recruitment of Registrars
The commencement of the Federal Circuit and Family Court of Australia was heralded with a cache of non-judicial resources being thrown at the new merged court. Forty-two new Registrars were engaged by the court to alleviate the burden on judges during proceedings. The Registrars will have enhanced roles and new titles: Senior Judicial Registrars, Judicial Registrars or Deputy Registrars.
Labor members of the committee are pleased that more resources are finally being directed at the Family Law System. As Mr Paul Doolan from the Law Council of Australia told the committee in March 2020:
Part of the reason there is such a problem in the system is there are not enough judges and registrars and counsellors to deal with the volume of work that's in the family law system.
However, there is no reason that the recruitment of more Registrars could not have occurred before the courts were merged. This should have occurred years earlier and would have saved many families from long and dangerous delays in the Family Court System.
Expansion of the Family Advocacy and Support Services Program
Labor members of the committee acknowledge that the Coalition Government has announced it will adopt recommendation 26 of this committee’s Second Interim Report and will expand the Family Advocacy and Support Services (FASS) program to all Family Court registries.
Again, it is disappointing that the Coalition Government has not acted sooner to implement this recommendation which had previously been recommended in the 2017 report by the House of Representatives Standing Committee on Social Policy and Legal Affairs, Parliamentary Inquiry into a better family law system to support and protect those affected by family violence and the 2019 report by the ALRC, Family Law for the Future — An Inquiry into the Family Law System: Final Report.
National Information Sharing Network
Labor members of the committee acknowledge that the Government has announced funding over four years to enable information sharing between the Family Law and Family Violence and Child Protection Systems.
Once again, this announcement is long overdue. There have been many previous recommendations to provide information sharing between the Family Law System and Family Violence and Child Protection Systems, including:
Family Law Council’s recommendations in its 2015 Families with complex needs and the intersection of the family law and child protection systems – Interim Report
the 2017 report by the House of Representatives Standing Committee on Social Policy and Legal Affairs, Parliamentary Inquiry into a better family law system to support and protect those affected by family violence; and
the 2019 ALRC, Family Law for the Future — An Inquiry into the Family Law System: Final Report
As Ms Elizabeth Evatt, former Chief Justice of the Family Court, said in her evidence to the committee:
The division between the Family Court and the child protection systems of the states is really a tremendous disadvantage at the present time ... The Law Reform Commission has made some very valuable recommendations to overcome these difficulties. It recommends that the Australian government should work with the state and territory governments to develop a national information sharing framework and to work out the protocols for dealing with these issues so that children don't fall between the cracks and disputes arise between the court.
Labor members of the committee note that the Coalition Government has not provided any detailed timeframe for the completion of the information sharing system.
Children’s Contact Services
Labor members of the committee note the Attorney-General's Department has indicated the Government is progressing work on accreditation for Children’s Contact Services as recommended by this committee’s Second Interim Report.
Labor members also note there is no timeframe for this work to be completed or any indication of funding to support an accreditation system for Children’s Contact Services.
Once again, this is a recommendation that has been made by previous inquiries. The ALRC in their 2019 Family Law for the Future—An Inquiry into the Family Law System: Final Report recommended that Children’s Contact Service be accredited and make it an offence to provide a Children’s Contact Service without accreditation.
As the ALRC said in their report:
... some of the most vulnerable children and families are being provided a crucial safety service by organisations or individuals lacking accreditation or oversight.
The Coalition Government has delayed acting on an important recommendation that would make the Family Law System safer for vulnerable children.
Increased Funding for Legal Services
This committee recommended the Government increase funding for legal aid and community legal centres in its Second Interim Report.
As part of the Women’s Safety Budget Package, the Government announced it would provide $129 million over four years from 2021-2022 for increased funding to help vulnerable women access justice.
Labor members welcomed the announcement of the additional funding for women’s legal services when it was made. However, the Attorney-General’s Department made it clear in Senate Estimates hearings recently that the $129 million was not earmarked exclusively for women’s legal services as the announcement stated but could be allocated by the states and territories to ‘legal aid commissions, Aboriginal legal services or community legal centres’. The practical effect of that distinction is the funding could be used to defend perpetrators of violence rather than to ‘help women access justice’ as the Government’s media release stated.
Lighthouse Project
The majority final report of this committee includes a recommendation to expand the Lighthouse Project to all registries and all parenting and parenting and property matters. Labor members support this recommendation.
The Lighthouse Project was an initiative of the Family Court of Australia. Development of the project was commenced by Senior Registrar, Ms Lisa O’Neill in 2018 and the first business case was completed in the second half of 2019. To be clear, this project was not a proposal put forward by the Coalition Government or any other political party, instead it was the result of hardworking professional court staff, responding to the needs of complex families coming before the courts. Labor members congratulate the court for this innovative project and thank the professional staff for their expertise in designing this important screening tool.
The Lighthouse Project commenced operation in early 2021, many months before the merger of the Family Court of Australia and the Federal Circuit Court took place. The Family Court of Australia did not need to be abolished for this important initiative to be implemented.
Priority Property Pools under $500,000 (PPP500) pilot
Labor members support the recommendation in this committee’s majority final report to expand the PPP500 pilot to all registries and that this program be appropriately resourced with additional funding.
The Family Court of Australia did not need to be abolished for this important program to be implemented.
Federal Family Violence Orders
Labor members support the recommendation in this committee’s majority final report for sufficient resources to be provided by the Government to implement and enforce Federal Family Violence Orders if the Family Law Amendment (Federal Family Violence Orders) Bill 2021 is passed.
Labor members have concerns about the current form of the Family Law Amendment (Federal Family Violence Orders) Bill 2021 and the commencement of the scheme, including:
There is no provision for interim Federal Family Violence Orders to be made, when we know that victims of family violence often require urgent protection orders.
The success of the proposed Federal Family Violence Orders scheme relies on a functioning real-time information sharing system. As discussed above, the Government has not provided any timeframe for the completion of an information sharing system.
Litigants in regional areas with no Federal Circuit and Family Court of Australia registry may have difficulty accessing Federal Family Violence Orders.
The Federal Family Violence Orders scheme is unlike any work currently undertaken by the Federal Circuit and Family Court of Australia and state and territory police. Judicial and non-judicial court staff and police will need training on the implementation of the scheme prior to its commencement.
The additional work required by the court to implement this scheme will need to be appropriately resourced.
Labor members of the committee urge the Coalition Government to remedy the current issues with this Bill before asking for Parliament’s support.
Labor members urge the Coalition Government to properly resource the Federal Family Violence Orders scheme. Under-funded programs that are set up to support victims of family violence can cause more harm to vulnerable families. We have seen this happen before with the Cross-examination of Parties Scheme introduced in 2018. Despite multiple warnings to the government about the inadequacy of its funding, on multiple occasions parties were left stranded with no legal representatives and unable to have their matters finalised before the court.
Final Comments
Labor members would like to express their gratitude to each of the 1,700 submitters, to every person and organisation who attended the public hearings, and to each person who bravely told their very personal stories to the committee during one of the 13 in camera hearings.
The Family Law System should not be just an add-on to our justice system. Family law is often the only contact people have with the court system and it will occur at a time when families are at their most desperate and vulnerable. Access to justice in family law can only be achieved with a specialised and well-resourced Family Law System.
Labor members of the committee recommend that the Government of the 47th Parliament reverse damage done by abolishing the Family Court of Australia by improving specialisation and returning Australia’s family law system to one modelled on international best practice.
Labor Member for Moreton
Labor Senator for Tasmania
Labor Member for Cowan