The Australian Greens acknowledge the extensive work of the Committee in this inquiry, particularly the Secretariat. We also thank everyone who gave evidence at the public hearings or who made a submission.
The Australian Greens acknowledge the staunch advocacy of survivors of family and domestic violence, including the organisations that advocate with and for them. Particularly as there have been numerous inquiries into family and domestic violence and the family law system, which have not been matched with the necessary reforms that survivors and families have been calling for.
The strongest protection for children, families and survivors of family and domestic violence is to maintain and strengthen a stand-alone, specialist family law court involving a holistic, specialist system of collaborative, culturally-safe, co-located services and resources.
This was the intention when the Family Court was created.
The bills
The bills before the committee are similar to the 2018 bills which the committee considered and reported on in February 2019. A number of changes have been made to the 2018 bills as they were presented to the last parliament, but the bills are materially identical and also with the same aim of merging the Family Court with the Federal Circuit Court.
The Australian Greens believe that significant changes to the family law system, like the one proposed in these bills, must strengthen the family law system and move it to being a person-focused, trauma informed, collaborative, holistic, and culturally safe system.
These bills do not do that.
More than 110 stakeholders in the family law system agree that the merger is not the solution and oppose the bill because it will put families at risk. Those stakeholders also agree they prefer the Family Court 2.0 model proposed by the NSW Bar Association.
A better solution
What families need now – and what they look to the Parliament to provide – is safety, security and as much certainty as possible during the pandemic and beyond.
Unlike the merger proposal, the Family Court 2.0 model proposes a straight-forward "lift and shift" of the Federal Circuit Court's family law jurisdiction and judges into a new lower division within the stand-alone, specialist Family Court.
Family Court Judges would be in Division 1 of the Family Court of Australia. Federal Circuit Court judges who are hearing family law matters would move across to Division 2 of the Family Court of Australia.
This model has been in force for many years in the Attorney-General's own state of Western Australia. This system was also recommended by the 2008 Semple Report and has been endorsed by stakeholders including the Law Council of Australia, Women's Legal Services Australia and former Chief Justice Elizabeth Evatt AC.
Unlike the Government's merger proposal, the Family Court 2.0 model would have the significant advantage of promoting safety for children and adults by preserving access to services of a specialist Family Court.
An increase in specialisation in family law and family violence will increase the safety of children and adult victims-survivors of family violence.
This is particularly the case for groups that are disproportionately impacted in the family law and family violence systems, including Aboriginal and Torres Strait Islander people. The need for increased and culturally safe specialisation of courts to improve decisions and outcomes for families is supported by the evidence of the many inquiries into the family law system.
The Family Court 2.0 proposal would produce what Australians clearly expect of their legal system: a single specialist family court to address the needs of the country's families within an integrated system of collaborative, culturally safe, and responsive support services.
The alarming prevalence of family violence in the system makes specialisation critical to promote safe engagement for survivors with the Courts and our justice system, from the time a matter is filed, through appropriate triage, active case management and expedited resolution. All the while providing excellent, culturally safe, wrap-around services.
A specialist family court must not be destroyed on a mirage that this will fix problems which, in reality, require more resources and holistic reform.
Funding for the family law ecosystem
At the core of so many of the issues confronted by the system is a chronic and sustained lack of proper funding and resources for the Family Court and the Federal Circuit Court, and a mismanagement of those resources.
This includes a failure to appoint and maintain sufficient and appropriately experienced judicial officers and associated staff and insufficient funding to maintain the counselling and assessment services previously provided by the courts.
Failing to strengthen the system has produced unacceptable delays and costs that directly impact on the accessibility and quality of justice.
In June 2020 the Australian Government committed to increased funding of legal assistance services as part of the National Legal Assistance Partnership (NLAP). This funding is welcome and desperately needed, it is not sufficient to meet current need, or comprehensively address two decades of significant under-funding and cumulative shortfalls by numerous governments.
Increased ongoing, adequate and certain funding through the National Legal Assistance Partnership 2020-25 must be a priority for the Australian Government to ensure that the legal assistance sector can meet the demands placed on it in times of crisis and beyond.
Recommendation
The Australian Greens recommend that the bill not be passed.
Recommendation
The Government must properly consider the better alternative of the 'Family Court 2.0' that is supported and preferred by stakeholders.
Recommendation
The Government commit to, at least, an additional $310 million a year in funding for legal assistance providers as identified by the Law Council to make up the shortfall of successive cuts Aboriginal and Torres Strait Islander Legal Services, Community Legal Centres, Women's Legal Services, Legal Aid Commissions. Substantial funding must also be made available to the social and support services that families and survivors of family and domestic violence require.
Recommendation
The Government properly provides the required public money to allow the Family Court and the Federal Circuit Court to appoint and maintain sufficient, appropriately experienced judicial officers and other staff that they may require as well as to provide sufficient, culturally safe, wrap-around, and responsive support for parties before the court.
Senator Lidia Thorpe
Greens Senator for Victoria