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The Family Court system has been struggling for years, yet a decision to merge it with the Federal Circuit Court has provoked both concern and support from stakeholders across the spectrum. By Rick Morton.

Family Court merger

One Nation leader Senator Pauline Hanson in Parliament.
Credit: AAP Image / Mick Tsikas

Late on Wednesday night, by a two-vote majority, the Family Court of Australia was abolished. Sort of.

On its face, the legislation does little to change the way family legal matters are arbitrated in Australia. In fact, it provides better access to court for people living in rural and remote areas; especially women. It is possible, even, that wait times will be reduced under the streamlined structure, which folds the specialist court into a new entity called the Federal Circuit and Family Court of Australia (FCFC). On that last point though, critics of the merger strongly disagree.

For author and family violence reform advocate Jess Hill, “It’s the chaotic motivation behind this that makes me have a sharp intake of breath.”

“Maybe they’re doing it to secure votes in the parliament, maybe it’s about the budget,” says Hill, author of See What You Made Me Do, an investigation of family violence in Australia. “We just do not know what problem the government is trying to fix here.”

The change was swept through quickly. Introduced without warning to the government order of business on Tuesday, it was passed through the senate late Wednesday, with the vote turning on the support of the independent South Australian senator Rex Patrick.

The legislation’s many detractors have pointed out the merger has passed even before the controversial family law inquiry was able to report, which is due next Thursday.

But another aspect raising warning flags is that the merger’s key backers are a Coalition MP who’s soon to be out of parliament and a female senator who believes there needs to be a Minister for Men.

Kevin Andrews – who was moved out of the Social Services portfolio after trying to implement “relationship counselling vouchers” – is the chair of the joint select committee on Australia’s family law system.

His offsider in the enterprise is One Nation leader Pauline Hanson, who has been campaigning for the abolition of the Family Court since 1996. She has become notorious for serially making unproven claims that women habitually lie about family violence.

“There’s so much harm being done. We got it wrong with the Family Law Act 1975,” Hanson told the senate on Wednesday evening, as the bill went to a vote. “We have moved on from there. We are now at a stage where we have to make a difference.”

The irony wasn’t lost on family violence advocates that in casting her vote alongside One Nation colleague Malcolm Roberts, Hanson ended up supporting a bill that explicitly states: “Although family violence is perpetrated by and against both men and women, the majority of those who experience family violence are women, and thus affect women disproportionately. It is therefore suggested that family violence amounts to discrimination against women.”

The merger was met with a sharp rebuke by a chorus of 155 stakeholders, including the National Aboriginal and Torres Strait Islander Legal Services, the Law Council of Australia, Women’s Legal Services Australia and 15 retired judges, former Chief Justice of the Family Court Elizabeth Evatt among them.

“Stakeholders have called for three years for the merger not to be passed, out of concern it would have devastating impacts on families, result in a loss of structural, systemic specialisation and dismantle the appeal division,” the coalition’s statement said.

These fears were echoed by most of the opposition; that the longstanding Family Court would be stripped of expertise developed over 45 years since the landmark reforms made under Gough Whitlam. Without proper resourcing – and it has already been starved of funding over the life of this Coalition government with real recurrent spending being almost halved to $58 million each year – wait times would blow out regardless of the model being used.

In its 2020 report on government services, the Productivity Commission revealed that between 2012 and 2019 there was a 34 per cent increase in the Family Court backlog, and a 63 per cent increase for the Federal Circuit Court.

Last year’s budget provided an extra $120 million over four years, with two-thirds of that going directly to family law services alongside an additional Family Court judge, five registrars and more support staff.

For his part, Patrick says his decision to support the bill came after weighing up the two options on the table.

“When the government first introduced the bill into the 45th parliament they had an overt intention to shut down the Family Court,” he tells The Saturday Paper.

“Significant improvements were made to that bill and I felt a strong need to put a safeguard in to prevent any future attorney-general abolishing the court and its expertise simply by not replacing retired justices.”

Patrick won changes to the proposed legislation that now include a minimum floor in the number of specialist Family Court judges. Under these amendments, there must always be at least 25 of them. A previous version of the bill had no such guarantee, which could have seen the number reduced to zero through natural attrition. Currently, there are 37 specialist Family Court judges.

According to the bill’s explanatory memorandum, the new judicial body would “comprise two divisions. Division 1… would be a continuation of the Family Court. Division 2… would be a continuation of the Federal Circuit Court”.

It would also create a single pathway into the family law system, with one application form and a guarantee it will end up in the right division. Critics argue the actual pipeline could still deliver vulnerable people into the wrong division if there is not appropriate oversight. However, even as it currently operates, the general division of the Federal Circuit Court does the vast majority of family law cases in Australia. Only the most complex end up in the Family Court. The general family law duties of the Circuit Court will be preserved in Division 2 of the merged model.

The explanatory memorandum for the bill promises that for matters involving family violence and allegations of sexual abuse, the “single case management framework” will mean urgent and high-risk cases will be prioritised and that “each case to be allocated to the judge and division with the appropriate expertise and capacity to hear the matter”.

Amendments made in 2012 to the Family Law Act have been duplicated under this new law. This means it remains the case that the primary consideration of the judiciary in family matters is the protection of children and not the promotion of parental contact with children where safety is cause for concern.

Of course, an administrative change such as this is no bulwark against a judicial culture in which women who’ve experienced violent trauma and emotional abuse are too often not believed as witnesses.

In research immediately following government changes in 2006 that forced judges to apply greater emphasis to children having “meaningful” contact with both parents, legal academic Patricia Easteal analysed 60 family law or family violence cases that appeared in legal databases where the facts included allegations of violence or child abuse.

Of these cases, 42 judgements were made that gave unsupervised access to a parent – mostly a man – who had committed the violence or assault. Three of these included direct cases of child abuse. Only eight orders were made dictating no time could be spent with children. Even after the 2012 amendments which ranked child safety above parental contact, this perverse culture persisted.

Because of the messy reality of what actually happens in the Family Court system, some unlikely groups are raising cautious support for the merger.

Women’s Safety New South Wales chief executive Hayley Foster concedes that the support coming from women who’ve experienced the existing systems may seem counterintuitive. But it is coming from bitter experience.

“The Family Court system is not a picnic right now and we do need to reform it,” she says. “Many of our regional members think this is promising because most of them right now don’t even have access to a Circuit Court registrar or have to travel seven or eight hours in some cases just to [access one].

“Having the two entry points to the system never made any sense and our members are saying they actually want the one court.”

Foster completed an honours thesis examining the outcomes of Family Court decisions when contrasted with those made by less specialised judges in similar matters of the Circuit Court general division.

She says the outcomes in the Family Court are not better than those in the general division of the current Federal Circuit Court.

“It absolutely is the case that when you go to the Family Court there is a massive culture in trying to pressure child contact [with a parent] despite all the evidence that it would likely be harmful to the child,” she says.

To give an indication of the extent of the problem, the Australian Law Reform Commission has, since 2010, recommended that state and territory magistrates be “encouraged” to exercise their powers in family law precisely because they have a better understanding of the complexity of family violence and patterns of abuse and control. Although no system is perfect, magistrates at least exist outside the rarefied chambers of Family Court judges, some of whom have developed their own peculiar prejudgements about the men and women who come before them.

“In those courts, the magistrates really have a focus on safety and trying to prevent violence,” Foster says. “And many of our members actually support that, they don’t want to have to be going to another court [such as the Family Court of Australia] to re-prove their victimhood.

Senior people within the Family Court acknowledge there is a long way to go before the operating model of the court is re-balanced to better protect children and offer support to victims of family violence.

To that end, Chief Justice William Alstergren has been making considerable effort. But time, it seems, will do most of the work. About 12 Family Court judges are expected to retire in the next two years with a similar number due in the Circuit Court.

In the past decade, much of the oxygen in the debate about the Family Court has been taken up by men’s rights activists, who are campaigning against what they see as bias. However, Jess Hill says the actual court outcomes do not support this claim, and that judgements typically support men having access to their children, even in circumstances of serious violence.

“If anything good comes from this merger it seems like it will be absolutely by chance,” she says. “My real concern is that this is effectively a massive boost for Pauline Hanson, who can claim a huge scalp for the anti-feminist movement, and that, to me, is such a miscarriage of justice.” 

National Sexual Assault, Domestic and Family Violence Counselling Service 1800 737 732.

This article was first published in the print edition of The Saturday Paper on Feb 20, 2021 as "A death in the family".

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Rick Morton is The Saturday Paper’s senior reporter.