Wednesday, 30 May 2018




Subjects: Family Court Reform

SABRA LANE: The Federal Government's announced it is scrapping the Family Court effective from next year and merging it with the Federal Circuit Court. The Attorney-General says the amalgamation will result in shorter waiting times, faster resolutions of family disputes, that it will also clear a backlog of cases and be cheaper. It also means from next January all appeals on Family Court matters will be heard by a new division within the Federal Court. The Attorney-General Christian Porter joined me earlier to discuss it.

Mr Porter, good morning and welcome to AM.

ATTORNEY-GENERAL: Sabra, great to be here.

SABRA LANE: Before we get to the court, your Coalition colleague Barnaby Joyce has taken leave amid public anger about this pay TV interview. Should he remain a parliamentarian?

ATTORNEY-GENERAL: Look, the reform that we're introducing today is about improving the lives of tens of thousands of Australian families. I'm just not going to be diverted from that by talking about one individual parliamentarian's leave. I mean, people take leave from time to time. I think he's been granted a pair. That's that.

SABRA LANE: He also, though, wants privacy reform to stop the kind of reporting that uncovered this relationship in the first place. As the nation's first legal officer, are you willing to have that conversation?

ATTORNEY-GENERAL: Can I say that that is not a primary focus of the Government and we are about to talk about one of the primary focuses of the Government, but that ain't one.

SABRA LANE: Onto the changes that you're announcing today, you've axed the Family Court. You're merging it with the Federal Circuit Court. Labor tried to do something like this years ago, but it abandoned it because of a backlash from the Bench. How will you succeed where they failed?

ATTORNEY-GENERAL: Well, they did try and do something similar and everyone that you talked to who understands the court system, but particularly the tens of thousands of Australians who use it, know that the system at the moment does not work at all well.

We have two parallel courts, different rules, forms, procedures, individuals who are in the system get bounced around like Family Law footballs from one court to the other - terrible outcomes for them. They wait too long and that just makes life worse in these very difficult circumstances.

So what we want to do is create a single court to make for a streamlined more efficient process and that will involve some change to the work complexion and work practices of some judges. But it will also mean enormous and positive improvement for tens of thousands of families. I mean, 22,000 matters are listed for final order in these courts every year, representing tens of thousands of Australians, and our priority is to get better outcomes for those Australians.

SABRA LANE: You're saying that the merger will help resolve a backlog of cases and will be cheaper. What are the numbers that you're talking about in both those instances?

ATTORNEY-GENERAL: Well, we've done some very detailed analysis of all of the performance indicators at the courts at the moment. What we would expect is that when those reforms are fully mature, and that will take some time, but when they're fully mature that we should be able to increase the throughput, the number of matters finalised every year, by up to a thousand matters. There are 22,000 matters listed for final outcome every year. So we think that you can improve efficiency by up to a third. That will take some time and it also depends on...


ATTORNEY-GENERAL: Yes, it will take years, but the immediate effects will be immediate. So you'll see improvements start from the beginning of next year when the new court is created. But an important part of this is once the new court is created, that new court will then be tasked, and there's $4 million in these reforms to assist the new court with this process of redesigning a single set of forms, rules, procedures, practice directions which are far superior to what we have at the moment, less procedural and mean that individuals in the court system will spend less time in the system, spend less on legal fees and that will produce much better results for families.

SABRA LANE: The Law Reform Commission is really looking at the court, with a report due next March. Why have you pre-empted that?

ATTORNEY-GENERAL: Well, it was a matter of such obviousness that the present structure was not working and was causing inefficiencies and duplications and delays that we considered that we could make the structural change.

The second round of reform, which is the new court itself redesigning its rules and practices and procedures, will necessarily be informed by the Law Reform Commission, and of course the Law Reform Commission is looking more at the actual law rather than the court structure.

So, I think that sometimes people want decisions rather than delays from their government and certainly people inside the court system wanted us to decide on a model which would end their delays in the system.

SABRA LANE: One Family Court judge apparently has written to his colleagues already, raising the idea of a possible constitutional challenge to this. How confident are you that it will withstand a challenge like that?

ATTORNEY-GENERAL: Well as you say, this has been contemplated before and there was the 2007 Semple review that went up to the then Labor Attorney-General, I think it was Robert McClelland at the time. So there are different ways in which you could create the new court. We've certainly decided to do it in a way which all the advice that we've received is absolutely constitutional. I've seen the email from the judge in question. I must say it's not a terribly loyally thing to say: look, we think there might be some reform, we're not sure of the details, the structure or the intricacies of it, but let's definitely appeal it. That seems to me a rather odd approach. But as I say…

SABRA LANE: …I think it's a very legal approach.

ATTORNEY-GENERAL: Well, I mean, it's a bit like, I don't know what Julia Gillard said, but I must say I definitely agree with it. I mean, you need to understand the detail of this and we've done this in a way that will ensure that it's constitutional. But ultimately it is not about the judges or the lawyers practicing in the area, it's about the tens of thousands of Australians who use the court and are waiting too long and are being transferred from court to court.

I'll give you one example: 1200 matters of the 21,000 listed were moved from one court to the other, and depending on where they were going to or from, those people either waited 11 months or five months and then were transferred to a new court and had to start the whole thing over again. And imagine how destructive that is to families and how much extra that means those families are paying in legal fees.

SABRA LANE: The last Family Court chief justice, Diana Bryant, said what was needed was more resources, more registrars and consultants to help separating parties settle the matters before getting to court hearings. What are you doing about that?

ATTORNEY-GENERAL: Well, one of the aspects of this rule change is that it does free up internal resources to be applied to the coalface work of determining matters. There's also $4 million allocated to these reforms to assist the court in the development of those types of things, practice procedures, rules, case management, so that this occurs in a quick, fast and cheaper way for people using the court.

SABRA LANE: That's the Attorney-General Christian Porter.