Show us the money: Government refuses to release report showing resources Family Court needs

28 March 2018

The Family Court in SA is severely under-resourced and needs more funding to relieve the backlog in cases. NXT is pursuing a KPMG report provided to the Federal Government canvassing the resources the Family Court needs to function smoothly and quickly - which the Government refuses to release.

I had Senator Cash, representing the Attorney-General Christian Porter, front the Senate today to explain the Government's thin public interest immunity claim to refuse to release the report. I gave the following speech:

The government is hiding their failings behind that familiar - but rarely justified – excuse of public interest immunity. The Senate, and the public, are entitled to view those documents.

How can it be that the entirety of these documents are damaging to the public interest?

The Australian already has a copy of the KPMG Report. Excerpts and summaries of the report have been published in the paper. Consequently, they are already out in the public domain and the government’s ability to support the Court does not appear to have been undermined by that publication.

The Minister representing the Attorney-General’s response shows a complete disregard for the families navigating their way through the family law system.

A system that, in the words of the former Chief Justice of the Family Court, Diana Bryant, is “letting the people down”. The former Chief Justice went on to say that “the whole system suffers from a lack of resources to get through the work in a satisfactory way”.

Those statements were made in 2017 and now in 2018 little has changed.

Only last week at a ceremonial sitting for senior Family Court Judge, Justice Thackray, we heard what his Honour had – and I quote – “been burning to say” for years.

His final address to the profession was a searing indictment on this government’s continued failure to provide the Court with the funding it needs to do its job properly.

His Honour called out the government for taking years to replace retiring judges, and added his voice to the deafening chorus of calls for an urgent injection of funds to deal with a growing case load, and inordinate delays.

So, we have a senior judge and the former Chief Justice publicly voicing their long held and very real concerns about the parlous state of the Family Court’s funding.

How is it then that this government can continue to ignore the repeated pleas for funding?

How is it the government thinks this will all be fixed with piecemeal and tokenistic gestures?

Let’s take the extra funding allocated to the Court for registrars announced in the 2017 Budget.

Three registrars. Across three courts, and seven States and Territories. Only three for all three Courts.

That hasn’t even scratched the surface, and in the words of former Chief Justice Diana Bryant, matters continued to – and I quote - “just sit in the list. That’s appalling”.

Again, those are not my words. Those are the words of the former and highly respected Chief Justice of the Family Court in October 2017 calling the delays appalling.

So, barely six months ago the then Chief Justice of the Family Court was pleading for more funding for a system that is overworked and under-resourced.

But I don’t want to reduce this debate to balance sheets and budgets, so let us just pause here for a moment and actually think about what is at stake.

Let’s think about the children and parents that spend years having their most intimate details laid bare for social scientists, lawyers and judges to dissect and determine. We are not talking about large multinationals crossing swords over abstract contractual principles. These are desperate families dealing with the breakdown of the family unit and all the emotional, financial and logistical complications that flow from that.

Delays in the system due to the lack of sufficient resources can only serve to further inflame the conflict.

Family law disputes are necessarily the consequence of failed hopes, dreams and plans for a shared life.

The legal profession, the judiciary, including the former Chief Justice, have all identified the government’s failure to replace judges quickly, or in deed at all, as a significant factor in the current delays.

Let’s take Adelaide as an example, where following the retirement of Justice Dawe, South Australian families have been waiting for over 12 months for a replacement judge. There is now only one judge available to decide the State’s most complex matters.

One judge.

Last week the Attorney General confirmed that there was a “full complement of judges” in the Court for the first time in years. A full complement.

Well, then how do you explain to the people of South Australia that one judge will do, where there used to be two?

How do you explain to the people of South Australia that they will now have to wait twice as long to get before a judge?

Or does the government simply expect the one remaining judge in Adelaide to work twice as hard?
Remember these are complex cases often involving intractable parenting disputes, including allegations of serious physical, sexual and psychological abuse. Or complex property settlements where Mum is barely scraping by on welfare payments and child support while she waits for the property settlement to be determined by the next available judge.

The Government needs to acknowledge the failure to replace judges quickly and the continued failure to replace Justice Dawe has had a snowballing effect on separating families. I know this because I’ve heard too many stories of South Australian families suffering both financially and emotionally while they wait, and wait, and wait in the list.

It is not uncommon for matters to spend two years in the Federal Circuit Court waiting for trial, only to be kicked upstairs to the Family Court where they must start once more at the bottom of a very long queue.

This is occurring because of the limitations on the FCC and the complexity of certain matters. With only one Judge now sitting in the Family Court in Adelaide matters are taking over three years to determine.

We know from the various State and Territory Law Societies, and the Law Council of Australia, that these stories are not unique to Adelaide. For example, in the Sydney and Parramatta Courts families can wait over three years to get to a final hearing.

And what is so frustrating is that we absolutely know that this is not a new problem because, unlike the Senate, The Australian newspaper actually managed to get a complete copy of the 2014 KPMG Report. And what was reported paints a sobering picture of the nation’s three federal courts.

In an article published on 29 August 2014, The Australian reported an expected $75 million dollar budget blow out as a consequence of the Court’s structures, and complex and increasing case load.

I quote:

"The 127 page report, which was handed to the government in March, reveals court costs are rising faster than the money set aside to pay for them, and not enough potential savings remain to cover the shortfall.

The current challenge now lies in that the pool of potential ‘efficiencies’ has already been tapped and that it does not appear possible to continue to produce them at the same pace…without a significant restructure or decline in service levels”.

A significant decline in service levels.

That report was completed four years ago and there is no indication that service levels have improved in the meantime.

Remember this is not a customer satisfaction survey for a retail chain.

The Court is providing a service to separating families. That service is to hear and determine their matter in a fair, efficient and cost effective manner.

Our attention then turns to the phrase ‘restructure’. We know the government amalgamated the administrative functions of all three federal courts to claw back costs, but what other changes is government planning?

We know from Senate Estimates that the Attorney-General has met with the Courts to discuss reform.

Are the proposed Parenting Management Hearings just the first part of a broader reform that was proposed back in 2014? Or, is this quick fix idea just a last ditch attempt by the government to salvage a broken system after years of repeatedly ignoring pleas for funding?

Remember, these calls for funding are not the disgruntled murmurings of the few, there have been sustained calls for more funding by the judiciary, by the legal profession, by legal aid centres, by academics, by social workers – and based on the limited information available to us, via KPMG.

This is not the first attempt that has been made to seek a copy of the Reports. We heard during the recent senate estimates that there was at that time a FOI requests pending. And During question time in November 2016 Senator Hanson requested the report. In response, the then Attorney General, Senator Brandis, made two points that I would like to highlight:

1. That the department had relied on these documents to achieve useful efficiencies; and

2. He would consult with the secretary of his department to see what could be made available.

So here we are, 18 months later and we must now all surely question what impact, if any, the so called useful efficiencies have had on the current logjam in the Courts.

But that is the point, we simply don’t know. We don’t have the full picture and the government does not want us to know.

So how can we be expected to consider the Parenting Management Hearing Bill in a vacuum, when the government has sold this Bill to the Senate as a new justice model – promising swift and cost effective dispute resolution for all.

And it is for all, notwithstanding Senator Brandis’ response to my question in December 2017 – these parenting management hearings will in fact be used in cases of family violence.

The government’s proposal is a significant departure from existing family court procedures. It is an untested social experiment being thrust upon unsuspecting participants that is binding on them and their children.

These are people who will have to deal with the consequences for many years to come. It may be a pilot program for the government, but make no mistake, for the estimated 500 families and the 1000 children affected, it is permanent.

It also comes at a significant cost of over $12 million dollars just for a pilot program.

I asked the former Attorney-General George Brandis about the timing of the reforms in December 2017 and yet again I find myself asking why the government is choosing to legislate now before the Australian Law Reform Commission has completed the long awaited review into the family law system.

If the government is serious about this review, and serious about helping vulnerable Australians through one of the worst periods in their lives, it will wait for the recommendations of the ALRC before thrusting yet another layer of complexity on an already overburdened system, that is beset by issues including constitutionality and getting over the first hurdle of requiring consent of both parties in difficult disputes.

Especially when we know that as part of the terms of reference, the ALRC will be looking at – and I quote – “appropriate, early and cost-effective resolution of all family law disputes” and “the pressures (including, in particular, financial pressures) on courts exercising family law jurisdiction. I would expect that as part of that investigation into financial pressures facing the Courts that the government would ensure that the KPMG and Ernst & Young reports are provided to the ALRC.

The government has available to it two presumably comprehensive reports which set out the financial pressures the Family Court was facing and, again presumably, the range of possible solutions that were options to government at the time.

The time has now come for the government to produce the reports. First to the Senate to enable a proper consideration of the merits of the Parenting Management Hearing Bill. And second, to the ALRC to better enable the Commission to consider the financial pressures facing the family law system pursuant to the Terms of Reference.





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