(Image: AAP)

After more than two years of trying, Christian Porter has finally managed to kill the Family Court.

In a week bookended by allegations of rape committed in Parliament House and the anniversary of the murder of Hannah Clarke and her three children, a bill to merge the court with the Federal Circuit Court passed the Senate — despite fears it could expose more vulnerable people to family violence.

Rarely has a bill been so vigorously opposed by every relevant expert or stakeholder. On one side, there’s a carousel of lawyers, academics, former judges and family violence advocates who say it will rob the court of family law specialists and fail victims. On the other side there’s Attorney-General Porter. And Pauline Hanson.

The wrong fix

Everyone agrees the family law system is deeply broken. Delays can last for years, putting an interminable emotional and financial strain on families.

The government’s rationale for the merger stems from a 2018 report by consultants at PwC which highlighted the depths of the backlog.

But delay numbers alone don’t tell the whole story of the Family Court’s failures. What matters more, advocates say, is that an overwhelming majority of cases involve domestic violence. And, in that context, abolishing a specialist court and merging it with a generalist one (the Federal Circuit Court deals with other matters including migration and copyright) means even fewer judges who understand the sensitive nuances of cases involving family violence.

Angela Lynch, CEO of Women’s Legal Services Australia, says people will be put at risk because the move takes away that specialisation.

“We’ve been critics of the Family Court for decades for their failure to prioritise safety and risk, but we don’t think the correct policy response is to blow the whole thing up,” she said.

And while efficiency has been cited as the driving force behind the change, the government hasn’t made it clear how turning two courts into one reduces those backlogs. Nor has it been clear on how it’s going to improve resourcing.

“We’ve been promised resourcing but there’s no detail of how that will work,” Lynch said.

Experts ignored

Ever since the merger was announced in 2018, the government seems to have ignored the warnings of pretty much every expert out there.

The Law Council of Australia, hardly a group of bleeding heart lefties, has consistently condemned the merger. This week it released an open letter signed by more than 150 former judges, barristers and academics urging the government to reconsider.

There’s also been an Australian Law Reform Commission (ALRC) review into the family law system with 60 recommendations — all ignored. The merger will go ahead despite the government’s inquiry into the family law system due to report next week.

Hayley Foster, CEO of Women’s Safety NSW, told Crikey the merger’s sudden passing left her perplexed: “It’s a bit cart before the horse”.

Lynch said once the government decided on the merger it wouldn’t listen or budge: “The model was presented to us as a fait accompli“.

Still, Foster says she has noticed a geographic divide over the merger. Despite concerns about a loss of specialisation from largely city-based organisations, many people she speaks to in the regions back it, and are more concerned about the inequity of distance in hindering access to services.

She would like the government to follow the ALRC’s recommendation of returning family law to the states, which would stop people falling through the cracks between state-based domestic violence services and the federal family law system.

“If you listen to victim-survivors, it’s so retraumatising to have to go to a different court and establish their victimhood again,” Foster said.

Lynch says the Federal Circuit Court’s family law work should be moved to the Family Court, with significantly greater resourcing.

The One Nation effect

There’s one “stakeholder” the government did listen to: Pauline Hanson. She’s been campaigning to abolish the Family Court since 1996, often pushing the false narrative that it is biased against fathers and that women lie to get custody of children.

In fact the opposite is true. Foster says reforms during the Howard years entrenched a “pro-contact” culture where a father’s relationship with his children was given primacy, even in cases of domestic violence.

But that didn’t stop Hanson tapping into the grievances of the “Family Court dad” constituency. In 2016 she used her first speech back in parliament to accuse the court of driving dads to commit murder. Within months of her return, stories about a proposed merger started appearing and the Nationals were talking about how her family law stance was stealing their voters in the bush.

“The abolition of the Family Court has been a primary objective of many groups in Australia that are anti-domestic violence, anti-women and basically misogynist groups,” Lynch said. “They’ve been handed this on a platter.”

The government has a track record of kowtowing to Hanson on family law. In 2019 it essentially gave her an inquiry into family law, which she then live-streamed on Facebook. Hearings that should have been an opportunity to improve the system were wasted debating fringe men’s rights activists who had been invited to participate.

Hanson isn’t in government, and isn’t the reason the laws passed. But Porter just ignored nearly every expert in the country, and granted her one of her oldest wishes.