Is there any relief in sight for the family law system?
Australian families deserve an effective and responsive family court system. Whether that can be achieved by the reform of the current federal family court system, or the establishment of state and territory family courts as has been recommended by the Australian Law Reform Commission (ALRC) in their March 2019 report Family Law for the Future, will continue to provoke debate.
On his reappointment as Attorney-General in May 2019, the Hon Christian Porter MP confirmed that structural reform of the family law courts would be his highest priority. This is despite the Government’s controversial proposal to merge the Federal Circuit Court and the Family Court, previously failing to win the support of the parliament, the profession, or the broader community.
That the government chose to pursue the restructure of the federal family courts outside the ALRC Inquiry was disappointing. Even though the ALRC Inquiry considered the family courts to be part of the collective ‘family law system’, it was not given the opportunity to inquire into the structure of the federal family courts. The ALRC recommended the Government consider options to establish state and territory family courts.
While we continue to discuss the structure of the courts, the problems intensify for those who most need support. It is hard to argue against an integrated court system with a single point of entry, a single set of rules and streamlined case management. This is the very least the Australian community deserves. Families in crisis should not be penalised by a dysfunctional court system that continues to be neglected by successive governments.
The family courts are an integral part of the family law system.
During the many months of public consultation, the consistent message delivered to the ALRC Inquiry was the high level of frustration felt by the community that our current family court system is unable to speedily triage matters for separating families and their children. I listened to these stories. And, like the many other professionals who support these families, I continue to witness these frustrations on a daily basis. Unfortunately, we seem no closer to a resolution.
The jurisdictional divide between the states and commonwealth has been debated for many years. There is nothing new in the concept of restructuring the federal family courts – this has been on the agenda for more than 10 years. As a former chair of the Family Law Section of the Law Council of Australia I have seen successive governments struggle to find the political courage and conviction to deal with the problems that have been consistently identified by numerous inquiries. Harmonising court rules has also been on the drawing board since at least 2009. I welcome the work currently being done by the recently established Joint Rules Harmonisation Working Group, led by the Hon Dr Chris Jessup QC.
In June 2018, a new case management pilot started in the Federal Circuit Court in Brisbane. Some are claiming this to be an outstanding success resulting in dramatic decrease in the number of pending cases and clearance rates exceeding 100%. What the numbers don’t show is the poor quality of justice dispensed to parties. Many are just exhausted by the delay in reaching the court, and feel forced into decisions that are not in the best interest of their children, or their future financial arrangements. Many have been turned away by the court on the day their trial was to commence, because there has been no judge available. This imposes an additional financial burden on parties.
When parties finally get to court, they feel like they are treated like a number. Judicial officers are drowning under the sheer volume of matters. Their diminished insight and reduced capacity to demonstrate empathy has a profound impact on parties. If you are lucky enough for your matter to proceed, you then face unreasonably lengthy delays until you receive judgment. No wonder parties are disgruntled. No light appears at the end of the tunnel.
The reality is families are hurting. The delay in getting access to justice is putting enormous financial and emotional stress on litigants, and doing real damage to the lives of children. That damage inevitably results in long term social and economic costs to the Australian community. Delayed justice is no justice at all.
We need a family court system that is fit for purpose. Any reform must be driven by what is in the best interests of children and families impacted by relationship breakdown, while meeting the needs of the community.
Geoff Sinclair was a part-time commissioner on the ALRC Family Law Inquiry. He is a former chair of the Family Law Section of the Law Council of Australia. Geoff is a principal with Barry.Nilsson. Lawyers, and has been a family law practitioner for 35 years.