The family law system in Australia is groaning under the weight of a vast backlog of more than 20,000 cases and families are waiting up to five years for bitter child custody and property disputes to be resolved.
In Sydney or Melbourne, lawyers say a feuding former couple would consider themselves lucky to get a hearing date for a parenting dispute in 18 months’ time. Meanwhile, children are left in limbo.
“Eighteen to 24 months is about right in Sydney now. Eighteen months is often considered ‘winning at life,'” says one experienced family lawyer, who is familiar with waiting times in both cities.
The delays are just one of a range of pressing problems facing the Family Court of Australia and the Federal Circuit Court, both of which hear family law cases across the country.
Federal Attorney-General Christian Porter believes the answer to the delays is clear. In a surprise proposal, announced in May while a wider review of the family law system is still under way, Porter said the 42-year-old Family Court of Australia would be scrapped as a standalone court and merged with the lower-level Federal Circuit Court, which also handles migration cases.
The proposal is based on a report by consultants PwC Australia, commissioned by Porter’s department and handed to the Turnbull government in April, which says the Federal Circuit Court is more efficient at clearing family law cases than the Family Court.
Former Family Court judge Peter Rose, QC, who served on the bench for 13 years, says the plan is “simplistic” and the figures being cited are “a classic example” of the saying popularised by Mark Twain: “There are three kinds of lies: lies, damn lies and statistics.”
He says the Federal Circuit Court deals with a high volume of largely straightforward cases, while the “strict diet” of the Family Court is complex cases. Porter and PwC, meanwhile, say the two courts are often handling similar cases.
Rose agrees there should be “one stand-alone, specialist Family Court” in Australia, but it is the family law work of the Federal Circuit Court that should be merged with the specialist Family Court. More resources are also required, and strong leadership of the court is critical.
NSW Bar Association President Arthur Moses, SC, has been a vocal critic of the merger and says “a justice system is not to be judged on spreadsheets”.
“It is to be judged on the quality of justice delivered to people at the most vulnerable time in their lives,” he says.
Moses says the Federal Circuit Court already has a “crushing workload”, with each judge having approximately 500 matters in their case list.
“It makes no sense for the Attorney-General to propose to collapse into that court all of the most complex family court matters, which are the most important matters that our court system deals with — the care of children and relationship issues,” he says.
Family lawyers say clients are looking for more than just a speedy resolution and court resourcing needs to be increased to tackle the backlog of cases.
“Not all litigants would say that a good experience is created by speed alone,” says Gadens partner Jodylee Bartal. “Family law matters can be complex and require a specialist response. Litigants want fair processes and outcomes.”
The Turnbull government is expected to introduce legislation to give effect to the merger within the week.
Brett McGrath, a family law expert at Marsdens Law Group, says “the devil will be in the detail” with the plan. The “objectives of the merger, to provide a single entry point, to streamline and reduce complexity, and minimise delay and costs are fully supported by the profession”, he says, but “at this stage, there is a lack of detail around how the objectives will be met”.
One of the concerns expressed by lawyers is the potential loss of specialisation. Under the new structure, appeals would no longer be heard by specialist appeal judges in the Family Court, who would return to doing trial work in the new Federal Circuit and Family Court.
Peter Magee, managing partner of family law at Armstrong Legal, says appeals from the new court will “go to a general appeals division of the Federal Court, where you get a bunch of judges who have never done a family law case”.
“That is a big unknown as to how that will be dealt with. They may be smart people; they may get it right. But it’s a concern that they won’t be aware of the nuancing, or psychological research, or the day-to-day practices, or issues that are faced on a regular basis,” Magee says.
He says delays in the Federal Circuit Court are already pronounced and if a case was filed in that court today, “realistically you cannot tell clients it will not be decided until 2020”.
“You won’t get a hearing in 2019,” he says.
Read More: Sydney Morning Herald
By: Michaela Whitbourne
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