What’s going on behind the scenes of Australia’s family law reform? A lot, it seems. During this major family law reform phase, there has been much debate over the changes ahead in terms of how courts operate in their handling of parenting and property disputes. Alongside this, The Australian has been reporting lately about “internal court ructions”, involving allegations of “infighting, alleged bullying and a plot by judges to undermine possible court changes”. The Attorney-General Christian Porter has now told the newspaper that the courts do “not exist for the benefit of legal practitioners or those inside the court system, including judges”:
“No one in the wider community has much interest in or time for spats between people inside the courts’ systems,” he told The Weekend Australian. “What they care about is what really matters, which is how we reduce delays in the system for families.”
The Attorney-General’s comments come after The Australian reported on a situation wherein Family Court Chief Justice John Pascoe has allegedly been warning judges about bullying on the court amid “concerns that some appeal judges may have allowed their personal views of lower-level judges to colour their decisions”.
This last allegation has been described as “scandalous” by the head of the Law Council’s family law section Wendy Kayler-Thomson. She said judges did not make decisions based on their own personal opinion of a trial judge. To the contrary, judges made decisions “in accordance with the law and without bias”.
The Australian also revealed that appeal judge Michael Kent had emailed colleagues recently seeking their support for a constitutional challenge if plans for the Federal Court to take over family law appeals go ahead.
Responding to queries regarding the “rear guard action” regarding changes Mr Porter might make, the Attorney-General said that he was unaware of any such action:
“I’ve not had any judge approach me who…I literally have not had a judge approach me indicating that they’re upset about anything… It’s no secret that we’ve been looking into the operation of the family law system… I have been looking at the throughput and efficiency and backlog and time to trial for the actual courts, and there are two courts: the Federal Circuit Court and the Family Court of Australia. And certainly, the conclusion that I’ve reached is that we can do better for families.”
Instead, the Attorney-General blames the inordinate delays that Australian families experience when proceeding through the family law system on structural issues which were “letting down” Australians.
In the coming weeks Mr Porter is said to be preparing to reveal what structural changes he has in mind for the courts and family law reform.
These could include clearer rules about which cases are handled by the Family Court and lower-level Federal Circuit Court, which both cover family law, and possible closer links between the two.
Problems with the existing court structure are viewed as disadvantaging Australians. Mr Porter said:
“Different courts with different rules and forms and processes covering essentially similar family law matters are bound to create duplication, confusion, inefficiency, delay and tension. The system itself has not allowed for the best use of highly skilled and trained legal and judicial officers”.
The aim of the proposed changes is to improve the experience of families going through relationship breakdowns by improving court efficiency, particularly in the appeals arena. Efficiency gains could be made by moving appeals to the Federal Court or by appointing judges to both courts to be able to share appeals. But this move is not without criticism. For example, Ms Kayler-Thomson argues the community’s needs were best served “by having specialist judges deal with family law matters”: “Cases involving child sexual abuse, family violence and the like — that’s not the diet of a Federal Court judge.”
The next year of family law reform should be interesting…
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