Skip to main content
Family Law

EDITORIAL OPINION: Family law reform: where to now?

By September 20, 2016No Comments

By Gianna Huesch

There has been a lot of debate over the past year about the reform of the family court system, which is regularly argued to be in crisis and failing families. Most recently, Pauline Hanson weighed in on the debate in her maiden speech to Parliament, further stirring up discontent. In fact, Ms Hanson’s desire to abolish the Family Court and replace judges with laypeople betrays the fact that some sides of the debate are making the judiciary the scapegoats. Regularly accused of bias towards both men and women, judges are apparently the villains of the piece. But are they to blame for the problems besetting the family court system? Are judges actually biased?

If you listen to some, they are biased against women. Campaigners like Rosie Batty have argued judges and magistrates involved in Family Court matters need compulsory training in domestic violence because it’s a lack of education on the issue that sees them make decisions Batty calls “diabolical” for women and children (http://www.smh.com.au/national/family-court-decisions-can-lead-to-diabolic-situations-says-rosie-batty-20160615-gpjocz.html)

Ms Batty’s five point plan for reform was recently delivered with the in-principle support of the Family Court Chief Justice Diana Bryant on behalf of the courts. However, it was also reported that Ms Bryant was ‘irked’ at claims staff do not have sufficient family violence training. She said, “It’s a mythology that’s not accurate”, and she outlined “the comprehensive, regular training for counter staff, registrars, family consultants and judges”.  Instead, Ms Bryant has been vocal in the media arguing for more funding to help courts triage situations involving family violence and abuse, claiming a fairly small sum of $6m would take the pressure off the courts by facilitating “better risk assessment tools for family consultants and expanded DV training”.

Despite extra funding being non-forthcoming, educating the judiciary further on family violence has been on the agenda and may help counter claims of bias against women. To this end, federal attorney-general George Brandis recently announced the release of new domestic violence guidelines for magistrates and judges—however, these have also been heavily criticised. For example, Senator Leyonhjelm has described as “ludicrous” the “ever expanding definitions of domestic violence” (http://www.theaustralian.com.au/national-affairs/vested-interests-have-taken-over-domestic-violence-debate-leyonhjelm/news-story/944d2c4d0770e92ed2267557a138b923).

Into this mix we have Pauline Hanson’s One Nation and its supporters, arguing women make “frivolous” claims of domestic violence in the family courts, leading to the supposed bias against men. Arguments that the family courts are in the clutches of the feminist lobby further solidify with social commentators like Bettina Arndt making blanket statements about “the growing trend for AVOs to be used for tactical purposes in family law disputes” (http://www.theaustralian.com.au/news/inquirer/domestic-violence-data-shows-women-are-not-the-only-victims/news-story/2749c4517a57c33aca8bc2da9a40e2f9).

This is in contrast to figures in an article in The Monthly late last year which looked at false allegations by “vindictive” mothers and reported:

Forensic psychiatrist Carolyn Quadrio, a medico-legal expert on domestic violence and child abuse, says this popular belief is a myth: studies commonly show false abuse allegations comprise only 10% of the total. Furthermore, fathers are just as likely to make them. (https://www.themonthly.com.au/issue/2015/november/1446296400/jess-hill/suffer-children)

In fact, the article in The Monthly discussed how mothers were losing care of children simply for alleging child abuse. This dynamic is so entrenched, said the story, that “some lawyers now tell their clients, “If you make these allegations, you risk losing the care of your child.’”

Hardly an arena for making frivolous claims. Further fact-checking Pauline Hanson’s statement, SBS reports:

There is currently no Australian or international research to support the assertation that women routinely make false claims in Family Court proceedings.

The Australian Institute of Family Studies has found the rates of family violence allegations in custody proceedings in the Family Court or the Federal Magistrates Court were similar to the reported rates of spousal violence in the general divorcing population. (http://www.sbs.com.au/news/thefeed/article/2016/09/15/10-times-pauline-hanson-got-the-facts-wrong-her-maiden-speech)

Is there a gender bias in the family courts? It’s far more likely that both men and women are sometimes aggrieved with family court outcomes. Parties that are unhappy with their judgment do have an avenue for appeal, if they think a mistake was made by an idiosyncratic judge. But claims of systemic bias are a big, and as yet unproven, call.

It does seem that the judiciary are being made scapecoats for the overburdened and struggling court system. These judges make difficult and sometimes gut-wrenching decisions about what is in the best interests of a child. Cases are increasingly complex. They have more matters on their dockets than ever before.

Is it a resource issue?

The simple fact is, there’s not enough money put into the system to fund it properly to deal with modern times. The Family Law Act 1975 is now almost half a century old. The system needs modernising to keep up with the demands of modern society. While only 5% of family court cases go to trial, the ‘’interlocutory steps” taken before a case reaches trial are time consuming and expensive. In cases proceeding to trial, families are experiencing huge waiting times before receiving an outcome.These cases could be so much more quickly resolved than at present if there was an increased number of staff working on the increased number of cases. It’s not rocket science.

The Family Law Practitioners Association of Queensland (FLPA) has reiterated the fact that “the system isn’t broken, it just needs more resources.” The FLPA said “the real solution to the ‘family law courts crisis’ is the federal government appointing more judges with family law expertise (http://www.lawyersweekly.com.au/news/19488-debate-intensifies-over-family-court-system)

However, even if there were such money for more judges, according to the attorney-general, it’s not Constitutionally possible to appoint more, because we are at capacity. (We have reached out to Mr Brandis for an explanation on this issue and are awaiting his reply.)

Meanwhile, in answer to the crisis, Pauline Hanson wants to abolish the Family Court altogether and create an entirely new system, where cases are determined by laypeople rather than judges. I don’t know about you, but having laypeople decide family court cases doesn’t seem such a crash hot idea.  But this move away from professionalism, education and training is as anti-elitist as Pauline Hanson’s policies ever were.

Practitioners are appalled, with the FLPA stating, “Concepts such as determining disputes by laypeople risk introducing unpredictable justice” (http://www.lawyersweekly.com.au/news/19488-debate-intensifies-over-family-court-system)

Unpredictable justice. Just what we don’t need in family law matters! Luckily, Diana Bryant, the current Family Court Justice, has said constitutionally the Family Court cannot be abolished:

“It’s embedded into our constitution and the difficulty with having a tribunal is that it could possibly be a toothless tiger, in that courts are designed to make orders that are enforceable.”(http://www.abc.net.au/news/2016-07-22/family-law-experts-say-family-court-needs-overhaul/7652938)

It’s clear that the system does need some tinkering. For example, in Australia’s family courts, those who are accused of family violence or sexual assault are allowed to cross-examine their alleged victims, something Rosie Batty has been actively campaigning to change. It’s also possible for judges in family courts to make parenting orders that go against intervention orders made in a state-based Magistrates Court. These are the kinds of practical problems that need addressing. Not vague accusations of systemic bias without evidence.

One thing is certain. Critics of the judges in our family court system risk damaging our democracy by diminishing public confidence in the rule of law and in the integrity of our court system.

Author

Call Now Button