Pushing through a Family Court and Federal Circuit Court merger is a “stubborn and wrong-headed approach” to family law reform and should be abandoned, says the family law industry’s largest professional association of practitioners.
A speech recently given by Arthur Moses, president of the Law Council of Australia, dissects the flaws in the Government’s planned “bad law”, on the eve of the reintroduction of the Government’s Family Court and Federal Circuit Court merger bill in the November sittings of Parliament despite its failure to pass last time it was introduced.
The Law Council agrees with the views of many stakeholders who say that reform of the family court system is vital, but not the way the Government plans. The fixed idea of the Government is to merge the specialist Family Court with the generalist Federal Circuit Court, a structural reform that will lead to the “loss of a standalone, dedicated Family Court…to the detriment of those in need of specialist family law assistance”.
And proceeding with its Family Court and Federal Circuit Court merger plan despite a lack of consultation with the community or the legal profession has led to many expressions of alarm from diverse stakeholders, who Mr Moses describes as “dedicated professionals who understand this area better than any member of the Government [and] have made it clear that this policy will hurt children and families”. He says the Government’s action is “irrational [and] extremely disrespectful to the views of the significant stakeholders in the family violence services sector”.
The Government has also so far completely ignored the recommendations that came out of the Australian Law Reform Commission’s recent “once in a generation review of the system to look to holistic reform”. At the same time it has given the go-ahead of yet another parliamentary inquiry into family law, to the consternation of many.
Six reasons why reform is absolutely critical
Here are six reasons identified by the Law Council as to why the need for reform of the system is absolutely critical.
1. The system has been chronically underfunded for decades
This includes all areas of the court system, including “critical counselling and assessment services”. This underfunding has led to massive delays in justice being delivered, because “there is a direct nexus between resourcing, judicial appointments and case disposition times.”
As Mr Moses points out, the Government is “refusing to inject desperately needed funds and resources into a crippled system unless the Parliament votes for the Government’s plan.”
2. The existing resources of the Family Court and Federal Circuit Court are not adequately managed
Even as the family law jurisdiction has become more complex over the decades, successive governments have consistently refused to appoint enough judges and have failed to quickly replace retiring ones.
3. The underfunding of legal assistance means high levels of self-representation
With such high levels of self-representation, investment is necessary to ensure the effective administration of justice.
4. There are unsafe judicial workloads
This is worst in the Federal Circuit Court where some judges have over 500 cases concurrently on their docket, “setting our judges up to fail”.
5. The judicial caseloads affect quality of outcomes
The danger is that judicial officers “struggling to meet these caseloads adversely affect the quality of outcomes delivered for parents and children”.
6. Sharing jurisdiction in two separate federal courts has failed
Having two federal courts to deal with family law matters—the Family Court and the Federal Circuit Court—has been an experiment that has failed. Each court has separate rules and procedures leading to inconsistent and confusing case management and wasted resources.
However, the Law Council says, while the problems caused by having the two separate federal courts means structural reform is definitely necessary, the answer is not to merge the courts in a way that removes specialisation.
The abolition of the specialist Family Court
Despite the community’s increasing lack of confidence in Australia’s family law system, Mr Moses points out:
For more than forty years, the Family Court of Australia has been a premier legal institution, a specialist superior court admired by other family law jurisdictions around the world for its innovative management of the most complex and difficult family law matters.
The Family Court was established as a specialist multi-disciplinary court, incorporating the creation of an in-house counselling section staffed by psychologists and social workers with child welfare expertise, and the requirement to place the interests of children at the forefront of parenting disputes. This was followed by the establishment of mediation as a fundamental part of the system, and provision for less adversarial trial proceedings in child-related proceedings.
Why does specialisation matter?
A specialist stand-alone family court must be retained because of the importance of ensuring judicial officers, registrars and court staff have specialist knowledge and training to identify, triage, manage and ideally quickly resolve matters involving family violence. In a context where up to 70% of matters in the courts involve allegations of family violence, there is a huge benefit to having “a holistic, specialist ecosystem of interrelated and co-located support services and resources”. In the generalist court conceived of by the Government’s Family Court and Federal Circuit Court merger, such services and resources would be diluted or even lost.
Jurisdictional gaps between state and federal systems
The way that the state-based child protection systems interact with the the federal family law system, particularly the poor information sharing, is also a major area of contention. This increases risk to vulnerable people as well as resulting in expensive delays.
Alternative proposals to a Family Court and Federal Circuit Court merger
The Law Council’s alternative proposals are:
1. To retain and properly resource and invest in a specialist, standalone family court.
2. To consider alternative structural reform.
3. To consult with stakeholders and consider the ALRC recommendations.
As Mr Moses says, these are not “radical” proposals, as the Government has described them. It is certainly much more radical “to irrevocably alter critical social justice infrastructure”.
It’s really not rocket science, is it? The system needs enough funds and resources, and a functional, specialised structure that protects families and victims of abuse who make up such a large part of the users of the system.
Source: Law Council of Australia
To speak to Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services about a family law matter, please call (02) 6223 2400.
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You may like to read our recent family law reform update.