Current debate on the issue of family law reform continues around recommendations the Australian Law Reform Commission made in its recent report following from its inquiry into the family law system. One of the recommendations currently being debated is the proposal to structurally reform the family law system by devolving family law powers from the federal government to the states. It’s a proposal for structural reform that some experts feel has more merit than the attorney-general’s conception of a merged supercourt.
The main impetus for a devolution of power to the states is because of the gap between federal family courts and state-based child protection services and police services. With federal courts lacking the capacity to investigate allegations of family violence or child abuse, the fear is that the family court system may be placing children into unsafe households.
ABC’s AM program interviewed family law expert Professor Patrick Parkinson of University of Queensland, who explains: “The court itself has no investigatory capacity. Parents are litigating in the federal system, but the investigatory power is all in the states so it is the state who has the police forces, the state who has the child protection service.”
He argues that instead of a devolution to the states, there should be a new federal child protection body to solve the problem of the family courts having no power to compel child protection bodies to act:
On another ABC Radio program, The Law Report, recent developments were discussed with a panel including Angela Lynch of the Women’s Legal Service Queensland and Anne Hollonds, director of the Australian Institute for Family Studies.
During the program Chief Justice of the Family Court Will Alstergren is sampled discussing the reality of the delays which see some Australian families waiting four to five years for outcomes in their family law matter. Mr Alstergren states that over 50% of cases in some family court registries are more than a year old, while 25-30% are three years old. He says the ideal would be for cases to be resolved within six to 12 months, but that the court system needed to help “entrenched or misguided litigants” if it hopes to achieve this.
Alstergren points out how family law litigants in property cases can spend disproportionate amounts of money fighting over assets and that in parenting cases, litigants can become “too embittered, where family violence has increased because they’ve been in the system too long”. This is interestingly phrased, since it accords with the controversial viewpoint endorsed by fathers’ groups and some political parties, such as One Nation, that men are provoked to violence by the family court system…
But whether or not the family courts are a cause of family violence, it’s obvious from statistics that the family courts deal with a cohort of people who have complex needs, including family violence. Angela Lynch quoted statistics from the ALRC which show that 54% of litigants make allegations of physical violence, and 85% make allegations of a history of emotional abuse. Lynch says:
“This is a domestic violence court. Whether people want it to be or not, it is.”
And family violence often presents together with other complex needs in the areas of mental health or drug and alcohol abuse. So while reform needs to urgently happen due to the changed volume of family law matters, it also needs to be reformed to be able to tackle the changed nature of the work.
Whatever else it achieves in the way of building in more accountability and transparency, including around judicial appointments, reform must give priority to safety. Experts say this underscores the importance of maintaining specialisation with any structural reform, rather than grasping at any perceived benefits of having new judicial staff with “fresh eyes” due to their backgrounds outside family law. Angela Lynch says:
“Women and children are turning to this court at the most dangerous time of their life, which is separation. This court plays a role. We need expert judges who are able to pick up on the red flag signals in relation to the safety of women and children in that court.”
Anne Hollonds agrees. “Practitioners need to know about the intricacies and nuances of human behaviour. The system is more efficient and responsive to the needs of families when you have a judicial officer who understands those nuances,” she says.
The fear remains that Porter’s planned merger of the Family Court and Federal Circuit Courts into a supercourt will reduce specialisation in family law.
The latest alternative proposal to devolve power from the federal jurisdiction back to the states on family law, with all family-related issues heard in one court, including child protection and family law, is tentatively being regarded as a good idea from a user and case management perspective. But the panel queried whether the political reality of working with premiers would mean this would take an inordinate amount of time to realise. Anne Hollonds says:
“The problems are solveable, but the system we have isn’t fit for purpose. This system, which sits alongside a lot of systems that families with complex needs are engaging with, doesn’t actually protect children”.
In the immediate term, the reform that is most needed is in “first and foremost, assessing for risk and managing risk more effectively”, says Anne Hollonds. “You have to do that first, you have to do it well, so that you can strengthen the upstream capability.”
And aside from injecting funding and resources, the system needs to be reformed so that it addresses complex needs much earlier on and helps people way before they’re “sitting on the steps of the court”.
Meanwhile Mr Porter told the ABC “the Government would press ahead with its merger plans, which are designed to make the family law system more efficient, but it is developing responses to the [ALRC] commission’s findings to ensure disputes can be resolved as safely as possible”.
Do you need assistance with a family law matter? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.