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Struggling family law system needs some political TLC

Opinion

With huge delays and jurisdiction issues affecting many Australians, the family law system should rate much higher as a political issue, writes Morry Bailes.

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Here’s a sobering thought for anyone who’s married: nearly 50 per cent of couples now separate. 

To rub salt into the very raw emotional wound, the process of separation can take a long time, with the current family law courts backlog standing at 20,000 cases. The average wait time for a matter to be heard is two to three years. 

That’s 20,000 matters where adults and children’s lives, financial affairs and, in some cases, mental health and safety, are effectively on hold. 

Imagine being in limbo, desperate for clarity but unable to start the next chapter in your life, because the system can’t keep up?

The Family Law Act was introduced in 1976 to simplify family law disputes. The Federal Circuit Court and Family Court are, at present, the two courts that deal principally with family law in Australia. They are both Commonwealth courts and, in the case of the Family Court, was set up with the express purpose of determining legal matters arising out of the Commonwealth Family Law Act. 

However, it has not kept up with the galloping pace of family law disputation in this country. The sheer volume of family law cases means something has to give. 

I’m not sure where the family law system sits as an election issue – but it should rate highly. 

Last week the federal Attorney-General, Christian Porter, released the Australian Law Reform Commission’s (ALRC) family law system review. Heralded as the most comprehensive review of our family law system since the proclamation of the Act in 1976, it contains 60 recommendations. I hope it serves as the blueprint for effective reform. 

Australia’s family law profession, family law court judges, litigants and many other interested community groups have been keenly awaiting the review’s release. It was announced by the Federal Government back in March 2017, so it’s been a while in the making. 

Interestingly, the review has already played a pivotal role in the recent defeat of the wished-for merger of the Federal Circuit and Family Courts. 

A bill for the proposed merger of those courts was introduced to the Parliament by Porter last year, and only recently failed to pass the Senate. One of the primary arguments against the passage of the legislation was the fact that the recommendations of this pending and pivotal ALRC review were not yet known, and it seemed illogical that you would re-structure a court system without an understanding of exactly what the ALRC would recommend it do. 

Fast forward and we now have the review and it is, in many respects, radical.  

One of the features of family law is the swathe of areas it is capable of picking up. When a couple separate with children, it raises both property and family considerations. With respect to property, we are a wealthy nation, second only to Sweden in our per capita income — although you could be mistaken for not appreciating that fact if you pay attention to some of our misleading media reporting. The division of property can involve often complex financial arrangements, including family trusts, companies, super funds and plenty of assets. 

Children, whose interests are at the forefront of the Family Law Act, are often the real victims of separation. Sometimes they are like pawns on the chessboard of litigation; sometimes they are the sufferers of family and domestic violence. Childrens’ issues are not quarantined to our Commonwealth courts, because state and territory courts, too, have jurisdiction. The ALRC has rightly identified this division as a cause for concern. State police and domestic violence agencies are not necessarily answerable to Commonwealth courts, but are on the frontline in responding to ensure childrens’ welfare. 

So the commission’s first recommendation relates to a new role for state courts in the family law jurisdiction. In Western Australia, family law is not in the Commonwealth system, although its state Act emulates the Commonwealth Family Law Act. A significant difference, however, is that specialist state Magistrates are responsible for the administration of much of the family law jurisdiction in WA and, what’s more, it works well. What is recommended by the ALRC might look more like the current WA set-up. 

This recommendation also picks up the eventual abolition of federal family courts as first instance (trial) courts.

This will be a good thing if, in practice, the change empowers state courts to deal properly, promptly and flexibly with matters relating to children’s welfare, placement and visitation.

Our courts can be very useful if parliaments allow them the necessary jurisdiction. An analogous example is Central Australia, which earlier last century was a Territory unto itself (before being folded into the Northern Territory). The challenge for the Alice Springs court has been the limit of its jurisdiction, because when it came to offences alleged to have been committed in South Australia and Western Australia, it lacked jurisdiction, despite these areas being part of the broader region. In an elegant solution, a local Northern Territory local court judge in Alice Springs can now be a South Australian and West Australian magistrate and, with three concurrent commissions, can rule in matters arising in all three jurisdictions, in the one court. 

Similarly, dual commissions or legalisation enabling state courts to make decisions pertaining to federal matters has plenty of merit. But it squarely raises a question of resourcing both for the courts and the legal assistance sector at a state level, which incidentally benefited little from the most recent federal budget. 

At the heart of current concerns about our family law system is the problem of delay, and an incongruous judicial system. It is madness to have two independent Commonwealth courts presiding over family law matters. That and resourcing of those courts goes a long way to explain their current malaise.  The structure of the courts was never a term of reference for the ALRC review, but its recommendations mean the future structure of our federal courts must again come under scrutiny.

Whoever prevails in the federal election next month, we may expect family law and its travails to be an early focal point. The Senate crossbench has shown considerable, if varying, interest in the subject, and the new Parliament will have the ALRC review recommendations to contend with. One hopes something positive will come from it, but it is an area fraught with cross-sectional interests, not least of which are the states and the Commonwealth.

Being managing partner of a firm that has more than 20 family lawyers, I can say there will be considerable interest in the days, weeks, and months ahead, as there was in the now failed prospect of a courts merger. I hope for the sake of all involved in the family law justice system that this is the beginning of something good.

Nothing, however, is a silver bullet in an area of law that is complex as it is divisive.

Morry Bailes is managing partner of Tindall Gask Bentley Lawyers and immediate past president of the Law Council of Australia.

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