family law

How do Family Law Courts negatively affect Australian families?

SCB Legal |

30 December, 2018

child looking at a parent and another child

Table of Contents

How Do Family Law Courts Cause Australian Families To Suffer?

A backlog of cases, gross delays and duplicated processes result in Australian families being forced to wait longer and pay more. Unjust verdicts, complexities being overly simplified and families becoming estranged are further consequences of the family law court system.

How did this occur and what is being done to correct the problems existing in the family law courts?

Before addressing these issues, it’s important to better understand how the current system is structured.

Australian Family Law courts and the way they operate

There are currently 2 different courts that handle family law matters. They are:

  • The FCA, Family Court of Australia
  • The FCC, Federal Circuit Court

Presently the Family Court of Australia hears complex parenting matters such as those involving allegations of sexual abuse, family violence, substance abuse, mental health and safety concerns for parties and/or their children.  The FCC can deal with substance abuse, mental health etc and usually does unless the hearing it likely to be more than approximately 3 days. Additionally, court also deals with appeals.

The Federal Circuit Court deals with less complicated family matters, such as applications for divorce. For example, when a couple is seeking to dissolve their marriage, the FCC is the court that hears their case.

5 problems that exist with the current family law system

1. Family law judges

Judges presiding over the majority of cases are not family law specialists. Each decision depends on the judicial officers’ views, qualifications, expertise and experience. It is clear from many cases that some Judges have little understanding of family law or even if they do, judges are left to decide matters on their own accord, they do their own thing.

An unnamed source cited Judge Harman as an example of a judge who has been suspended for periods of time due to his questionable decision making.

2. Lengthy matters

All matters are extraordinarily lengthy due to the delays that occur.

3. Duplications of processes

Duplications of processes and procedures occur regularly.

4. Delays and adjournments

Matters are being delayed and adjourned “to a date following the release of the family report”.

5. Waiting for a trial

Cases that should be brought before a judge quickly, can take more than a year to be brought to trial.


Families suffer because of Australia's family law court system

A Family lawyer’s real life example, illustrating the ineffectiveness

A family lawyer commented that with one case, matters have been in Court since 2012/2013. The troubling issue is that when one parent has been withholding a child for that length of time and by the time the final hearing arrives, the child has been brainwashed (common in these types of matters) and the status quo takes precedence. Changing the Orders or being able to spend time with the child/children after such a long period of time is nearly impossible.

Why aren’t all judges in court, family law specialists?

The Federal Circuit Court comprises a large number of judges who are not family law specialists. This is especially concerning, given that 87% of family law cases are handled in this court. Rulings in the court that end up in appeals are then transferred to the family court of Australia.

Only on appeal do Judges with family law expertise decide on matters that have been appealed.If this type of situation had occurred in the medical profession, I doubt it would have been allowed to exist like this for so long. Imagine having a heart problem and instead of being seen by a cardiologist, you were forced to see a general practitioner and consequently, were ill advised or suffered as a result of a misdiagnosis? Surely, the more complex the matter, the more specialist the judge presiding should be.

Families choose family lawyers assuming judges will be experts too

From the family’s perspective, clients choose a family law expert, as opposed to seeing a media lawyer for example. Therefore, a reasonable question to ask is why should it be any different with Australian judges who are selected to preside over family law matters? Why aren’t our family law courts held to the same standard?

Do Family Law specialists agree with families’ perspectives?

One lawyer remarked that when filing a recovery order, the local court is the court of choice because the process is faster than the federal circuit court.

The FCC and FCA will merge to address families’ problems

The Australian Family Law system came under public scrutiny earlier in the year. Attorney-General Christian Porter announced that to combat the current ineffectiveness, the Family Court of Australia and Federal Circuit Court will be combined.

In 2019, the changes will come into effect and are aimed at correcting the enormous delays caused by the present structure.

In an ABC news interview, Mr Porter remarked that  “delays in the family law system means most cases take about a year and a half to reach trial”. He described the current system as simply not working, “causing inefficiencies, duplications and delays”.

The new Family Law court and structural change

The new Family Law court is called the Federal Circuit and Family Court of Australia (FCFCA) It will have 2 divisions: Division 1 will only deal with family law matters and existing judges of the Family Court of Australia will preside over this division. Division 2 will deal with both family law matters and general federal law matters. Existing judges of the Federal Circuit Court of Australia will preside over this division.

Will the new family law court benefit Australian families?

One notion is that the structural reform of the federal courts will “help Australian families resolve their disputes faster by improving the efficiency of the family law system”. The promise to Australian families is “faster, cheaper and more consistent dispute resolution.”

Not everyone believes that the structural reform will actually save Australian families time and money. Faculty of law senior lecturers, Miranda Kaye and Jane Wangmann said that the new family ‘super court’ “may not save time or result in better judgments”. In fact, a consequence of the changes may result in further complications for many Australian families. Complex matters involving family violence, child sexual abuse, alcohol issues, mental health concerns, and questions of parenting capacity may in fact be rushed through the system.

How will the new system resolve judges’ lack of expertise?

The alarming fact is that existing judges will still be presiding over these 2 divisions in the same way as they were when there were the 2 different courts. What does this mean for Australian families? The same issues relating to a lack of family law expertise will remain.

It’s like the attorney general just repackaged the existing problem. An unnamed source remarked that replacing the FCC and FCA with 2 divisions under a newly named court seems rather counter productive if the existing judges remain. It’s the non specialist judges that seem to be the main problem causing delays and inefficiencies right? 

Solutions that will improve the family law court system

SCB Legal founder Sionea Breust offered a real solution that would actually assist Australian families. She stated “The court needs a digital system whereby all administrative matters can be dealt with online. For example, if the parties are seeking an adjournment then one party can request this and the other can respond etc and provide reasons.” Such an initiative, especially given our digital age, would positively impact families and the court system by speeding up the process. This idea is reflective of the current civil law system in which all requests are done online. In fact and unless required, matters are dealt with via the online court, up until the hearing. Breust also remarked that “outsourcing the family reports is essential”. These reports take many months, which in turn delay matters.  

Do you think judges that preside over the family law courts should be required to have specialist family law knowledge?

SCB Legal values its loyal Law blog community and we invite you share your thoughts and get involved in the discussion. 

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