Here is what you should know if you are planning to dispute parenting or argue about property in this country. Use mediation.
The court system meant to deal with your devastating problems is in chaos – better to keep well away from it and keep your money for setting up your separate households.
We usually attribute the Family Court’s ambient misery to work it does – dealing with devastated people whose relationships have unravelled, who can’t or don’t want to respond to mediation. The sacking of beloved West Australian judge Stephen Thackray, from his position as unofficial head of the court’s appeals, has unleashed bickering previously unseen among the judges in the Family Court; and a flurry of emails ensued, accusing other judges of being bullies. Even the Law Council of Australia has pitched in.
Chaos in the courts means mediation is a better option for divorcing couples.
This turmoil is the responsibility of successive governments who have refused to fund the court according to its needs or legislate to improve the process. In comparison with 2010, there now appear to be three fewer Family Court judges. Of the 28 who appear on the list, only 20 hear new cases. The rest deal with endless appeals from families in crisis. In October last year, the sun set on the only regulation which spelt out the appropriate number of judges the Family Court should have – 54. Now there is no requirement for a particular staffing level. As Justice Thackray said In his speech at his last sitting on the Appeal Division of the Family Court, “There are simply not enough judges and registrars and those judges we do have are either not replaced or replaced after inordinate delay.”
The court needs more money. Make that plural – the courts need more money. A quick survey of how parenting and property disputes in family law are resolved in Australia will reveal one surprising number. It is not the Family Court of Australia, nor its cousin the Family Court of Western Australia, which deals with most family law matters. Instead, it’s the Federal Circuit Court, once run by magistrates and now by judges, who are not necessarily specialists in family law, which deals with 87 per cent of all family law work filed at a federal level.
The Family Court, the jurisdiction best designed and equipped to deal with family breakdown at its most complex, deals with the rest; and appeals from both courts. We have two court systems which cannot cope with the family breakdown workload; and in some instances, don’t have the right judges to deal with those workloads.
Neither the recently appointed Family Court Chief Justice John Pascoe nor his new deputy in the Family Court, William Alstergren, has specialist expertise in family law, although Pascoe has experience from the Federal Circuit Court. Some argue their speciality is administration. Pascoe must retire from the bench on his 70th birthday, this December. The next chief justice must be both an administrator and extraordinary family lawyer.
In his speech, Thackray said judges worked “much harder than the Australian taxpayer would consider reasonable . . . so hard that I worry for their health . . . I feel they might crack”. Judges may work even harder under Pascoe and Alstergren, implementing a series of condensed hearings named “call-overs” where judges barrel through hearings. The first took place in the Federal Circuit Court’s Melbourne registry in late 2017 and of the 263 matters that were listed and dealt with, 181 matters (70 per cent) settled and 82 will continue to trial. A spokesperson says of this Federal Circuit Court initiative that this will release 350 trial dates of judge time. Professor of law at the University of Sydney, Patrick Parkinson, questions this statement. Arguably Australia’s most distinguished scholar in family law, Parkinson points out that most cases which could be settled in a brief call-over would not progress to a full trial anyway or would be settled before a full trial. He says legislative change this year would improve efficiency.
There has been a bipartisan approach to reduce the size of the Family Court. It’s expensive to run, in comparison with the Federal Circuit Court, partly because those judges who have completed 10 years of service get a handy judicial pension. But the reduction in size has accelerated under the Coalition at a time when we need all the expertise we can get.
Without specialist judges who have expert knowledge of family violence and child abuse, we may consign more families to a life of continued tragedy and pain. Notices of child abuse or risk of family violence filed to the Family Court have increased by more than a third since 2014. Professor Parkinson says, “The lives of women and children are sometimes at risk and that risk is exacerbated if the judge has little knowledge or experience in the area.”
Full article: Jenna Price, Fairfax columnist and an academic at the University of Technology Sydney. Brisbane times.