As federal parliament heads off on its Christmas break, a cloud of uncertainty hangs over the legal community and the Australians who use the family law system.
Amid a busy final sitting week, the Morrison government’s controversial plan to merge the Family Court of Australia and the Federal Circuit Court — which both have responsibility for family law — has been shelved until next year.
The Coalition is now seeking Senate crossbench support to create a single court known as the Federal Circuit and Family Court of Australia.
My new research, together with colleagues Jane Wangmann and Tracey Booth, provides further evidence as to why this would be an unhelpful move.
The high number of family law cases involving both family violence allegations and self-representation shows how safety and improved resourcing must be central to all family law proceedings — not just improved “efficiency”.
Plan for single court opposed
The government claims the merger will “help reduce delays and backlogs in the family law courts”.
But there is little, if any, evidence to support this. The government says a PwC review proves there will be new efficiencies. However, this review did not put a cost on merger models or consider the potential impact of the proposal.
At the outset, the government’s plans have been contentious — with legal experts seeing it as the effective abolition of the specialist Family Court of Australia. It has generated opposition from peak legal bodies such as the Law Council of Australia, National Aboriginal and Torres Strait Island Legal Services, Women’s Legal Services Australia and Community Legal Centres Australia.
These signatories have no personal gain in opposing the merger. Lawyers will continue to have work from the breakdown of family relationships whatever structure is in place.
Merging makes sense … if done properly
Superficially, merging the two courts, which have almost the same jurisdiction in family law, is an attractive proposal.
Legal experts agree duplication between the two courts has created a range of difficulties for litigants.
Due to Australia’s constitutional arrangements, there is already a complex network of courts to be navigated by parties dealing with family violence and family law issues. Legal responses may require involvement in magistrates’ courts, children’s courts, district and county courts as well as the two possible courts for hearing family law matters.
Many of the opponents of the current bill see advantages in a merger, but only in a way that would retain specialisation. For example, the NSW Bar Association has proposed making the Federal Circuit Court’s family law jurisdiction a new, lower division within the specialist Family Court.
Family law needs family law specialists
We need to keep a specialist court because family law is incredibly complex.
The Family Law Act is a long and complicated piece of legislation. Family law judges require knowledge of the act as well as tax law, constitutional law, trusts, evidence law, and international property arrangements.
Family law judges also need to understand family violence and its implications for the safety of women and children. Numerous studies have shown allegations of family violence and child abuse are the core business of the family law system. A specialist court, with expert supports, is required for cases involving violence, abuse, mental health and/ or drug and alcohol issues.
Family law judges have to deal with high rates of self-represented litigants. In 2019-20 the Family Court noted at least one party is unrepresented in 40% of trials .
Our research on family law proceedings
My colleagues and I have just completed a large study looking at people who represent themselves in family law matters involving family violence allegations.
Funded by Australia’s National Research Organisation for Women’s Safety, our research included court observations at eight Family and Federal Circuit Court sites. We observed a total of 512 court events, 243 of which involved a self-represented litigant.
This is problemative because self-represented litigants can slow down proceedings. Judges have the difficult task of explaining requirements to self-represented parties, while ensuring they remain impartial.
We also examined 180 court files of the matters involving a self-represented litigant. Of the examined files, 82% raised allegations about family violence.
‘Like a zoo’
During our observations, we also observed judges with huge caseloads and large daily court lists. At one Federal Circuit court, there were over 70 cases all listed for hearing at 10am before a single judge — the judge’s associate said this was a small list compared to other circuits.
One duty lawyer we interviewed described some regional circuit sitting days as
like a zoo […] there’s so many people and it’s so noisy and it’s so confusing.
We also observed run-down state Federal Circuit Court buildings, which are not suitable for cases involving family violence allegations. This includes a lack of safe rooms and separate entrances and exits. Even where safety measures, such as video links or screens, were available in the courtroom, self-represented litigants were often unaware of them.
Alternatives to merging
It is impossible to see how these matters would be improved by the current proposal to merge the courts. Instead, recent court initiatives — supported by government funding — such as harmonising forms and rules, a risk-screening system for parenting matters, a simplified process for property cases with small asset pools and upgrading particularly poor court facilities, will have a much greater impact.
So would more judicial officers and family consultants — who advise the court on parenting matters — and increased funding for legal aid and services to help self-represented litigants at court.
It is disappointing to see the government ignoring all the expert evidence and ploughing ahead with this merger, describing it as a “priority” when parliament returns next February.
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Hopefully, the Senate crossbench does not do the same. Improving the safety of litigants and their children should be the underlying reason for changes to the family law system. Not unproven efficiency gains which may actually undermine safety.
Miranda Kaye received funding from ANROWS for a project entitled "Exploring the impact and effect of self-representation by one or both parties in Family Law proceedings involving allegations of family violence".
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