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Struggling Family Court– what’s causing the massive delays in the system?

By February 25, 2019No Comments

The backlogs in the family court system are still severe despite having reduced slightly, according to the latest news reports. So who’s to blame and what can be done?

There are currently 20,000 pending family law cases with 17,000 in the Federal Circuit Court and 3,000 in the Family Court. Half the Family Court matters are over a year old while a third of the Federal Circuit Court cases are more than a year old.  The delays can mean up to five year waits for outcomes in parenting and property disputes.

However, experts are hoping that 2019 will see significant progress in improving the system, particularly over the next few months as reform action progresses with the outcome of the Australian Law Reform Commission’s family law review, together with political changes which may see the creation of a merged ‘supercourt’ for family law matters. The Government feels the planned merger will streamline and speed up the system, but the idea is still facing a lot of criticism from stakeholders—the Law Council even calls it potentially “catastrophic”.

Chronic underfunding of the system over many years has long been pinpointed as a major problem. Replacing departing judges and registrars quickly is also seen as something that must be dramatically improved. Currently there are still three vacancies for judges in each of the Family and Federal Circuit Courts which arose since last December, with the Government saying appointments to those roles are under “active consideration”.

Chief executive of the Family Court, Louise Anderson, spoke at a Senate estimates hearing in Canberra this week and reiterated the commonly-held industry viewpoint that to handle the overburdened system, more judges and registrars are needed, along with new case management initiatives that would help streamline courts.

Several weeks ago two new judges were appointed to the Family Court, however they were “elevated to the Family Court from their former positions on the bench of the Federal Circuit Court.” While it’s seen as positive that both these new Family Court judges come with excellent specialist family law experience, the Government must now act to fill the positions they vacated in the Federal Circuit Court. The Law Council noted in that regard:

“The Federal Circuit Court is already facing a crippling workload of family, migration and industrial relations matters. Delays in filling judicial vacancies directly contribute to delays in hearing cases and court backlogs.”

Former Federal Circuit Court judge Stephen Scarlett told Channel 9 that the Government has been waiting 10 or 12 months to replace retiring judges. Mr Scarlett doesn’t feel the planned “supercourt” merger is the solution and argues more staff are inevitably required:

“Just having [all the staff] in the one court structure doesn’t seem to me to be a way to enable the judges to churn through more cases”.

Speaking of the situation in NSW, a former Family Court judge, Peter Rose QC, also told Channel 9 that by the end of 2018, 30 percent of the state’s family law judges had retired or been relocated.

Mr Rose said: “And the attorney-general, who claims to be so concerned about unacceptable delays, has not appointed, or recommended appointments for any of them. The rhetoric sounds great, the performance is poor.”

Systemic problems are one thing, cultural problems are another. Court users themselves are being handed part of the blame for the backlog with Mr Scarlett referring to adults throwing “tantrums” in court. Zoe Durand, who recently released her book on family law (which includes a chapter interviewing our firm’s principal, Cristina), told Channel 9:

“I have seen terrible matters where people are just … they’re not maybe thinking about what’s best for the child, they’re thinking about winning, beating the other side,” she said.

Lawyers, too, are not off the hook when it comes to apportioning blame over the overburdened family court system—for example, those who drag out cases for financial gain, or are excessively aggressive, causing more conflict than resolving it.

While the reasons for the problems in the court system continue to be debated, along with possible solutions, it makes sense to consider your non-court options for resolving your family law matter. Three of the non-court options you might like to consider are mediation, arbitration and collaboration. If you are keen to stay out of the overburdened family court system, please give us a call to discuss whether these options may be suitable for you.

To speak with Canberra family lawyer Cristina Huesch or one of our other experienced lawyers here at Alliance Legal Services, please call (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.


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