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What can be done to fix the flawed family court system and help victims of family violence?

By April 11, 2016No Comments

By Gianna Huesch

We’ve heard much in recent times about the crisis in the family court system in respect of delays in cases reaching trial. Now comes the news that even after suffering interminable delays in reaching trial, families are also waiting years for their reserved judgments to be actually delivered.

The Australian reports that families are experiencing delays of up to two years between final court hearings and judgements being delivered in the Family Court and Federal Circuit Court. The delays are being caused by the huge backlog of cases being heard by insufficient numbers of judges, with judges in the Federal Circuit Court now experiencing extreme workloads and dealing with some 500-600 matters in their dockets.

Practitioners at the coalface see the emotional and financial impact this lack of resolution is having on families, especially in high-conflict cases and those involving family violence. The situation has been put in stark terms by the Chief Justice of the Family Court, Diana Bryant, who is quoted in The Australian as saying:

“If you are really serious about deaths of children, because that’s what this is about, and having a proper, viable system, we ­really do need to look at funding the courts properly. With a modest amount … you could make a really big difference to the system.”

Ms Bryant has suggested the figure of $20 million as a start to boost the numbers of family consultants and registrars to deal with the most serious disputes coming through the system. She points out that judges have a maximum of two hours to make interim orders—the arrangements that are put in place until final hearings are reached, which can take up to three years. In that two hour timeframe, courts are faced with onerous task of attempting to ascertain where the truth lies, between the allegations and counter-claims that are made in typical high-conflict cases.

Organisations such as the NSW Law Society and NSW Bar Association have also called on the Government to take urgent action and inject funding into the beleaguered court system. An immediate review of court resources is seen as vital, as well as an increase in the number of sitting judges.

Meanwhile, there has been widespread outrage at news of a recent case where a violent father was granted access to his nine year old child on his release from jail, where he had been serving time for domestic violence offences committed against the child’s mother.

The mother had been convicted for breaches of parenting orders she had in place with the father, due to withholding the child from weekly visits with her father. The judge in that case had apparently–unfathomably–“believed the criminal trial didn’t constitute ‘a change in the family dynamic’ that would warrant her halting weekly visits”. That judgment was later overturned by the full court, but the father went on to apply to have his visits reinstated after being paroled, claiming he had been pressured into pleading guilty. In the family court litigation that followed, the mother was again criticised for alienating the child from her father, and supervised paternal visits were ordered. The judge said, “The child is entitled to come to her own judgment about the father”.

In the case, the Herald reports, judgments throughout the eight-year dispute “showed the court’s tendency to side with” the father, despite the child psychologist involved in the case dramatically changing his mind as to the truth of the mother’s allegations.

Anti-violence advocates have used this case as an example of the problems besetting the court system, arguing domestic violence is poorly understood by the courts, which in some cases still appear to be granting access to parents who have a proven history of violence.

The Sydney Morning Herald reports that Victoria’s Royal Commission into Family Violence report, released last week, recommended a complete overhaul of the court system, and the creation of specialist family violence courts. Anti-violence advocates are calling for the recommendations to be nationalised given the problem obviously isn’t confined to Victoria.

If you are experiencing domestic violence and would like legal assistance, please contact us on (02) 6223 2400. Alliance Family Law can assist you once you have chosen to take a legal course of action, whether this involves separation, divorce, custody arrangements for your children, or property settlements; as well as supporting you with any related criminal law or other legal matters through our network of referral companies. Whilst we are a Canberra-based firm we operate in all east coast states and the ACT.  Our first no-obligation conference is free, so please contact us for compassionate, confidential assistance.

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