WA’s family court is to have its first new judge in almost 50 years

The decision to fund another family court judge in WA heralds much-needed relief to an overburdened system.

A new judge in the Family Court of WA will alleviate delays and help address increasingly complex cases, says Law Society of WA president Rebecca Lee.

The Family Court of Western Australia will appoint a sixth judge, the first new judge’s positions on the court in almost 50 years, as the average waiting time for a trial blows out to two-and-half-years.

“In some cases, the wait time to trial for parties is longer than the relationship itself,” a family lawyer said. There was an apparent Covid effect for 2020, with some people not able to return to WA.

The federal Attorney-General’s department has confirmed $800,000 of recurring funding for the court contained in the 2021-22 mid-year economic and fiscal outlook and referred to as “for additional judicial resources” was for an additional judge and their associated support staff.

A spokesman for Attorney-General Michaelia Cash said it was “a historic appointment … that will enable West Australians to continue to have timely access to justice”.

Although the federal government is now in caretaker mode, effectively halting consultations with the state over the appointment, speculation in the WA legal community is the job will go to senior family lawyer Michael Berry SC. Mr Berry did not respond to requests for comment. He was already being mentioned a possible successor to judges slated to retire in the next year.

Confirmation of the appointment has been welcomed “for a hardworking jurisdiction that directly affects many WA families and practitioners”, Law Society of WA president Rebecca Lee said.

“The society has spent a considerable period advocating on behalf of the community for the urgent appointment of another judge … to alleviate delay and address the increasingly complex and difficult cases coming to that court that cannot be settled by mediation alone,” she said.

The WA Family Court is largely funded by the federal government but is separate from the Federal Circuit and Family Court of Australia.

Both were created under the Family Law Act 1975, when the Whitlam government made the states an opt-in offer to a federal body. All states did so with the exception of WA.

Family law barrister Rachel Oakeley said the appointment was a “welcome small step in the right direction but doesn’t really compare to the giant leaps of financial investment that appear to be accepted as necessary for the rest of the country”.

She said since WA was allocated five judges in 1975, its population had more than doubled to 2.67 million.

“An extra judge has been a long time coming, but to seriously reduce delays we’ll need to see much more,” she said.

In 2020 it took about 130 weeks to get cases to trial, up by 29 per cent on the year before; in 2019 it was 101 weeks, up four per cent on the previous year. Another family lawyer, Nicola Jansen, said judicial workloads “appear heavy and unsustainable”.

MYEFO also included a one-off $3m allocation for capital works to refurbish currently vacant space in the Perth Commonwealth Law Courts building to create additional courtrooms and other facilities for use by the WA federal court and the FCFCOA’s Division 2, which is the family law division.

Those funds will come from within existing resources of the Federal Court of Australia.

The separate nature of the federal and state family courts in WA has created anomalies such as different rules for the division of superannuation between de facto couples who separate.

While WA family court judges had jurisdiction over division of superannuation belonging to married couples, the laws relating to de facto couples were state powers.