Reform Family Court to improve painful processes

The pain and hurt of intractable Family Court disputes, especially those involving children, should not be dragged out for up to three years. The emotional cost to all involved as they wait to move on with their lives, especially the children, is immense. The financial costs also are heavy. With the system at breaking point due to a backlog of complex cases, sweeping family law reforms to be trialled by the Turnbull government would appear to have merit. The trial, to begin in Parramatta, west of Sydney, could see social workers, psychologists, pediatricians, drug and alcohol specialists and others resolving conflicts over parenting issues. About 48,000 Australian couples divorced in 2015, including 23,000 couples with children under 18.

The government also has asked the Australian Law Reform Commission to review the family law system. In a report due by March 2019, the commission will examine whether the present adversarial system is the best way to protect children. It also will look at overlaps between the federal courts and state child protection systems.

Today, in a wide-ranging interview with The Australian to mark her statutory retirement at age 70, Family Court Chief Justice Diana Bryant calls for the Family Law Act to be rewritten because it is “too complex”. She also tells legal affairs correspondent Nicola Berkovic that scrapping the Family Court and folding it into a new family law division of the Federal Court could be a more efficient model for the future and save money.

Chief Justice Bryant’s view makes sense. Many Australians’ more straightforward divorce cases already are resolved in the lower-level Federal Circuit Court. The back-office functions of the Federal and Family courts already are being combined, saving on administration. Merging the judges would negate the need for separate chief justices. The savings would help clear the backlog of cases and also should fund extra services aimed at settling disputes once they were in the court system but before they reached trial. As Chief Justice Bryant says, mediation is the strength of Australia’s family law system.

The government’s pilot dispute-resolution project will involve parents appearing before panels of one or more members, that could be made up of lawyers or non-lawyers. Such a process should provide a quicker and less complex alternative to the courts. But as Berkovic wrote yesterday, the model has raised concerns about some parents appearing before a panel without a lawyer to advocate on their behalf, especially if a power imbalance exists between the parties. As University of Sydney law professor Patrick Parkinson, a strong advocate of reform, wrote in May, relationship breakdown is a time of enormous financial stress for families, especially those with children: “If they cannot resolve their financial or parenting issues in the aftermath of separation, then the costs of engaging lawyers and navigating the court system add greatly to the financial stress.” A simpler, cheaper system is in the public interest.