Swamped by violence

BUDGET cuts are pushing courts and families to breaking point.

4/07/2000. Family Court building, Goulburn Street, Sydney.

EMILY Doyle has been relentlessly threatened by her ex-husband and called a “f..king c..t” and a “whore” in front of her children, but after a scarring, 3½ year Family Court battle, she finally feels she can start to rebuild her life.

While the litigation dragged on, her eldest son threatened to throw himself off the cliffs at Sydney’s notorious suicide spot, The Gap, and cut himself with kitchen knives.

“My youngest is 11 and it just represents such a huge portion of his life,” Doyle says. “For my eldest, who is now 16, his entire high-school career has had a backdrop of conflict.”

Doyle, whose name has been changed for legal reasons, stopped riding her bicycle to work because she feared her ex would drive past and run her down in a fit of rage.

Her stress was compounded because her husband, although well off, withheld financial support. She scraped by with a part-time job and a loan from her parents, while her sister sent her $100 a week to help with the rent.

“I understand there’s a triage system where the most dire cases have to go first,” she says. “But after three years it gets dire.”

Federal Circuit Court Chief Judge John Pascoe says the family law system is being swamped by an epidemic of domestic violence, mental illness and drug and ­alcohol abuse.

“We feel like there’s a tsunami every day,” he says. “The number of cases in this court where there are allegations of violence, where there is mental illness, drug and ­alcohol abuse, those numbers have increased exponentially.”

Both the Federal Circuit Court, which handles the bulk of family-law disputes, and the Family Court, which deals with the more complex cases, have been under pressure.

For years, the courts, like all other commonwealth bodies, have had to contend with successive budget cuts as part of the federal government’s efficiency drive. This year, the efficiency dividend shaved 2.5 per cent, almost $4 million, from their budget. Cuts to Legal Aid have also affected the system.

And, while the number of family law applications has remained relatively stable, the caseload in both courts has become increasingly complex. Compulsory mediation in parenting matters means only the most difficult cases now proceed to trial.

When The Australian visited the Federal Circuit Court’s Parramatta registry, in Sydney’s west, the duty judge had 26 matters on his list and his courtroom was overflowing with nervous litigants and lawyers flitting between clients.

The judge churned through the list, triaging disputes, sending some off for mediation, referring others to family consultants, putting orders in place until final hearings could occur. He urged one warring couple with a young son who allegedly had not been attending school to try to settle their dispute out of court.

“You don’t want be stuck in court for the next two years,” he said.

At the Doyles’ interim Family Court hearing in November 2011, the judge ordered the two youngest boys to spend every second weekend, from Thursday to Sunday, with their father.

Doyle says those interim orders, which remained in place until May this year, had a terrible impact on her children.

“It meant they had to steel themselves for that weekend and they anticipated it with dread,” she says. “Is dad going to be wearing his ‘super-dad’ hat or is he going to be ranting and screaming and calling me a f. .king c. t and a whore in front of them? That was incredibly stressful for them.”

She would receive distressed text messages, emails and Facebook messages from her children all weekend and, on one occasion, one of the boys ran away. It was not until early this year the judge finally received the report of a court-appointed psychiatrist, which found the three-night visits were not in the boys’ best interests.

Now final orders are in place, the children only have to see their father if they want to.

Federal Circuit Court judge Robyn Sexton says judges work hard to get the best results with the resources available but often wish they could spend longer with each case and that more family consultant resources were available to help them.

“We see children as young as seven and eight who are clinically depressed because their circumstances are so sad, and so hard for them to cope with. We’re trying to relieve their stress. The more information we have about that child’s circumstances the better,” she says.

Putting unsuitable parenting decisions in place can inflict lasting damage on children, with ripple effects for families and government resources, including health and welfare services. As Sexton points out: “What happens to children in the early years of their life, and in their later childhood, is critical in terms of what sort of adults we’re going to produce at the end of the day. I find myself often saying to people, ‘The court is not just interested in today or tomorrow or next week, but in where your child is when he or she is your age’.”

The Federal Circuit Court’s Parramatta registry has been particularly stretched since one of its judges, Joanne Stewart, was moved to Melbourne to plug a gap there.

This has put pressure on the court’s remaining judges — one Parramatta judge recently told litigants his leave for the rest of the year had been cancelled, while another, David Halligan, who took half of Justice Stewart’s caseload, has said he will step down at the end of the year.

Watts McCray partner Justin Dowd, a former NSW Law Society president, says family lawyers are worried about the impact of under-resourcing on their clients.

“The delays are certainly a concern and particularly in the Federal Circuit Court we’ve seen signs of a blowout in the time taken to have matters heard,” he says.

He says practitioners are also being advised that duty registrars are not available on particular days to deal with urgent family law applications.

“That causes a backlog in itself,” he says. “Those applications are dealt with by a registrar, but if there is no registrar it just doesn’t get dealt with. We were seeking recently to have a matter listed urgently and although our application was hand-delivered to the court it sat there for a fortnight. When someone is not having contact with their children that is an intolerable delay.”

Family Court Chief Justice Diana Bryant believes family law cases should ideally take no longer than a year to reach final hearing.

“If you can’t (finish hearing them in that time), and you’re being as efficient as you can be, then I do think you have to seriously look at further resources,” she says.

She says in recent years the courts have been trimming spending and finding efficiencies wherever possible.

“We try to avoid cutting services by reducing in every other area that we can,” she says. “But we will get to a point where I think if we don’t get some resolution of our funding issues, services will inevitably be cut, and that’s a problem.”

On average, Family Court cases are taking 18 months to reach a final hearing, while in some Federal Circuit Court registries, barristers say they can take sometimes as long as three years to resolve.

The chair of the Law Council’s Family Law Section, Rick O’Brien, says this is too long.

“Resolving family law cases in 12 months is an appropriate goal to be setting, but it’s simply not achievable without more resourcing,” he says.

Delays not only affect families, they also breed inefficiency, because the longer it takes to reach final hearing, the more interim applications people bring, which further drains the courts’ resources.

Doyle’s case was dragged back to court on 50 occasions, about seven of those for key hearings. On one occasion, she was ushered out of court through a back exit by security guards who had observed her husband’s behaviour and were worried about her safety.

“You have this moment of going, ‘I’m one of the absolute outliers in this court, I’m one of these cases where everyone’s afraid he’s going to kill me’,” she says.

The process was incredibly stressful and isolating, and had a physical impact on her health, she says.

“Each time, there’s all the documentation to prepare and counsel to brief. I was not eligible for Legal Aid but running out of money to pay my lawyers,” Doyle says.

“There’s this terrible gap between the very wealthy and the dead poor … When your lawyer is $500 an hour and you’re getting paid $40 an hour, each hour you spend with them you’re down $540. For that middle lot of people like me, what do we do? How do we get our litigation heard?”

The situation is even more acute in some regional areas, but every time judges are sent to hear family law disputes there, it means time away from the busy inner-city registries.

Practitioners have called for permanent Federal Circuit Court judges for Lismore and Coffs Harbour in NSW and Rockhampton in Queensland.

The Australian has been told one judge recently had a list of 100 cases to get through while sitting for a week in a regional NSW town. In that environment, judges can be up until midnight reading all the material for the next day’s hearings.

Pascoe says he worries about the health of his judges and acknowledges it can be more difficult to access justice in the bush.

“All we are talking about is magnified in the country. The resources, the circumstances are more difficult,” he says. “In a perfect world we would have a lot more circuits and we would spend a lot more time in every circuit location.”

Doyle says now, every time she sees a case like that of real-estate agent Gerard Baden-Clay, who murdered his wife, or Luke Batty, the 11-year-old killed by his father at cricket training, she thinks, “there but for the grace of god”.

She put up with her husband’s aggression during 15 years of marriage, and like Baden-Clay’s wife Allison, accepted the blame for any problems in the relationship, even though she later realised he had been sleeping around.

“The Gerard Baden-Clays and my exes of the world, they just chip you away block by block until you can’t think for yourself anymore,” she says. “I’ve got a postgraduate qualification, I’m not a moron. But it happens over such a long period of time.”

Doyle says she is hopeful she and her boys can get on with their lives now that their pitched legal battle is over.

She is still waiting for a financial settlement, but for the first time in years she can appreciate life’s small pleasures like the sun on her skin.

“There’s a whole world out there,” she says. “I think you can only understand how oppressive it is when it’s over.”