Kids’ mental health ‘put at risk’

The adversarial nature of Australia’s family law system is ‘not serving children well’ and damaging their mental health, says Children’s Commissioner Anne Hollonds.

Family Court Chief Justice Will Alstergren. Picture: Family Court of Australia

Long delays in the family law system and its adversarial nature are damaging the mental health of children, says new National Children’s Commissioner Anne Hollonds, who stepped into her role on Monday.

She said the system was not serving children well. “The longer families are locked into the system, the more opportunity there is for this negative experience to linger and for children to languish in an uncertain, stressful environment,” she said. “We’ve certainly seen in research that there are negative mental health effects for kids whose families are involved in drawn-out adversarial processes.”

Her comments come after The Australian revealed on Tuesday that the family law system was being stretched to breaking point, with disruption caused by COVID-19, unfilled vacancies and judges being unable to keep up with their workloads contributing to what Family Court Chief Justice Will Alstergren conceded were “unacceptable delays”.

Ms Hollonds, formerly head of the Australian Institute of Family Studies, said it was necessary to ensure the system was serving the interests of children, who were its “main clients”. “There is very clear and very strong evidence that children’s needs are often not best served in the way the system operates now,” she said.

Research showed children were also often not well served by those appointed to look after their interests, including independent children’s lawyers and counsellors, and some felt they were “kept in the dark” during proceedings.

Ms Hollonds said it was important to strengthen non-court services that helped families to support the wellbeing of their children and resolve their disputes in a more amicable way.

The Australian revealed on Tuesday that at least two Federal Circuit Court judges had put off hearings to clear case backlogs, a third family law judge was on indefinite leave, and there were five unfilled vacancies in the Family Court and Federal Circuit Court.

Figures show some parents face long delays for family reports — up to an average of 11 to 12 months in some areas, which can delay resolution of family law disputes. Family reports provide an assessment of the issues in a case and can help judges decide what parenting arrangements should be made for children. Some reports are produced by in-house court experts while others are produced by private psychiatrists, psychologists and counsellors charging tens of thousands of dollars in some cases.

In Wollongong and Dubbo, average waiting time for a family report is 12 months; in Sydney it is 11 months; and in Canberra it is nine to 12 months, figures produced in a response to a question on notice at Senate estimates from Labor senator Murray Watt reveal.

The shortest waiting time was three months (in Darwin, Lismore, Cairns and Townsville), while other cities fell somewhere in between.

Opposition legal affairs spokesman Mark Dreyfus said the family law system was “crucial to the wellbeing of thousands of Australians, including young children … but under this government (it) has reached breaking point, causing enormous and unnecessary distress to Australian families.

“The last thing we need is yet another inquiry. We know already that urgent action is needed, including more resources and greater support for families.”

A joint parliamentary inquiry into the family law system is due to report in February.

Chief Justice Alstergren, head of both the Family Court and lower-level Federal Circuit Court since December 2018, said Sydney faced the biggest backlogs. The Federal Circuit Court handles almost 90 per cent of family law disputes as well as general federal law cases. “There is no doubt there is a backlog in Sydney and we’re desperately trying to do something about it,” he said. “We recognise there are unacceptable delays.

“We were having an impact until COVID hit.”

Family lawyers say litigants commonly wait four years for a final hearing in the Family Court and three years in the Federal Circuit Court.

Mr Dreyfus urged the Morrison government to “abandon its reckless proposal to abolish the Family Court by merging it with the Federal Circuit Court”.

However, Attorney-General Christian Porter has said any extra funding would be tied to the courts merger because there was “little point pushing more funding into a failed structure”.

The Law Council is deeply opposed to the merger of the two courts.