Law Council rejects Porter’s ‘unacceptably derisive’ criticism

The Law Council has questioned statistics used by Christian Porter to attack the Family Court’s performance.

Christian Porter said the Family Court’s failure to improve the rate at which it finalised cases, despite a decreased workload, was a “major driver” of worsening backlogs. Picture: AAP

The peak body representing ­family lawyers has hit back at ­Attorney-General Christian Porter’s “unacceptably derisive” criticism of Family Court judges, and warned his plans to scrap the 42-year-old court would lead to a further blowout in waiting times.

In an email to members, the head of the Law Council’s family law section, Wendy Kayler-Thomson, questioned statistics used by Mr Porter to attack the Family Court’s performance, and said judges had “few options to publicly reply” to criticism.

Under plans announced in May, the government is set to abolish the Family Court and merge it with the lower-level Federal Circuit Court, while its appeal division will be stripped and handed to the Federal Court.

The changes come amid crippling waiting times for family law litigants of up to five years. Legislation is expected to be introduced in the next sitting of parliament, which begins this week.

Writing in The Australian last week, Mr Porter said the Family Court’s failure to improve the rate at which it finalised cases, despite a decreased workload, was a “major driver” of worsening backlogs. He said the Family Court had finalised about 250 fewer cases last year, which was a “concerning trend’’.

Ms Kayler-Thomson said figures cited by Mr Porter to suggest the Federal Circuit Court, which handled less complex cases, was more efficient included matters settled by consent. He had also suggested it was resolving more cases than it received but provided “no evidence”.

On the other hand, the number of cases the Family Court had ­resolved by way of a judgment had increased, she said. Mr Porter’s statistics also failed to acknowledge the impact of “unacceptably long delays” to replace retiring judges.

Family law litigants were “more than just statistics” and the work of judges more complex and nuanced than “finalis­ations” and “outputs”. “What we know, at the coalface of family law, is the court system is in crisis and the single most important driver of that is lack of government resourcing.”

She warned that Federal Circuit Court judges – who will eventually take over the Family Court’s more complex cases once its judges have retired – were “already struggling with their immense workload of both family law and migration cases”.

“If those judges take on more complex work, requiring more judicial time, it will inevitably lead to a blowout in lists and increased delays for family law litigants,” she said in the email sent on Friday.

There had been a failure by the government to consult properly on the “most significant structural change to our federal court system in decades” and a lack of transparency.

“The family law courts system and the public it serves, deserve far better,” she said.

She revealed the Law Council had begun meeting with parliamentarians to raise concerns about the proposed court changes. The peak body has also called for the release of a report by consultants PwC on the changes – a demand echoed last night by the Australian Bar Association.

Arguing in favour of retaining a specialist family court, Ms Kayler-Thomson said litigants had a right to an expert adjudicator.

“In family law, that means judges with not just an expert understanding of family law and how it ought be applied, but an understanding of the dynamics of family breakdown and the range of social issues that are experienced by our clients,” she said.

The email comes after the NSW Bar Association urged the government to create a new, properly resourced, specialist “Family Court of Australia 2.0”, by using the Family Court’s existing judges, and shifting the Federal Circuit Court’s family law judges into a lower level of the same court.

The Attorney-General has comprehensively dismissed the NSW Bar model, arguing it would increase the court that had “struggled the most to maintain its efficiencies” (the Family Court), abandon the “best-performing court” (the Federal Circuit Court) and was unlikely to be supported by any of the heads of the three federal courts. The model was also proposed by Labor and rejected by judges in 2009.

However, Ms Kayler-Thomson said the Law Council’s family law section supported the NSW Bar’s model – “a single court that specialises in family law” – and had asked all law societies and bar associations to provide feedback on the NSW proposal.