Family Court abolition doesn’t fix problems faced by divorcing families: study

Macquarie University/The Lighthouse
Killing the Family Court is not about to make divorce easy, quick or cheap. Indeed, Macquarie Law School research shows that without careful implementation and further reform, it is likely a step in the wrong direction, write Sonya Willis and Rose Al-Kahili.

Battle lines were firmly drawn as the Senate debated, and passed, the Federal Circuit and Family Court of Australia Bill 2019 on 17 February 2021. The legislation abolishes the current Family Court of Australia moving its existing judges into the Federal Circuit Court with the Liberals and One Nation voting in favour and Labor and the Greens against.

It is a move the Law Council of Australia and more than 155 stakeholders who work with Australian families has warned will have “devastating impacts on families, result in a loss of structural, systemic specialisation and dismantle the appeal division”.

Their concern is that the newly approved merger of the courts (to be renamed the Federal Circuit and Family Court (FCFC)) will exacerbate problems in the “chronically under-resourced and over-burdened” Federal Circuit Court (FCC).

The analysis of experts in the field does not augur well for achieving the Government’s stated aims from the legislation, which are that the “reforms … establish a single point of entry for federal family law matters, ensure the development of common Rules of Court, forms and practices and procedures, enhance judicial appointment criteria, and streamline the family law appeals pathway.”

Divorce, while never easy, becomes hugely difficult in the many cases where mental health, domestic violence, addiction and/or poverty are complicating factors.

It is uncontroversial that the existing family law system is failing families and society badly and that reform is essential. The difficulties arise when it comes to determining how best to reform an area of law that is fraught with complexity, pain and suffering on a bewildering scale.

While there is definitely potential for improvement in family law procedure, the death of the Family Court is very likely to prove a step in the wrong direction unless it can do significantly more than just moving judges from one court to another.

Based on our research, we suggest that the solution needs to focus more on the actual difficulties litigants experience in court.

Reforms must consider litigants’ vulnerability

Family law disputes all too frequently involve vulnerable litigants and their, even more vulnerable, children. Divorce, while never easy, becomes hugely difficult in the many cases where mental health, domestic violence, addiction and/or poverty are complicating factors.

Currently more than 80 per cent of family law disputes are heard in the FCC and family law makes up about 90 per cent of the FCCs workload. In many respects, the FCC already resembles a slightly cheaper version of the Family Court of Australia (FCA).

The reforms are primarily about procedure and the management of cases but the legislation only really begins the reform process at best. Currently, running a family law case in either the FCC or FCA jurisdiction is time consuming, expensive and difficult, eroding litigants’ capacity to work and parent their children, let alone enjoy any quality of life.

Many litigants in the FCC are self-represented and these litigants, and their children, are the most vulnerable to existing failures in the system because they cannot afford legal assistance. The reforms need to benefit litigants and their children, particuarly the self-represented ones.

18 issues that disrupt the flow

Our research focused on these most vulnerable litigants. In order to objectively assess the procedural problems occurring in the FCC and trends in those problems, we reviewed every reported procedural decision involving self-represented litigants in the FCC in 2013 and 2019. We examined 89 cases from 2013 and 173 cases from 2019.

Family Court of Australia building in Sydney.

Merger: The Family Court of Australia building in Sydney … the Federal Parliament has voted to combine the court into the Federal Circuit Court, raising concerns that the system will be even more over-burdened.

Across these cases, we identified 18 issues which disrupted the flow of litigation through the FCC and mapped their frequency.

The results may come as some surprise to those thinking that combining the FCA into the FCC is going to solve the problems experienced by family law litigants. The data indicated that transfers between the FCC and the FCA caused increasing issues but, such transfers remained a problem affecting less than 10 per cent of FCC self-represented procedural decisions in 2019 and less than 2 per cent in 2013.

Therefore, of itself, the combining of the FCA into the FCC is unlikely to fix the problems facing most family law litigants or the affected courts.

Like many of the families appearing before it, the FCC is struggling to do the best it can with insufficient resources and conflicting imperatives.

The biggest procedural issue for self-represented litigants in the FCC was their required documents being not in order as a result of them having failed to file, tender or disclose necessary material in court. This issue affected more than 30 per cent of cases in 2013 and nearly 25 per cent of cases in 2019.

Other common issues included failing to comply with court procedures, not understanding the role of the court or the law and failing to maintain any objectivity in relation to the matter, particularly the best interests of children of the marriage.

Delays in the court’s processes due to domestic violence issues and deliberate attempts to lie to and mislead the court were also depressingly common.

Many cases suffered from numerous issues.

Additional funding is crucial

Sadly, many of the 18 identified issues experienced by self-represented litigants are difficult to resolve without significant additional funding for additional court resources and/or legal representation.

Courts determining family law disputes are often faced with unenviable decisions on how to best arrange for the care of children by parents who are struggling to cope and the division of, often inadequate, assets.

Court processes must be designed as best as possible to enable courts to work out what is fair and in the best interests of the parties and their children while being simultaneously mindful of the potential trauma, invasion of privacy and inherent indignity such processes entail.

Courts are doing their best

Like many of the families appearing before it, the FCC is struggling to do the best it can with insufficient resources and conflicting imperatives.

The FCFC judges (including those judges joining from the FCA) will, no doubt, continue to do their very best to deliver fair outcomes to every litigant as efficiently as possible. It is vital that the reforms preserve and grow the precious expertise of the current FCA and its judges wherever possible.

Hopefully, the Government will provide more resources for the FCFC and for its most vulnerable litigants and not rely too heavily on the limited (albeit important) role of procedural efficiency. It is also important that the new FCFC court producures address the procedural diffiulties identified in our reearch, which will be challenging given the volume and scope of matters the new FCFC will be responsible for.

The Government and the public need to have realistic expectations about what can be achieved with limited resources and complex intractable problems.

Dr Sonya Willis is a Senior Lecturer at Macquarie Law School specialising in civil procedure.

Rose Al-Kahili is a Client Service Officer in the Federal Circuit Court of Australia and a Macquarie University Law Honours Student

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