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Court must support vulnerable families

Court must support vulnerable families

By Karin Derkley

Family Court 

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A proposed restructure of the family law courts will add complexity and undermine the world-leading features of the Australian family law system, the Law Institute of Victoria argues.

It could also remove the specialisation the Family Court currently provides that aids and protects vulnerable Australian families, the LIV says.

The LIV instead recommends harmonising the rules and forms of the Federal Circuit Court of Australia and Family Court of Australia to create a clearer and more accessible system for litigants to navigate.

The federal government wants to amalgamate the existing courts to create a Family Court and Federal Circuit Court (FCFCC), claiming this will help families save time and money in family law disputes.

Attorney-General Christian Porter has said the current system of parallel courts mean disputants "get bounced around like family law footballs from one court to the other", causing delays of up to 19 months for cases to reach trial.

The proposed new court will have two divisions: Division 1 will comprise the existing judges of the Family Court of Australia and deal only with family law matters. Division 2 will comprise the existing judges of the Federal Circuit Court of Australia and deal with family law matters and general federal law matters.

A new Family Law Appeal Division in the Federal Court of Australia would also be established to hear all appeals in family law matters from the newly created FCFCA.

Under the new system all family matters will have one single point of entry, Mr Porter said. "Families will have one new court with one set of new rules, procedures and practices designed to ensure that their disputes will be dealt with by the FCFCA in the most timely, informed and cost effective manner possible."

But in its memo to the Law Council of Australia for its Submission to the Legal and Constitutional Affairs Legislation Committee inquiry into the family law courts, the LIV says the government's proposed model will lead to significant uncertainty and add unnecessary levels of complexity by creating a three-tiered system for families to navigate.

It will also remove the specialist services that help families in crisis who are dealing with multiple issues such as family violence, substance abuse, mental health issues and child abuse.

LIV Family Law Section Executive Committee chair Louise Dorian says that while the current system needs reform, the proposed merger does not address the underlying systemic issue impacting the family law courts and their efficiency capabilities, "namely the stringent financial restraints imposed on both courts which prohibit them being able to operate at full capacity".

"The proposed restructure will potentially further restrict the ability of the court system to be responsive and accessible to the community. In addition, the long-term consequences of diminishing the bedrock of the system, being access to a specialist court of appeal, appears not to have been fully considered" Ms Dorian says.

The Federal Circuit Court and the Family Court cover very different jurisdictions, the LIV memo points out. The Federal Circuit Court is the "workhorse" and hears the vast majority of family law matters, while the Family Court hears the more complex matters.

Cases heard by both Courts often involve specialist knowledge across a number of areas, including criminal law, constitutional law, trust, taxation and contract law, superannuation law and international treaties. They often also require knowledge of psychology, psychiatry, counselling, mediation and negotiation, as well as specialist issues such as family violence and child development.

"This is why family law is now necessarily considered an area of specialisation," Ms Dorian says.

It is essential that judges working in the Family Court have that same level of specialisation, she says. "Litigants involved in family law proceedings are often at their most vulnerable and rely upon a pragmatic and efficient approach that either assists in the resolution of their issues or provides an authoritative conclusion to the matter based on clear principles."

Harmonising the rules and forms of both courts would achieve the objective of efficiency, while not threatening the specialisation and expertise that ensure just outcomes for Australian children and families, she says.

The LIV has urged the government to boost funding to both the Family Court and Federal Circuit Court and allocate additional resources for judicial officers, family report writers, registrars and other court personnel.

There are just 74 family judges to deal with at least 22,000 cases a year that require judicial determination across the Family and Federal Courts at present.


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