The adversarial nature of Family Law proceedings concerns many family law practitioners. Such practitioners consider that reforms are long overdue. They believe that more emphasis should be placed on mediation and other forms of dispute resolution rather than on litigation, which often leaves participants devastated, as well as near-to impoverished.
The former Chief Justice of the Family Court, Diana Bryant retired in October 2017 at which time the Attorney-General George Brandis named Federal Circuit Court Chief Judge John Pascoe as the new head of the Family Court — just 14 months before he reaches the mandatory retirement age of 70. Far-reaching reforms to the Family Court are clearly being sought by the Federal Government, possibly including a consideration as to whether the current adversarial system is the best way to handle Family Law.
Reform is long overdue; litigants often face up to three years’ delay in reaching court. The damage to children, in particular, is devastating. The long wait until litigation tends to intensify the hostile feelings of litigants towards each other.
One reform being considered is the side-lining of family courts, which would be replaced by a panel consisting of psychologists, social workers, paediatricians and drug and alcohol specialists. If applicants were to opt for having their matter heard before such a panel, they would need special permission in order to retain lawyers. Appeals would also be limited.
Even the Family Law Act itself may be subject to a review. Many involved in family law believe it to be unnecessarily complex and unwieldy. Over 40 years since its introduction, it is clearly overdue for reform, given the concerns of the former Chief Justice, who suggested that scrapping the Family Court and folding it into a new division of the Federal Court may be more efficient. Others have suggested the appointment of a single chief justice to oversee the three courts, the Family and Federal Circuit Courts and the Family Court of WA.
The former Chief Justice recommended the use of more dispute resolution procedures. Improved IT should help but budgetary considerations continue to hamper reforms. The statistics are instructive: during 2016, more than 20,400 applications were filed in the Family Court and almost all of these were finalised. Only 27 per cent went to trial, and fewer still, only 14 per cent made it to judgment. 86 per cent of matters were cleared within 6 months but there was a small percentage which dragged on beyond two years.
The Australian Law Reform Commission (“ALRC”) has been tasked with drawing up viable reforms to the jurisdiction of family law, examining whether the current adversarial system is injurious to the children of divorced or separated couples. It will also examine overlaps between the states’ child protection systems and the federal courts. It will be headed by Professor Helen Rhodes, former chair of the Family Law Council, and will consult with the community as well as with legal and health professionals and family dispute resolution practitioners.
As a result of recommendations made to the government by Law Professor Patrick Parkinson, a $12.7 million trial will begin soon in Parramatta in Sydney’s west, as well as in another, as yet announced location. The Federal Government has requested that the ALRC report back to it in 2019.