Family law system has been ‘neglected, underfunded and under-resourced’
Australia’s judicial system for family law is a “critical piece of social justice infrastructure” that desperately needs greater resourcing and commitments to specific improvements, according to the NSW Bar Association.
In its submission to the joint select committee on Australia’s family law system, the NSW Bar Association said that Australia’s “once world-leading” family law system is “not currently serving the best interests of children and families as well as it could or should”, creating “much frustration” with the current state of affairs.
As such, the association argued, the federal government must both commit to properly resourcing the family law system and commit to implementing structural changes which it says will improve the system.
“The family law system and its courts are a critical piece of social justice infrastructure that has been neglected, underfunded and under-resourced for decades,” NSW Bar posited.
“More Australians will have contact with the system than perhaps any other part of our justice system. The family law system must therefore be recognised – and funded – as an essential specialised service on which so many Australians rely.”
Failing to invest in the system, the association continued, has produced unacceptable delays and costs that directly impact the accessibility and quality of justice.
“Some families are having to wait up to three years, or longer, to have their family law disputes resolved. Broader costs and impacts to the community also result from family breakdowns not being determined in a timely manner,” it wrote.
“Underfunding legal assistance has meant a significant number of parties cannot afford legal representation in family law matters and appear by necessity unrepresented in court. These factors have contributed to crippling judicial workloads. Both courts now have backlogs of more than a year’s worth of cases. In the Federal Circuit Court, most judges have between 300 and 500 cases in their docket at any one time, and some even more.
“Despite best efforts, the challenges faced by judicial officers struggling to meet these case loads adversely affect the quality of outcomes delivered for parents and children. The challenges also pose a threat to the work, health and safety of those judges.”
Despite contributing “immeasurable social and economic value to our society”, the family law system would benefit from certain urgent improvements, NSW Bar submitted.
It reiterated its call from July 2018 for a “Family Court 2.0”, which would “bring judges currently hearing family court matters in, and the jurisdiction currently exercised by, the Federal Circuit Court into a second, lower division within the specialist, standalone Family Court”.
This structure has already worked in Western Australia and has the backing of Women’s Legal Services Australia and the Law Council of Australia, and, “unlike the government’s proposal to merge the Family Court into the generalist Federal Circuit Court, the Family Court 2.0 model would have the significant advantage of promoting safety for children and adults by preserving access to services of a specialist Family Court”, it said.
The proposed merger from the federal government, NSW Bar wrote, will see a loss of specialisation from a system which is critical in protecting the safety and wellbeing of children and victims of violence and those who are vulnerable.
“Governments have failed to do what is needed to improve the system: provide adequate funding, sufficient resourcing and a coherent structure to stop children and victims of family violence from falling through the cracks,” it surmised.
“Holistic reform to bolster a standalone specialist Family Court – and funding to properly resource it – is urgently needed.”