A decades-long crisis: the battle to fix Australia's 'broken' family law system

Legal groups fiercely oppose planned changes that Labor believes are part of an ideological war by the Coalition to dismantle a court it never supported

Young Asian mother and little daughter looking through window
The Morrison government is proposing reforms to the family law system amid an enormous backlog of cases. Photograph: d3sign/Getty Images
The Morrison government is proposing reforms to the family law system amid an enormous backlog of cases. Photograph: d3sign/Getty Images
Nino Bucci

Last modified on Fri 13 Nov 2020 14.02 EST

Amid a two-year scuffle to reform Australia’s family law system, which is buckling under so much work that some judges are dealing with more than 600 cases, the parade of desperate and troubled people through its courts crawls on.

In New South Wales, a young girl who pulled apart a live lizard in childcare says she has been sexually abused by her father and grandfather; in Queensland, an overworked judge takes seven years to hand down a decision; Aboriginal children removed by authorities from the victims of family violence in Western Australia are having reunification delayed because a family court dealing with a backlog of cases will not sit in the region for months.

“The level of violence in regional WA Aboriginal communities is critical,” the Aboriginal Family Law Services chief executive officer, Corina Martin, wrote to a Senate inquiry last month.

“The department ... often removes children from both parents even if the victim parent is also a protective parent.

“The current status of children removed by the department is disproportionate between Aboriginal children and non-Aboriginal children … this is demonstrated most clearly in the Kimberley where 100% of children in care are ... Aboriginal.”

A crisis going back decades

The contemporary crisis engulfing Australia’s family law system has stretched decades, all the way back to a spar in the 1990s between the then attorney general Daryl Williams and the then chief justice of the family court Alastair Nicholson.

Nicholson wanted more resources to improve efficiency in the system. Williams felt that would be too expensive, given some family law matters were relatively straightforward. The pair clashed repeatedly.

“Eventually Williams basically said ‘well fuck you then I’ll create another court’,” one senior family law barrister recalled this week.

Two decades later, a federal government is again proposing reforms relating to family law amid an enormous backlog of cases.

In 2018, the Morrison government announced plans to scrap the family court and merge it with the federal circuit court, which was established under Williams in 2000 as the federal magistrates court.

The circuit court handles a variety of matters, including less complex family law cases, and the government believes folding in the family court will create efficiencies by improving court processes and encouraging the early resolution of disputes.

“The need for reform of the courts that deal with family matters has been well known for more than a decade,” the attorney general, Christian Porter, told Guardian Australia.

“This is an area in need of urgent reform to improve the system for all those involved, most especially for families who should be able to rely on the courts to help them resolve matters at the end of a relationship as quickly, efficiently and at as low cost as possible.”

Labor is against the changes, believing they are part of an ideological war by the government to dismantle a court system it never supported.

Anthony Albanese during a press conference on the family court inquiry in September 2019
Anthony Albanese during a press conference on the family court inquiry in September 2019. Labor is against the Coalition’s planned changes. Photograph: Tracey Nearmy/Getty Images

The Law Council of Australia, which also opposed Williams’ reforms, is also fiercely against the change. So are other legal groups, including Women’s Legal Services Australia, Community Legal Centres Australia and the National Aboriginal and Torres Strait Islander Legal Services.

Instead of dumping the family court, it is the federal circuit court which should go, they say.

“What the bills propose is not a simple lift and shift, co-badging or continuation of the status quo,” the Law Council president, Pauline Wright, told a Senate committee last month.

“They would dismantle a world-leading institution, undermining specialisation in the system to the detriment of children and families at their most vulnerable.

“There is no doubt that Australia’s family law system is not working as well as it could or should, but this merger proposal is not the answer.”

The former family court judge Nahum Mushin, who served for more than two decades until 2011, believes a failure to maintain the family court would fundamentally undermine society.

“So much of family law is about power imbalance, and that talks to areas of family violence and child abuse that are fundamental not just to the legal system but to the whole of society.

“If you diminish family law, you diminish those principles.”

A decision on the reforms is expected by the end of the year, two years after being introduced.

Government and interest groups agree that family law matters are among the most complex and troubling in the legal system and should be handled more efficiently.

The federal circuit court handles less complex matters than the family court, but is straining under more work. If a matter is deemed too complex – the threshold varies between states, and can be relatively informal, but can include whether a third party is involved in a property dispute, or the expected duration of a final hearing – it is heard in the family court.

Judges are ‘drowning’ under high volume of cases

David Pringle, the chief executive officer and principal registrar of the family court and federal circuit court, told a Senate committee last week that the average number of cases across federal circuit court judges is 337.

Twenty-seven judges had more than 400 cases, five judges had more than 500, and two had more than 600. The most overloaded judge had 659 cases on their docket.

“The volume of work is just crushing for the incredibly hardworking federal court judges,” the Victorian family law bar association council chair, Geoffrey Dickson, said.

“And they’re drowning. They’re drowning.”

While expediency is important to all court matters, there is a particular sting in delays felt by those in the family court system.

“Pretty much omnipresent in every family law case is that delay always suits someone,” Dickson said.

“There’s always someone waiting for a cheque or someone waiting for more time with the kids, and someone happy to be in a holding position.”

The Family Court of Australia in Sydney
Former family court judge Nahum Mushin believes a failure to maintain the court would fundamentally undermine society. Photograph: Takatoshi Kurikawa/Alamy

Dickson believes that more effectively triaging cases, assisted by the recruitment of more family law specialists in judge and registrar positions, and the increased use of arbitration, will speed up family law matters.

“Anything that gets people to a hearing quicker and cheaper is a good thing, and whatever model you have is going to have critics.”

There are several difficulties in reforming the court as Dickson suggests, including convincing the strongest family lawyers, who may have lucrative careers as barristers, to take relatively lowly paid positions within the federal circuit court.

Covid-19 an added burden

It is also clear that while it is a federal court system, different states have different issues, some of them cultural and historical, that need consideration.

Victorian matters, for example, are more likely to settle, whereas in New South Wales they are more likely to go to trial. NSW also has a larger backlog of cases than Victoria in both courts, but does not have the individual caseload pressures on certain judges experienced in remote parts of Australia, such as north Queensland. WA experts believe up to 90% of matters before family courts in that state involve family violence, considerably more than the national average of about 70%.

Covid-19 has added further complexity. The courts, and those who work in them, agree that generally they have dealt fairly well with pushing cases through.

But in Victoria, for example, that has meant the family court now has relatively little work, and so the threshold for when matters can be uplifted from the federal circuit court has lowered. More transfer between courts creates more issues: one lawyer who spoke to Guardian Australia said a matter of hers was uplifted five months ago, and she still hasn’t received a hearing date in the family court.

The greater burden of Covid-19 could be coming over the horizon – a wave of couples put under strain by the unique pressures of the pandemic are expected to find their way to the courts over the next year.

The academic and advocate Liana Papoutsis, who is a family violence survivor that has been through the family court, says the “broken” system will not only be flooded with new cases, but flare-ups from previously resolved matters.

“Perpetrators are very malleable, they flow like water into the nooks and crannies they can get into.

A general view of nearly empty street during Melbourne’s strict Covid restrictions
A wave of couples put under strain by the unique pressures of the Covid pandemic are expected to find their way to the courts over the next year. Photograph: Anadolu Agency/Getty Images

“Covid has given them more fodder to be able to ramp up ... abuse.”

The attorney general, who spent the start of the week batting away questions about his personal conduct and own family values in the wake of a Four Corners program, ended it by announcing new judge appointments to the federal and family courts.

Next Friday, the Senate standing committee on legal and constitutional affairs is due to deliver its report after a year-long inquiry into the proposal to merge the courts.

Porter’s office would not be drawn on whether, after viewing the committee’s report, the bill would be pushed through before the end of the year. But there is time to do so.

“There is a need to fix this system for the sake of the families that need it, now more than ever given the pressures Covid-19 is placing on Australian families.”