Judges go public: Family Court shouldn’t be ‘making do’
Criticisms have been levelled at the family court system for years behind closed doors, now more insiders are going public (Illustrator: Lucy Fahey)
Some of Australia’s most senior current and former judges are going public, calling out a severe lack of government funding for the Family Court system.
They say this means families, particularly children, are suffering because they are subject to court delays and costs.
They are calling for change and believe the court should become the last resort for resolving family and property disputes.
Bringing it out from behind closed doors
Divorce and custody battles can take years to resolve in court.
Brooke (not her real name) told AM the law and the court system suffered from “paralysis” when it came to dealing with details relating to children, and that was having a tragic effect.
“We have one child who has, over that period of time, developed severe anxiety issues and is self-harming,” she said.
But she sees other families worse off, unable to navigate the increasingly complicated and adversarial system which is structured to make opponents out of the parents or couple.
Those working within the system also levelled criticisms at it.
Zoe Durand, a family lawyer and mediator, conducted a series of candid interviews with current and former family court judges, lawyers and people who have used the system, for her book, Inside Family Law, which was just released.
She said it was the first time some of these prominent judges had spoken out.
“These are the kind of discussions that people generally have had for a long time … behind closed doors about the family law system,” she told AM.
“It’s about bringing these discussion to everyone, to the public, and giving that power back to people.”
Ms Durand said most of the people she spoke with believed the court should be a last resort to resolve family and property disputes.
“Family law has become more complicated over the years,” she said.
“The number of people going through the system has increased, the matters are becoming more complicated, and yet at the same time we have this underfunding and lack of resourcing.
“That really has meant that families have suffered through the system, as have children.”
Judges speak out
One of those speaking out was former Federal Circuit Court Judge, now barrister, Stephen Scarlett.
He said the Family Court system had been starved of funds from the start.
“There aren’t too many votes in courts”, former judge Stephen Scarlett says. (Source: Facebook)
“It didn’t have enough money to get resources such as family reports and access to family consultants, and I think it’s still the same today,” he said.
The former judge told AM the courts were making do with the limited resources available, and that was not good enough for a country like Australia.
“There aren’t too many votes in courts, and other things are seen by governments as more attractive places to put public money,” he said.
“But governments have got a responsibility for providing efficient, workable, high-quality court systems.”
He suggested making more use of alternative dispute-resolution methods, like mediation and arbitration, so only matters needing a judicial decision made it to court in the first place.
Both processes resolve matters much more quickly than going to court — months as opposed to years.
“Only those that can’t be resolved that way should go to a hearing,” he said.
Stephen Scarlett believes most lawyers are supportive of mediation as a way of saving their clients money and emotional angst.
“Good family lawyers — and there are plenty of them out there — usually have a queue of people in their waiting room wanting them to take their cases, so good lawyers don’t have a need to spin matters out just so they can make money,” he told AM.
“Most lawyers are far too professional for that.”
But Judge Joe Harman, a sitting Federal Circuit Judge, was not so sure.
He told Ms Durand a lack of resourcing was one of the reasons why courts had not been functioning well, and he was also a big advocate of more mediation in family law.
“The problem with the adversarial system is it can set you up as competitors in the system, where you’re fighting each other,” he said.
“Mediation is self-empowering and self-determinative; people get to focus on their needs and interests rather than their positions.”
But he said the adversarial system itself, while it could stand to be made more user-friendly, was not the problem.
“There has been a decline in some quarter of the legal profession … some lawyers have stopped understanding what they do,” he said.
“I think one of the problems is that there’s been a falling down of the legal process in terms of how lawyers have come to be viewed and how some lawyers see themselves,” he is quoted as saying in Ms Durand’s book.
“Some have become aggressive mouthpieces, champions of people rather than zealous advisers who tell people what’s actually going to happen.”
“Recent cases have highlighted horribly aggressive lawyering.”
‘Far too much work … and so much of it is really serious’
Stephen Scarlett said poor resourcing of the Family Court system meant child-protection matters fell through the gaps.
“Over all the years I’ve been on the bench — and I was nearly 28 years in state and federal courts — I used to be horrified at the terrible things people could do to children,” he said.
“Even now, I think, ‘Oh dear, I don’t think I ever saw that one before’, and that’s one of the things that really tears at you.”
Mr Scarlett explained judges of the Federal Circuit and Family Court did not have the same powers to deal with children that Children’s magistrates do under the state system.
“You see matters and you think … the Department of Family and Community Services should be involved,” he said.
“The trouble is that Family and Community Services … they’re absolutely choc-a-block with work, and it’s very seldom that they will actually take an active role.”
According to federal Attorney-General Christian Porter, the Government’s plans to merge the family and federal circuit courts would help reduce the backlog of matters.
Some judges and lawyers criticised the plan, saying law reform should wait until the Australian Law Reform Commission (ALRC) completed its wide-ranging review of the system, due to report to the Federal Government in March, 2019.
Mr Porter also pointed to a recent funding increase for the family law system of $37 million in the 2017-18 budget, which included a boost to the non-adversarial forums.
But Mr Scarlett said if the number of judges was not increased, he could not understand how the court merger would speed up the system or allow courts to get through more cases.
“Judges couldn’t work much harder unless they started sitting on Saturdays and Sundays,” he told AM.
He said the emotional and physical toll of the workload on lawyers and judges contributed to burn-out, and that was a real problem.
“There’s far too much work to do, so much of it is urgent, and so much of it is really serious,” he said.
For Brooke, she hoped a current review system would shine a light on the damage being done to families.
“The Australian Law Reform Commission has an opportunity as part of its review to humanise the law and court system,” she said.
“The focus on the child should be the primary objective and everything should be wrapped around the child.”