As delays increase and a Federal Government inquiry begins, JANE SOUTHWARD investigates the troubled state of family law.
Jackie never thought she’d end up divorced. She met Tom at the North Sydney advertising agency where they both worked, they married a year later in a beachside ceremony, and together they were conquering the suburbs.
Seven years ago they bought a Californian bungalow, went to the gym together, and had a son, Josh.
Life was good until six years into the marriage when Jackie realised she wanted out. The passion was gone and Tom agreed it was time for a rethink. He moved in with his parents and four weeks later agreed that continuing the marriage would be useless. They each engaged a family lawyer and, over a few face-to-face meetings and numerous emails, agreed to a settlement.
“We didn’t use a mediator because we pretty much agreed on everything,” Jackie says. “We were lucky because we had heard it could take years to be resolved if we went to court and that it could almost bankrupt us.
“Friends who have been through divorce said that while you are waiting for the court case, you have no closure. They said going to court is the worst you can do on all levels.”
As for Josh, who was five when they separated, Jackie and Tom agreed that Jackie would be the primary carer and Tom would have him every second weekend.
“It’s was amicable and in some ways our friendship is stronger now,” Jackie says. “Despite that, going through the process was still horrendous; the emotional toll of the fact that your marriage is ending is really tough.
“We each spent about $10,000 on lawyers plus about $865 for the actual divorce two years after we split up. Thank God we were both adult enough to move on. At the end of the day, our son is the most important thing.”
Not all divorces are as straightforward as Jackie and Tom’s.
“Once a relationship has broken down and children and/or property are in dispute, there is an opportunity for a protracted positional fight in the court system,” says barrister Louise Mathias.
“I was briefed in a matter once, where the parties were still arguing about a single plate right up to when the final orders were handed up in court.
“Court processes can be delayed when lawyers don’t ‘push back’ on their clients and offer commercial and common sense advice to ensure clients keep their disputes in perspective, especially when emotions are running high.
“One positive change in the court process has been the referral of clients to court-ordered mediation, rather than everyone waiting years for an outcome at a final hearing.”
Glenn Thompson, a solicitor who has practised family law exclusively for more than 25 years and is a member of the Law Society’s Family Law Committee, says delays are at record levels. Clients are waiting three or four years from the time they file their case to when they get a final hearing.
“A child can be a toddler when their parents split and in primary school by time they know where they will be living,” Thompson says.
“The biggest change to the system has been the increased complexity of the cases, the vast increase in documents that you have to produce by way of disclosure for the other side because they have so many trusts, self-managed superannuation and underlying assets.
“People’s finances are getting much more complicated and accountants are involved in a lot more cases.
“A lot more people have businesses that one side thinks are worth a lot of money and the other side doesn’t. The volume of paperwork that is now produced is 10 times what it used to be.”
Thompson welcomed the Federal Government’s September announcement to review the Family Law Act. The review will be overseen by the Australian Law Reform Commission and run by Melbourne Law School Professor Helen Rhoades, who will report back in March 2019.
Solicitors say that between 5 per cent and 10 per cent of cases end up in the Family Court or the Federal Circuit Court, a lower level court set up in 1999 that deals with less complex family law cases as well as bankruptcy and immigration cases.
The 2016/17 Annual Report of the Family Court of Australia shows that the court is failing to bring justice in a timely manner. The court reports that 8 per cent fewer applications for final orders were finalised in 2016/17 compared with the previous year, and notes that “judicial availability has a significant impact”. As for interim applications, 7.3 per cent fewer were dealt with in 2016/17 than in the previous year.
The report says that as of July 2017, three Family Court judges as well as the Chief Justice needed appointing. (Since then, Justice John Pascoe has been appointed to replace Justice Diana Bryant, who retired as Chief Justice in October.) Still, the court reports that 93 per cent of cases were finalised within 12 months.
Our family court system is bursting at the seams and the strain is felt by families. Visiting judges often have to sit for very long periods and with a dense caseload on a daily basis. That’s before they even begin to start writing their judgments.
President, The Law Society of NSW
Thompson claims people have become more litigious, putting more pressure on the courts. The 2016/17 Annual Report of the Family Court of Australia backs this up, reporting that the Appeal Division of the court issued 279 judgments in 2016/2017 compared with 220 in the previous year.
“Thirty years ago you would accept the umpire’s decision; now everyone wants to appeal,” Thompson says.
“The longest running case I have started three years ago and is still nowhere near getting to a judge. Once it is allocated, it takes six to 12 months, depending on what still has to be done. If it is a property case, valuations will need to be updated. If there’s a business, you will need to update the information. The case will take another 18 months before it is resolved. That’s five years all up.
“If it’s a parenting case, you have to update the family report or your expert’s report. These can take six months or more to update.”
Thompson says his role as a family law solicitor means he almost always sees people at their worst. He admits he wishes clients would use common sense when it comes to negotiating family arrangements.
“Most of the advice I give clients is common sense; it’s not legal,” he says. “People fight and argue over time periods with the children, what doctor they are going to, what school, what physio, what treatment children should be receiving.
“These are all raised in interim hearings. The delays in getting a final hearing can mean whatever the interim result is in a parenting dispute, such as the time dad gets with the children, is going to be in place for the next three or four years. The interim hearing becomes a very important aspect of the matter.
“The longer the delay between filing and final hearing, the more interim hearings you have. And, the longer they are in the system, the more arguments there are. They will argue about Christmas Day, what time changeover is or whether they can go to Bali or Fiji for a holiday.”
The Law Society of NSW presidents and the family law committee have been advocating for at least four years for more resources for the Family Law and Federal Circuit Courts, saying the courts are at crisis points and that judge caseloads are unworkable.
“The very social fabric of society is being stretched almost to breaking point by a justice system that sees inordinate delays,” the Society’s Immediate Past President, Gary Ulman, said in 2016. “One Family Court judge sitting in Parramatta reported having more than 600 matters in his docket.”
The 2017 Society President Pauline Wright continues to lobby, saying in July: “Our family court system is bursting at the seams and the strain is felt by families. Visiting judges often have to sit for very long periods and with a dense caseload on a daily basis. That’s before they even begin to start writing their judgments.”
Thompson says a key problem is a shortage of judges.
“Anecdotally, I heard someone say the Federal Circuit Court needs 10 judges nationwide,” he says. “The Family Law Courts in Sydney really need at least another two judges. The Federal Government just doesn’t replace judges promptly.
“Another issue is a lot of the judges, particularly in Sydney, have been a judge for more than 10 years and their leave entitlements accrue. You can’t blame judges for taking leave but that creates a further backlog.”
Former Newcastle Federal Circuit Court Judge Giles Coakes admits his workload was huge but says he didn’t want to retire. However, when he turned 70, under the law, he had no choice. Coakes, who now works as a mediator and arbitrator, retired in June 2015 after 11 years working almost exclusively in the family jurisdiction. It took four months for Federal Attorney-General George Brandis to replace him. Coakes says this added significantly to the backlog of cases.
At the time, Coakes blasted the Federal Government for a lack of resources in the court, saying women escaping domestic violence and children subject to abuse were at even greater risk due to court delays.
Janet Loughman, the Principal Solicitor at Women’s Legal Service NSW, agrees, saying she has feared for the safety of clients and their children who she says “settle” even if it means a violent or drug-addicted partner will have access to the children.
In the Hunter, the loss of another Federal Circuit Court judge, Judge Matthew Myers, further compounded delays. The replacement for Myers, who moved to oversee the Law Reform Commission of Inquiry into Indigenous incarceration rates, took more than five months.
“My main concern with the delays is the psychological effects on children,” Coakes says.
“The longer the delays, the worse it is. The uncertainty can be crippling and have long-term ramifications.”
Coakes maintains the age of judges isn’t the big issue – it’s the number of judges.
“I thing working until you are 72 or even 75 would be fine for most judges,” he says.
“People are living longer and are healthier now,” he says. “It’s a waste of knowledge and skill to make people retire. There are currently 66 Federal Circuit Court judges and at least five more are required. The reluctance to make more appointments must come down to an unwillingness to find the funds. It is not a question of lack of potential appointments; there are many people qualified and willing to step up as judges.”
Coakes has welcomed the review into the Family Law Act. He says one option worth considering would be to expand the work of registrars to allow them to consider subpoena objections, more consent orders, directions hearings, some duty list matters and procedural applications to free up time for judges.
“Another option would be to expand the Federal Circuit Court and make the Family Court a court of appeal,” he says.
Janine Beckett admits money is on her side. With assets of $7 million to divide with her ex-husband, even though the past year has been the toughest in her 53 years, she is grateful she has the money to get her through her divorce.
Her lawyer has advised it will cost $300,000 to go to court for property and parenting arrangements for their 10-year-old daughter, Ava. Her lawyer has urged mediation.
Janine hasn’t worked since she gave birth after three traumatising years on in vitro fertilisation. She has been the main carer while her medico ex-husband works 60-hour weeks and earns about $500,000 a year.
She first started talking about ending what they agreed was an unhappy marriage a year ago. She left four months ago, moving in with a relative so she could be near her child’s school.
As her health deteriorated, which she blames on stress, she took the leap and moved 90 minutes from the Sydney CBD to a quieter suburb, hoping a less stressful life would bring health benefits and a happier life with her daughter. The problem was her ex-husband didn’t want Ava to change schools and has threatened an injunction if Janine moves her. He has insisted Ava stay at her current school and now cares for her daily, with Janine seeing her only at weekends. Janine is hoping a family therapist can help them sort a new school for Ava that is halfway between the two homes.
She says she is speaking out because she doubts the law is working in the interests of children.
“The Family Court says it works in the best interest of the child,” Janine says. “But in practice, this isn’t true. Who can say that waiting three or four years for a final ruling, more than a third of my child’s life, is justice? She is 10 now but won’t know where she is living or what school she is going to until she is 14.
“The courts might be administering law but they aren’t pursuing justice.
“My lawyer has advised me not to push to change our child’s school, saying there’s an unwritten rule that courts usually rule in favour of maintaining the status quo until a final hearing. I want a new start in a smaller place without the stress. This will be better for me and for my daughter. We both need healing.
“But I want to avoid court. I have been told that going to court, the winner is the person with the deepest pockets, and that isn’t me.”
As Director of the Family Law Division at Legal Aid NSW, lawyer Kylie Beckhouse and her team of 150 family lawyers see the worst of the worst in divorce cases. She agrees the delays are at record levels and says that only the most complex and most serious cases reach court, with most involving drug and alcohol abuse, mental illness and/or violence.
“There are a range of reasons for the record delays and the first is a general lack of resourcing in the system,” says Beckhouse.
“If a client comes in today to get some advice because they separated last week, I would be saying that, realistically, a resolution will take three to four years.
“It’s pretty grim if you don’t have the capacity to resolve issues amicably and responsibly and in a way that is safe for the children.”
Beckhouse is one of Australia’s key experts in family law, having completed a Churchill Fellowship studying how international jurisdictions represent the needs of children. She says part of the strain on the Family Court system is the increasing complexity of the needs of the parents and the children.
Legal Aid NSW analysed its family law files recently and found that violence was an issue in 77 per cent of the cases granted legal aid for parenting matters.
A 2014 Australian Institute of Family Studies (AIFS) report backs this up. The study found that families which use the family law system were more likely to have a history of violence and issues involving mental health, drugs and/or alcohol, gambling, and abuse of pornography. Many had a combination of these issues.
“Up to four in 10 parents who use courts have several of these issues,” reported Rae Kaspiew, Senior Research Fellow at the AIFS. “About 85 per cent reported emotional abuse and 54 per cent reported physical violence.”
Beckhouse points out that parties aren’t just waiting for judges to have time for their cases but are waiting six to nine months for reports from family experts to assess their capacity to parent and/or what is in the best interests of the child.
“There are not enough judges to deal with the volume of work, there are not enough family consultants and experts to provide expert reports that are required, and there are not enough legal assistance services because the legal assistance sector, including Legal Aid and community legal centres, don’t have enough funding to provide services to everybody,” she says.
“There also are more self-represented litigants and those cases take longer. At every level, there has not been enough funding to sustain the complexities of the work. I wouldn’t say this problem can be fixed just by appointing more judges.”
Are the delays related to a rise in family violence?
“I don’t have a sense that it is increasing,” Beckhouse notes.
“I have a sense that we can now identify it and we are much better trained to understand the complexities and obligatory reporting has played a part, too. Domestic violence is far more than hitting. In 2012, the Family Law Act was amended to recognise this and the definition as widened.
“We now understand that it includes controlling or coercive behaviour, neglect, emotional and financial abuse. You are dealing with people who need therapeutic services, such as referrals for mental health, drug and alcohol issues, violence and grief.
“These matters need family reports and more judicial time because judges are being asked to make forensic decisions about whether child abuse took place, whether domestic violence was involved, and whether a parent is capable of caring for a child.”
Beckhouse adds that a key problem is that the legislation is “unwieldy and complicated”. The original Family Law Act is 57 pages and the current is 793 pages.
“It was drafted in 1975 and when it commenced it was a piece of legislation that was dealing with post-separation disputes after the dissolution of a marriage,” she says.
“Life was a little bit simpler then. The notion of family was a little bit simpler then. The notion of family has changed and the legislation needs to reflect this.”
IF I COULD CHANGE THE FAMILY AND FEDERAL CIRCUIT COURTS . . .
“Apart from the need for more judges, the number one reform I would like to see is the ability of judges to be able to produce short-form reasons for decisions in interim matters. That would mean a judge can give you a result without having to go through 20 pages of typed reasons for that result. It can take three months for an interim decision; they take up a lot of the judges’ time. The longer judges have to spend on that, the less time they have on other cases.” Glenn Thompson, Family Lawyer
“We need a simplified piece of legislation. We need more judicial resources and more resources such as family consultants and experts. And more funding for the legal assistance sector.” – Kylie Beckhouse, Legal Aid NSW