February 10, 2016 1:00am
LAST month marked the 40th anniversary of the commencement of the Family Law Act in Australia. Like many 40-year-olds, family law has matured but is in need of a little care and a freshen-up.
Meanwhile, family law courts in Queensland are in crisis. They are under-resourced and this restricts timely access to those courts by those in need.
The Federal Circuit Court deals with most family law matters. The most complex and difficult financial and parenting matters are heard by the trial division of the Family Court. Last financial year the 61 judges of the Federal Circuit Court dealt with 95,341 litigated cases and divorce applications and gave 3444 written judgments. The 30 trial judges of the Family Court finalised 20,108 complex applications and gave 647 reserved written judgments.
Statewide, Queensland has 13 Federal Circuit Court judges and only three Family Court trial judges for a population of about 4.8 million people.
Our Queensland lawyers report very long delays for trial dates (often up to two years) in both courts and a shrinking pool of legal aid for family law matters. Even after getting a trial date, there are often delays in judgments bringing closure – 18 months is not uncommon.
Our judges are neither lazy nor inept. Rather they have been overwhelmed with cases to hear and there are too few judges for the workload.
We see three reasons for this problem.
First, judges are not being replaced quickly, or at all, when they retire or are transferred. In the Family Court in Brisbane, Justice Michael Kent was promoted to the Appeal division in late 2015 and Justice Graham Bell retired in February 2015. Both have not been replaced. Just last week it was announced that Judge Anne Demack was leaving the Federal Circuit Court in Brisbane to be permanently located in Rockhampton. No replacement for her role in Brisbane was announced.
Delaying filling vacancies may save the Federal Government money but this only delays closure for people in need. The solution might be simply a protocol to fill vacancies within two months – these are budgeted expenses after all.
Second, there aren’t enough judges for family law cases in Queensland. The number of judges in this state is not what it should be. Our 13 Federal Circuit Court judges contrasts with 15 in Victoria, 24 in NSW, five in South Australia and three in Tasmania.
Brisbane will have 10 of these judges (if Judge Demack is not replaced), compared to 15 in Melbourne and 21 in Sydney. There are more Federal Circuit Court judges per person in Adelaide than there are in southeast Queensland.
The numbers are worse in the trial division of the Family Court, with only two judges in Brisbane, compared with six in Melbourne and 10 in Sydney. In the last five years Brisbane has lost three of its five trial Family Court judges and the work has increased. There are now more matters in the Family Court in Brisbane than the two remaining judges can hear. Backlogs will grow and children will wait for a chance to have difficult parenting cases resolved. While waiting, children grow and expensive reports on their welfare go stale. The cost to the community is more than operating costs for the courts; it is the lives of real people held in limbo.
Research is clear that children do best after divorce when conflict is minimised. Keeping these children in the family law system prolongs their involvement in conflict.
Finally, decades of federal funding neglect and cuts have eroded services to everyday families in need. Most recently, Commonwealth funding to Legal Aid Queensland is down $1.5 million this financial year on top of a $3 million cut last year. This money was mostly spent on family law grants of aid. Without aid more people are forced to represent themselves, making it harder for judges and causing more delays.
In particular, money in Queensland for legally assisted family law mediations has been squeezed. Spending money on helping people to avoid court is a good for everybody: the parties, their children, the courts and the community. Family Relationship Centres play a part, but they can’t deal with everything. For many people proper legal advice and assistance is needed to reach a fair and lasting outcome, even a negotiated one. More money for this is a good investment.
In an election year, Queensland Law Society calls on all federal parliamentarians to state clearly and unequivocally whether they are satisfied with the current situation for family law clients in Queensland and what they intend to do about it.
Bill Potts is president of the Queensland Law Society