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A sickness has fallen on the family law system

It has now been 12 years since a comprehensive review of the Family Law system occurred. The last review was commenced in 2003 under the Howard Government resulting in the report “Every Picture Tells a Story”.
Looking back at changes after the implementation of the Family Law Amendment (Shared Parental Responsibility) Bill 2005 and the more recent 2010 changes in the Family Law Amendment (Family Violence) Bill 2010 it is very clear to practitioners that we have again reached a crises point in the family law system.

Not all systemic problems were fixed by the previous legislation and many old problems and as well serious new problems are emerging that are causing extensive delays in reconnecting parents with their children.

The family law system is simply crumbling under a weight of impossible constraints placed on the judicial system and is fast nearing a complete meltdown.

There are many clients in the family law system waiting for in excess of two years and some three years and more, trying to deal with obstacles in the system preventing them from seeing their children.

At the same time they face denial of contact time with their children, they further have to deal with complex issues such as re-establishing accommodation. Many parents find that working is almost impossible with the huge impost placed on them by a legal system that is laboriously slow, exhibits no urgency to reach resolution, but consumes all their available time, energy and finances In some cases we are aware of parents losing employment directly due to the time they have had to be involved in court and related appearances.

When separating couples are arguing about contact and financial arrangements the system that they enter is a system that results in extraordinary delays and in many cases, a complete annihilation of one parent’s relationship with their children.

Contraventions of court contact orders are not able to be dealt with expeditiously or in a common sense way. Participants in an action often say they came out with no resolution or a judicial officer throwing their hands in the air with little option available to deal with a wayward parent who simply refuses to allow parent-child contact to happen.

The ability of one parent to withhold contact on baseless false allegations is out of control. There are lengthy delays in getting family reports to try and get to the bottom of parental disputes and the wait times and process times in the FRC’s (Family Relationship Centres) are simply untenable. Even when you do get to the FRC the other party delays or the mediation is suspended for months and months while minor obscure details are worked out. Parents allege they cannot talk to each other and this requires specialist separate mediation, yet the next day they are at Parent Teacher night together. One parent surely is simply not telling the truth and plays the system to their selfish advantage.

There are many published judgements that support the notion they would be significantly less problematic had the mother and father agreed to proper contact early on. In one case a few weeks ago a mum had her child, a young, 7 year old, taken off her by the court because the father and a friend made allegations of drug abuse. That position has subsequently been reversed by a very alert and wise Judge in the Federal Circuit Court of Australia and the child has been returned to the mother and her school.  Allegations are rife in applications before the court and remain untested for some time.

There are very significant problems with the system not just the court delays, as they are caused in part by a spiraling demise of the related services:
 
  • False allegations about violence, false allegations about alcohol, false allegations about drug taking and the previous section s117AB which allowed for penalties was removed by Labor.  Penalties are usually never made, the time lines to return documents are never adhered to, and parties can pretty much do what they like in a family court matter (and get away with it).  Why can’t the court cut through stalling tactics to save the parent’s relationship, which after 3 years absence from the children’s lives is equal to an eternity.
Children change, they mature, and they form personalities, all without the parent kept at bay. The parent-child bonds get broken. Everyone suffers, especially the ruined lives of the kids involved. These are living tragedies, glued to the failures of the family court processes set up to try and resolve matters expeditiously, with courts being blamed and front and centre of this damaging process.

You can’t blame the courts alone for this state of affairs. You need to look at the behaviour of parents, the judicial system that sets up the case for failure by the protracted delays in directions hearings, contravention proceedings and getting to the bottom of the core issues. The lack of legal funding contributes to poor outcomes. The delays in report writing, the lack of Contact Centres to hand over children or manage supervised contact sessions and long waiting times both in the Contact Centres and in the FRC (Family Relationship Centres), and as well a wide range of delays and protractions cause prolongation of the family court time line from weeks to months to years.

The Judges are working extra time and it is not unusual to see the court still sitting at 6:30pm at night and working well into lunch periods. Nevertheless the system is increasingly bogged down and slow. For parents it must seem like an eternity waiting to see their children. For children, the emotional suffering from being torn from their alienated parents must be excruciating.

A case came to my attention only last week in WA that has gone on in the court system for five years and the father still does not have any time with his children. As well in WA the ADVO system is shocking, with ex-parte orders able to be made in one appearance in court, effectively removing the other parent from the family home and children. It takes sometimes six months or more waiting for a hearing to prove the allegations, meanwhile one parent is effectively removed and locked out of the family home.
 
  • Child Support problems arising are numerous. A myriad of difficulties and issues for both paying and receiving parents, were raised in the recent report published by the House of Representatives Standing Committee on Social Policy and Legal Affairs, on the Inquiry into the Child Support Program. I published the report on our site recently.
 
  • Legal Aid funding reduced extensively due to budget cuts. The attorneys-general from the ACT, New South Wales, Victoria, South Australia, Queensland and Tasmania have recently written to their federal counterpart, Senator George Brandis, after the budget revealed Commonwealth funding would drop drastically from 2017-18. Of concern is the reduction in funding that has been made worse by the "Commonwealth's decision to quarantine a percentage of its community legal centre funding" which appears to have effectively undermined the ability of state and territory governments to allocate Commonwealth legal assistance funding according to need and has placed at risk the viability of a number of community legal centres across the country.

Senator Wright has said that “Legal assistance services were operating on a shoe-string budget before the Attorney-General’s cuts”. The president of the Australian Bar Association, Fiona McLeod SC, also claimed the reversal of the proposed cuts was just the first step in restoring the Commonwealth contribution to legal aid funding. Lawyer’s Weekly magazine reported her observations that “Legal Aid remains chronically underfunded”.
According to the Productivity Commission’s recent Access to Justice Arrangements report, another $200 million is required to address the urgent need for increased legal aid services.

The chair of the National Association of Community Legal Centres, Michael Smith, echoed the views of Ms Wright and Ms McLeod, saying there was “still some way to go to ensure that the most vulnerable in our communities are not turned away from receiving legal services”. The ‘shoestring’ budget of community legal centres has resulted in the disappearance of legal services for more than 150,000 disadvantaged Australians every year.

That is the same disturbing finding of the National Association of Community Legal Centres’ (NACLC’s) National Census Report, which was released on June 15.  “These are not just statistics but real people, often highly vulnerable, who cannot receive the help they need,” said NACLC chair Michael Smith.

  • The fact is that legal aid funding does not assist in contravention proceedings, nor (in general) final hearings or property matters leaves many deserving cases floundering without direction and momentum. Without means to fund their litigation, impoverished parents are thrust into the Family Court system as Self Representing Litigants. This burden on parents to self-represent causes a whole downstream effect of delay, procrastination and difficulty in relation to cross examination and documentation

Relationship and Counselling services endure protracted delays as progress through the courts grinds to a halt.
 
  • The lack of Judges being appointed in the Federal Circuit Court particularly means that demand for services far outstrips supply and further straining thinly rationed services. There is no excuse for waiting 20 months to appoint a new judge when the mandatory retirement age gives ample forewarning that a position will need to be filled, the Law Council of Australia (LCA) has said.  “There is absolutely no excuse for a failure by any government to ensure that retiring judges are replaced immediately,” said chair of the LCA Family Law Section Rick O’Brien. Judges do not retire on short notice. Many retire at the mandatory age of 70. [Others] give many months’ notice of their intention to depart.

What is most concerning is that almost half of the 32 justices of the Family Courts will be eligible to retire by the end of this year. Mr Obrien of the Law Council said “Our courts will hit breaking point if the government does not lift its performance in terms of replacing judges”. The LCA pointed to an “inexplicable” year-and-a-half gap between the retirement of a Sydney Family Court judge and Justice Robert McClelland starting in the role.

  • The delays to get what are very expensive externally produced family report writing services that seriously impact the financial viability of some parents and are beyond the financial means of many others. More extensive delays follow in getting less costly internally produced reports, so Judges can at least try to make some key decisions on allegations that are raised.

These delays in getting contact with children initiated, are unhelpful and lead to further animosity, seriously entrenched conflict and communication difficulty as well as usually allegations of parental alienation, an insidious form of child abuse yet to be recognised in the family law system.

  • The lack of contact centres. Waiting lists in some centres like the Central Coast of NSW exceeded six and eight months at one stage and now they are terminating services for good dads because they have been going “too long”. These fathers are keen and compliant with the requirements and standards of the contact centres only to find themselves “turfed out”, often for delays not of their own making.
The whole system is either in, or very near, a complete melt down. It needs to be exposed to a full inquiry similar to that which was carried out by Kay Hull and the courageous Ken Ticehurst in 2003, when he and fellow backbenchers lobbied Prime Minister John Howard to launch the HORISP (House of Representatives Inquiry into Shared Parenting) This inquiry was the catalyst which ‘kicked off’ some urgently needed reform measures.

The Shared Parenting Council has been working diligently in this area for many years (since 2001-2) and was a founding member of the Child Support National Stakeholder Engagement group which meets the Department of Social Services to advise Government on emerging and topical Child Support and Family Law System issues.  There needs to be a fundamental and major paradigm shift in the way Family separation is dealt with.  

In conclusion, very significant and fundamental change is required, including a start-up presumption of equally shared parenting time where there is no proven physical violence, or a look at using the AAT to handle less serious matters where contact is sought.

Another option is to give Justice of the Peace officers advanced legal training as they do in New Zealand and have them in a position to make minimalist contact orders. Alternately allow contact matters to also be dealt with by state local courts or local state police to enforce contact orders made in the Federal Courts where there is no physical violence.

Whatever the options might be for reducing gridlock in the family court and child support systems, they need to be explored and implemented urgently. It is simply not good enough to allow this broken system to keep churning along in a state of complete disrepair.  

Without fast and efficient services, parents and children will needlessly suffer long absences and uncertainly about their futures. The aim must surely be to allow children to know and love and have meaningful relationships with both their parents. Underfunded services bode against this ultimate aim and as many recent cases and my direct experience has shown, leave families in hiatus, often ending in permanent ruptures in parent-child relationships where one parent will end up in an impossible situation of losing part or all relationship with one or other children that up until the parents separated had been in an engaged relationship.

This is far too high a price to pay for individuals and society, when an investment in services now can make a difference to people’s lives, their productivity and their self-reliance throughout life. The Government has recently defunded a number of services in this area including some small funding that supported the Shared Parenting Council of Australia to maintain some assistance to Self-Representing Litigants.

The time has come for renewed vigour for an inquiry at the highest level to find a new solution to the vexed problems that surround the current system. If we cannot develop a completely new way of doing business for separating families the financial impost will simply grow past any sustainable level for future generations.

I am calling on my colleagues, families and hard done by parents to get behind a new push for a “tectonic shift” to the broken, archaic and aged family law industry and help establish at the very least an inquiry into a better system. 
Edited

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