Family law judges at breaking point, going from one ‘horrific’ case to the next

Family law judges are buckling under crippling workloads, and ever-increasing wait times are putting the nation’s most vulnerable women and children at risk, a Senate inquiry into Australia’s family law courts has been told.

The Senate committee is examining two bills that would bring the Federal Circuit Court and the Family Law Court together, creating an overarching, unified administrative structure.

It comes amid intensifying calls for extra resources and reform to reduce ballooning wait times for desperate families and to ease the pressure on judges, many of whom are at “breaking point”.

The chair of the NSW Bar Association’s Family Law Committee, Michael Kearney SC, told the committee that it was unacceptable that it took 560 days to replace a Sydney judge, a year to replace one in Brisbane and seven months for a new judge to be appointed in Newcastle.

“It is an absolute indictment on the government’s funding of all registries in Australia, but particularly Newcastle, and it has got no better,” Mr Kearney told ABC.

A submission from the NSW Bar Association to the Senate committee said the dire situation was highlighted last year when a Newcastle judge examined the welfare of five at-risk children and said the court could not give them the attention they needed.

Newcastle-based family lawyer Chris White told the ABC the judge’s comments were “devastating” and exposed the dangerous extent of the system’s failure.

He said judges were having to make heartbreaking decisions every day about which “horrific” cases to hear and which ones to shelve for another day.

The Senate committee was told that law firms were telling their clients to expect at least a two-year delay from commencement of proceedings until their cases would be heard in the Family Law Court.

Retired Federal Circuit Court judge Giles Coakes said the waiting times noted in the submissions were “appalling”, and that the pressure on judges, some of whom had 600 cases on their dockets at the same time, was relentless.

“I’m surprised, quite frankly, that there have not been more mental breakdowns with judges because of the workload,” Mr Coakes said.

Mr Coakes, who now works as a mediator and arbitrator, said: “The system is still broken, there is no doubt about that.”

He said families were at “breaking point” and many now were favouring arbitration for property matters and mediation for parenting issues, to save time and money.

Lawyer Neisha Shepherd, who specialises in family and children’s law, said she knew of judges who worked well into the night, every night, on urgent cases often involving at-risk children.

She said an increase in the use of arbitration and mediation processes could help to alleviate pressure on the court system, with many cases being resolved in less than six months, and some finalised within eight weeks.

“It is an absolutely fantastic opportunity for parents to be able to get their matters heard and dealt with — or couples — in a relatively efficient way,” Ms Shepherd said.

But the NSW Bar Association said arbitration and mediation was not suited to everyone.

“It’s never going to be a cure,” Mr Kearney said.

Federal Attorney-General Christian Porter has told the ABC the need for reform cannot be underestimated.

“In December 2019, the Government re-introduced legislation to reform the family law courts to increase the number of matters that can be resolved each year and reduce delays and high costs experienced by Australian families,” Mr Porter said.

“The Government has repeatedly noted the need to reform the court structure, that there is little point pushing more funding into a failed structure and that additional funding needs to attach to structural reform of the courts.”

Mr Porter said the government also supported arbitration and mediation, as they could help families to resolve matters “faster and cheaper”. He said an additional $50.4 million in funding for such services was provided in 2018.