Some family law judges are handling double as many cases as they should, risking “dangerously poor decision-making”, a leading family law academic says.
University of Queensland dean of law Patrick Parkinson said some judges’ dockets had blown out to 500-600 cases, when 300 was “probably an absolute maximum to be able to give much serious attention to cases early in the process”, he said.
Professor Parkinson called for more court registrars to triage family law cases, so that matters were only referred to a judge when necessary — which he said was better than judges making decisions early in a case “after only skimming the file briefly”.
“Making decisions in a rushed manner with a very limited understanding of the facts and issues involved in the case can result in dangerously poor decision-making,” he said in a submission to a joint parliamentary inquiry into the family law system.
His call comes as the Australian Bar Association said it would support judges hitting parties more often with cost orders if they failed to comply with family court orders and the courts allocating more resources to enforcement proceedings.
The ABA submission said non-compliance with orders and a lack of meaningful consequences was “unfortunately, a feature of family law”.
The family law inquiry, led by Liberal MP Kevin Andrews and One Nation leader Pauline Hanson, is due to report next October.
Senator Hanson sparked outrage earlier this year when she said she had heard of too many cases in which women made up domestic violence claims to stop the other parent from seeing their children. However, the ABA said there was “no basis for asserting that the giving of untruthful evidence is any more common in the family law jurisdiction than in any other”.
The peak barristers’ body also defended the charging of cancellation fees when cases settled before a trial but said such fees were unusual in the family law system.
The justification when cancellation fees were sometimes charged was that barristers were “sole traders” who reserved days or weeks for hearings, and if cases settled shortly before trial they were “quite possibly left without court work” for those dates, the submission says.
The ABA said it would support barristers having to expressly bring the fees to their client’s attention as part of their retainer.
The submission also said that delays and under-resourcing of the family law system were contributing to “systems abuse” of children. It meant children had to be interviewed by experts multiple times, and the limited availability of court-funded experts meant cases were less likely to settle on terms that were consistent with their best interests.
Professor Parkinson called in his submission for the law on splitting property after divorce to be overhauled. He said the existing law was so vague and unclear it invited litigation and made resolving disputes unnecessarily expensive. However, senior family lawyers and “conservative” Family Court judges had been fiercely resistant to change.
“So far, their claims that no reform is needed have won the day; but it is time now the government forces through change with or without the support of senior members of the legal profession, many of whom have the most to gain financially from the current chaos in the law,” he said.
Professor Parkinson, a former head of the Family Law Council, said Australia had the most discretionary system of property division in the world, of which he was aware. Judgments were inconsistent, which made it harder for people to divide their property themselves, he said.
Earlier this year, the Australian Law Reform Commission recommended introducing a legal presumption that people had contributed equally during a relationship.