• Nicola Berkovic

  LEGAL AFFAIRS CORRESPONDENT

  

• 12:00AM April 23, 2019
• 42 Comments

The judge found that Grainger (not his real name) had both the capacity to meet his daughter’s physical needs and a “genuine desire” to meet her social, emotional and psychological needs. He was a “thoroughly decent human being”. And yet.

He will not be allowed to see his daughter or participate in any decisions affecting her life. He is permitted only to send her cards and gifts for her birthday and for Christmas.

Family Court judge Michael Baumann said “if the test to be applied was that a poor parent should be ‘punished’ and a patient parent who has done little wrong should be ‘rewarded’, then a change of residence in this case (from the mother to the father) would be a proper result”.

But the regional NSW-based father can take no comfort from that at all — because of course that was not the test.

The judge decided it was in the child’s best interests to remain with her mother — who had made unsubstantiated sexual abuse allegations against Grainger — and have no contact with her father, even though he posed no threat to her.

At nine years of age, it was too great a leap to change the child’s residence when she had become so trenchantly opposed to spending time with her father. The judge was not satisfied any court order to “encourage, force or coax” her to see her father would be successful.

“Sadly”, the judge said, the delays in the court process had “not assisted” in this case.

“That’s the understatement of the century,” Grainger tells Inquirer.

He estimates he’s had to attend court for hearings and mentions about 30 times since 2010. There have been two trials. In the first set of proceedings, the final hearing began in August 2013 and was adjourned for 17 months.

By the time it resumed, all contact between Grainger and his daughter had ceased.

And now there will be more court dates, because Grainger has appealed.

“I can’t walk away from this,” he says. “I’m devastated. I have kept a room in my house prepared for her at any time to come home.”

The hardest thing, he says, was breaking the news to his parents, who are 73 and 84. He fears they will die without getting the chance to know their only grandchild.

Like thousands of other men and women, he blames the Family Court for ruining his life.

Scrap family courts and start with state courts?

Two weeks ago, the Australian Law Reform Commission released a long-awaited 583-page report into the family law system. Many hoped its recommendations might provide a pathway out of the dysfunction. The ALRC received about 1100 confidential stories and submissions during the review — the majority from people “highly dissatisfied” with the system.

About 70 per cent of separating parents manage to sort out arrangements for their children without resorting to litigation, the report says. But of those who do rely on the courts, more than half (about 54 per cent) report physical violence involving their former partner. About 45 per cent of families who proceed to a final judgment in the Federal Circuit Court are being referred to state child welfare agencies.

The ALRC’s assessment of the current system was damning. It said it was “difficult to avoid the conclusion” that the Family Court and lower-level Federal Circuit Court were “unsuitable and ill-equipped” to deal with this complex cohort of families.

Like numerous previous reviews, it found many children were falling through the gaps between the federal family law and state child protection systems.

However, several of its key recommendations have been rejected as unrealistic. Its first recommendation — to create a new set of state courts to handle federal family law and state-based domestic violence and child protection matters under one roof — was virtually dead on arrival.

Former Family Court judge Peter Rose QC says the proposal is “bizarre” and would take the system “back to the future”. He tells the Inside Family Law podcast — with family lawyer and mediator Zoe Durand — the reform would be a return to the fragmented state system that existed before the Family Court’s creation in 1976, with “no demonstration” of the benefits to ordinary litigants.

Change is difficult

The Australian market for family law services is worth almost $1 billion a year, according to IBISWorld — about 14.5 per cent of the $6.8bn market for personal legal services, and growing. There are currently two federal courts that handle family law — the Family Court and lower-level Federal Circuit Court. They have a backlog of about 20,000 family law cases between them.

The chief justice of the two courts, Will Alstergren, tells Inquirer that in some Family Court registries, more than half the cases are more than a year old, while 25 per cent are more than three years old. In the Federal Circuit Court, some judges have 600 cases in their lists, he says. “There is no doubt that there are unacceptable delays in both courts and an unacceptable backlog,” he says. But ­reforming the system is not easy.

The legal profession recently torpedoed an attempt by Attorney-General Christian Porter to merge the two federal courts. The idea was to create one court for family law with a single entry point and one set of rules, to reduce confusion for families and improve efficiency. However, the profession was fiercely opposed to dismantling a stand-alone superior-level court for family law.

Splitting property and children’s time

Other reforms recommended by the ALRC are aimed at simplifying the underlying law but would also be controversial. This includes a new starting point for splitting property — a presumption that parties had contributed equally during their relationship. Judges currently need to consider about 25 matters to decide if it is “just and equitable” to make a property adjustment, and then use discretion to arrive at a final result.

Specific exceptions would apply to the new presumption, including if someone had wasted assets or deliberately damaged property, or received compensation for pain or loss that was ongoing, or an inheritance or gift. Judges would then consider specific factors to decide whether to make an adjustment, such as caring responsibilities, earning capacity and the age of both parties.

Peter Magee, the head of Armstrong Legal’s family law division, says the new presumption would be a sensible reform. It would remove the “yucky” need to compare individuals’ contributions to a relationship, which he says tends to fuel animosity between them. But former Family Court chief justice Diana Bryant is less convinced. She says the idea is “too simplistic for words” and could produce unintended consequences for de facto couples and couples in short relationships. People would instead fight over whether the presumption applies, she says.

The ALRC has also controversially recommended overhauling shared parenting laws introduced by the Howard government in 2006. It called for the scrapping of section 65DAA, which requires judges in certain cases to consider whether children should spend equal time, or substantial and significant time, with each parent.

Lone Fathers Association’s Barry Williams has warned political leaders would “see the biggest demonstration they had ever seen” from parents if they tried to remove the section.

Bryant, now judge in residence at Melbourne Law School, says removing this section “would not necessarily assist fathers”, but she is strongly in favour of a proposal by the ALRC to simplify the shared parenting laws and reduce the factors judges have to consider.

Reducing litigation

Other changes would be less controversial — and could help to encourage parties to settle disputes more quickly. A new rule would require parties to resolve disputes “as quickly, inexpensively and efficiently as possible”. There would also be a new duty on parties, their lawyers and third parties to co-­operate — with the threat of costs orders for those who fail to do so.

The general rule that each party to family law litigation pays their own legal costs would also be dumped. Rose supports this. He says there is already a discretion, “sometimes exercised”, to order one side to pay the other side’s legal costs, but he believes family law should be brought in line with other areas of litigation so that costs can be awarded “without having to overcome the hurdle of a general principle that each party pays his or her costs”.

Investigating abuse

Grainger is doubtful that any of these changes would have helped his situation. Instead, he wants to see allegations of abuse “immediately prioritised” by the family courts.

“There needs to be an urgent hearing for a finding of fact only on those allegations,” he says.

He says his ex-wife made allegations of abuse in 2012, when his daughter was two. Police, community services representatives and NSW’s Joint Investigation Response Team investigated the allegations quickly and dismissed them, he says.

But he says his ex-wife was nevertheless able to use the allegations as grounds to refuse Grainger unsupervised access to his daughter, which is when their relationship disintegrated.

Bravehearts founder Hetty Johnston, who is running for the federal senate in Queensland, also believes a new approach to investigating abuse is desperately needed. She says the ALRC review was “an absolute disgrace” because it did not address this issue.

Johnston wants a new system of child advocacy centres to be created with federal and state funding in which multidisciplinary teams would investigate abuse and ­record interviews for use in any ­future court proceedings to prevent individuals having to repeat their testimony.

“We need a royal commission, there’s no doubt about it,” she says. “If the general population understood how cruel and broken the system is, they would be screaming from the rafters.”

Bryant, however, doubts that investigating the work of a federal court would be an appropriate subject for a royal commission and says it would cause constitutional problems.

The way forward

If the Coalition is re-elected, it plans to have another crack at its family court reforms. Porter says it is still the Morrison government’s policy to merge the Family Court and Federal Circuit Court.

If Labor forms government, it will have to find a way to deliver justice more quickly and effectively to warring families. Opposition legal affairs spokesman Mark Dreyfus has said fixing the family law system will be a “priority”.

But having blocked Porter’s reforms, he has not yet made clear what he intends to do.

Inside the courts, Chief Justice Alstergren reveals he is working on a business case for the government to provide more resources, including registrars, to the existing courts to help with their “huge workload”.

“There’s no doubt there is a need for further resources,” he says.

Whoever becomes attorney-general can expect the business case to land on their desk soon after the election.

In the meantime, Alstergren has appointed a team to cherry­pick the best of both courts’ procedures and harmonise their rules and forms, which he says will have a “dramatic effect” on efficiency.

It will also look to ensure child safety issues are identified as early as possible.

But for families such as the Graingers, there will be more pain ahead for some time yet.

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Settlements are the norm when most part ways

Up to 70 per cent of separating couples work out parenting arrangements independent of the family law system and up to 40 per cent of parents negotiate the division of property themselves.

Of the disputes that do enter the system, data shows:

• Most are litigated in the Federal Circuit Court, where more than half are seeking parenting orders. The court had more than 17,000 applications for final orders in 2017-18, with 51 per cent to do with parenting orders. The Family Court had 2427 final order applications, with half of those seeking financial orders.

• The vast majority of matters that enter the family law system are settled. Consent order applications were lodged in the Family Court six times more than applications for final orders and up to 84 per cent of final order applications in the Family Court were settled before judgment. In the Federal Circuit Court, 70 per cent of finalised matters in 2017-18 were resolved through settlement.

• Matters still spend a long time in the system. More than one-third of all matters spent longer than one year in the courts, with around 20 per cent spending more than two years in the family law system.

• More than one-third of all matters that proceed to trial are settled on the “steps of the court’. In 2017-18, 41 per cent of matters that proceeded to trial in the Family Court were settled at trial, meaning that at some point during the trial but before the judgment the parties came to an agreement.

• Unrepresented litigants are more likely to take a matter to trial.

• Appeals rarely progress, and more than half that do progress are dismissed by the court. Appeals are frequently withdrawn or abandoned — 54 per cent did not proceed in 2017-18. Of those that did proceed, 55 per cent were dismissed by the court in 2017-18, with 66 per cent dismissed in 2016-17. Close to half of all appellants were self-represented.

• Family violence and abuse is a growing issue. There has been an increase in the number and proportion of matters in the Family Court where a notice of risk was filed, and 45 per cent of final order applications in the Federal Circuit Court were referred to child welfare agencies.

Source: ALRC