Structural reform rather than more judges makes a better family

By Christian Porter

For almost 20 years, family law in Australia has been split between two courts, the Family Court and the Federal Circuit Court, and since this split there have been several very significant changes and one relative constant.

A central change has been that the FCC originally was the junior partner in family law matters, having about 20 per cent of the workload. That situation reversed over time, with the FCC now having 80 per cent of the family law workload based on the number of matters filed for final orders.

One concerning trend that has developed, which must be remedied, is that while the Family Court’s downward shift in workload has recently been at its most significant, there has been no corresponding increase in output based on cases finalised.

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In 2015-16, the Family Court had about 3000 matters filed for final orders. One year later it was 2750. Usually, when workload ­decreases, output (finalisations) should increase.

Unfortunately, the reverse occurred. Finalisations dropped from about 2950 to 2750. This is a major driver of increasing backlogs in the family law system.

During the same period, the work of the FCC has remained essentially constant. FCC finalisations increased significantly, with clearance rates now at 104 per cent.

This means the FCC is disposing of 17,000 family law matters a year with an appeal rate of only 1 per cent and it now has the highest number of specialist family law judges — 41 with an average of 25 years’ experience in family law.

This demonstrates that decreasing the waiting time for finalisation of family law matters, to make a positive difference to the lives of families experiencing what is invariably a very difficult time, cannot be accomplished simply by adding more judges into a system needing significant structural and practice management reform.

In many ways, Family Court judges have been let down by the confusion and complexity of having two systems operating in one area of law. For example, 1200 matters are bounced between the two courts annually, wasting money and up to a year of Australian families’ time.

The Turnbull government invests more than $1 billion a year in our legal system and in recent times has invested an additional $37.4 million, including $25m, to the courts to deliver faster, better results for families.

As important as this investment is, it is now well past time that this funding is accompanied by fundamental structural reform.

This means facing up to the one constant feature of this split system; it is now consistently recognised that two courts with different sets of rules, practice management styles, forms, procedures and listing entry points dealing with the same body of family law matters does not work, and leads to delay and extra cost to the families forced into it.

Anyone who sees the problems first-hand agrees that the structural problems are acute and something must be done.

On this point it was pleasing to see that the NSW Bar Association recently noted that funding cannot cure a base structural problem.

As the NSW Bar said: “We agree with the government that the experiment of sharing jurisdiction between two federal courts and running family law matters in separate courts with separate rules and procedures has failed.”

The question then becomes how best to restructure.

The NSW Bar suggests abolishing the most efficient court in the family law jurisdiction, the FCC, and placing some of its judges into the Family Court with the rest of its judges moving into the Federal Court.

This approach has three major disadvantages: it expands the court that has struggled the most in maintaining its efficiencies; it abandons entirely the best performing court; and it is unlikely to be supported by any of the heads of the three courts.

What the Turnbull government proposes is a staged and sensible process of merging the two existing courts dealing with family law into one court with all its existing personnel.

Division one of the new court would contain the previous Family Court judges. FCC judges would sit in division two. This approach ensures the total number of judges available to hear trials is increased by sending family law appeals to the superior Federal Court, where they will be dealt with by Australia’s most skilled judges.

Most important, this reform would require the new single court to be managed by a single chief ­justice and therefore have a clear, accountable and orthodox management structure responsible for instituting a single set of rules, forms, procedures and case management practices, all designed to decrease time to resolution and thereby reducing costs, delays and angst for families.

The legal skills in the new court would be the same as they are now. But the restructured court and reformed management, practices and procedures would create a consistent, more efficient process for Australian families who rightly expect matters to be resolved more quickly so they can get on with their lives.

Christian Porter is the federal Attorney-General.