Family Court shakeup is logical but still unproven

June 13, 2018

Criminal and family lawyer Kate Freshwater at Deniliquin Courthouse. Photo: Stuart Walmsley

PLANS to amalgamate the Federal Circuit Court and Family Court of Australia are a logical step, according to Echuca lawyer Kate Freshwater.

The amalgamation of the two courts would see a single point of entry for all family law and general federal law matters through the newly created Federal Circuit and Family Court of Australia (FCFCA), with appeals to be heard by a single judge of the Federal Court.

Ms Freshwater said any move to simplify the current system was positive, but it was difficult at this stage and in the absence of further detail to see how amalgamating the courts would result in a greater capacity to finalise cases, thereby reducing delay.

‘‘The key issue in tackling the delay, reducing cost to families and meeting the needs that arise as a consequence of the complexity of family law disputes, is resources,’’ Ms Freshwater said.

‘‘For example, more judges to increase the court’s capacity to hear and determine matters and increased access to legal services (i.e. legal aid) for those who in the current framework find themselves unable to access lawyers and therefore have to navigate the system unrepresented.’’

Ms Freshwater said the amalgamation would not be implemented until at least January 1, 2019, so for those already in the system, it seemed unlikely their experience would be dramatically changed.

‘‘The majority of family law cases proceed through the Federal Circuit Court. We are fortunate to have the Federal Circuit Court sit regionally several times a year which improves access for those in regional areas,’’ she said.

‘‘I’m not aware if/how the amalgamation will impact the regularity of those sittings.

‘‘Certainly there are cases where delay can become an issue, but equally the nature and complexity of some disputes can sometimes mean that an incremental approach is required.

‘‘Undoubtedly however, there are families that will be best served by a quick determination of their dispute and it’s important that the court has the capacity to identify those cases and finalise them quickly so that those families do not languish in the system for longer than is absolutely necessary.’’

Law Council president Morry Bailes said it is understood the Australian Government’s proposed changes were intended to see more cases being finalised, faster and at a significant cost saving to the benefit of children and Australian families, however warned greater detail was needed noting the Law Council would support any constitutionally valid reforms which have that effect.

‘‘Waiting times of up to three years in the Family Court to finalise cases which involve disputes around children and property and allegations of family violence is unacceptable,’’ Mr Bailes said.

‘‘The long wait serves only to add undue stress to what is already an incredibly painful and difficult time for the families involved.

‘‘Urgent reform has been needed to begin to get the system back on its feet, however decades of chronic underfunding of the court system and legal aid has largely contributed to the lengthy delays and backlogs experienced today.

‘‘The increasing number of self-represented people appearing before the courts also contributes to the time that courts take to deal with matters and leads to unjust outcomes.

‘‘Further investment in the courts and legal aid is still required to deliver the best outcomes for children and Australian families.’’

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