The cost of efficiency in Family Court merger

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In May this year Attorney-General Christian Porter announced the Family Court Merger, due to be implemented from January 2019. This will combine the Family Court of Australia with the Federal Circuit Court (FCC) to create the Federal Circuit and Family Court of Australia (FCFCA), a 'single point of entry' for Family Law litigants, supposedly decreasing the backlog of cases, reducing costs and delays and simplifying the process as a result.

Woman crying with shadowy man in the background

It all sounds good. Most people who have been through Family Court will confirm that it’s a long and arduous process, one that is both emotionally and financially stressful. But I have some serious concerns about this merger. My main concern is what this will mean for people who are dealing with family violence while going through the court system.

As it stands, the Federal Circuit Court already takes the bulk of family law cases, while Family Court is reserved for the more complex cases, such as those involving family violence. This means that some cases are moved back and forth between the two courts, as different issues arise during proceedings. The merging of these two courts (while maintaining the two separate divisions) will eliminate this back and forth and speed up the process for litigants, which the Attorney-General has said will provide faster relief for families.

This emphasis on 'faster relief' assumes that speedy resolutions are better for families. This may be true for some cases, but for those thousands of families dealing with the complexity of family violence, it is imperative that the courts examine all the evidence thoroughly with expert analysis and allow time for perpetrators of violence to show their true colours, before any potentially life-changing decisions are made.

Efficiency and cost cutting shouldn’t be the goal. The Family Court is crying out for more resources and specialist family violence experts, not merely simpler, faster results. Additionally, the Attorney-General has not confirmed that judges in the family law division of the new court will be required to have specific family law experience, or that existing family court judges will be replaced as they retire, so there is also a risk that those complex cases will soon be heard by unqualified judges. This would be a dangerous step backwards.

A case involving family violence needs to be overseen by someone who understands the intricacies of family violence. Perpetrators are skilled manipulators who often present well before a judge. During the court process, tempers are likely to be held low as everyone is on their 'best behaviour,' knowing their every action will be raised in court.

It is after a resolution that victims are most at risk, as this is when the violence is likely to spike. Perpetrators don’t change just because they have been given a court order. A resolution doesn’t necessarily make life better for a victim of family violence or for the children involved. Sometimes it makes it worse.

 

"The implicit message in court remains the same for victims of family violence — be prepared for any protective action you took against the abuse to now be used against you."

 

The Family Court doesn’t always make the right decision. There have already been many concerns raised about court rulings made by the current system. This includes the failure of the court to properly recognise and understand family violence, which too often results in children being placed in the care of abusive parents, while the parents who are victims of domestic violence are warned against raising allegations of abuse, lest they be seen as 'vindictive' and lose custody altogether.

Since the 2006 family law amendment that included an emphasis on 'shared parental responsibility' these issues have been occurring. A later provision that raised the 'child’s right to safety' above the 'right to a meaningful relationship with both parents' sought to remedy the subsequent spike in domestic violence and homicide, but the implicit message in court remains the same for victims of family violence — be prepared for any protective action you took against the abuse to now be used against you.

These are just some of the problems that I hope will be addressed in the Australian Law Reform Commission’s (ALRC) first comprehensive review of family court system since 1976. It’s baffling that this merger has been announced prior to the ALRC releasing its findings.

The ethos that a quick result is better than a well-informed one is being utilised both for the family court system and the decision-making process relating to it. The only people that this attitude will help are those who have something to hide, such as perpetrators of family violence, not the ones striving to uncover all the facts in order to do the right thing for families. Delays are just one of the many problems facing family court and fixing only that one issue might prove to be worse than doing nothing at all. Lives are at stake. It’s so much more important to make the right decision, than a fast one.

 

Alex O'SullivanAlexandra O’Sullivan lives in Melbourne. Her work has appeared in publications such as Meanjin, Tincture, Kill Your Darlings and Verity La. She has been shortlisted for several awards and has received Highly Commended mentions in The Horne Prize 2016, and The Feminartsy Fiction Prize 2017. 

 

Main image: Woman crying with shadowy man in the background (Depositphotos)

Topic tags: Alexandra O'Sullivan, family court, domestic violence, Christian Porter

 

 

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Couldn't agree more. I think a major point being missed is DV and Child Protection should be ruled by State and not Federal. These issues should never get to Family Court.
Doug Andrews | 24 November 2018


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