Court Delays – A Big Issue for Family Lawyers and Litigants

Here at Evans & Company Family Lawyers, we have decided to put pen to paper about an issue which is really troubling, and that is, the issue of delays in the administration of justice in family law.

Family law in Australia is administrated by the Family Court of Australia and the Federal Circuit Court of Australia.

The Court is responsible for tens of thousands of cases opened each year in each registry, amounting to hundreds of thousands of cases Nation-wide, all of which involving disputes which have been unable to have been settled by parties, their lawyers or mediation (held before filing).

At stake are decisions on the living arrangements of children after separation, how people will support themselves and how property will be divided enabling people to move on with lives. Enmeshed in those cases are often domestic violence or financial hardship.

So, in terms of the timing of how long it takes for people to access the Court and its Judges, it is often quite urgent and of priority that they be able to have decisions made allowing people to move on in life with outcomes.

Instead, family lawyers and family law litigants are faced with a system plagued by delays.

To give you an example, in the Brisbane registry, we are aware that in a parenting case this week, one of the Judges of the Court (we will leave the details out) informed the parties that they could expect that a trial could not be held until 2017. By that time, the children the subject of the dispute will be teenagers and the matter will flounder without a well resourced Judicial intervention in an evidentiary hearing about the disputes of fact. So this leaves children of the marriage in limbo and exposed to disputing parents.

Likewise, property cases flounder also, leaving couples unable to plan for the future, have certainty of assets or income and an unreasonable portion of their lives (and their mental health in that time) is the subject of exposure to stress, anxiety and the impact of constantly awaiting litigation to be over.

The Judicial Officer involved was apologetic and suggested to the parties that they take up with their local Federal Member of Parliament if they thought that the delays are unacceptable.

The Brisbane Registry suffered (and we genuinely use that term because it is accurate) the recent retirement of Justice Bell, whose position has not been refilled. This means that the Registry has less hands to do more work.

A review of the annual reports and data from the Court indicate that they were tasked by the Federal Government to implement cost savings measures tallying many millions of dollars, something they have succeeded at – but at what cost?

Was it the intention of the Government to ensure we had minimal resources to work with?

A review of the Court’s report  also made plain that the Court is not a recipient of its own filing fee revenue. This means that even though the filing fee costs were raised and many new filing fee costs implemented on previously free filings, the filing fee revenue is deposited to the public purse generally and not specifically tasked to provide family law services within the two busy Courts who are providing the services.

Another unfortunate feature of the under-funding of the Courts is that the Judicial Officers are overloaded. The limited number of Judges already means a full case load, but the expectations on them for time, means that there are delays in the Judges producing or outputting Judgments (their decisions in each litigation matter/application) after cases are heard. In some cases this extends for beyond 12 months or more.

It’s easy to overlook that those delays impact families very significantly, including that children’s arrangements are in limbo the entire time the Judge is delayed in giving his or her decision in the case. Likewise, in property cases, no one can move on until a case is decided. Often this creates controversy because there might be a change in value or circumstances for parties or their property holdings. There are often disputes about how things are paid for during the delays. Mortgages and liabilities are still to be met. People’s health conditions change. Children age and become exposed to long term unresolved disputes.

Here at Evans & Company, we have decided that this Christmas and New Year, we are actively going to do something about the delays.

The fisrt thing that we are doing is linking to the page setting out the details of the Federal Members of Parliament and the Attorney-General, Senator Brandis QC. Click here to visit such a page.

The second thing we are doing is setting out a pro forma letter which you might like to use in correspondence to the Member or the Attorney. Click here for the draft letter.

One of the big and topical issues people are considering at the moment is domestic violence. Unfortunately, family lawyers see domestic violence as prevalent in matters where family law proceedings are required. The concept of delays just adds to the stress and the risk of repeat domestic violence as opposed to allowing prompt resolution of cases before the Court after which hopefully people’s angst settles down and subsides. The delays simply prolong the pain and suffering and the angst.

It would be nice to think that in considering domestic violence issues, we also think about the Family Law Courts handling matters in which those issues are live and dealing with the fallout at the coal face as opposed to just thinking Domestic Violence issues start and end within the Local or Magistrates Courts.

If we can ask that as part of your New Year’s resolutions, you add to the list, trying to take an active role in repairing and supporting the legal model that comprise the Family Law Courts so as to benefit families who are caught up in the delays which prevent them moving forward, this would be a worthy cause to support and would be very much appreciated by those affected by the process.

Best wishes this Christmas and Happy New Year,

Dean Evans and the team at Evans & Company Family Lawyers