Thread by @BethanyinCBR

If anyone is interested in a breakdown of the history af the Family Court and why the gov is so hell bent on destroying it, here is a thread (not written by me), explaining it.

The Family Court was set up in 1976 by the Labor party....

In the early to mid 90’s, things worked really well - the court processes were simplified, it was funded with Registrars, Judicial Registrars and Judges - all dealing with different levels of complexity of cases.

court application. The mid 90’s also saw an enormous shift away from “custody” language, to focusing more on the responsibilities of parenting - the rights moved to the children.

Funding couldn’t keep up as demand started increasing. The counselling services were cut to only those people who filed a court application. This increased demand even further as people needing the counselling services had no choice but to file proceedings.

By the late 90’s the court was entirely over-loaded with work.

The Liberal Government implemented two major reforms to the system in 2000 - first the commencement of Family Relationships Centres which essentially removed the in-house court counselling function...

which led to family dispute resolution (mediation) being required in almost all no-risk parenting cases before a court application could be lodged, and second introducing a Federal Magistrates Court to deal with less complicated matters quicker and cheaper way.

As a result, we essentially had two courts dealing with the same family law jurisdiction - different forms, different rules, different processes.

These reforms meant the Government essentially dried up the funding to the Family Court - I remember what this was like in the mid-late 2000’s, we had one Judge in the Parramatta Registry who was working ridiculous hours trying to manage the caseload of 3 judges......

in a climate where Registrars were reduced and the Judicial Registrar went to the FCC.

Initially the FCC were able to help significantly clear the backlog of cases in the Family Court, however it wasn’t long before the FCC were also super busy.

Again, Goverment couldn’t keep up the funding with the way both courts’ workloads increased for the following reasons:
- prenups were introduced In 2000’s, the legislation was initially problematic and there were more cases due to the confusing legal framework.

- de facto relationships were transferred from the States / Territories to the Family Court and the FCC
- rates of DV being reported were on the increase, as were drug and alcohol problems.
- third parties were given standing (e.g. bank mortgagees, parents giving loans etc)

- bankruptcy rules were clarified and family laws adopted certain rights / protocols for bankrupt trustees to avoid having to go to the Federal Court

- corporations laws were clarified and companies were given certain rights / protocols for corporate matters needing decisions to avoid having to go to the Supreme Court / Federal Court.

All these issues meant increased workload on the Judges of the Family Court and the FCC.

In 2006-2008 we had an enormous review of the Child Support System which significantly changed the way child support was calculated, and additional changes regarding Binding Child support Agreements caused some further litigation.

For a good chunk of the last 10 years, funding has dried up for both courts - both political parties have contributed to the mess that is now the broken family law system. Failing to appoint appropriate levels of judges for the workloads is the most significant issue of them all

- the “full complement” of judges is as per a scale set sometime in the dark ages (and is not even public information), and hasn’t properly been reconsidered for decades.

There is a big delay by the gov in resourcing the court when a judge retires (often a 12 month wait for a replacement, which means the other judges have to carry that workload - sometimes there’s only 2 or 3 judges in a registry, so losing 1 judge for 12 months is a huge impact).

The Lib Gov now wants to merge the Family Court and the FCC - to create one “super court”, with some pros/cons. Ultimately, the biggest concern about the proposal is that there still isn’t any proper transparency of how the new court will be funded and resourced...

...and how those resources will be reviewed for sufficient levels into the future as demands on the court change. Ultimately, the Liberals have been keen to highlight the superior performance of the FCC which they had set up as the “golden child” of courts..

however their attempt to demosntrate this is on the back of a flawed report prepared by accountants who have no idea about the way in which the courts really work. The Liberals have long sought to abolish the Family Court, I don’t think there’s any secret about that.

The Australian Law Reform Commission was asked by the Liberals to review the Family Law System (however funnily enough they weren’t asked to consider the structure of the court because the Liberals were so confident their Merger legislation would be successful).

So what we had was the Federal Govt seeking to change the structure of a system which it wanted to review. It’s like Ford or Holden telling its chief designers to come up with a whole new structure of a car, but telling them not to worry about the chassis.

When the ALRC Report was delivered this year, it was a huge report with over 60 recommendations. Notwithstanding the “don’t worry about the chassis” instruction, the ALRC basically recommended to scrap the Family Court and FCC altogether....

..and send all family law cases back to the State Local Courts (including funding specialist local courts that deal with family law specifically). It is what we call a “unicorn” recommendation....

...because there’s a snow-flake’s chance in hell that the States would even remotely want to consider taking on the complex problems of family law.

The gov was under significant pressure to abandon the Merger legislation, & hold a proper consultation / consideration of the ALRC report and more than 60 recommendations it made prior to attempting any “tinkering” with the family law system including the structure of the courts

The Liberals are having a great deal of trouble getting the Merger legislation through, and although it doesn’t appear they’re a fan of the ALRC Report it’s apparent they’re listening to the concerns of the peak stakeholders in the system.

The Inquiry announced last week will be the gov’s way of thinking carefully about what it should do next (although PH would have you believe it’s all her doing - there may well be some political gain for the Libs in appeasing her requests to abolish the family court).

The Liberals still think this Inquiry will proceed on the basis that its Merger legislation is a done deal - but they don’t appear to have the support of the independents in the Senate to get it through.

So what does this all mean? Notwithstanding the ALRC took more than a year, a tonne of money and consulations with people, peak bodies and stakeholders, the gov is now throwing more money, another year & inviting the same consultations with people, peak bodies and stakeholders.

I don’t quite understand what they’ll hear that’s different from the stories the independent ALRC have already heard, digested and formulated recommendations. I’m glad the Government are prepared to listen and do their own due diligence on the one hand, but I’m frustrated.

I’m frustrated because the funding will stay dried up to the family law system in the meantime while all this inquiring and reporting will be going on - the goverment has made it pretty clear they’re not going to throw more money into the current “broken” system...

...so they’re going to leave it “broken” for at least another year. Probably longer as after the Inquiry then there will need to be draft legislation prepeared - there’s another year or more right there too.

Admittedly the child support sytem is due for a full review - it’s been more than 10 years since the last reform so we’re certainly due.

The Labor party is not much better - apart from admonishing the Libs on their proposals for the Merger of the courts, they’re not giving us any idea of what they would do differently, nor are they giving any hints about what funding they propose is suitable.

Last year’s elections were the most difficult because the Merger was on the table, it was better than no change, and Labor wasn’t giving any hints about what it would do if they won power.

If we had research/reports & inquiries going on in the background to improve the system while the existing sytem was properly funded to work in the way that it can and should, it wouldn’t be so bad. But without proper funding, this broken system is not going to get any better.

This system should be about healing conflict, to help families arise out of their disputes and traumas with healing. If our government approached the family law system as a major health catastrophe, we’d be in a much better position....

given that 1 in 3 couples go through divorce, imagine if a third of the population was struck by a disease which caused so much distress and trauma, we’d all pay much more attention from a public health perspective - we could possibly achieve the goal of conflict healing.

As long as gov treats the family law system as a failed project under investigation, it’s going to stay a nightmare.