Australia’s Family Law Courts Are Crippling Families

Family law proceedings are crippling families financially and breaking them emotionally as overburdened systems struggle to cope with a rising backlog of cases, a new book has revealed.

Simone was five-years-old when her parents separated.

Having met “every single person and expert in the Family Law Process and gone to every single facility on this earth”, she said that through her family’s separation she “missed out on a chance of a better childhood".

For Jacqui, this journey is all too familiar. The lengthy delays of the courts meant her former partner had an extended opportunity to “subtly bully” her through the court process -- one replicating the trauma she experienced in her marriage.

It’s these rising delays and exorbitant costs that are worsening a “mental health crisis” among some litigants in Australia’s family law courts, according to Zoe Durand, co-author of an all-new book published this week featuring interviews from family law judges, lawyers and litigants.

Family court proceedings are often lengthy. Over the past five years, the number of family law matters awaiting resolution has grown from 17,200 to 21,000.

The median time taken to reach trial has also grown from 10.8 months to 15.2 months in the Federal Circuit Court and from 11.5 months to 17 months in the Family Court.

“In the book, nearly every interviewee voiced concern about delays in the Sydney system being the worst in the country,” Durand told 10 daily.

But the costs can also be immensely burdensome for families, with the highest estimate being between $450,000 and $500,000.

These costs can grow and grow and “swallow up families financially,” Durand told ten daily.

But the emotional impacts are also great, with as many as 22,000 family law final order cases filed each year, many litigants feel they are being “churned” through the system, Durand says.

“Indeed one of the issues interviews with litigants raised is they often feel they are being shuffled about from place to place in the system as if on a conveyor belt,” she says, with one litigant likening the experience to getting on and off a bus stop.

Call For Reform

Judges and litigants both say that the system is in need of systematic reform.

Overwhelmingly litigants expressed the need for more funding for judges, contact centres and other services, Durand says.

Former Federal Circuit Court judge Stephen Scarlett also said that more resources are needed to manage the case flow – saying that 100 judges are needed, not the 70 currently in the courts.

“People are involved in litigation for years and years. It’s costing them money, and the emotional toll is immense,” he said.

Honourable Justice Rose also flagged concerns about the delays, warning that the delays will continue “unless there are governments that actually have the political will to do something and provide substantially more resources rather than just talking about it.”

In May this year the Turnbull Government introduced reform to try to save families costs in family law matters, with the introduction of a new Family Law Appeal Division in the Federal Court to address the “backlog.”

“The purpose of the reform is to ensure Australian families experience shorter waiting times, and a reduction in the potential for conflict caused by prolonged and acrimonious family disputes,” the Attorney General said.

Mediation Is The Answer

But settling family law matters prior to trial is one of the best ways to dodge the emotional and financial toll of litigation, Durand says.

“I would encourage people again if it is possible to think about Alternative Dispute Resolution or mediation to try to resolve their matter.”

Former Federal Circuit Court Judge Stephen Scarlett also said that mediation is increasingly important as it is “significantly less expensive.”

“I also think the courts should be strongly advising people to go to mediation and unless a matter has been to mediation unsuccessfully, the court should be asking why the matter should be given a final hearing date.”

Zoe Durand’s book Inside Family Law can be purchased here.