Difficult path ahead for family law court system but change must come

For every marriage that comes to an end, the couple must secure court consent. In the post-1975 era of "no-fault" divorce, most couples who have called time on their vows go their separate ways with little intrusion from the two courts involved. While the Federal Circuit Court rubber-stamps most amicable separations, it's the Family Court that attempts to unravel the more fractious cases, which often involve vulnerable children facing violence.

This is a system under immense pressure. There are chronically long delays for those involved in more complex and contentious cases. The legal costs can be prohibitively high, and in up to 60 per cent of cases, the litigants are unrepresented by lawyers, according to Family Court Chief Justice Will Alstergren. A lack of matching procedures between the two courts can also make it a cumbersome bureaucracy to navigate.

When you grasp how vulnerable some people are as they go through the system, the need for reform is paramount. Up to 70 per cent of cases before the courts involve children who parents say are exposed to family abuse, according to an Australian Law Reform Commission report. And a survey of adults going through the system found there were many reports, particularly from mothers, of parenting arrangements that seriously compromised their children's safety, including psychological, emotional, sexual and physical abuse - mainly from a parent, but also from a step-parent or other relative.

In principle, society has few higher priorities than the protection of children. In practice, the structures and processes of the family law courts leave much to be desired. When it comes to solutions, there is no shortage of voices offering a range of views.

The federal government's path to reform is to merge the Federal Circuit Court and the Family Court to offer a more streamlined, simpler system. A coalition of more than 60 legal organisations has urged the government to abandon this plan, warning a merger risks the safety of child and adult victims of family violence. The Australian Law Reform Commission, which made 60 recommendations in a report this year, has as its most radical proposal calls for the federal system to be scrapped, replaced with a new state-based system more closely aligned with state child protection and family violence systems.

For domestic violence campaigner Rosie Batty, along with Women's Legal Services Australia, the way forward is first and foremost about keeping women and children safe.

And more views and recommendations are on the way. Prime Minister Scott Morrison's highly publicised new joint committee on family law headed by conservative Liberal MP Kevin Andrews, deputised by One Nation leader Pauline Hanson, ignited plenty of fury when Senator Hanson claimed women fabricated family violence allegations to win against their ex-partners.

The way forward is fraught. With a level of difficulty that can confound even lawyers, family law is at its heart a means for the judiciary to adjudicate on real human relationships that can often be even more complex than the law. But change must come.

Chief Justice Alstergren has taken the first steps, publicly committing to reducing delays and trying to harmonise practices between the two courts. There is much more to do. Ensuring family law courts work much closer with child protection and family violence systems is a reform long overdue. Ensuring that a former couple's first priority is finding a resolution, not battling the cost and complexity of the court system, will bring relief to many involved. Ensuring that more is done to resolve disputes out of combative courtrooms must be a priority. And, first and foremost, ensuring the safety of children is an absolute must.


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