Chief Justice on chronic family law delays


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Faced with yet another inquiry, to be co-chaired by trenchant Family Court critic Pauline Hanson, and the federal government’s plans to merge the Family Court and the Federal Circuit Court, Chief Justice Alstergren described his first year in the job as “challenging”.

But, he said, he was determined to push on with internal reform.

“Regardless of any legislation, and regardless of any inquiry, I’ve taken the view that litigants can’t wait for months or years,” he said. “I’m just getting on with it.”

Since coming to the role last December, Chief Justice Alstergren has made reducing delays in the court something of a personal mission, but it is one he readily accepts is not complete.

“I can totally understand why people get upset. It’s a shocking time in their lives. And we have got to have serious compassion for that and put in place everything we possibly can to try to lessen the stress on them. And one of the biggest stresses is delay.”

The Family Court of Australia is one of the most-complex and fraught legal environments in the country. Stretching over some 40 locations, it adjudicates custody and parenting disputes – many involving substance abuse or welfare considerations – and property division.

According to an Australian Law Reform Commission report released in April, up to 70 per cent of parents who come before the court report their children have been exposed to family violence. While the court aims to have 75 per cent of cases cleared within 12 months, in practice cases can take years to resolve.

Five months after the release of that exhaustive report – to which the federal government is yet to formally respond – Prime Minister Scott Morrison acceded to Senator Hanson’s long-running calls, and announced another review into family law which she will co-chair with Liberal MP Kevin Andrews. It follows some three dozen previous reviews announced since the Whitlam government passed the Family Law Act 44 years ago.

The latest  inquiry made headlines almost immediately after its announcement, when Senator Hanson went on ABC radio to claim women fabricated family violence allegations to win against their ex-partners in the court.

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“I’m saying to those women out there, don’t throw domestic violence orders against your ex-partners just to further your case or get control of the children,” she said.

“That’s not fair or right. There are people out there who are nothing but liars and will use that in the court system. You can’t defend these people and I will not defend them.”

Chief Justice Alstergren, who has also served as head of the Federal Circuit Court for almost two years, declined to comment on Attorney-General Christian Porter’s desire to merge the two courts, saying it was not appropriate to comment on politics. Arthur Moses, the head of the Law Council of Australia said this week the merger would “hurt families”. But the idea of merging functions of the two courts, at least, has Chief Justice Alstergren’s support.

There is considerable overlap between the two courts, which both have family law jurisdiction. But differing rules create headaches – for example, the two courts have different processes for parents to report allegations of abuse involving children. Practitioners fear some will fall through the cracks.

To this end, Chief Justice Alstergren has brought together a group of judges and barristers to draft “case management harmonisation” practices between the courts.

He has also personally intervened in cases that are more than two years old, creating a “callover” list, to haul cases before the courts to try to resolve them.

Mr Porter branded opposition to the merger of the two courts as “vested interests in the legal fraternity” resisting increased efficiency and lower fees.

In a speech in Newcastle on Friday night, Mr Moses said the government’s commitment to the “fundamentally flawed” merger was “irrational” and “extremely disrespectful”.

Mr Porter told The Sun-Herald and Sunday Age Mr Moses was pushing a “falsehood” by claiming that a single set of rules for the two courts could be achieved without legislation.

“If a single set of rules could be achieved without merger and authority provided to the Chief Justice why, despite decades of trying, has a single set of rules which is so critical for the families using the courts, never been achieved?” Mr Porter said. “Arthur Moses’ approach falls into Einstein’s definition of madness – doing the same thing over and over again and expecting a different result.”

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Asked about figures from the Australian Institute of Family Studies that suggest as few as 3 per cent of fathers lose all access to their children – despite 70 per cent of parents making allegations their children had been exposed to family violence – Chief Justice Alstergren insisted he was confident judges got the balance right.

The most important aspect of family law, he said, was “to try and make sure it’s in the child’s best interest, not the parent’s best interests, which is a real problem”.

“You can’t just assess it on statistics and can’t just assess it on generalisations because often it’s, you know, people don’t know what actually happened in the court case.”

Additional reporting by Caitlin Fitzsimmons

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