Interesting times are afoot for those that are affected by, or work within, the family law system. The Federal Attorney General, Christian Porter, recently launched details of a major overhaul of the administrative and structural aspects of the federal Family Court system. Proposed reforms are scheduled for January 2019, and are in addition to any recommendations contained in the anticipated Law Reform Commission report which is investigating family law in Australia from multiple angles.
Assuming the Government is able to sell its agenda, the reforms will impact upon the way in which family law matters are dealt with by the Courts in all States and Territories, including WA. The stated aim is to make the system ‘user friendly and cheaper’. That is an aim we openly support.
Just as importantly to ‘high conflict Australian families’, Mr Porter aims to cut down the time it takes for families who cannot agree on a settlement to access a Judicial Officer to make the ultimate decision. The Attorney General has announced that at the heart of the proposed reforms is the creation of one larger Court to deal with all family law matters. The new ‘super court’ will have two divisions, but it is predicted by the Government to be a vastly more streamlined organisation on a day to day basis.
How these proposed changes will translate to WA, save for how any appeals are conducted, remains to be seen. This is because unlike the Eastern States, WA operates a separate State based Family Court. Although it is very similar, and has adopted many of the processes of its Eastern State counterparts, the Court in WA is rather unique. And whilst it is still the case that the WA Court experiences delay, those delays are by no means as bad as those reported to be occurring in the Eastern States. In contrast to the other States and Territories, WA already has a single entry Family Court system and so avoids (lots of) the administrative duplication experienced elsewhere.
What will affect WA — along with the rest of Australia — is one of the more controversial aspects of the Attorney General’s proposals. The introduction of a faster and cheaper appeal system, whereby one judge instead of three will sit in the Appeal Court, sits at the centre of the planned reforms. This does not occur in the majority of appeals including in other non family law jurisdictions.
One judge reviewing the decision of another single judge has already caused some concern, with former Family Court chief justice Dianna Bryant arguing that the proposed reforms will possibly dilute the use of specialist judges for family law matters. It is a wholesale, fundamental change that challenges traditional thinking about the review of judges’ decisions and how that should be done. The prevailing view of the administration and conduct of any Appeal (whether that be in a family law or any other matter) is that three judges sitting on an Appeal are inherently safer than one. Having said that, many Federal Court appeals are only ever conducted by a single judge. Mr Porter, a senior lawyer himself, seems to have adopted the view that if ‘single judge appeals’ are good enough for the Federal Court (which currently also deals with family law matters in the eastern states), it is good enough for the Family Court.
In WA, to some extent we are in the privileged position of being able to observe “from afar” what happens in the Eastern States, giving our local Family Court the opportunity to adopt those procedural and efficiency changes that result in positive and productive reform. However, notwithstanding this anomalous reality, the Government would expect that once any procedural changes are delivered over east, WA will follow suit.
Regardless of politics, it would be a brave individual who argued that the current approach is delivering judgments quickly enough, or within a system that is affordable by all. On the flip side, whether the reasons for all the current problems have been properly understood by the Government, and its independent advisers remains to be seen.
SIMON CREEK | ALETA SHILTON | As published in The West Australian
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