Is the Family Law System Really Broken?

October 1, 2019

There has been a lot of radio talk concerning the Parliamentary inquiry into the family law system, by the appointment of a Joint Select Committee. It should be understood that there has been an extensive inquiry by the Australian Law Reform Commission (ALRC) into the family law system over the past couple of years. The recommendations of the ALRC for reforms to the family law system are yet to be considered by the Parliament and then adopted or implemented.

What is of concern to us at Fox and Thomas is the comments being broadcast on the airwaves that many family law litigants lie or bend the truth to gain an advantage in relation to children or property. The comments by some including Senator Pauline Hanson need to be put into context.

We have been watching the statistics in the Family Court of Australia (and the Federal Circuit Court) for some 30 years.

In a snapshot:

• Over 50% of all applications filed in the Family Court are consent orders which means parties agree on parenting or property matters without going to trial.
• Of all the applications which are filed in the Court, only about 5% of those actually get to a judicial hearing. The other 95% settle the dispute without a trial.
• Most family lawyers try to resolve matters by consent orders, a parenting plan or financial agreement. Court is always the last resort and is usually necessary when there is aberrant behaviour by one or other party to the relationship.

Our observation is that those matters which do get to a trial by a Judge have complex and sometimes multi-faceted problems and issues. Those that go trial, or cannot be settled by consent orders, are extremely difficult, and sometimes have one party with a mental health issue or a personality disorder.

When a matter goes to Court, the Judge needs to decide in most cases which party he or she is going to believe especially when there are allegations of abuse or family violence. These matters need to be proved by evidence. This is the process in criminal court and civil courts. When there is a difference of opinion the parties are asking the judicial officer to make a finding of which party’s version is to be accepted. The difference in the Family Court is that there is a range of social and emotional issues which are not present in civil claims or criminal claims.

In line with some of the commentary, it is true, the system is overburdened and under-staffed by judicial officers. It is also true, the system needs reform in terms of rules and documents and in which Court you commence proceedings.

But rest assured, the majority of people whose relationship sadly has broken down resolve their issues, either by themselves or with the help of lawyers, mediators, family dispute resolution practitioners or arbitrators. Those who settle their matter outside of the Court system are helped by empathetic professionals to achieve a fair division of property and the best outcome possible for their children.

If you have a relationship breakdown or related family law issues, ensure you meet with an accredited specialist in family law.