Monday, 27 May 2013

Why the Australian Family Law System is Broken

Perhaps a little bit extreme, however I do think that there are a number of gaping holes in our Family Law system, sufficient to swallow planets.

Ok, to start with, Family Law is complex. Incredibly complex. There is NEVER an identical case, and although the outcomes can be fairly predictable, other times they can come right out of left field.

This leads to a requirement that a person is represented. Legally, you can represent yourself, but the Courts dislike it, because if matters proceed to trial, you end up with ex-partners cross examining each other. You can just imagine how that would work, especially where there have been allegations of serious abuse.

As a result, the Court prefers (and encourages) litigants to be represented.

As a family lawyer, I spend hours upon hours drafting documents and affidavits. Trying to put together an affidavit in support of a Relocation Application is involving digging through two years of affidavits, picking out events relevant to domestic violence, abuse, harassment, mental health, the relationship between the parties and the children etc.

This makes the system expensive. If I wasn't acting for my client on the basis of a grant of legal aid, I would have just racked up about $600, just for typing a complex affidavit. (Cost according to Supreme Court Scale is currently $29.32 per 1/4 page, times 8 pages..., plus GST...)

It also makes the system slow. Drafting those affidavits takes me time, but worse, it takes the Court time to read it! (It's why drafting concise documents is a skill worth learning).


Then, each hearing usually involves several attendances, negotiation, and takes the Court an inordinate amount of time. A Federal Circuit Court will commonly list 20 matters on a 'General List' day, which will take most, if not all, of the morning, and often into the afternoon. As a result, getting a hearing date quickly can be an exercise in futility.

At the moment, non-urgent hearings take approximately 8 weeks from the time you file to the hearing date. 'Urgent' hearings can be as quick as 3 days, but more often 2 weeks.

But the worst part of the problem is that the Courts are impotent. Ok, you can take enforcement proceedings, but that costs more money, is slow, ineffective and unsatisfying. (A contravention application I dealt with last week finalised a contravention that took place in January.. of 2012. The only outcome was a 'notation' recording that the defendant had 'not complied with the Orders between [date] and [date]. That cost the Legal Services Commission over $3,000, plus GST, and that is just for the defence!)

If you are not minded to take contravention proceedings, you have NO WAY of enforcing your Court Orders. The State Police will not interfere, even if you have Court Orders.

Here is an example. There are Orders in the Federal Circuit Court that the children live with my client, and spend alternate weekends with the father. (Very common.) The father refuses to return the children. My client is forced to apply to the Legal Services Commission for funding to file an Urgent Recovery Application, then has to instruct me to file it. That takes me a day (after funding is confirmed) and the I file it. That is listed two weeks after the children have been taken. THEN, the children are Ordered to be returned, but the father doesn't comply. Only then, can the Recovery Order take effect, and only THEN will the state police get involved.

I think the State Police should be empowered to enforce federal law, as well as state law. In particular, I think that in the event of a breach of Family Court Orders, a mother (or father) should be able to seek assistance from SAPOL to recover the child, without having to go through the cumbersome, slow process of getting into the Family Courts.

I BET that if people knew that SAPOL would be at their door within a day, there would be far fewer applications for recovery!

Also, if there was a special unit at SAPOL which made applications to the Courts after they recovered the children, prosecuting breaches, there would be a much greater incentive to comply!

1 comment:

  1. Update: the affidavit is up to 16 pages, detailing the last 6 months of harassment and abuse.

    $2064 and change. Aaaaand, we will be paid the standard LSC rate for that, which is less than $2000... for the whole matter.

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