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MYEFO A Missed Opportunity To Address Chronically Underfunded Family Courts

Mon Dec 17 2018

Message from President Tim Game SC

The Federal Government has today announced it will provide $3.7 million over four years for an additional judge and support staff to hear family law case appeals under the Government’s proposed restructure of the federal courts, as part of the Mid-Year Economic and Fiscal Outlook ("MYEFO")

The Government’s proposed legislation to restructure the federal courts and in effect abolish the specialist family court is currently the subject of an inquiry by the Senate Legal and Constitutional Affairs Legislation Committee. The Association acknowledges that reform of Australia’s family law system is required. However, the Association has consistently said it is critical that there be informed consideration of viable alternatives. Many of the Bills’ purported goals, such as the reduction of delays and achieving efficiencies within the family law system could be achieved without legislation through the creation of consistent court rules using existing rule-making powers, and through a significant funding and resource commitment from government into the family law system and legal aid. Today’s MYEFO falls well short of such a commitment.

The Federal Government’s funding announcement does not address the inadequate resourcing of the family law jurisdiction. It also pre-empts the current Senate Committee Inquiry into the Government’s proposed restructure of the jurisdiction and overlooks the concerns that have been expressed by the New South Wales Bar Association and other organisations regarding the proposal.

The Junior Vice-President of the Association, Michael McHugh SC, and the Chair of the Association’s Family Law Committee, Michael Kearney SC, appeared before the Senate Inquiry last week to give evidence. In a comprehensive submission to the Inquiry the Association said that:

"There is much frustration with Australia’s current family law system. Experience in NSW tells us a primary contributor to that frustration has been the fact that family law has been adversely affected by a chronic lack of funding and resources in both the Federal Circuit Court and Family Court in all registries, resulting from an absence of commitment by successive Governments to the proper funding of the system. These resources include not only an insufficient number of judicial officers to deal with an expanding jurisdiction and increasing workload, but also insufficient funding to maintain counselling and assessment services previously provided by the Courts."

The Bills disregard the advice of the Chief Justice of the Family Court, the Honourable John Pascoe AC CVO, that “many of the difficulties apparent with the system, and particularly with the Family Court, can be solved by an injection of funds, and particularly into legal aid.

The Association does not dispute that Australia’s family law system requires reform as the system is not serving the best interests of Australian children and families as well as it could or should. However, the Association believes that a specialist family court should not be disassembled without informed consideration of alternative options, including improved resourcing and the introduction of common rules and case management practices which could be implemented without the need for legislation, as well as other restructuring alternatives. In any event, even if the Bills proceed, to create meaningful reform, there must be a significant funding and resource commitment from government.

The Association’s recommendations to the Inquiry included that “Before any restructure, there should be a review into the resources given to all federal courts and their practices to ascertain what the courts require to ensure litigants are not further disadvantaged by delays.

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