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Double whammy for Hunter families using the family law court

Posted on 24th August 2021
Catherine Henry Lawyers
Catherine Henry Lawyers

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Double whammy for Hunter families using the family law court

A local family lawyer says Hunter people needing to access the family law court are facing a double whammy that will see more delays to cases.

Head of relationship law at Hunter-based Catherine Henry Lawyers, Rob Dilley said the September 1 merger of the Family Court of Australia and Federal Circuit Court of Australia – to become the Federal Circuit and Family Court of Australia – will not help people, particularly in regional areas such as the Hunter.

Mr Dilley said the solution is more judges, not court mergers.

He said the crisis in the local family law system has been made worse with the Federal Government yet to replace Federal Circuit Court judge Janet Terry, who has reached the mandatory retirement age of 70.

“The delay in replacing Judge Terry’s is a double whammy, leaving only two family law judges on the bench in Newcastle,” Mr Dilley said.

“The Newcastle registry is the busiest in Australia in terms of the volume of cases per judge with judges juggling hundreds of cases at a time,” he said.

Mr Dilley said more than 20 retired Family Court judges are coming out of retirement, to work for free or minimal payment, to help clear a backlog of 7,000 cases. He said it is commendable that the retired judges are doing so but proves that a lack of judges is the issue.

Mr Dilley said that the new court will likely lead to further delays as it will be more generalised, also hearing matters outside of the family law jurisdiction. He said the merger is part of a plan by the government to modernise family law in Australia but has been met with wide criticism from the legal community and other stakeholders, including former family law court judges.

He questions why the government pushed through a bill prior to the release of a major report into the operation of the family law system particularly when both interim reports, released in October 2020 and March 2021, received submissions criticising the proposed merger.

Mr Dilley said the Australian Law Reform Commission has not made a recommendation to merge the courts. The recommendation for the merger was made in a Price Waterhouse report which was prepared in only six weeks, without stakeholder consultation.

The Law Council of Australia voiced its concerns of the potential for the restructure to reduce the number of specialist family court judges.”

“The more stress we place on already over-worked judicial officers the more potential there is for appeals and increased costs for families.”

“Given the long delays facing people using the Family and Federal Circuit courts, we can’t have a new system that puts family matters in competition with matters such as immigration and bankruptcy.”

“The latest updates from the new court outline a range of name changes for forms and procedures but what we need is more judges.

“While mediation is an effective tool, it is not a cure-all. Some cases require court proceedings.”

He said there is real concern for the safety of children and victims of family violence who are frustrated by persistent long delays in the hearing of their urgent matters.

“More resources are needed in cases where there is alleged abuse, especially sexual abuse.”

Research released by the University of Queensland released this month shows that only in 14 per cent of contested cases did judicial officers express a direct belief that allegations of child abuse were true. Roughly two-thirds of people who could be referred to as allegedly unsafe parents had the time they spent with their children increased by the court. The researchers reviewed seven years’ worth of relevant published cases — from 2012 to 2019.

“The reliance of independent child psychiatry experts adds a great deal of cost and delay to the system.”

“Government funding of investigations, in the same way it funds child protection investigations, is one option to explore.”

Justice Abella, of the Canadian Supreme Court, recently commented that no area of law matters to more people than family law. She said not many people do corporate takeovers, most do not commit crimes, but absolutely everyone has a family.”

This article appeared in the Newcastle Herald and the Newcastle Weekly on 25 August 2021. Rob Dilley’s comments on the topic were also featured in the Newcastle Herald article “More registrars in Newcastle as Federal Circuit Court of Australia, Family Court of Australia prepare to merge” on 27 August 2021.

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