In this way, the system is working – THE ROLES OF: Courts The family law system is based around trying to get parents to co-operate with each other rather than comply with court orders. The idea is for families to sort out their own arrangements, rather than getting a judge to make a decision. In this way, the system is working – 95% of family cases are NOT decided in court. In most situations where a marriage or de facto relationship breaks down, parents themselves reach an agreement about the ongoing parenting arrangements for their children. Even IF the parents apply to a court, the court will usually refer them to counselling/FDR (unless there is violence involved, for example, in which case they can get an exemption).

Before the Family Court (pre-1975) THE ROLES OF: Courts Before the Family Court (pre-1975) Before the family court was established, the State courts would hear divorce matters. “Getting a divorce in Australia was a difficult, risky, and expensive undertaking. Private lives were exposed to public scrutiny, with newspapers, and later television, able to report on cases that ended up in the divorce courts”. Finding Fault (Hindsight, ABC Radio National, 2010)

The Family Court The Family Court is a specialised court. THE ROLES OF: Courts The Family Court The Family Court is a specialised court. It hears cases about: - Separation - Divorce - Other disputes related to marriage and de facto relationships All of the States (except WA) referred their power regarding certain issues involving children to the Commonwealth in 1986. This means that Western Australia has its OWN Family Court of WA. The states also referred their powers over de facto relationships through the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008.

Federal Magistrates’ Court THE ROLES OF: Courts The Family Court AND Federal Circuit Court In 2000, the Federal Magistrates’ Court started operating to relieve some of the case load of the Federal Court AND Family Court. Pre-2000 Federal Court (struggling with caseload) Family Court (struggling with caseload) From 1999/2000 Federal Court Federal Magistrates’ Court Family Court In 2012, the name of the Federal Magistrates’ Court was changed to the Federal Circuit Court. From 2012 Federal Court Federal Circuit Court Family Court

The majority of divorce applications are heard in the FCC THE ROLES OF: Courts The majority of divorce applications are heard in the FCC More complex cases e.g. Cases involving - multiple children; - allegations of serious domestic violence - allegations of child abuse (called ‘Magellan cases’) - a parent who wants to move interstate - parental neglect - drug taking (by parent/s) are heard in the Family Court All other cases (e.g. adoption, wills) go to the relevant State courts

1. Less Adversarial Trials (LATs) THE ROLES OF: Courts There are FOUR major features that you can write about in an exam that make the Family Court very different to other courts in Australia (and the most of the world really): 1. Less Adversarial Trials (LATs) 2. Independent Children’s Lawyers (ICLs) 3. Family Reports 4. ‘Magellan’ cases

1. Less Adversarial Trials (LATs) THE ROLES OF: Courts 1. Less Adversarial Trials (LATs) Even though a lot of the changes to the FLA have been about promoting dispute resolution, we haven’t really looked at the 5% of cases that go to the FAMILY COURT. The Family Court has moved in recent years AWAY from adversarial trials and towards more inquisitorial trials. (But we don’t want to sound like we’re going French, so we don’t call them ‘inquisitorial’ trials, we call them ‘LESS ADVERSARIAL’ TRIALS) This has been a dramatic change to the EVIDENCE and PROCEDURES by which children’s cases are being heard in the FCA The main changes are that a) A lot of the evidence laws (from the Evidence Act 1995) DO NOT APPLY b) The hearing process gives judges control that NO OTHER JUDGES HAVE

1. Less Adversarial Trials (LATs) THE ROLES OF: Courts 1. Less Adversarial Trials (LATs) EVIDENCE - ALL evidence is conditionally admitted (the judge decides whether its relevant or not) - NO OBJECTIONS are taken from lawyers about what evidence is allowed to be presented (unless it was illegally obtained) PROCEDURES - The judge decides on: The issues to be decided; The evidence to be called; The way the evidence is to be presented; and The order in which the trial will go. - The trial can proceed as a discussion (which is controlled by the judge, not the lawyers)

child’s interests in the case should be INDEPENDENTLY REPRESENTED THE ROLES OF: Courts 2. Independent Children’s Lawyers (ICLs) The Family Court and FCC are able to appoint an Independent Children’s Lawyer when the judge feels that the child’s interests in the case should be INDEPENDENTLY REPRESENTED e.g. If there are allegations of child abuse If there is intractable (hard to deal with) conflict between the parents There are issues with the parent/s that will impact on the child/ren (e.g. mental illness) WITHOUT an ICL, there are some very real concerns that the best interests of the child will not be represented. ALL SECTIONS of the family law system support the use of an ICL in these cases, but these lawyers are FUNDED BY LEGAL AID – WHICH KEEPS GETTING CUT BY THE GOVERNMENT!!!

The ICL OR the judge can ask for a Family Report to be written. THE ROLES OF: Courts 3. Family Reports The ICL OR the judge can ask for a Family Report to be written. This is so that the judge has AS MUCH RELEVANT INFORMATION about the child and their family to make the best possible decision when making parental orders. A ‘Family Consultant’ (an expert hired by the court, e.g. social worker) interviews the parents (and other significant family members), collects information and writes a Family Report about: - The child's relationships with significant people - The child's views - The child's personal history and emotional attachments - The family history - The attitude that each parent has towards being a parent

It also involves co-operation with State welfare agencies. THE ROLES OF: Courts 4. ‘Magellan’ Cases When there are serious allegations of physical and/or sexual child abuse, the Family Court has the Magellan Program. It is a case management system that makes sure that these cases are fast-tracked and PRIORITISED in the FCA. It also involves co-operation with State welfare agencies.

1. Is it really better to use Less Adversarial Trials? THE ROLES OF: Courts EVALUATE the effectiveness of the law in achieving justice for parties involved in relationship breakdowns 1. Is it really better to use Less Adversarial Trials? Generally, except for lawyers (who are not happy with their reduced role in Family Court cases), most of the news about LATs has been positive. There have been a few cases that have shown some of the limitations of LATs though: e.g. Sometimes irrelevant evidence might be taken into account by the judge (Weston (2008)) e.g. There are problems with procedural fairness (Truman (2008)) e.g. Without cross-examination (being questioned, under oath, under pressure by the other side), parents may be able to “keep up an act” while being questioned

So, does Australian family law achieve justice for the kids? THE ROLES OF: Courts EVALUATE the effectiveness of the law in achieving justice for parties involved in relationship breakdowns 2. REMEMBER: The ‘parties’ involved in a relationship breakdown INCLUDES THE KIDS! So, does Australian family law achieve justice for the kids? Do all kids need an Independent Children’s Lawyer, or is a Family Consultant generally able to make sure that the kids are going to be treated fairly? The High Court decided in the Garning (2012) case that Family Consultants ARE GOOD ENOUGH in a lot of cases to help achieve just outcomes for the children. A lot of the time, an ICL isn’t needed to achieve justice for a child.

So, does Australian family law achieve justice for the kids? THE ROLES OF: Courts EVALUATE the effectiveness of the law in achieving justice for parties involved in relationship breakdowns 2. REMEMBER: The ‘parties’ involved in a relationship breakdown INCLUDES THE KIDS! So, does Australian family law achieve justice for the kids? Is the ‘Magellan’ case management system working? Evaluations by the Australian Institute of Family Studies (AIFS) have found that the Magellan Program IS WORKING, as these cases are heard an average 4.6 months faster than the previous system.

Dad banned from seeing child for 13 years (The World Today, ABC, 2012) THE ROLES OF: Courts EVALUATE the effectiveness of the law in achieving justice for parties involved in relationship breakdowns 3. But there have been individual cases where the Family Court has been criticised for its decisions… “After a long legal battle, the court ruled it would be pointless to order shared care of the girl because the mother was determined to ignore court orders and destroy the daughter's relationship with her father”. Dad banned from seeing child for 13 years (The World Today, ABC, 2012) The case was incredibly complicated though (you can read it yourself, it’s called Maurer & Van Laren (2012)). There was alcohol, abuse allegations, aspergers and a samurai sword involved…

THE ROLES OF: Courts EVALUATE the effectiveness of the law in achieving justice for parties involved in relationship breakdowns 3. But there have been individual cases where the Family Court has been criticised for its decisions… The 2006 Changes have been blamed, in part, for some EXTREME outcomes in SOME cases (like “never going to see your child again”), BUT more kids are spending more time with both parents in general, which is a good thing overall.

THE ROLES OF: Courts EVALUATE the effectiveness of the law in achieving justice for parties involved in relationship breakdowns 4. When governments cut funding for legal aid, it leads to some really awful consequences for people in family law cases. e.g. If you’re in Victoria and you’re in an abusive marriage, you might want to divorce your partner. But if he doesn’t have a lawyer, and you have no money, legal aid won’t fund a lawyer for you. So you have to a) Run your own court case; AND b) Get cross-examined by the very person who was abusing you. So the quality of the evidence is shit and it’s shit that we put up with this. The alternative for the woman is to reach a settlement with the ex-husband (where she’ll end up with an EVEN WORSE outcome for herself and her children because a judge won’t be deciding and the guy can always use the “Ok, FINE, we’ll take it to court then!” threat). Family Court chief concerned about budget cuts to legal aid, ABC News (2014)

2012 HSC Question Use the notes above to map out a response to this question: Discuss whether the courts deliver justice for families.