The anomalous situation of the Family Court in WA, and the need for better resourcing of family courts everywhere, are poignantly highlighted after the tragic deaths of a mother and her two children from a family caught in a long-running dispute. Peter Dowding explains the court’s problems…

On the death of a mother and her children…

By Peter Dowding*

The events that took place in December 2011 in a West Australia town, where a mother and two children died, presents a shocking tale to our community and one which surely makes everybody think about how such an event might have been avoided.

The full tragic facts are not available and therefore it is inappropriate to speculate what might have happened and the causes of it, but we do know the mother was locked into a bitter series of court battles and that she had got to the stage of representing herself in those battles.

Whether any of the court resources could have made a difference to this situation is something which the Coroner might ultimately make recommendations about, but the events highlight the difficult circumstances for so many Western Australians who are engaged in bitter court disputes over family issues.

In 1975 the then Federal Attorney General Lionel Murphy repealed the previous legislation governing divorce and introduced the Family Law Act.

The introduction of this law signalled a fundamental change in matrimonial disputes because it was intended that fault play no part in deciding the fate of children, the provision of maintenance to parties who needed it and the division of property. Justice was to be administered promptly and fairly and in an environment where the rights and interests of families could be nurtured.

Western Australia – for purely political reasons – decided at the time to stay out of the Federal Court system but was bound by the Federal law: subsequent governments have determined to keep their court system separate from the Family Court of Australia from time to time for good reason, and from time to time for no good reason.

The good reasons were that the court when it was established in Western Australia as the Family Court of Western Australia had the constitutional power to deal with all matters concerned with the family whereas the Family Court of Australia, the Federal Court, at that time did not.  Since then the courts have mutually embraced de facto law jurisdiction but in the Federal context, same sex de facto legislation does not exist as it does in Western Australia.

There are however some very unpleasant facts that need to be recognised about the system as it operates here at the present time and the first of those facts is that the resourcing of the court has been, and remains, inadequate.

The Federal Family Court has repeatedly pointed out to the Attorney General that its resources are stretched to the limit and there needs to be more attention paid to that, and in Western Australia the situation is, not to put too finer point on it, almost broken down.

The number of judges in the court now is the same as the number of judges as existed in 1975 when the court was first established. When one bears in mind the factors which have increased the business of the court dramatically, namely an increasing level of marriage breakdown, an increasing level of sophistication of parties who appear in person and wish to argue over matters, particularly over children’s matters and the adopting of a whole new jurisdiction, namely that of de factos (including same sex couples), one can understand that this is a court which is in crisis.

Added to that, two of the judges unfortunately have illnesses which have led to protracted absences and that has reduced the number of judges to three, one of whom is the Chief Judge who spends a very significant amount of time in the Full Court hearing appeals.

What has this meant to people?  The answer is it has led to massive delays in the determination of matters where the parties cannot reach an agreement.

The timetable for anyone caught in the web of a family law dispute is now:

  • issue proceedings;
  • wait for six months to get to a first hearing;
  • wait for another six months to get to a conciliation conference;
  • wait for another eighteen months to get to a readiness hearing; 
  • wait for another six months to get to a trial date;
  • wait for it is said no longer than three months for a decision…but in many cases – because the judges are so over-worked going from one defended case to the next – that judgement times regularly slip out to a longer period.

If either of the parties then wish to appeal there is probably another six months before an appeal hearing and a Full Court judgement could be expected in another three to six months.

In the most extreme and difficult cases therefore, parties can be embroiled in litigation with their problems unresolved, unable to get a judicial determination in a quick and speedy access to justice for up to five to six years.

That is a completely unacceptable position for a society which needs to recognise the trauma of mental distress and in some cases desperation which attends such delays.

Layered upon this process of getting a judicial determination, governments have not provided the resources to the conciliation processes that should be provided. Counselling and encouragement to alternate mechanisms of resolving issues, particularly those relating to children, simply get paid lip service rather than the detailed attention that they need.

Coming back to the personal tragedy of the mother and children, it is once again important to emphasise that there is no suggestion that any change to these systems might have avoided the horrific events, but it is a reminder that people living under immense stress following marriage breakdown, do need a better share of the government resources than are currently made available at the present time.

ENDS


Peter Dowding is a barrister, former Premier of WA and a member of CLA. This article appeared first in the West Australian newspaper. It followed this earlier article: http://au.news.yahoo.com/thewest/a/-/news/12261160/small-wa-community-shocked-over-deaths/

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