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Robert McClelland Knew The Story behind Modern Families

19 October 2018

It has taken more than 40 years for the Family Court's existence to be threatened. But that is happening now.



When Gough Whitlam introduced the Family Law Bill 1974 into parliament, the bill that created the Family Court, he had a lot to say about its special nature: The essence of the Family Courts is that they will be helping courts. Judges will be specially and carefully selected for their suitability for the work of the court.

There will be attached to the court a specialist staff, notably marriage counsellors and welfare officers, to assist the parties at any stage and even independently of any proceedings. These courts will therefore be very different from the courts that presently exercise family law jurisdiction.

In 2018, the modern Family Court has moved on somewhat from Whitlam's original vision. No longer are there marriage counsellors attached to the court. But the intent is very clear: the creation of a specialist court to deal with family law matters, a very different court, to reflect the special nature of the cases that would come before it.

It has taken more than 40 years for the Family Court's existence to be threatened. But that is happening now. The reason has a lot to do with the creation of another court by the Howard government in 1999 the Federal Magistrates Court, now called the Federal Circuit Court.

When that court was set up, the rationale for doing so was to hive off the simpler cases from the Federal Court and Family Court, freeing them up to do the most complex and difficult work and develop the according jurisprudence. Federal Labor did support the bill that created the FCC in parliament. But we did so with grave concerns and reluctance.

Looking back through the parliamentary debates at that time is instructive. Then shadow attorney-general Robert McClelland, who of course has just recently been appointed Deputy Chief Justice of the Family Court, made some arguments that seem prescient.

In his second reading speech on October 18, 1999, McClelland spoke of massive delays in the Family Court system that are depressingly similar to today two years in Brisbane, 28 months in Melbourne.

He spoke of the government's refusal to consider alternative approaches to the establishment of a separate court, such as the integration of magistrates within the existing Family Court, an idea that had the support of representative bodies such as the Law Council. He despaired at the money being spent on an additional bureaucracy that could have been used to appoint three or four additional Family Court judges.

Most significantly, McClelland warned of the waste and confusion of the overlapping jurisdiction between the two courts, and the integration complexities with separate rules and case management systems. The delays in the system, he concluded, would simply not be addressed without additional resources.

The magistracy will neither achieve what the government wants that is, providing greater access to justice nor remove these horrific delays that exist particularly in the Family Court.

Nearly 20 years on, its hard to say he was wrong.

This is not a criticism of the hardworking staff or judges of the FCC. But the evidence shows the duplication of jurisdiction in family law simply has not worked and, without additional resourcing, delays have not lessened.

So when Christian Porter says, as he did to the Law Council's family law conference recently, that the system of two courts exercising largely concurrent jurisdiction is described almost universally as a failure, be in no doubt that it is the Liberal Party's failure.

But Porter appears to be repeating the mistakes of his predecessors, as he now ploughs ahead with another attempted restructure of the court system against the advice of nearly all stakeholders just as attorney-general Daryl Williams did in 1999, the consequences of which struggling families are dealing with now.

There is a lesson in this. The family law system is difficult and complex, and there are no easy answers. The Family Courts deal with raw emotion every day, and vulnerable families are more than just a number in a management consultants report. Don't try to make major changes in haste, and don't think you can move the needle of delay and backlog without additional resources.

The case has not yet been made for Porter's restructure. If the Attorney-General really wants to make change, he needs to slow down, consult properly and explain to the Australian people how these changes will improve the system. He has failed to do so and there is a real risk his changes will only make things worse.

This piece was first published today in The Australian