Christian Porter should not have abolished the Family Court

March 4, 2021
The Family Court of Australia.

Federal parliament decided on February 18 to abolish the stand-alone Family Court of Australia and merge it into the Federal Circuit Court.

The move was pushed by Attorney General Christian Porter and the Coalition and One Nation. It was opposed by many who work in the family law system, including 13 retired judges.

Angela Lynch of the Queensland Women’s Legal Service told Green Left that the decision would have a bad impact on victims and survivors of domestic violence.

Some Family Court matters used to be dealt with by the Federal Circuit Court. “There had been discussions for more than a decade about the fact we had these two court systems dealing with family law and there were many problems associated with that,” Lynch said.

However, it was a Coalition government that two decades ago that first separated the court’s functions and, at the time, women’s legal advocates were highly critical of that decision.

“Our position is that an amalgamation is a positive thing,” Lynch said. But such a move “should retain the stand-alone Family Court”.

Those parts of the Federal Circuit Court that deal with family law should be brought into a lower tier of the Family Court of Australia, she said, “thus retaining the specialist stand alone Family Court structure”.

About 85% of matters heard by the Family Law Court deal with background issues of domestic violence, Lynch said. “It is better for domestic violence victims to be dealt with by a specialist stand-alone court than to go to a generalist court model.

“We also believe that you are probably going to get better judicial appointments to a stand-alone, specialist family court, because it is just much more obvious if you appoint someone who is not up to scratch.”

The government promoted the change on the basis of economic efficiencies.

Lynch said it is hard to ignore such arguments. But, she asked whether that “should be the sole determinant when there is so much domestic violence [dealt with] in that court? Where are the concerns around client outcomes? Where are the concerns around safety risk?”

For several decades, a hostile campaign has been waged against the Family Court by so-called men’s rights groups. They claim that fathers are disadvantaged by the Family Court system.

According to Lynch “there is absolutely no truth” in that claim. “The Australian Institute of Family Studies has done a lot of work in this area and has found that it is probably biased the other way,” she said.

Only 3% of cases have led to outcomes where fathers were denied contact with their children. That is a “very small percentage”, Lynch said, when the Family Court was dealing with such a high volume of domestic violence cases.

“If you were in policy, or in government, you’d be concerned about that, because of the high levels of violence and abuse” cases going to the Family Court, she said.

Lynch has many criticisms of the Family Court, but believes they are best resolved in the context of retaining a stand-alone specialist court.

“Both domestically and internationally, the best responses to issues of domestic violence and sexual violence is having a specialist court. That is our practice knowledge and its international academic best practice as well.

“Because of the complexity of the issues involved in these matters, they aren’t black letter law. They do require nuance and understanding. When you’re talking about domestic violence, it’s really important to pick up on the warning signs about danger, including extreme danger and lethality.”

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