Is the family court system broken?
Fourteen years ago, a review of Australia’s Family Law system produced the report “Every Picture Tells A Story”. The 240-page document made 29 recommendations and concluded that the family court touches the lives of almost every Australian at one time or another. But now, 12 years later, Family Court practitioners — lawyers, psychologists, social workers and police — along with thousands of Australian parents agree on one thing — the family court system is broken.
Former independent Victorian Senator John Madigan said: “It is under-resourced, legislatively imbalanced and causing irreparable and unnecessary harm to Australian families already on the brink. The system is ill-equipped to manage and respond effectively when one partner — as frequently happens — is clearly suffering issues related to mental health.”
He adds that allegations about violence, alcohol use and drug use can be made in the court without the requirement of proof, and there are no penalties imposed if those allegations are found to be untrue.
Wayne Butler, executive director of the Shared Parenting council of Australia, wrote that parties can pretty much do (and say) what they like in a family court matter and get away with it. “There are many clients in the family law system waiting in excess of two years and some three years or more, trying to deal with obstacles in the system preventing them from seeing their children,” Mr Butler said.
We know that in Australia, there are more than 47,000 divorces each year and that the average age for a person getting divorced is 44 for men and 42 for women. Of these, the majority of divorces go through smoothly. Support groups such as Dads in Distress and its sister organisation Mums in Distress estimate 70 percent of these splits go relatively smoothly. Maybe up to 20 percent experience some conflict with the remainder falling into the area of high conflict.
Wayne Butler writes: “I have been assisting one current case where the father’s children have been alienated by the mother for three-and-a-half years. It has now been 30 months since he has had a proper unsupervised relationship with the children for no valid reason other than the allegations made. There is no AVO and even the court notations in orders say there is no family violence. Why can’t the court cut through stalling tactics to save the parent’s relationship, which after three years’ absence from the children’s lives is equal to eternity?”
Senator Madigan said of the political attitude to the family court: “It is disappointing to many that the most recent Federal Government pronouncements about the Family Court consist of raising fees for applicants.”
Not only do family courts potentially damage families, there are other reasons why it can be better to seek mediation before you begin your journey in the damaged system.
Why You Want to Avoid the Family Court
Fees for an escalating court battle can be incredibly expensive. You may discover that after the settlement, you were worse off than you were before. Therefore, seeking mediation before the court is a way to settle your dispute and save money. Compromise is always cheaper!
There can be a long delay within the family court system as there are more cases than there are judges to hear the cases. It can be years before your dispute is even settled, and by then it may have escalated significantly.
The process can be emotionally difficult for your children. Your judge will be making decisions on what he or she sees as most beneficial for your child. This may not be in accordance with your wishes, and there it little recourse once the decision has been made. Instead, try to compromise where possible with your ex about the care of your children.
After the court has decided your fate, the other party may appeal. This means that the whole routine will have to be experienced again and can lead to more stress on your family and expense. Protracted court battles can leave lasting damage on those involved.
At Divorce Lawyers Brisbane we assist our clients to finalise the living arrangements for their children, focusing always on the best interests of the children. We recognise the importance of children maintaining a relationship with both parents after a separation occurs, and we have the expertise to assist parents in reaching agreement about the parenting arrangements for their children. We also recognise that a costly and traumatic court battle is a last resort, and we work with clients to avoid this.
If you need advice about any aspect of separation, divorce or parenting arrangement, contact us today for your FREE, 10-minute phone consultation.