Sydney Morning Herald
Friday, August 20, 1999

Family Court rigidity leads to frustration

Sydney Morning Herald

Sweeping reforms were needed to the Family Court's "rigid and bureaucratic" system of managing its case load, a major study has found.

In the most significant review of the Family Court undertaken, the Australian Law Reform Commission called for an end to compulsory counselling in child custody disputes and found many people were denied the one thing they wanted from a court: adjudication by a judge.

It also found the court's "inflexible" approach, which required cases to go through a series of set procedures, denied clients the tailored and individualised treatment they needed.

"Cases are treated as if they are all alike, and they're not," Commissioner Kathryn Cronin said. Many litigants were required to undergo counselling or conciliation as a matter of course when it was not appropriate or desired by the clients, it did not progress the case, and it wasted money and court time, the commission found.

But many felt as if they were walking endlessly on "the Yellow Brick Road while the judges were in the Emerald City, never to be seen".

The court has prided itself on the fact that only 5 per cent of the 40,000 contested cases filed each year are resolved by a judge. The rest are settled through the court's counselling and mediation services or with the help of court registrars.

But the commission, in a discussion paper released today, shows that many clients settle through frustration and do not feel their case is handled with care, fairness or dignity.

"'Frustration' is the word most commonly used," Dr Cronin said. "The expectation of the parties when they go to court is not that they will be required to negotiate and go through counselling and conciliation, it's that a judicial officer will make a decision."

Dr Cronin said the counselling was valuable in appropriate cases and at different times during the proceedings for different couples. Many comments praised the quality of the court counselling service. But couples "don't want to be required to go." The commission examined 1,400 cases and received submissions from litigants, lawyers, judges and legal bodies, including law councils and women's legal resource centres.

A third of the 100 unrepresented litigants and a quarter of represented clients surveyed by the commission said they settled out of frustration. People complained about the number of times they were required to attend court and the lack of continuity.

"If a settlement is derived from a sense of frustration, you don't get people coming out of the system with the feeling they were properly dealt with," Dr Cronin said. "It takes on the flavour of cheap justice, not appropriate justice. It fuels people's anger and contributes to poor compliance with directions." Dr Cronin said people did not necessarily want a full trial "presided over by a judge in a red costume". But many wanted a senior judicial officer to make a decision which, she believed, they would be prepared to abide by.

The commission urges a major overhaul of court practice to ensure that the same judge - or team of judges and registrars - has responsibility for allocated cases from start to finish.

Currently, clients may encounter a different registrar, judicial registrar and lawyer each time they are required to attend court. If an officer was more familiar with the couple, it would help ensure only appropriate cases were referred to counselling and mediation.