Minister releases terms of reference for Family Court review

  • Simon Power

Justice Minister Simon Power today released the terms of reference for the review of the Family Court.

The Family Court is the second busiest court and last year dealt with 68,666 new applications.

“The review will look at how a piecemeal approach to family law reform has impacted on the efficiency of the court, as well as ensuring it is sustainable, cost effective, and responsive to the needs to those who use it and the taxpayers who pay for it,” Mr Power said.

“I want to make it clear that where women, children, and other vulnerable people have been harmed, or are at risk of being harmed, the State will provide legal means to secure protection.

“I also want to make it clear that the review is not a criticism of the practitioners or judges who work in the Family Court. Their hard work is acknowledged and appreciated.”

Mr Power said that since July 2005 total Family Court expenditure has increased by 63 per cent (excluding judicial resourcing), from $83.9 million to $137.1 million. Total expenditure includes operational costs, professional services, and legal aid.

Significant drivers of Family Court expenditure include the cost of:

• Providing family-related professional services, including counselling, mediation, and psychological reports, of which spending has increased by 62 per cent since 2004/05 – from $37.6 million to $60.7 million a year in 2009/10.
• Spending on family legal aid which has almost doubled to $50.3 million a year since 2004/05.[1]
• The Family Court’s direct operating costs which increased by 28 per cent from $20.4 million a year in 2004/05 to $26.1 million. Operational costs include court staff, rent, utilities, travel, IT, and consumables, but does not include depreciation, capital charge, share of Ministry overheads, and the direct cost of judges.
• Care of Children applications, made up approximately 42 per cent of all Family Court direct operating costs in 2009/10. Overall expenditure for Care of Children applications increased from $40.5 million in 2005/06 to $52.3 million in 2008/09.

“These figures suggest the system is not working as well as it could and that the framework and incentives don’t necessarily match what legislation and the courts want to achieve,” Mr Power said.

“Furthermore there’s little evidence to show that the increase in spending has led to improved outcomes, particularly for children.”

Mr Power said the terms of reference are sufficiently broad to allow a range of fundamental issues to be considered, including:

• The role of the State in family disputes.
• The purpose, role, and functions of the court.
• The role of professionals, including lawyers, psychologists, mediators, counsellors, and social workers in the court.
• The incentives to encourage people to resolve their relationship disputes outside of the court.

“A key feature of this review is to ensure that vulnerable parties have timely access to the Family Court’s services.”

Mr Power said the review complements recently announced proposals to get the legal aid growth curve back under control.

Legal aid expenditure has grown substantially in the past decade, and in the past three years has increased by 55 per cent, from $111 million in 2006/07 to $172 million in 2009/10.

That growth is forecast to result in a $402 million gap between forecast and baseline legal aid expenditure over five years.

The legal aid proposals relating to the Family Court include tightening the merits and special circumstances tests, re-introducing a user charge for some cases, extending the quality assurance framework to professionals working in the Family Court, and changes to Lawyer for the Child.

Mr Power said there will be an opportunity for the public to take part in the Family Court review, when a public consultation paper is released in September this year.

The terms of reference for the review can be found here.