Court filing stats

The Australian Bureau of Statistics (ABS) has released its figures on the Family Law Courts. They cover the period 2004/5 to 2012/13.

The key findings were:

• Court filings in children's matters in 2012/13 reflect a 25% decrease on the 2004/5 levels.  
• In relation to property matters there has been a 17% increase in filings.

These figures are interesting as they potentially reflect two events that occurred between 2004/5 and 2012. 

Firstly, in 2006 amendments were made to the Family Law Act designed to decrease the level of parenting litigation (covering children of both married and de facto couples) and instead to encourage parties to use services such as mediation to resolve disputes. This may explain the decrease in the children's matters filing levels.

Secondly, in 2009 further amendments were made to the Family Law Act which brought the property division of separating de facto couples under the Family Law Act for the first time. This may explain the increase in property matter filing levels. 

The report can be found at: www.aifs.gov.au/institute/pubs/resreport30/index.html 

Court resources

Family law in Australia is served by two Courts, the Family Court of Australia and the Federal Circuit Court.

The two Courts both have jurisdiction under the Family Law Act but matters are divided between them in accordance with a Protocol which essentially sees the more complex matters heard by the Family Court and the vast majority of matters heard by the Federal Circuit Court. According to the available data in 2013/2014 the Family Court received 2,923 Applications for Final Orders while in 2012/2013 the Federal Circuit Court received 17,363 Applications for Final Orders.

While there may be a division of work between the two Courts both Courts deal with incredibly important issues relating to the breakdown of a relationship or marriage, including who is to care for the children and how people are to divide their assets. Delays in having the Courts determine such matters has an impact on the lives of the parties, their children and everyone in their extended families and support network.

The Courts are facing something of a predicament with both Courts facing the retirement of many Judges. The Federal Circuit Court will have, over the next year, the departure of 12 - or around a quarter of its Judges.

The Chair of the Family Law Section of the Law Council of Australia, Rick O'Brien, has said "The family courts are genuinely in crisis, and with these retirements things are going to get worse."

Chief Judge of the Federal Circuit Court has previously stated that because of a lack of funding, under staffing and an increasing workload the Federal Circuit Court is already struggling to keep up with the cases coming before it. His Honour went on to say that the replacement of Judges was "critical in ensuring that families in distress are dealt with as quickly as possible."

The President of the Law Council of Australia said "failure to adequately resource the family law system by replacing judges promptly will have a snowballing effect, the social and economic cost of which will continue to be felt by the community for years to come."

A spokesman for the Federal Attorney-General told the SMH that "In the current economic climate all areas of government, including the courts, must look for ways to work more efficiently and effectively. The Attorney-General is carefully considering all available options for any administrative and structural reform to address long-term financial sustainability of the federal courts."

This is seemingly in opposition to the views expressed by the Law Council of Australia. Duncan McConnel, told the SMH "given the significant and often traumatic emotional and financial burden on separating families, and children, the government must commit to finding additional resources to address such delays. Such a commitment requires, at the minimum, that retiring judges are replaced promptly."

What is a Case Guardian?

Generally when people separate following the breakdown of a relationship or marriage each party will seek independent legal advice to negotiate a settlement of the matters or to commence court proceedings if necessary. However from time to time questions may arise as to whether one of the separating parties has the necessary capacity to make their own legal decisions.

If someone has an illness or condition which could affect capacity and ability to provide instructions to a solicitor it is necessary to consider how instructions are to be taken and how advice is to be provided.

Sometimes it will be necessary to consult with the client's treating doctor or specialist for an opinion as to the person's capacity to understand legal advice and make legal decisions.

Should such an expert state that the person does not have capacity but the action or proceedings need to continue it will be necessary to consider whether a Case Guardian should be appointed.

A Case Guardian is appointed by the Court in accordance with the requirements set out in the Family Law Rules 2004.

Rule 6.08 provides that a person with a disability may start, continue, respond to or seek to intervene in a case only by Case Guardian.

A person with a disability is defined as a person who, because of the physical or mental disability:
a. Does not understand the nature or possible consequences of the case; or
b. Is not capable of adequately conducting, or giving adequate instruction for the conduct of, the case.

Rule 6.09 of the rules state that a person may be a case Guardian if the person is:
1. An adult;
2. Has no interest in the case it would be adverse to the client;
3. Can fairly and competently conduct the case; and
4. Has consented to act as a case Guardian.

Evidence as to these factors is presented to the Court in the form of an Affidavit.

The recent case of Crowley and Child Support Registrar [2015] reviewed the appointment of a Case Guardian.

In this matter Mr Crowley's mother sought to be appointed as his Case Guardian. Mr Crowley's mother filed an affidavit with the Court setting out evidence that as a result of a motor vehicle accident in 1992 Mr Crowley suffered a severe brain injury and that in 1994 he was classified as permanently incapacitated. Attached to the affidavit was medical evidence supporting these statements. Mr Crowley's mother also stated in her affidavit that she had been appointed his Power of Attorney, was familiar with the legal issues in relation to the proceedings and had been assisting her son for some time. Mr Crowley's mother was appointed as his Case Guardian.