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Crisis in Family Court system exposed as parents wait almost three years for hearings

They say justice delayed is justice denied. And for parents like Sarah, who are going through the Family Court system, four years certainly seems like a devastatingly unjust amount of time to wait for an outcome relating to something as important as her children’s future. From the very beginning of her family court proceedings, Sarah — whose name has been changed for legal reasons — has suffered setback after setback. “When I started, I got told it was two years to trial,” she said. “I’m now entering into my fourth year.” “Between (one) interim judgement I had 18 months where nothing got done. “Everyone’s got a different story, but the underlying issue in the Family Court is all similar. “It’s just complete and utter bulls..t, and something needs to change in there to make the process a lot, lot faster.” More than 1200 days have passed since Sarah filed a request with the court to have custody arrangements for her children solidified. She is not alone. In 2017, the average time to trial for family matters in WA had ballooned to 97 weeks, or almost two years. The situation now is far more dire. The latest data shows a 44 per cent increase in the five years since, rising from 97 weeks to 140 weeks — more than two and a half years — in 2022. Despite the money, time and effort she’s put in since 2020, Sarah expects that with the delays her children will be old enough in the eyes of the court to make their own decisions by the time the matter finally gets to trial. In the meantime, her two children have been the subject of a tug-of-war between Sarah and her former partner as the court deals with restraining orders, her ex’s alleged almost 100 breaches of courts orders and numerous reports by independent children’s lawyers and single-expert witnesses which are meant to guide the court’s decision making. Sarah’s story is just one of many playing out across the State, as mothers and fathers battle a system that’s “surviving on fumes” — some waiting up to four years for their cases to get to trial. Funding and staffing shortfalls, together with large volumes of paperwork, are behind the ongoing delays which are clogging up the courts and dragging out disputes, according to a chorus of frustrated lawyers who spoke to The Sunday Times. Family Law Practitioners Association WA president Stacey Wellings said she believed no one working in family law in WA would say the wait times for trial are acceptable. “The entire system is surviving on fumes, understaffed and under-resourced,” Ms Wellings said. “The delays most certainly add significantly to the already heavy financial and emotional cost for the families requiring the court’s assistance. “(The delays) are the result of long-term systemic underfunding of the court, Legal Aid and the Department of Child Protection, together with a significant increase in the complexity of the cases the court and these services are dealing with.” Family Court delays have made headlines in previous years but many involved in the sector agree the situation is the worst it has ever been. According to former Labor Premier Peter Dowding SC, who has been working in family law for nearly six decades, the current timeframes are “unconscionable”. “I cannot believe the Government and the court think it’s appropriate to allow these incredible delays,” Mr Dowding said. “There’s a call over in the family court on Friday and they’re listing cases which have been running for two or three years already, and they’re listing them for later this year. “If you have a family split up and then you spend three or four years waiting for the court to hear the matter, your life is absolutely on hold.” From the very beginning Sarah said she had struggled to have her matters dealt with promptly by the system. As with many family breakdowns, things are messy. In 2020, Sarah said she was shocked to have the police arrive at her door late one night, removing her children from their home and her care. She said police alleged she was being abusive and hostile while drunk, but Sarah argues she was “reactive” in a situation in which police were going to take her children. The next day her ex-husband got a restraining order against her on behalf of the children and himself. Sarah sought legal advice, but it took a week to get an appointment with a family lawyer. She said they “dragged their feet” and when she finally got an appointment, it took another fortnight to get an emergency hearing. “They dropped the ball,” she said. Head of the Family Court, Chief Judge Gail Sutherland, said the “vast majority” of parenting and financial cases were finalised without having to proceed to a trial. She said time to trial had long been impacted by factors beyond the Court’s control, including COVID-19 and a shortage of courtrooms. She said an additional judge and magistrate had been introduced to increase the Court’s capacity to hear trials. “The 2022 annual review also reported the median time for the finalisation for “non trial” parenting-only matters was 58 weeks, and 31 weeks for financial-only matters,” Justice Sutherland said. “The small percentage of cases that do proceed to trial often involve complex issues.” This is of no comfort to Sarah, however, who — after having read the Family Court’s annual review herself — believes the report doesn’t accurately reflect how dire the wait times are. The Sunday Times contacted several family court lawyers who all agreed the current timeframes were unacceptable, with one even admitting she was telling clients from the outset that they faced a three-to-four year wait. In response to a raft of queries, a spokeswoman for Attorney-General John Quigley pointed to statistics that showed 96 per cent of parenting and financial matters in the Family Court were finalised without proceeding to trial. “The State Government appreciates both the emotional and financial effects that family law proceedings can have on families, and considers that it is in the best interests of all parties to legal matters that they be resolved as soon as practicable,” a State Government spokeswoman said. However, Ms Wellings said while a small percentage, those cases that did proceed to trial often involved the most at-risk children, or the most complex financial issues. She said the number of those trials taking more than five days had also ballooned causing further strain on the system. “The delay is not acceptable,” she said. “To address this, the court and the associated service like Legal Aid must be funded in a way which addresses the very real and distressing consequences of these delays on often, some of our most vulnerable.” Family law expert Nicola Jansen said the delays were taking a devastating toll on children. “The chronic delay we’re experiencing is unacceptable for families,” Ms Jansen said. “Particularly those where children are at high risk of harm from one or both parents.” “Parenting matters are resource intensive, and if funding is not adequately provided to ensure that the court, DCPFS, and Legal Aid WA can do their parts, these families will continue to suffer.” Ms Wellings said while there had been significant efforts by family court lawyers and the court to reduce wait times and costs where possible, the lack of physical space was another obstacle. “If it isn’t a lack of judges or magistrates to hear the matters, it’s their inability to access a court room to hear it in,” she said. The WA Government confirmed two new courtrooms were under construction to meet the growing demand of the family court. Justice Sutherland confirmed one would be completed by the end of March and the second expected to be finished “next financial year”, which could be as late as June 2025. The addition of Justice Michael Berry SC last year was the first addition of a new permanent judge in the court’s 46-year history. When asked about the significant delays plaguing WA’s Family Court system, a spokesman for Federal Attorney-General Mark Dreyfus’ office said Mr Dreyfus was “too busy” to comment on the situation. The spokesman did say reforms to the Family Law Act, which come into effect in May, aimed to help the courts and parents to resolve matters “more efficiently”. Those changes include repealing a section of the Act that offers both parents a “presumption of equal-shared parental responsibility”, as well as giving the system greater powers to protect families from long and adversarial legal battles. He also pointed to the Priority Property Pools mediation process, which was launched in October last year to expedite matters involving assets up to $500,000 in a bid to free up time to hear more complex matters. Mr Dowding criticised what he labelled was a “formalisation” of the court which has led to unnecessary, lengthy orders for interim matters and new disputes among families. “I have a judgement which is about what documents should be provided, which is nearly 70 pages long,” he said. “The formalisation doesn’t result in an easier, simplified process, it results in the opposite.” While navigating the system, Sarah has formed bonds with other mothers who are going through similar experiences — many of whom have harrowing stories of their own about the breakdown of relationships with their children following the end of their romantic ones. Lara — whose name has also been changed — is one such person Sarah has connected with. “We have a little Facebook chat group,” Lara said. “From that group, I’ve got mothers I speak to on the phone once a week, and honestly they are just the most beautiful mothers and my heart breaks for them. “I know women who have tried to take their own life, and they will just be put down as suicides. “One of these mothers was in intensive care for a week, she nearly lost her life — another took so many pills (that) if she wasn’t found she would have died. “I have had no contact with my beautiful daughter since she turned 16. “I’m just a mum. I just want my children to be OK.” For all the heartache, Sarah credits these women for keeping her sane. “If you somehow don’t try and keep a smile on your face, it’s a very dark place, and a rabbit hole you don’t want to go down,” she said. “The reality of where the family court is, is children are losing their mothers. “If I didn’t have my job, I’d be screwed because otherwise you’re stuck at home in your thoughts all day, doing so much research.” When asked why she keeps working towards a trial with her ex-husband, knowing that her children will be old enough to make their own decisions about where they live, Sarah said she had to “keep fighting.” Sarah said while she never chose to report the physical abuse she allegedly suffered at the hands of her former husband, meaning he has no recorded convictions for family violence — a story echoed by many women The Sunday Times spoke to — the “psychological mind games” playing out while the case was ongoing were worse. “I would rather have the bruises because they heal,” she said. “It’s psychological — it’s the gaslighting, the manipulation (and) that’s just as damaging. “You are literally begging, absolutely begging (for time with your children), you are at their mercy. “So the whole cycle of family violence is still going on.” 1800 RESPECT

The West Australian exclusiveCrisis in Family Court system exposed as parents wait almost three years for hearings

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Crisis in Family Court system exposed as parents wait almost three years for hearings