The Perfect Storm

On 6 March 2020, I delivered an ex-tempore judgement in an interim case.

The judgement was orally delivered after 6pm. The reasons were then settled and sent to the judgements section for publication to Austlii. The principles of open justice dictate that judgements should be made available so that the public is aware of the work that the court does (we were regularly reminded by appellate judges at our annual plenary of the importance of doing so). For some reason, the judgement has never been published on Austlii.

Over the weekend of 27-28 April 2024, as rallies were held around Australia demanding action on violence and various “leaders” spoke in the language of epidemiology and “national shame” and “disgrace”, as though this were a new issue, I thought of that judgement. As the court has never published it, I thought that I would share the relevant portion¹ commenting on delays, lack of resources and predicting that a perfect storm of disadvantage was approaching.

So here is the relevant portion of my March 2020 judgement:

1. I am concerned that it is the role of the Court to determine proceedings founded in substantial propositions.
2. Firstly, the determination must be just. The time that is taken to hear a case should be the time that is required to do justice. That is what timeliness is about – hearing cases within a time and with the amount of time necessary to do justice. Neither efficiency or justice should be conflated with quick and simple.
3. There is nothing more complex than the lives of human beings, particularly when one is to consider the lives of multiple human beings who have been in relationships with each other, had children and separated from each other in circumstances alleged to involve family violence. Families are not only the fundamental units of society they are complex systems wherein each element of the system interacts with each other element.
4. This case has a significant degree of factual complexity apparent at this early stage. That level of complexity does not lend itself readily to arbitrary limits such as 10 pages or 10 minutes. As Milan Kundera observes “There is a secret bond between slowness and memory, between speed and forgetting.” More concerningly, in cases involving family violence, there is a connection between rushing things and cutting corners and missing things. The things that are missed are risks.
5. Thus, whilst the practice direction is, in essence, the only means by which Judges of this first instance trial court can hope to survive and attempt, as is expected of the Court, to deal with an onerous and excessive workload, a workload that cannot possibly be properly attended to with the resources available, it should not be applied to deny justice or a full and proper consideration of issues that are raised in proceedings, particularly, parenting proceedings.
6. Secondly, as commented upon in English jurisprudence², a practice direction does not create law. It is intended merely to guide the manner in which the Court’s processes operate. Thus, a Practice Direction could not be seen as a complete bar to parties presenting their case, as they considered necessary, so as to ensure that their children are protected, and their concerns have been heard.
7. I am satisfied that with a lesser consideration of the affidavit, taking as it where, portions of it only, that the mother’s case can still be established in this case.
8. Secondly, the court must ensure that in all that is done the child’s best interests are the paramount consideration. I am conscious of that discussed by Forrest J in Gordon & Gordon, particularly paragraphs 3 to 5 thereof, which I incorporate herein.
9. Of course, any reader of these reasons might immediately protest that making such an Order offends fundamental cornerstones of our system of administration of justice, namely the right to know what Court Orders are sought against you, the right to be heard in response, the age old principle that justice is administered in Courts open to the public and public scrutiny, and the right to know what Court Orders have been made against you.
10. Those rights stand alongside other important rights well known to this Court, particularly the rights of children to be protected from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence and the right of a child to receive adequate and proper parenting to help them achieve their full potential.
11. In the exercise by this Court of its jurisdiction to make parenting Orders in relation to a child, the Court must regard the best interests of the child as the paramount consideration. Sometimes the paramountcy of that consideration brings about tensions between all of the rights and the principles of natural justice that I have referred to, and, in exceptional circumstances, that paramountcy means that some rights must be determined to prevail over others.

9. If the child’s best interests are to genuinely have meaning and be regarded as paramount, though not the singular, consideration in any proceedings, must infuse and inform all decisions that are made, including the evidence that is to be admitted.
10. Surely, in a first world country, such as Australia, with its wealth and its expressed commitment, as demonstrated through the recently announced parliamentary inquiry into family violence, to protect against family violence it is a priority to ensure that the arrangements of separated families are dealt with properly and as promptly and efficiently as possible and dealt with in a timely fashion. If so then more resources might be a better path forward than simply cutting corners. It is time to acknowledge that there are inadequate resources to do the job properly.
11. Cutting corners, as is required with the paucity of available resources, potentially, although thankfully, I am satisfied, not in this case, simply allows risk to go undetected or to be unaddressed.

Delay

12. What these parties must be aware of is that the final determination of these proceedings, without a substantial change in the resources provided to this court, is some years away. There is no way that this case can possibly be heard and determined in under two years. It will be lucky if it is heard in three years. Accordingly, the orders that are made today are of some real importance, albeit rushed, hurried, dealt with in a list with little, if any, time to consider the matter fully and properly and with potentially significant consequences for these children and their parents.
13. This case is emblematic of the difficulties created by an absence of resources, an absence of resources that governments past, present and, one might expect, future, cannot suggest they are unaware of. They have been spoken of, for example, since Brennan J’s discussion of the issue in Harris & Caladine in 1991. They were brought starkly to the attention of all by the Australian Law Reform Commission Report March 2019³ and particularly paragraph 1.8 thereof, which I incorporate herein:

…the family law system has been deprived of resources to such an extent that it cannot deliver the quality of justice expected of a country like Australia, and to whose family law system other countries once looked and tried to emulate. There is a chronic lack of funding for the appointment and proper training of judicial resources (including judges, judicial registrars – none of whom are currently employed within the courts, and registrars), court-based social services professionals (including Family Consultants and Indigenous Liaison Officers), and legal aid services (including Independent Children’s Lawyers). As a consequence, children and families are deprived of sufficient time and attention being given to their matter at all stages of the process, with the obvious risks that this entails. Faith in the system is lost. The lack of resources has been a matter of concern at the highest levels for 30 years. In 1991, in Harris v Caladine, Brennan J said:

It seems the pressures on the Family Court are such that there is no time to pay more than lip service to the lofty rhetoric of s. 43 of the Act … It is a matter of public notoriety that the Family Court has frequently been embarrassed by a failure of government to provide the resources needed to perform the vast functions expected of the Court under the Act. But the Constitution does not bend to the exigencies of a budget and, if the humanly familial relations create a mass of controversies justiciable before the Family Court, Justices must be found to hear and determine them.

14. This is a case with some real complexity, as I have already observed. One of the real complexities to the case is the simple reality that these children are extraordinarily young. The youngest, four months of age, born well after the parties separated and who has not, at this point in their life, set eyes upon their father, let alone practised any form of relationship, if terminology such as “relationships” is even relevant to children of that age except in the loosest sense.
15. The expectation of the community is that nuanced and informed decisions will be made with respect to these children. The decision that will be made by the court is based upon limited information.
16. Certainly, any interim determination, as discussed by the Full Court in Goode and Marvel, is subject to limitations. All the evidence is not yet available or apparent. There is evidence to be commissioned. In this case, most assuredly, a Family Report or Part 15 report will be necessary. The parties are agreed that an Independent Children’s Lawyer should be appointed. All those things are necessary to do justice. All those things are necessary to ensure that everyone is safe. All those things are necessary to ensure that the best decision that can be made is made.
17. Australia is a signatory to the International Convention on the Rights of the Child and the Universal Declaration of Human Rights, having played a significant role in their drafting and sponsorship of each. Both appropriately describe the family as the fundamental unit of society – not the company, not the dollar, not the economy but the family. Yet the families of this nation are left with a system which is routinely described, a phrase thrown about like confetti at a wedding, as “broken.” Indeed, it is.
18. The individual judges and other staff of the courts are tired, exhausted, and fed up. That does not seem to be a message heard by those responsible for reform, amendment, or funding to address the difficulties that are apparent, the things that cause the system to be “broken.” These problems have been apparent since at least 1991. There have been myriad inquiries, including the Australian Law Reform Commission Report already referred to, which have called upon those responsible for the appropriate resourcing of the court to address those deficiencies.
19. Prior to the recent ALRC report there were reports by The Productivity Commission,⁴ KPMG⁵ and others. All have discussed what might metaphorically be described as the difficulties of aspiring to be a Formula One racing team, (what had previously been known and understood the world over as Australia’s best practice model of Family Courts) with an operational budget barely enough to buy a second-hand Toyota Yaris. That is what the community of Australia is left with.
20. Difficulties extend beyond the court. Every service connected with the delivery of justice in family law is underfunded and has been neglected for many years.
21. This week the media is full of reports of the closure of volunteer support services to victim of family violence in Victoria, as the budget for Legal Aid has been cut. There is much hand wringing, much gnashing of teeth, many tears, some crocodile, complaining about those difficulties. What are we to do? The question is posed “How much justice can we afford?” Perhaps the question might be better reframed as “How little justice can we afford?” or more pointedly “How much injustice will we tolerate?” After all, those affected are only families, women escaping family violence, children, and their parents. What could be wrong with not meeting the developmental needs of children?
22. Parties, including these parents and their children, simply cannot have their business dealt with properly or in a timely fashion, when the system has no time for them.
23. This matter will today be adjourned for a mention date to permit the appointment of an Independent Children’s Lawyer. That date will be in August 2020, some five months hence. There is simply nothing earlier. If a family report is then required, funded by the Court, and conducted by the Court’s family Child Dispute Services, it will take 10 to 12 months to complete. Even then, the budget provided for the completion of each family report is 17 hours. If more time is required because of the complexity of the case, tough! Matters will be dealt with in the budgeted time. Imagine if ICU patients were allocated 17 hours and then wheeled out of the ward and sent home whether well or not.
24. Parties must fit their complex lives and their complex, often trauma impacted issues into what is available, being not very much. There are simply not sufficient resources to do things any more quickly. And even to do them in these time frames means cutting corners.
25. The difficulties apply to Legal Aid. Even if an earlier mention date could be found, it is unlikely that Legal Aid could arrange and facilitate the representation of the interests of these three children much earlier. Their budgets, as has been made abundantly clear in report after report after report, are inadequate and languishing. Budgets have reduced in real terms, and quite significantly, over the last 10 to 15 years. Thus, the community is left disadvantaged.
26. The recently introduced Prohibition on Cross-Examination Scheme⁶ lasted but seven weeks before it ran out of money and required an emergency top-up – a top-up which should have been seen as necessary, obvious, and apparent, even before the scheme commenced. It was simply never properly funded.
27. Contact Centres are inadequately funded so that if orders are made requiring attendance at such a centre the delay before service can be offered will be measured in months, many months.
28. All these problems flow on, including for this family. The very real issue directly connected with their primary controversy, the modality of supervision that will apply, is impacted by the woeful and inadequate funding of supervised contact services.
29. Accordingly, this case is emblematic also of the difficulty the Court faces in seeking to address issues between timeliness and appropriate and effective response.
30. The private supervised service proposed by the father is readily available quickly, because it can be paid for. The service funded by the community is not available – in the case of the Central West Contact Service, a service to which the parties have already been directed – for at least another 10 to 12 months. They would need to wait another four months before they can even speak to someone as to whether the service might be assessed as appropriate.
31. All these difficulties are long standing. They did not come about overnight. They have existed in this system for the entire period that I have been in practice, some 35 years or so. However, they are worse now than they have ever been.
32. The perfect storm is rapidly approaching when the delays, which are already the subject of significant complaint, will become very much entrenched and much longer than they presently are. There is simply no capacity to take on any more work with what is already available. Imagine if a crisis further reduced the ability of these services?

We need to recognise that you cannot legislate changes in attitudes. You change the circumstances that create those attitudes. You provide the services that assist (not the court, but in the community). That takes commitment, and it takes money.

It means being able to get help when you need it – from the police, a lawyer, a doctor, a psychologist. It means having access to emergency housing immediately, not being placed on a waiting list. It means being able to access a service immediately, not in 6 months.

It means accepting that the issue has been ignored (if not deliberately undermined and underfunded) for many years. Remember Abbott’s huge cuts of $300million to the sector which were followed after Turnbull’s ascendancy (if only the energy invested in leadership spills was replicated in taking real action about real problems), by the announcement of “the largest ever investment” of $200million (still a cut of $100million from what was already acknowledged as inadequate funding).

If we are serious about changing attitudes, then we need to review our decision making and adjudication processes. Our adversarial system is “violent.” Pitting parents and former partners together in an adversarial contest does not ameliorate violence and knowing that is what awaits, might make things worse.

Why is it that we have to endure headlines such as those of the Guardian 25 March 2024 “Australia’s $4.6bn Aukus funding to help create more than 1,000 jobs in UK” and, yet, we can’t have a sensible discussion about raising jobseeker payments, have difficulty finding a bulk billing GP (or in some areas, a GP)? Why is it that we shovel $9billion a year into fossil fuel subsidies and well over $1billion a year into maintaining an offshore detention regime that is cruel and brutal, that is violent, and yet if you live in some areas, such as Southwestern Sydney, it is verging upon impossible to see a Paediatrician?

As Phil Ochs sang “If we fight the wars at home, there’ll be no fighting anymore.” But then, as Billy Bragg sings “War, what is it good for? It’s good for business.” And whilst reflecting on that thought, consider this article from the Guardian 30 October 2023, a rare moment of honesty regarding the violence of capitalism:

Hamas has created additional demand: Wall Street eyes big profits from war.

Morgan Stanley and TD Bank hope for aerospace and weapons boon after a 7% value increase from the start of the Israel-Hamas conflict. The United Nations has warned that there was “clear evidence” that war crimes may have been committed in “the explosion of violence in Israel and Gaza.” Meanwhile, Wall Street is hoping for an explosion in profits.”

So, attitudes do matter. We are surrounded by violence. It is normalised by government policy and spending – imprisonment, immigration detention, child removal, etc. It makes me reflect on the old Oxfam poster hanging above my desk:

It will be a great day when our schools get all the money they need, and the air force has to hold a bake sale to buy a bomber.

The contents of this document and any comment or opinion expressed is authorised by Joe Harman on behalf of Joe Harman