Family law court filings 2004-05 to 2012-13

Research Report No. 30 – February 2015

1. Introduction

This research report provides an overview of trends in family law court filings over a nine-year period between the 2004-05 and 2012-13 financial years. The data used were obtained from the three courts that primarily deal with family law matters: the Family Court of Australia (FCoA), the Federal Circuit Court of Australia (FCC, formerly the Federal Magistrates Court [FMC])1 and the Family Court of Western Australia (FCoWA). The report describes longer term trends in court filings overall, and in specific areas relating to children. It also covers the caseload distribution between the FCC and the FCoA but does not include data on appeals.

The report provides an update on information previously published by the Australian Institute of Family Studies (AIFS) in the Evaluation of the 2006 Family Law Reforms (Kaspiew et al., 2009). It extends the analysis covered in that report over a further four years, providing a longer term perspective on court caseloads in the nine-year period from 2004-05. The study also provides insight into the continuing effects of the 2006 family law reforms ("the 2006 reforms"), which introduced a requirement for parents to attempt to resolve parenting disputes through family dispute resolution (FDR) prior to lodging a child-related court application, except in certain circumstances, including those involving concerns about family violence and child abuse.2

In addition, through examining trends in filings in property matters, this research sheds light on the effects of legislation that removed legal distinctions between formerly married and de facto couples for the purposes of post-separation property division ("the de facto property reforms").3 It also provides some early insights into the emerging consequences of legislative changes that came into effect in 2012 ("the 2012 reforms").4 The 2012 reforms aim to improve the identification of and responses to matters involving family violence, child abuse and child safety concerns across the family law system. They are intended to have a widespread influence on practices in family support services (including FDR) and practices in the legal and court sectors. The effects of these reforms, including on patterns in court filings, are currently being examined by AIFS in a research program funded by the Attorney-General's Department.5

This research report has been prepared with the support of the three courts, each of which supplied relevant data.6

1.1 Aims and methods

Australia's family law system and the 2006 and 2012 reforms continue to attract significant local and international interest (e.g., House of Commons Justice Committee, 2012; Mnookin, 2014; Schepard & Emery, 2013). Trends in court filings attract particular attention as they are thought to provide one indication of the extent to which the objective of encouraging parents to use non-court based mechanisms for resolving parenting disputes has been successfully implemented. The aim of the present inquiry is to extend the analysis of court filings provided by AIFS in the Evaluation of the 2006 Family Law Reforms (Kaspiew et al., 2009) with a view to considering some longer term effects of the 2006 measures. The research also provides some preliminary insights into the influence of the de facto property reforms, as well as emerging consequences of the 2012 reforms.7 These aims are consistent with AIFS' responsibility, as an entity established under Part XIVA of the Family Law Act 1975 (Cth) (FLA), to monitor developments in the family law area.

The present research involved obtaining and analysing administrative data held by the three courts through the submission of a research proposal to each of the courts' research committees. These data were extracted by court personnel from each court's CaseTrack system. Data for each financial year from 2009-10 to 2012-13 were provided by each court.8 The data reported in this report relate to the following issues:

  • applications for final orders (categorised as children-only, property plus children, and property-only cases);
  • matters involving self-represented litigants (data prior to 2009 available for FCoA and FCC only);9
  • application for consent orders in the FCoA and FCoWA (categorised as children-only, property plus children, and property-only cases); and
  • orders for Independent Children's Lawyers (ICLs).

An analysis combining these data with data previously provided to AIFS for the years 2004-05 to 2009-10 was then conducted. An analysis of property filings is presented for the first time.

Below are some explanations for key terms used in this report:

  • Section 60I certificate: Under s 60I of the Family Law Act 1975 (Cth), parties are required to attempt family dispute resolution prior to lodging a court application for parenting orders (s 60I(1)). Certain exceptions to this requirement apply, including circumstances involving urgency and matters where there are reasonable grounds to believe there has been, or is a risk of, family violence or child abuse by one of the parties to the proceedings (s 60I(9)). Where these grounds are established, a court may hear a matter without an s 60I certificate being lodged (s 60I(7)). These matters are referred to as being heard under the exceptions to s 60I. Under s 60I(8), family dispute resolution practitioners are empowered to issue certificates on the basis that:
    • one party attended family dispute resolution but the other didn't (s 60I(8)(a));
    • the FDR practitioner assessed that the matter was not appropriate for family dispute resolution (s 60I(8)(aa));
    • the parties attended family dispute resolution and made a genuine effort to resolve the dispute without success (s 60(8)(I)(b));
    • family dispute resolution was attempted but one or both parties did not make a genuine effort to resolve the dispute (s 60I(8)(c)); or
    • family dispute resolution was commenced and discontinued on the initiative of the FDR practitioner (s 60(8)(d)).

    These matters are referred to as being heard as a result of an s 60I certificate being lodged.

    Family dispute resolution and the operation of the exceptions have been extensively examined by AIFS in a range of reports, including De Maio et al. (2013); Kaspiew et al. (2009); Kaspiew, De Maio, Deblaquiere, and Horsfall (2012); Moloney (2012); Qu and Weston (2010); and Qu et al. (2014).

  • Independent Children's Lawyers: These are legal practitioners appointed to panels maintained by legal aid commissions in each state and territory or directly employed by the legal aid commissions that administer funding for them. They are appointed to represent the best interests of children in particularly complex cases, including those involving serious allegations of family violence and child abuse. Recent research by AIFS (Kaspiew et al., 2013) has examined the role and efficacy of ICLs.

1.2 Limitations

The aim of this report is essentially descriptive in that it seeks to set out the present position in relation to court filings. It sheds light on one aspect of the continuing consequences of the 2006 family law reforms, together with the effects on court caseloads of the de facto property reforms. The analysis will be extended to cover the 2013-14 financial year as part of the Evaluation of the 2012 Family Violence Amendments, which will also examine the effects of these reforms on the family law system more widely and, most importantly, on the experiences of families affected by family violence and safety concerns.

Consideration of the broader context for some of the patterns highlighted in this research report - including numbers of self-represented litigants and the caseload distribution between the federal family law courts - would necessitate consideration of issues such as levels of legal aid and court resourcing and is beyond the scope of this exercise.

1.3 Structure of the report

The remainder of this report outlines the results of the analyses of the court data obtained for the FCoA, the FCC and the FCoWA in relation to cases involving applications for final orders in family law cases between the 2004-05 and 2012-13 financial years. More particularly:

  • Section 2 outlines the distribution of applications for final orders across the different courts, categorised by whether they involved matters relating to children only, property only, or children and property (hereafter referred to as "children-plus-property"). Focusing primarily on cases involving children, these categories are used as appropriate in the sections that follow.10
  • Section 3 considers matters involving applications for consent orders.
  • Section 4 looks at cases in which an order for an ICL was made.
  • The focus of Section 5 is on matters involving self-represented litigants (defined administratively by the courts as a matter where no legal representative was recorded for one or both parties the month after the application was lodged).11
  • Finally, the main findings of the analyses are summarised in Section 6.

In each section, the analysis addresses three main points. The first is the national trend in overall filings in each category of matters. The second is the distribution of filings between the FCoA, the FCC and the FCoWA, and the third is the extent to which variations in patterns between the three courts are evident.

Footnotes

1 When the FCoA and FCC are referred to together in contradistinction to the Family Court of Western Australia, the term "the federal family law courts" is used.

2 These changes were part of the Family Law Amendment (Shared Parental Responsibility) Act 2006. This amending legislation introduced the requirement to attend family dispute resolution in s 60I of the Family Law Act 1975 (Cth). Section 60I(9) contains a number of exceptions relating mainly to concerns about family violence and child abuse and issues of urgency. The reform program also contained other significant changes, including the introduction of a presumption of equal shared parental responsibility and support for a raft of new and expanded relationship-focused services (see Kaspiew et al., 2009).

3 Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth).

4 These changes were introduced by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth).

5 For more information, see the description for the Evaluation of the 2012 Family Violence Amendments project <www.aifs.gov.au/efva>, which involves a more detailed examination of court filings.

6 AIFS is grateful for the continuing support of the three courts, including Chief Justice Bryant (FCoA), Chief Judge Pascoe (FCC) and Chief Judge Thackray (FCoWA), and staff from their statistical services divisions: Dennis Beissner (FCoA and FCC) and Robyn Zuliani (FCoWA).

7 For a recent examination of post-separation property division, see Qu, Weston, Moloney, Kaspiew, and Dunstan (2014).

8 Data for the years 2004-05 to 2008-09 were already held by AIFS and these data have been used in this paper for consistency. Information from the FCoWA has shown that minor changes have been made to the data for these years due to updates being entered in the data administration system. These changes are minor in character and make little difference to the overall patterns reported in this paper.

9 The administrative definition of "self-represented" applied by the courts is where no legal representative is allocated against the application one month after it was lodged. Accordingly, this is the definition applied in this analysis.

10 Where the focus is on children's matters, the property-only category is not examined.

11 It should be borne in mind that some parties may become self-represented outside of this defined timeframe (e.g., at some other point in proceedings) and these cases are not represented in these data.