Key Issues – Family court secrecy
“Our courts restrict public scrutiny and fail to obtain feedback on the outcomes of the life-changing decisions they make; theirs is not an evidence-based approach”. There are several aspects of the day-to-day operation of all of Australia’s family courts that are so unusual as to make them dangerous. In fact, our family law system and its senior professionals – responsible, as they are, for life-changing, and even life-threatening, decisions – are, essentially, above the law: immune from prosecution and from basic levels of scrutiny and are ignorant of any feedback that might improve their performance or decisions and that would be regarded as essential in almost any other profession.
ABSENCE OF FEEDBACK
Our family courts do not follow up on a single one of the
thousands of children and families they process every year. As retired Family
Court CEO Richard Foster stated in Senate Estimates 8 Feb 2016: “in terms of
whether it’s a positive or negative outcome, [judges] would probably never
Feedback is an essential part of every learning process, of every private sector enterprise and, indeed, of everyday life. We learn, every day, from our mistakes so that we can avoid them next time and improve the decisions we make. The Workplace Health and Safety Act (check date), for example, makes it law in Australia that all employers must actively look at their safety performance, constantly asses their performance and use that data to continually improve the conditions for their employees. Yet family court judges obtain absolutely no feedback from any of their life-changing decisions and have no mechanism in place for collecting the readily available evidence that should inform their daily decision-making. Once a decision is made, no useful data is recorded that would allow the legal profession to begin to analyse the performance of the Court against the very think it exists for: protecting and promoting the best interests of children!
There is no standardised process whereby any decision is automatically reviewed within a set time frame to assess whether it is performing as intended, as any such significant decision would be in virtually any other professional environment. It is left to the loosing litigant to pursue very limited legal options should they have the money, energy and courage left to do so. If they do choose to challenge a decision, they are invariable viewed as “vexatious litigants”, treated with disdain by the Courts and often bared by from reapply by precedent (Rice v Asplum).
Section 121 of the Family Law Act prevents the naming of
those involved in family law matters. Ostensibly, this is to protect children.
In reality, it causes great harm to children by protecting the system from
scrutiny and by allowing incompetent and even malevolent practitioners to
continue operating beyond the reach of the law.
Such is the level of secrecy that, in family courts in WA as recently as 2019, court officers still routinely prevent visitors from taking notes in courtrooms.