Opening Plenary Session: National Family Law Directions
Speech of The Honourable Diana Bryant
Chief Justice of the Family Court of Australia
15 August 2008
Introduction
This is the third occasion since my appointment as Chief Justice of the Family Court in which I’ve had the pleasure of presenting at the annual Queensland family law residential.
In preparing for this year’s presentation I ruminated on the theme of ‘directions’ in family law. That in turn led me to thoughts of ‘journeys’ and ‘roads travelled’. One might think that would lead inexorably to a quotation from Robert Frost’s greatly loved ‘The Road Less Taken’.
I have instead taken my inspiration from a somewhat more idiosyncratic source, Lewis Carroll. At one stage in Alice in Wonderland, Alice comes to a fork in the road. Perhaps ill-advisedly, she seeks the Cheshire cat’s opinion.
"Where do you want to go?" responded the Cheshire cat.
"I don't know," Alice answered.
"Then," said the cat, "it doesn't matter."
The Family Court and the family law system, as the Attorney-General has flagged, is not like Alice.
The Attorney has a clear vision for the future with an integration of systems and I will return to that theme later. One thing is clear: that we are always trying to provide the best possible assistance to separated families in determining the most complex family law disputes.
What I hope to achieve this morning is to discuss generally some recent reforms in key areas case management reform, child dispute services and how they’re now delivered and in working towards a better integrated family law system.
I want to reflect upon why changes have been made in case management in recent times in an ever-changing environment.
Case management is a particularly challenging issue for family courts. It is worth pondering these questions: is it different from case management in other courts and if so, why?
The answer to the first question is “yes” and “no”. Let’s start with the differences.
In its report Managing Justice the Australian Law Reform Commission said:
8.24 Thedisparate dispute resolution arrangements. It follows from the nature of family disputes that dispute resolution calls for varied diagnostic, counselling, conciliation and adjudication skills and cooperative case management by varied specialists. This can be difficult to coordinate and allocate appropriately in all cases. As Professor Ian Scott wrote:
Some adjudicative typologies say that family courts are ‘diagnostic’ rather than ‘litigious’ or ‘administrative’ … My own view is that family courts cross adjudication typology lines in a manner which defies simple analysis, and therein lies the reason why ‘case management’ (whether broadly or narrowly defined) is such a complex undertaking in such courts. And it also explains why family court case management (in the narrow sense) systems are bound to be difficult to design, to implement, and to maintain in good operational health.
This is in stark comparison to the community’s engagement with civil and criminal courts, which usually occurs on a discrete ‘one-off’ basis.
Family courts also have a demonstrably larger proportion of self-represented litigants, which again contributes to the need to ensure our processes are clear, logical, structured and time-effective.
Most importantly though, the obligation in children’s cases is to make orders in the best interests of the child and the pre-trial and trial procedures must support that outcome. These imperatives have been key drivers of change in our case management processes. They have seen a transfer in control of proceedings from the parties and their lawyers, to the Court. That has been a process of evolution.
Since 1985, when the first set of Family Law Rules and case management guidelines came into effect, the Family Court has instituted a number of different procedural reforms, with varying degrees of success. Pleadings, which were introduced in 1989, were an early attempt to encourage early identification of issues in dispute and contain costs. It is fair to say that pleadings were not found to be a good fit with the dynamics of family law and were abandoned in 1995.
What I think was probably apparent at that time and after that experiment was that in family law disputes you really do need pre-trial judge intervention at an appropriate time.
You will note that I don’t say that judge intervention is always required at an early time, although the two may be synonymous. There I think the difference between parenting cases and property cases becomes significant.
In parenting cases, early intervention is effective and important. There are many reasons for this:
A judge’s role as early as possible in these cases can thus be crucial. It includes:
Focussing the parties on the issues for the future of their children and the relationship between the children and parents; that is a child focused approach
Property cases can be said, I think, to be little different. An intervention by a judge too early can be wasted time for the parties and the judge. That is because you need some idea of the range of disputes, which has to be identified in those cases by the parties themselves. Is there a dispute about the pool, about contribution, about section 75(2) factors? Some idea of the assets and values, and valuation issues, is also a useful part of the judge’s involvement. That is a basis for the preparation of a single balance sheet to be given to the judge as a work in progress.
Many of these matters in a property case in the preparation phase can be managed by registrars, who will have the responsibility for files once proceedings have been initiated. While registrars will have an involvement in parenting cases prior to the matter coming before the judge on the first day, their involvement in property matters will be much more significant. There is much work that registrars can do prior to the judge conducting the first intervention.
What is important is that no evidence has been filed before that first judge intervention. At that time the judge will be able to be determine what issues require resolution and to be the subject of evidence and the form that evidence is to take, the manner in which that evidence is to be given (and that of course will include the appointment of a single expert). Depending on the complexity of the matter, there may be third parties and many other issues arising from third party interventions.
Justice Ronald Sackville of the Federal Court, in an article in the Australian Financial Review last Friday, was quoted as saying that judges need to be provided with a structure within which they can operate to more effectively manage cases. In the course of the interview Justice Sackville said that case management initiatives need to be backed up with more specific powers in legislation and in court rules to ensure judges have the confidence to exercise managerial powers in litigation.
That leads me to the 2004 Family Law Rules.
I appreciate that the profession has not enthusiastically embraced all aspects of the new rules and that there is a view in some quarters that the rules are too prescriptive. Whatever merit there may be in this criticism, it’s evident that the rules were trail-blazing in many respects.
Firstly, they introduced pre-action protocols in both parenting and property proceedings.
These anticipated the compulsory dispute resolution provisions of the Family Law Act by a number of years and were an important weapon in ensuring that only those cases inimicable to settlement, or those with other features such as urgency, entered the door of the court.
The Family Court’s pre-action procedures were used as the first tranche of the compulsory dispute resolution process which is now fully in effect and which parties are required to obtain a certificate or exemption in order to issue parenting proceedings.
The single expert rules were also quite revolutionary for their time.
The purpose the single expert rules is set out in rule 15.52 and is essentially to:
They single expert rules were developed as a result of a concern about the often partisan nature of expert evidence and qualifications of witnesses, as set out in the Court’s 2002 report The Changing Face of the Expert Witness.
I see that Justice Sackville is calling for similar rules for the Federal Court, to provide “clear guidance on the appointment of single court experts and limit the parties’ use of experts.” I wonder what effect the single expert rules would have had on the cost of the C7 litigation if they had been in place at that time?
Apropos of Justice Sackville’s comments about specific powers in legislation to ensure judges have the confidence to exercise managerial powers in litigation, the discussion at present is about whether relevant provisions of the Division 12A could be extended to property.
I personally think there are relevant sections that would fit neatly into property cases and provide a useful legislative backing.
A confluence of factors, not least of which is the establishment of Family Relationship Centres, has meant that the types of cases coming before the Court are increasingly complex. In parenting proceedings this means that, almost without exception, disputes involve allegations of family violence, child abuse, substance abuse or mental health issues, often in combination. Parents whose ability to communicate is virtually nil, and who are enmeshed in a highly conflicted relationship, are now the rule rather than the exception.
The old pre-trial conference and trial notice pool is not part of the new system. Instead, cases are assigned to a judicial docket at a procedural hearing and listed for the first day before the judge. The docket judge then has responsibility for that case through to finalisation, with registrars providing assistance as directed by docket judges.
The new system builds on the documented benefits of active judicial management and a team-based approach.
I need to make it clear however that there are constraints to optimal implementation of a docket system. There are three that I can readily identify:
In almost all registries there is an existing backlog of cases.
If we were to start afresh with a blank calendar, we could implement all the changes we want to meet the needs of the Court, clients and the profession, I think fairly easily.
However, that is not the environment in which we have to manage the cases. In almost all registries, and some of them vary, there is already a significant body of cases which require coming before a judge for hearing. In some registries the incoming filings are less than the others but in all registries there remains this bulk of work that has to be got through. This means the judge time dealing with the case must be minimised.
It has effectively been ever thus for the Family Court. In past times, the best way of doing this was seen to be bringing the judge in as late as possible in the process because of the number of cases that settled along the way. It was thought, quite reasonably in my view, that if judge intervention would not have made any difference to the case settling early, then there was little point in wasting that precious resource.
Times are somewhat different now. Cases are settling but less so and the kind of cases the Family Court now has are generally the most difficult and intractable disputes. The parties have usually been through all sorts of forms of dispute resolution, whether they be property or parenting cases, and they are less likely to settle. There is therefore less reason to isolate the judges from the early part of the process.
On the other hand, as I have already indicated, the interventions, because there is work to be done, must be effective, focused and at a time which is useful and does not waste the time of the judge or the parties. While there are a number of cases that have been waiting for a hearing date for some time, it is important to use judge time as much as possible on determining those disputes which require determination.
All this is said in the knowledge that effective judge intervention at an appropriate earlier time can reduce the issues and therefore the time the cases will take and in some cases, can encourage a settlement. These two competing elements have to be carefully managed.
The second problem is that a pure docket is very difficult to maintain with the decrease in the size of the Court, which is likely to continue, and the need therefore to send judges from those registries which are not under such pressure to those which are. The purity of the docket is very hard to maintain in those circumstances and I think we have to accept that there will be some variation because it is more important to ensure that cases that do require determination actually receive that determination.
The third difficulty is compliance. This is a continuing and chronic problem. Under the previous case management guidelines there were defaulters’ lists and cases would lose their place in the list (if they had already obtained a listing) or would not be given a listing until orders were complied with. Unfortunately in my view too much of the Court’s time was spent on the defaulters list, which is somewhat of an indictment of the profession running the cases.
Ensuring compliance is now in the hands of the individual judge in whose docket the case is. Some judges are not listing cases for hearing until orders have been complied with. Some are managing compliance in different ways. Some are finding that they have listed matters for hearing and then they are not ready to proceed. That is incredibly time-wasting and, may I suggest, incredibly unfair to litigants who are awaiting a hearing for their matter. If a matter cannot proceed because it is not ready at the last minute, and because it is at the last minute the judge does not another case to take its place, then not only has that lawyer potentially prevented their own client’s case from getting on but the other cases behind it.
Listing is always a difficulty for courts and where you have a docket it is even more difficult. Over listing becomes problematic and it is very important that there is compliance to enable judges’ time to be used most efficiently. I do urge all of you to bear this in mind.
Some judges take the view that, having tried sufficiently hard to get the parties to comply, if one party has not complied that in the end the trial will proceed, subject to complete procedural unfairness. I must say I think this robust approach has much to commend it.
The use of registrars in complex litigation, particularly where there is preparation to be done, remains an extremely effective and useful resource to the Court.
I don’t want to leave this issue before saying that the Court is still in discussion with the profession and determining how the case management features should be set out. One option is legislation, as I have noted, underpinning the judge’s capacity to manage, coupled with some case management guidelines so the profession can understand in broad terms how matters are to proceed through the Court. The second is to put these in the Rules. That is a discussion that is still being held.
I think it is important to have a structure and a case management model and there has already been considerable consultation about how the model will look, both in children’s and property cases.
The importance of an intervention of a judge to settle the real issues for trial before affidavits are filed cannot be overestimated.
The opportunity to reduce issues in discussion with a suitably informed judge; that is, one informed by appropriate information, helpful counsel and a single balance sheet, will enable this to occur. Reality testing by a judge who has sufficient information to do so, as we all know, is a very powerful tool in ensuring that only the appropriate issues are ultimately those which take up the Court’s time.
1975 Counselling to the 2008 child responsive model
The Family Court was established more than three decades ago with a separate counselling arm, to provide mediation and dispute resolution services to the court’s clients and to the community at large. It was a world first.
At that time, in the mid-1970s, the Family Court was really the only organisation with expertise in providing counselling to people in the throes of relationship breakdown.
The services available in the community were limited to general marriage guidance, to help couples to overcome difficulties in their connubial relationships.
That situation has changed radically.
The community sector is now the largest provider of family relationship services, designed to keep disputing couples out of the court system. They do so with great skill and professionalism.
Organisations like Interrelate, Unifam Anglicare and Relationships Australia now offer a multiplicity of sophisticated, targeted services for families in need, including early intervention, children’s contact services and post-separation cooperative parenting programs.
These services are of course augmented by the network of family relationship centres which, with the exception of Broome, are now fully rolled out. Family Relationship Centres were part of the former Government’s reforms to the family law system, which included the injection of $405 million over four years to support community based counselling, mediation and education.
For us, the growing professionalism and expertise of the community sector raised the spectre of duplication and overlap with the services we were already providing in the Family Court. Community based agencies were providing privileged dispute resolution services, similar to the type of assistance our mediators, as they were then called, were providing to litigating parents. Our reportable services were becoming largely limited to the preparation of family reports, which only occurred where parties were unable to each agreement and when a case had entered the ‘determination’ phase of the dispute resolution pathway.
The Court’s Director of Child Dispute Services came to see me shortly after my appointment in 2004 to raise with me the possibility of devising a new intervention for parties who came to the Family Court and who had already had privileged counselling in the community sector. We were both aware that this would increase with the involvement of the Family Relationship Centres, which were then mooted.
It seemed sensible not to duplicate services that had already been provided but to try to devise a more useful intervention, acknowledging that once parties had reached the Family Court in particular, privileged interventions were unlikely to assist them.
We were also aware of the growing body of work indicating that child focused interventions (rather than the typical party focused interventions, which are characterised by privileged counselling) were more important for children. It seemed appropriate for the Court to devise interventions which would be more child focused and which would sit comfortably with the growing body of social science highlighting the importance of being child focused.
At the same time, this would acknowledge the expertise already applied by the community sector in the Family Relationship Centres to disputes.
We agreed that it should contain several important features:
Thus, the model involves an intake session with both parents with important features such as assessment of risk. That is then followed by an independent session with each of the parties and by a session with the children.
Even young children are involved in this process, because it is not about obtaining the views of children and having them fed back to the Court, as might occur later in the process by an independent children’s lawyer or through a family report. It is about finding out how the dispute and the conflict are affecting the children and feeding that back to the parties. Sometimes, this will be the first time that the parties will fully understand how their children see the effect that this is having on them.
I’d like to share some children’s comments with you.
An 8 year old boy told the family consultant “When they (his parents) were fighting I was worried they would be hurt or would go away”.
A boy of the same age, in describing how he felt about an arrangement where he and his sister were separated, said: “I felt bad when she (my sister) went away. I missed her. I hugged her when she came back”.
When asked what he wanted, another 8 year old said: “No more fights! They should sort it out and say they are sorry. That’s what we have to do.”
In her message to her parents, an eight and a half year old girl said: “please stop fighting. I want them to get on together…“it’s the most important thing inside me ’cos it just really hurts”.
This comment brought her father to tears in the feedback session.
While we were in the process of devising an appropriate model, the services of Dr Jen McIntosh were engaged to assist in preparation of that model. There was a natural concern that real child focused interventions take much more time than financial constraints would allow us. However, Dr McIntosh was comfortable that a shortened process can be an effective and appropriate intervention.
During this time the less adversarial trial process was adopted and this model segues nicely into that process. In the Children’s Cases Program pilot, family consultants had been involved at the first hearing day although they had not seen the parties prior to that date. Their intervention was based upon objective information social science research and what they had learned about the parties from hearing what they had to say in court on the first day.
Now, the family consultants have already seen the parties and children and have a better idea of what information can usefully be provided on the first day. There is a sense of continuity as well.
There is a short assessment prepared after the conclusion of the feedback to the parties, which will remain on the file and be available to the judge on the first day of the less adversarial trial. This is not a full report, nor intended to take place of the family report. It is intended to be an indication for the judge of the issues for this family, sometimes with some suggestions as to what would assist this family pending a full hearing, including sometimes the suggestion of the appointment of an independent children’s lawyer or that the parties attend some appropriate parenting courses. Sometimes the family consultant will be able to resolve with the parties any interim issues and arrange to trial certain arrangements.
Practitioners should not however treat the issues assessment as anything other than that which it is: namely, a brief assessment of the issues for this family that will have to be determined in the course of proceedings and perhaps some suggestions as to how the case may be managed along the way. It does not take the place of a full family report.
The first intake session is a perfect opportunity for the family consultant to identify any risk issues for the parties, such as issues of family violence, mental health and substance abuse, so that the case can be managed appropriately and these matters brought to the attention of the judge or those who are involved with the family.
If the family consultant is of the view that there is a likelihood that the parties might be able to resolve all or a significant number of their issues, there is provision for a settlement conference to take place prior to the first day before the judge. This is judiciously used, as the family consultant will have a pretty good idea by that stage about the likelihood of the parties being able to resolve their matters without a determination.
Family violence remains one of the most vexed issues in private family law disputes. People have strong, frequently polarised views about the issue. No one doubts its seriousness and in particular the often ruinous effect of violence on children’s emotional development. The divergence really lies in what constitutes family violence, who perpetrates it, how it should be responded to and the relevance and effect of violence on the outcome of parenting disputes.
At one end of the spectrum there is the perspective that family courts diminish allegations of violence and do not take them sufficiently seriously, resulting in children living with or spending time with a violent or abusive parent, usually the father. It is said that the 2006 amendments to the Family Law Act, in emphasising the importance of children having a meaningful relationship with both parents and in requiring consideration of equal time and substantial and significant time, create additional risks for women and children experiencing family violence. Proponents of this view also tend to argue that women – and again it is usually women – who are found to have made false allegations of violence will have costs awarded against them.
On the other end, there is the position that family courts unhesitatingly accepts that allegations of violence made by women against their ex-partners as true and from there, proceeds to deny any relationship between the father and their children. A criticism is frequently voiced that once a party can establish that an intervention order has been made against the other parent, even if that parent consented to the order without admissions, that fact is then determinative of the outcome of any parenting proceedings in the family courts.
Neither reflects the reality of how the Family Court treats allegations of violence.
Every allegation is taken seriously but that is not the same as accepting an allegation as ‘true’ or ‘proven’. Judges require credible, relevant evidence upon which to find that one party has used violence against the other or, even more seriously, against a child. The more serious the allegation, the more cogent and compelling the evidence needs to be. This principle is enshrined in the Commonwealth Evidence Act.
The importance of reliable, credible evidence on the capacity of the Court to make findings about family violence was made abundantly clear in the Australian Institute of Family Studies’ report Allegations of Family Violence and Child Abuse in Family Law Children’s Proceedings, released last year. The report found “three layers of ambiguity” in the data on evidentiary issues and decision making:
The AIFS surmised that legal decision making may well be taking place in an environment of factual uncertainty around family violence and abuse.
Even within a more judicially active model such as we have in the less adversarial trial, judges can only do so much. They are finders of fact, not gatherers of it.
To assist in the process of identifying and responding appropriately to allegations of family violence, the Family Court’s Family Violence Committee is on the cusp of finalising a set of family violence best practice principles.
These principles are designed to give more meaningful effect to section 60K of the Family Law Act, which requires the Court to give prompt consideration to allegations of family violence or child abuse, and to assist judicial decision makers, lawyers and litigants at various stages of the case management pathway. Members of the Court’s Family Violence Reference Group, which includes the Attorney-General’s Department, have been consulted about the draft best practice principles and their comments have been given detailed consideration. The promulgation of the best practice principles will constitute the last stage in the implementation of the Court’s Family Violence Strategy.
Recently, the Deputy Chief Justice and I participated in the Attorney-General’s roundtable workshop on the family law system. We were there to discuss ways in which the family law system could operate more effectively.
This is hardly a new concern in family law, as numerous inquiries, reports and recommendations are testament to. Our peculiar system of cooperative federalism means that integration issues arise not only across the sector but between the federal and state systems, including the legal systems.
One of the most striking aspects of the roundtable was the amount of goodwill in the room. Every person present had a real commitment to making the family law system work more harmoniously.
The Attorney-General earlier referred to his Department’s Review of the Delivery of Family Law Services and Administration. It too is intended to identify possible areas of duplication and overlap and to make the family law system – particularly the court system – operate more seamlessly.
Without presaging what the Attorney-General may decide as an outcome of the Review, I am hopeful that one result will be a combined administration. To a large extent that is already in place in the area of registry services, where Family Court staff provide assistance to clients of the Family Court and the Federal Magistrates Court. There is an opportunity to further reduce duplication in the administrative area by having the one workforce providing services.
I imagine the Chief Federal Magistrate will have something to say on the matter himself but for my part I strongly support administrative rationalisation in order to release funds for the needs of the courts but particularly having additional funds available to the FMC.
Greater clarity around the type of work suitable for hearing in each court is equally important.
The Federal Magistrates Court was established to deal with the high-volume, less complex work and its case management system reflects this intent.
The issue of transferring cases between the Family and Federal Magistrates Court has not been an easy one, in part because of the limited ability of both courts to absorb additional work. The Family Court is becoming smaller as fewer judges are being replaced. The Federal Magistrates Court continues to grow in size but in certain locations, such as Sydney and Melbourne, federal magistrates’ existing caseload is such that there is virtually no capacity to take on matters transferred from the Family Court.
This situation should be alleviated by the appointment of new federal magistrates.
Improving integration in the family law system is an area in which, whatever happens, we must continue to work to continue to achieve greater clarity for the litigants.
It further needs saying that whatever occurs, that is whether there be one or two courts, there must be an acceptance that the bulk of the work of the Federal Magistrates Court is in family law and therefore there are two courts doing family law work. The Government and community demand that we ensure it is a system that:
It is my expectation, whether there is one court or two, that the Family Court will become smaller within a short time-frame.
In order to service the litigants, this again demands a huge amount of cooperation between the courts. That too requires an acknowledgement of two important things.
One, that the Family Court, if it becomes a much smaller court, is demonstrably a superior federal court doing largely appellate work and the most complex first instance work. It is in my view indisputably at the same level as the Federal Court.
Two, the second level of court is one that will be taking over much of the work previously done by the Family Court. That too demands appropriate recognition, both in remuneration and nomenclature.
The Attorney’s roundtable workshop on the family law system that I have referred to was not confined to integration between the courts on the one hand and with all the other family law services on the other. It also clearly envisaged an improved integration and delineation between the work of the Courts.
Whatever the result of the Attorney’s Review there is much to be done.
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