Speech of The Honourable Diana Bryant
Chief Justice of the Family Court of Australia
November 2008
In 1999 the Federal Magistrates Act 1999 was passed, receiving Royal Assent on 23 December 1999. The new millennium, therefore, commenced with the heralding of a significant change in the delivery of family law in Australia. In his second reading speech the Attorney-General said, inter alia:
Nor would simply appointing more judges solve the problem of the waste of judicial resources which occurs as a result of super court judges dealing with less complex matters that could be dealt with efficiently at a lower level.
That comment presupposes that there was work being done by a superior court inappropriately. Whether or not you agree with the quote,
“The time has come,” the Walrus said, “to talk of many things.”1
In 2008 it is time to talk of what has occurred in the past eight years, and what has occurred is this. Most of the family law work is no longer being done at superior court level. The time has come, in my view, to talk about what that means for family and for the courts.
I am acutely conscious of the fact that the Attorney-General has instigated a review into the family law system.2 The particular issue for the courts is whether, and to what extent, the structure will alter. Nothing that I say in this paper is intended to support or even presage any particular outcome from the Review. My comments are directed solely to the family law system, and to the level at which the work is now being done. My comments are not about judicial officers or their capacity in either court, nor about the practices and processes in each. The Federal Magistrates Court has responded to the government’s imperative to establish a court that would “handle less complex federal matters more efficiently and effectively.”3
Before considering what the changes that have occurred in the last eight years now mean, it is useful to consider a little history of family law in Australia.
The Family Court of Australia, when established in 1975 (a year before the Federal Court) was established as a specialist superior court exercising a broad federal jurisdiction in divorce, children’s issues, property and maintenance.
That has not been the experience in many other common law countries. For example, in New Zealand the Family Court is part of the wider District Court and its work is done at District Court level. In Hong Kong, in Canada and in the United Kingdom, this is also the case. There are variations between countries – for example, in New Zealand all of the family law work is done at District Court level and in addition there is no specialist intermediate appellate court. In England and in Hong Kong and in Canada, some of the most difficult of the first instance work is done by the superior court.
Initially, it was envisaged that the Family Court’s jurisdiction would be exercised by a ‘Family Law Division’ of the proposed superior court, which ultimately became the Federal Court. A Bill to that effect was introduced into the Senate and narrowly defeated in 1974. Meanwhile, the Senate Standing Committee on Legal and Constitutional Affairs was asked to undertake an inquiry into the provisions of the proposed 1974 Family Law Bill. The Committee recommended, for the first time, that a discrete specialised court be established; the Committee calling for a “new start in matrimonial law and administration”.
The Committee’s reasoning was that such a court could bring more to the work involved than a federal reconstruction of the state and territory Supreme Courts hitherto responsible for it. The Committee also found that a degree of specialisation and professional support not previously available would enhance the exercise of judicial power in family law.
The Committee’s vision was for a specialist Family Court, but not as we know it.
They recommended that the Court be comprised of two divisions: a first tier division, with judges having equivalent status to superior (Federal) court and State Supreme Court judges, and a second tier having the status equivalent to District Court judges. The committee said “ It is not contemplated that the jurisdiction of each tier be rigidly defined in the Bill but certain matters (particularly complex custody and property issues) would no doubt be reserved for the first tier judges.”
As it transpired, the Family Court was not established as a Court comprised by two separate divisions. The Act provided for the office of Chief Judge and the appointment of six other judges, some of whom were to be Senior Judges. Senior Judges were appointed in 1976 and by 1979 there were eight Senior Judges in a court of forty.
As there was no appellate division, it appears that the Senior Judges had a dual function, namely to comprise the appellate division (with others) and to have a quasi administrative function within each registry.
A separate appellate division was established in 1983, to which five judges were assigned on a permanent basis and six for a two-year period. By 1989, appointments to the Appeal Division had changed to permanent assignments and Senior Judges had all but disappeared.
Senior Judges were not to play any part in the Court thereafter. No others were appointed and to the extent that they had some administrative role, this was subsequently taken up by the role of Administrative Judge (which was a statutory appointment).
The work assumed by the Family Court on commencement illustrated its relative standing in the court hierarchy. When the Family Court was established it took over the matrimonial causes jurisdiction exercised by State and Territory Supreme Courts, being a broad jurisdiction in divorce, children’s issues, property and maintenance, consistent with its status as a superior court.
However, the question of whether family law should be the province of a superior court did not end with the establishment of the Family Court.
The 1987 Advisory Committee on the Australian Judicial System, otherwise known as the ‘Jackson Committee’, received numerous submissions on the position and role of the Family Court in the federal judicial structure. In its final report to the Constitutional Convention the Committee said:
3.133 The work of the Family Court falls into two broad categories. Into the first category fall the large number of applications which are essentially of a routine kind, many of them being uncontested. Generally speaking, this category does not warrant the attention of a superior court. The second category involves a smaller, but significant, number of major contested cases concerning, in particular, questions relating to the custody of children and to property. This category does warrant the attention of a superior court. …
3.135 Because the Committee is of the view that a substantial part of the work of the Family Court is appropriate for a superior court, it does not favour the view that jurisdiction in such matters should be given to a court at District Court level…
The Jackson Committee did however go on to recommend a ‘program of renovation’ for the Family Court. This included equipping the Court with staff and conditions appropriate to a superior court, while taking steps to limit its workload to that part of its jurisdiction that warranted the attention of a superior court.
Fast-forward 13 years to the year 2000 and the establishment of the Federal Magistrates Court, (then known as the Federal Magistrates Service), of which I was the inaugural Chief Federal Magistrate.
The FMC was established with the precise purpose of undertaking the less complex work of the Family and Federal Courts and leaving the more complex work to those courts. The Attorney-General put the matter of complexity front and centre when moving the Second Reading of the Federal Magistrates Bill 1999. He said:
…the changes that have occurred in Australian society over recent years have led to an increased range of matters coming before the Commonwealth courts. Many of these matters are not complex and do not need to be dealt with by superior court judges. Federal and Family Court judges are increasingly tied up dealing with matters that could be dealt with more efficiently at a lower level. The need for a court which can handle less complex federal matters more efficiently and effectively is now pressing. It is appropriate that, on the cusp of the new millennium, this parliament takes the next step of establishing a new, lower level, Commonwealth court.
It is interesting for me to reflect upon what the then-Attorney said. Reading that passage alone, one would have the impression that the Government was clearly implementing policy that it had rejected in 1975 and establishing a court arguably at a District Court level. Indeed, there had been discussion within the Attorney-General’s Department in the years leading up to the establishment of the Federal Magistrates Court that a new court, if established, would be established at that level.
However, there were many statements by the Attorney-General at that time, and subsequently, that suggested that his view was that the Court was not established at a District Court level. Indeed, its jurisdiction when first established in relation to parenting matters was quite confined, as was its jurisdiction in relation to property matters. The most significant change came in December 2000, when the Court was granted jurisdiction to make orders in residence cases (as they were then called). Previously, its jurisdiction was confined to making orders only in contact matters, except with the consent of the parties. This would, in my view, have severely curtailed the jurisdiction of the court but with the removal of that restriction the court assumed almost concurrent jurisdiction with the Family Court in parenting matters.
Subsequently, the monetary restriction on property matters, which was initially set at $750,000, was increased and is now unlimited. Thus, the property jurisdiction of the Court is concurrent with the Family Court.
Now let us fast forward again to 2008. From 12 Federal Magistrates as at the end of 2000, there are now 61. From almost 50 Family Court judges, there are now 36.
The Federal Magistrates Court, as of the 2007-8 financial year, was receiving 77% (now 80%) of applications for final orders (excluding divorces) filed, although this of course does not equate to the proportion of work that each court does. Nevertheless, it is significant and while one cannot predict it seems to be that with the present number of judges in the Family Court, the work is likely to remain at that level. Of course, if the Family Court’s size were to reduce significantly, there might need to be some further adjustment. That remains to be seen.
What is clear is that the FMC is an established part of the family law landscape and doing the majority of family law work.
The point that I want to make is this: until 2000 all family law work had been done by a superior court. That has now changed.
There are in my view good reasons why family law done at a superior court level has served us well. Jurisprudentially the Family Court of Australia is held in high regard by the senior courts of England and Wales as well as in the wider international community.
It has been a good reminder, especially to the government and the public, of the importance of family law.
As Justice Rosie Abella of the Supreme Court of Canada said:
Family law is the legal system’s metaphor, the crucible with which so much else in law intersects … It is also, because it is the area of law by means of which most people will come into contact with it, the area by which the legal system will be judged by most people.
Justice Kirby in 2004 said:
From time to time, the High Court gets a glimpse of the field of family law. When we do, we can see the complexities with which lawyers in this field must grapple. Often we can also see the personal stress that may accompany litigation of this kind.
It is fashionable in some Australian legal circles to regard commercial disputes as the most important in the law. This assessment is sometimes reinforced by the very large amounts of money involved and hence the ability to secure legal talent of the highest order. However, this does not mean that, objectively, such disputes are the most important in our society . … From the point of view of most citizens, the areas of the law of the greatest importance are criminal law, industrial law and family law.
At his swearing in as a judge of the New South Wales Supreme Court in 2005, Justice Brereton said:
If ever it was the case that family law was thought to be a less demanding and exacting field of practice, that could not possibly be said today. The practice of family law requires all the skills of lawyers, and more. As well as requiring the resolution of legal and factual issues which arise in the division of family property and the welfare of children, and they are usually far more extensive and wide ranging than the single transaction disputes that are often seen in this court, those judges and those practitioners are inevitably confronted with the emotional overlay which also accompanies those disputes in the inevitable breakdown of a once close relationship.
However, one only has to read the pages dealing with legal affairs in The Australian Financial Review and The Australian on Friday to see that that view is not universally held.
There is an appropriate gravitas given to the work by other superior courts. The importance of the inclusion of the Chief Justice of the Family Court in the Council of Chief Justices of Australia and New Zealand cannot be too highly stated.
So, as far as history is concerned, in my view, the placing of the Family Court (whether fortuitous or otherwise) at superior court level has been important for the system as a whole.
However, I think that it is time to say openly that in 2008 we are now seeing a court at District Court level doing much of the family law work in Australia.
I think that once we understand this and acknowledge it, then the discussion about the various roles of the courts, can more easily take place.
There will be those who will lament the change, but it has occurred and I do not think it demeans the system as a whole. The work is being done well, but there are some cautions I would sound.
My cautions are these:
Firstly I think that it is important for the work to continue to be done by a specialist bench. That does not prevent other ILLEGIBLE as well.
Secondly there is an important place for two courts doing first instance work, albeit the superior court will be smaller.
It is important that the most difficult first instance family law cases as well as the appellate work continue to be done at superior court level. It reflects the importance of family law to the community and gives status to the work of both courts.
The corollary of this is the status of the Court to which the majority of family law work has now been transferred. It should be clear from both the history of the Court and the manner in which family law work is done in other jurisdictions that the status of the Court doing most of the work must be that of a District Court level. It is in my view inconceivable in the structure of family law that in Australia we would contemplate important and complex family law work being done at a lower level.
We have Magistrates’ Courts and the delineation of their limited jurisdiction is clear. There should not be any confusion about the appropriate level at which family law work is done in Australia if it is not to be done at superior court level.
To support and promote the notion of the work being done at District Court level is not to inappropriately aggrandise those who may, as an adjunct, obtain better terms and conditions, and properly so if that recognition is given. That is not my role however, in giving this message. The message is that we must be clear about the levels at which the work is being done, and the importance of articulating and understanding those levels.
It is appropriate that I should be giving this speech at a judges’ conference in New Zealand, as your first instance work is done at District Court level. I know that you would have liked your court to have been set up as the Family Court of Australia was, at a Superior Court level, but that did not occur. Again, that does not detract from the way in which the work is done and you have done the work well, but perhaps there are lessons to be learned about the public importance of family law, when some of the first instance work at least is done by a superior court. What I think is also important and something in which our jurisdictions differ, is the importance of a specialist intermediate appellate court.
The model in Australia however, is more akin to the English model, where, as well as having an appellate function, the High Court also does important first instance work, largely transferred to it from County Courts. That is the model I anticipate we will have in Australia. Our challenge is to find a cooperative way in which the work is done between the courts, as they have managed in the United Kingdom, whether that be done by legislation or in some other way.
I conclude with this note. Whatever the result of the Attorney-General’s current review, the courts must support each other. The importance of the lower court depends upon the recognition of the importance of the work that it is doing. That in turn depends upon recognition of the importance of the work performed by the higher court, and vice versa. We all have an obligation to make the system work properly, firstly for the benefit of the litigants and the public, and secondly for the support for the importance of the work that we do. Those of us here are merely passing through, the system itself will go on.
I hope that acknowledging openly that the changes that have occurred in the administration of family law in the last eight years will encourage the conversation to start about how we can best deliver family law services, whether it is together or apart.
Observable and substantive change is not confined to the macro area of federal court structure and the relationship between the various courts. Within the Family Court parenting trials have evolved into a more dynamic, judicially active and engaged process in which judges are equipped to narrow the issues in dispute, direct the evidence to be filed and make determinations on discrete issues as they arise in the proceedings.
I don’t intend to discuss the Less Adversarial Trial in detail, as many of its features are captured in your own Parenting Hearings Programme. A brief update is however warranted.
When I spoke to you in 2005, I foreshadowed the government’s intention to institute legislative supports for less adversarial proceedings in children’s cases. This was achieved through the vehicle of the Family Law Amendment (Shared Parental Responsibility) Act 2006, which came into effect on 1 July 2006. The Act made myriad important changes to Part VII of the Family Law Act, including the insertion of Division 12A.
Division 12A sets out principles for the conduct of child-related proceedings, states which parts of the Commonwealth Evidence Act do and do not apply in children’s cases and the criteria for bringing excluded provisions back and sets out general duties and powers in relation to evidence. The general principles and duties and powers in relation to evidence embody those utilised as part of the pilot Children’s Cases Program. The presumptive exclusion of significant parts of the Evidence Act was not uncontroversial and it is fair to say there was not universal support for that approach within the Court; the alternative proposition being that the Evidence Act should apply, with discretion to oust its application where appropriate. In practice though I think the exclusionary provision has been largely unproblematic, with judges taking a common sense approach as to when to apply the rules of evidence and how that decision should be communicated to the parties.
I was interested to read the speech Principal Judge Boshier delivered last month on ‘New Pathways in the Family Court’, where he refers to informal indicia which suggest that the Parenting Hearing Programme is yielding results. I understand the formal evaluation is due by year’s end. We commissioned two evaluations of the Children’s Cases Program, one of which was a process evaluation and the other of which looked at parenting capacity and child well-being, and both similarly found that a less adversarial approach had major advantages over the conventional trial, qualitatively and quantitatively.
I commend the publication ‘Finding a Better Way’ to you, which not only summarises both evaluation findings but more broadly charts the Family Court of Australia’s journey from the traditional to the less adversarial trial. It can be found on our website.
I don’t mean to suggest that our journey is over. The Principal Registrar’s chambers have been assiduously working on new case management directions for less adversarial trials, which encompass parenting cases and property, where the parties consent to the application of Division 12A. We are also producing a less adversarial trial handbook for judges, which will contain a hardcopy book outlining best practice principles, a DVD demonstrating LAT hearings and other electronic material including an interactive CD.
The less adversarial journey is also increasingly taking on an international flavour.
A delegation of three Singapore judges visited the Family Court in December last year to observe less adversarial trials, the child responsive program and the family law system more generally.
Representatives from the Family Court travelled to Singapore to speak to judges and members of the family law bar on the less adversarial process. Following that visit, I agreed to an arrangement where five senior Singapore judges visited Australia and were attached to the Sydney and Parramatta registries to learn more about less adversarial trials.
Earlier this year the Chief Justice of Singapore announced that the Singaporean Family Court will conduct a pilot program bases on the less adversarial model developed by the Family Court.
Justice Hartmann of the High Court of Hong Kong, who has responsibility for family law matters in that country, spent two days in the Sydney Registry familiarising himself with the child responsive model and the less adversarial trial.
During my visit to Vancouver to attend the meeting of the Association of Family and Conciliation Courts at the end of May 2008 I made a presentation together with others to representatives from the Supreme and District Courts of British Columbia (including the heads of both courts), the Attorney-General and the Department of Justice British Columbia about the less adversarial trial process. It was extremely well received and I was approached by more than one North American judge during the AFCC conference about visiting their jurisdiction to make a similar presentation. To my mind these are clear examples of the benefits of regional collegiality and comity, where our experiences and learnings are able to inform the development of reforms in other common law countries.
Another matter I alluded to in my 2005 address was the former Government’s family law reform agenda and the proposed establishment of a network of 65 family relationship centres. These centres are all now fully operational. The FRC network augments the services provided by community based organisations, including early intervention, children’s contact services and post-separation cooperative parenting programs.
The additional funding provided to the community sector in the area of family dispute resolution – which was in excess of $400 million – necessitated a rethink of the way we were providing mediation and counselling in the Family Court. The process that is now in place, known as the Child Responsive Model, is a major change in the provision of child dispute services in our court.
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, which was predominantly privileged mediation. Our reportable services were becoming largely limited to the preparation of family reports.
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. As well, the model could be tailored to integrate with the less adversarial trial.
The Child Responsive Model has the following features:
it applies as soon as the parties file an application in a parenting matter (which the exception of Magellan matters, which have their own particular features and reports)
there is one family consultant who sees the family and if a family report is ultimately ordered from within the Court, the same family consultant remains with the family throughout.
it is child, rather than parent focused
all interventions are reportable.
The model involves an intake session with both parents with important features such as assessment of risk. The first intake session is a perfect opportunity for the family consultant to identify issues such as 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.
The intake session is 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. That is followed by a feedback session, in which the children’s comments are ‘fed back’ to the parents. The feedback session is a particularly powerful part of the process. Often, parents have no idea of the effect of their conflict and disputation on their kids and this is brought home to them in the children’s own words.
The child responsive model segues nicely into the less adversarial trial.
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 so they have a better idea of what information can usefully be provided on the first day.
Family consultants prepare a short assessment after the conclusion of the feedback to the parties, which is available to the judge on the first day of the less adversarial trial. 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. Judges have told me that the assessment report is enormously helpful in preparing for the first day, particularly in giving judges an insight into what’s really at issue between the parties and the effect of the dispute on the family; particularly the children.
We were fortunate to receive government funding in the 2006-07 budget to implement the Child Responsive Model in all registries. That process has been completed.
The Australian Government has commissioned the Australian Institute of Family Studies to undertake an evaluation of the 2006 family law reforms. That process should provide us with data as to the effectiveness of the Child Responsive Model. Anecdotally, and based upon an evaluation of the model during its pilot phase in Melbourne, it is a process that opens parents’ eyes to their children’s grief and seems to engender a willingness by parents to work together to minimise trauma arising from their relationship breakdown.
I also want to briefly mention the judicial docket; again a watershed for us in procedural and case management reform. The transition from a master listing system to an individual hearing docket is one that the Australian Law Reform Commission never expected to see in the Family Court and so it was with no small pleasure that I was able to tell David Weisbrot, the ALRC President, that a judicial docket is now being instituted.
Under our old master listing system, once the case had progressed through the resolution stage and parties had filed their evidence for trial, it was listed for trial before the first available Judge. If a case was adjourned for any reason it may have needed to come before a different Judge.
Under our docket model, the point of filing, the case is docketed to a case coordinator and registrar, working with the docket judge, from the point of filing. The case coordinator and registrar, again in consultation with the docket judge, are responsible for the management of the case until the last procedural hearing. After that event the case is placed in a judge’s docket and that judge is responsible for the case until finalisation.
In essence, the docket is a key part of a broader case management system that accommodates the needs of individual cases, rather than operating designed as a prescriptive, event-based model.
The docket is a significant departure for us from 30 years of practice and a range of issues are still being worked through. Calendar management is a particularly important one, to ensure there is an appropriate balance between keeping work flowing to the judges’ docket while not creating a problem with not reached cases.
The judicial docket is undoubtedly a topic that will occupy much of our time at our judges conference next year, and rightly so.
The final area of change is in jurisdiction, specifically in de facto property disputes.
Since 1984, we have had jurisdiction to determine disputes involving ex nuptial children. De facto property and maintenance disputes have however remained the province of State and Territory courts, which are limited in the matters that can be properly taken into account, particularly with respect to parties’ future needs.
You are well advanced in this area and your government legislated in 2001 to provide that the rules governing property and maintenance apply with equal force to de facto and de jure partnerships.
It’s not clear to me how controversial that move was. I can assure you in Australia it continues to be highly contentious. In fact, it’s taken six years for us to advance from a resolution of the Standing Committee of Attorneys-General to vest the Family Court with jurisdiction in de facto property disputes, to actually having a Bill before Parliament.
The Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 was introduced into the House of Representatives in June and is currently before the Senate. Its principal purpose is to provide access to the Federal family law system for de facto couples in ‘financial matters’, consequent to the breakdown of such relationships.
The proposed amendments seek to extend that system of family law to both opposite-sex and same-sex de facto relationships, on essentially similar terms to those presently available to married couples. The Bill therefore provides jurisdiction for de facto financial matters in all financial matters presently available under the Act to parties to a marriage, including proceedings involving third parties, binding financial agreements, and related bankruptcy proceedings.
Particular complications arise for us as a result of our system of cooperative federalism. The Federal parliament does not have power to make laws with respect to de facto relationships and has to rely upon a referral of such power from the States, in which such power does reside. Presently, only four of the six Australian States – New South Wales, Victoria, Queensland and Tasmania – propose referring their powers. It will therefore be necessary for parties to proceedings in de facto financial matters establish a geographical connection to a ‘participating jurisdiction’.
The Bill in its original form provided that it applied to de facto couples who separated on or after the commencement date. That position is likely to change. The Senate Standing Committee on Legal and Constitutional Affairs was asked to report on the Bill and one of their recommendations was that the transitional provisions be amended to enable de facto couples who separated prior to commencement to ‘opt in’ by mutual consent, even where there were proceedings on foot in state courts. This recommendation found favour with the government and amendments have been moved to that effect.
Clearly, the vesting of new jurisdiction will have major resource implications for both the Family Court and the Federal Magistrates Court. Additional resources were provided to the courts in the 2007-08 Budget to deal with the increased workload, in the form of four federal magistrates and one family court judge. I have long been concerned that the additional resourcing is not sufficient to absorb the anticipated workload, based upon what we know about numbers in the Family Court of Western Australia and in the state and territory courts. The position will be even more parlous, and I believe unsustainable, if the government’s transitional amendment is passed.
I have no reason to think it won’t be. We will continue to make the strongest possible representations to government that resources must be provided that are commensurate with the anticipated increase in workload, which every reliable indicator suggests will be substantial.
An acknowledgement of the importance of the work being done by the Federal Magistrates Court and equally an acknowledgment of the more difficult cases that do require a different kind of treatment and are, along with appellate work, an equally important element of the work of a superior court. It is of no benefit to the overall system for there to be petty turf wars within and outside the organisations. The time for that, if it ever existed, has long passed and each of the courts needs to be secure and mature enough to have faith in their own role and its significance in the structure.
[1] Lewis Carroll, Through the Looking Glass and What Alice Found There, 1872.
[2] Formal title of the Attorney-General’s Review into the delivery of family law.
[3] The Hon Attorney-General Phillip Ruddock, second reading speech, Federal Magistrates Bill 1999.