19 March 2004
A total revamp of Family Court rules will make the Court more accessible to all who use it, Chief Justice Alastair Nicholson said today.
Launching the Court's new rules in Brisbane, Justice Nicholson said that talking about rules and forms could be viewed as boring and dry.
"But in fact the changes we are introducing are amongst the most exciting in my tenure as Chief Justice," he said, "simply because they will make it easier for clients and litigants to deal with the Court.
"Consequently, the frequently disadvantaged, such as self represented litigants, will have better and more straightforward access to justice.
"We have swept away the archaic language, we have slashed the number of forms from 85 to 24, we have focused on clarity and ease of use, and we have ensured that only forms and rules that are absolutely essential are retained. The forms are now outstanding and are a great credit to the group that designed them headed by Justice Strickland from Adelaide.
"In a climate where budgets for legal aid have been cut, and under a Judicial system where judges cannot give legal advice to litigants, the solution is to make the system, whether at the mediation or litigious end of the process, as accessible as possible. Only then can it be said that everyone who walks into the Family Court has equal access to justice".
"Under these rules parties and their lawyers are required to make a genuine attempt to resolve the matter before starting hearings. If they fail to do so they may be liable to pay the costs of the other parties. Good family lawyers do this as a matter of course but the purpose of the Rule is to ensure that all do so.
"There is a tight control on the use of experts and leave of the Court is required before other than a single expert can be called. Where possible a single expert, acceptable to all parties, will be used rather than a multiplicity. This should help to eliminate the use of 'hired guns' who say what the parties or their lawyers want them to say".
Justice Nicholson said that the Court had consulted with the legal profession, interest groups and self represented litigants in the three years from March 2001.
"We have drawn upon the very progressive rules of the Queensland Supreme Court and on the new rules in the UK and Canada," he said.
"What we have achieved with these changes has not been an easy transition from the legalistic documentation and approach that currently exists, to one where people walking off the street should be able to understand precisely what is going on. The legal profession has been both positive and responsive to these changes. What we now have represents the world's best practice.
"The Working Group and Steering Committee, under the very able leadership of Justice Neil Buckley, with the assistance of Deputy Registrar Lesleigh Mayes from Brisbane, are to be commended for what is a remarkable achievement," he added.
The new rules include the following changes:
Strategies Aimed At Changing The Culture Of Non-Compliance
There are four main strategies aimed at changing the culture of non-compliance:
Obligations on parties, lawyers and the court
1. The increased emphasis on the responsibility of parties and lawyers to assist the court to achieve the objective of resolving and determining disputes justly, and in a timely and cost efficient way. The preliminary Part in chapter 1 sets out the main purpose of the Rules, the spirit with which decisions are to be made in relation to the rules, and is integral to the rules. The court must have regard to this chapter when applying or interpreting the Rules and when exercising any power under the Rules. It expects the parties and lawyers to be aware of and assist the court to achieve this standard.
Defaulting party must seek relief
2. The introduction of additional Rules which shift the onus of seeking relief for non- compliance onto the defaulting party.
Payment of costs for non compliance with certain rules
3. With legislative amendment, the introduction of Rules which reverse the onus and require a defaulting party to pay costs unless the court orders otherwise.
4. With legislative amendment, the introduction of civil offences for serious breaches of the Rules.
The Rules are comprehensive and incorporate the contents of a number of Practice Directions, so you only need look in one place
New Practices And Procedures Which Advantage Clients
The new practices and procedures which are specifically aimed at addressing clients' needs include:
One of the objects behind pre-action procedures is to discourage a combative adversarial approach, which can and does increase costs. They are aimed at encouraging parties to cooperate, make appropriate disclosure, behave reasonably, and make an early offer of settlement and negotiate sensibly to try to avoid litigation. The Family Law Council's guidelines for conduct by lawyers support this approach to litigation.
There is a reduction in the number of prescribed forms from 84 to 25. This mainly affects the way an application is made, making it less complicated and easier to understand
There is a significant change to the processes in relation to expert witnesses to enable the court to control the issues on which it requires expert evidence, the nature of the evidence it requires on that issue; and the way in which expert evidence is placed before the court.
It is anticipated that this will assist in the control of unnecessary cost and delay , eliminate problems of partisanship/lack of objectivity, ensure that the evidence given is relevant to an issue in dispute, given by a person with expertise in the area and be clear and useful to the trial judge in deciding the case.
The Chapter codifies the concept of a duty of disclosure, requires parties to certify that they are aware of the duty and have complied with it, and confirms that there are significant consequences for failure to comply and sets out the processes available for different applications. It is anticipated that this will assist in the control of costs and delay, eliminate problems of over discovery and ensure that the disclosure is relevant to an issue in dispute.
Costs chapter and amended scale of costs
The Family Court of Australia will maintain its role in the regulation of party/party costs and lawyer/client costs. The quantum of costs is to continue to be determined by reference to the itemised scale of fees. In the case of lawyer/client costs the Court is retaining the role of determining whether a costs agreement is fair and reasonable. The dispute process has slightly changed by the introduction of the preliminary assessment process which works so effectively in the Federal Court.
Attendance at court events by telephone or video.
This saves the expense and inconvenience of travelling to court in certain circumstances. There is an easy process to seek this permission and there is a proforma available for use.
Hearings in the absence of the parties in interlocutory applications
Where parties agree, the hearing of interim, procedural and some enforcement applications can be determined in their absence, on the documents filed
Subpoena to produce documents process
If there is no objection, parties have the right to inspect and copy documents and no appearance is necessary
The process to enforce financial orders
There is no need to obtain an order to enforce an order by way of seizure and sale of property or garnishee, an ex- parte request can be made to a Deputy Registrar in chambers.
The summary process to enforce parenting orders
This is as an alternative to the contravention process aimed at assisting parties to solve a minor problem before it escalates into a major intractable dispute.