THE LONG ROAD TO REFORM THE FAMILY LAW SYSTEM

BY MICHAEL ESPOSITO

Family lawyers have been under attack lately. Last month, an article ran across News Corp mastheads around the country, subsequently triggering a slew of scathing op-eds, that was critical of family lawyers for allegedly overcharging clients and putting their own interests first.

Not only were the claims made in that piece questionable at best, but it completely ignored one of the major reasons costs have increased for litigants in the family law system – the chronic delays in the Family and Federal Circuit Courts. The problems facing the family law system have been well-documented, and given the highly emotional, angst-ridden and at times traumatic nature of many family disputes, it’s perhaps no surprise that the Courts and the legal profession become undeserving targets for blame from those who have not completely gotten their way in a dispute or disagree with a judicial determination.

But the fact is that almost all family disputes require some form of compromise, and most family lawyers do their best to help their clients achieve a fair outcome, keep costs down, and resolve disputes as quickly as possible. The disputes that progress all the way to trial do so because they are extremely complex and often involve a high degree of risk and emotion.

It doesn’t help that the Federal Circuit Court and Family Court are absolutely overwhelmed with cases. Despite the best efforts of judges, many litigants have a long and anxious wait for justice.

Chief Justice Will Alstergren

THE REFORM PROJECT

Chief Justice of the Family Court and Chief Judge of the Federal Circuit Court, The Hon Will Alstergren, has made it his mission to do all he can to make the family law system work better for parties with the limited resources he has to work with.

He freely acknowledges that current backlogs are unacceptable, but when you have 21,000 family law cases pending across both courts, one can appreciate the monumental challenge that awaits him and his fellow judges. His Honour is not waiting for the outcome of future inquiries, responses to the ALRC Report, or the outcome of debate about legislative change. “Australian families deserve our best and we are getting on with the job now,” Chief Justice Alstergren said.

His Honour certainly has made progress since his appointment as Chief Justice 12 months ago. He has spearheaded a number of projects aimed at streamlining the family law system with the ultimate objective to resolve disputes in a timely fashion that mitigates the financial and emotional toll these proceedings inevitably take on parties. Integral to this reform process is developing mechanisms to promptly identify the main issues of contention in disputes. “We started off by trying to identify as best we could how long matters have been in the system for, if they’re property or parenting matters or a combination of both, and whether they’re susceptible to ADR (alternative dispute resolution) or if they are matters of high risk to children in particular, and what we can do about them,” he said.

“For cases that we’ve identified as appropriate for further ADR, we’ve put them into lists which we can then call over to tease out which issues are still alive between the parties, if there are further matters that need to be dealt with, what issues are causing a roadblock, and what needs to be done to get the case resolved or determined.”

“On a number of occasions when we have conducted call-overs of cases which have been in the system for a long time, many are settled before or on the first event, and if they didn’t settle on the first event we were able to identify the remaining issues and manage them toward resolution accordingly”.

Chief Justice Alstergren reported that more than 50% of cases nationally settled in situations where the court directed matters to some form of ADR.

His Honour is aiming to create an environment where parties are given every opportunity to settle within six months, and if this doesn’t occur, the court will aim to get the parties to trial as quickly as possible. The key, again, is early identification of the major issues.

Chief Justice Alstergren said the Courts are also introducing a process where parties will, as their first obligation upon coming to court, be required to fill out a form identifying what is in dispute and notifying the court if anyone is at serious risk of harm.

The Courts intend to publish a core statement of principles under a joint practice direction which compels parties to identify and narrow the genuine issues at play, take reasonable steps to settle out of court, and warn of potentially adverse cost consequences (including personally against lawyers) of failing to be proactive and cooperative in seeking to settle disputes expeditiously.

ON TRIAL: DEALING WITH HIGH RISK MATTERS

Of course, not all matters can be settled out of court. There will always be cases that can only be determined by a court, especially when they involve at-risk children. Protecting children is the number one priority of the Courts, and it is also arguably the most difficult and disturbing part of being a family law judge.

The inordinate delays confronting the system heighten the risk of vulnerable children, who may be waiting months, if not years in dangerous family situations for decisions to be made that affect their fate.

“We’re working incredibly hard to ensure we get notified at the very outset if there are serious risks,” Chief Justice Alstergren said. “It is up to the parties to notify us (of risks) but we also share information with state agencies to ensure we can do everything we possibly can to protect children and vulnerable parties.”

Chief Justice Alstergren suggested that registries across Australia could benefit from a model in Victoria whereby a child protection worker employed by the State Government works full time in the court building and interacts closely with court staff in matters where families have had contact with the child protection system. Chief Justice Alstergren said the court was working hard on expediting the preparation of family reports, which along with independent children's lawyers, are relied on by the court to make parenting orders. The Australian Law Reform Commission, in its inquiry into the family law system, reported that in some registries there was more than a 12-week delay before a Family Consultant (which a court can engage to prepare a family report) will be available to meet with a family. The reported stated: “Often, this poses an unacceptable risk to children and family members,”

Chief Justice Alstergren said: “There is a frustration that we can get the court working more efficiently but there are significant delays in some registries getting timely reports, and that needs to be addressed.”

ENHANCING THE ROLE OF REGISTRARS

Another initiative His Honour is implementing is the introduction of more registrars in the Federal Circuit Court to alleviate the workload on judges, and allow judges more time to hear the more complex matters that require judicial determination. A pilot program in the Newcastle registry of the Federal Circuit Court involves registrars presiding over property disputes, negating or reducing the need for judicial intervention. It has produced positive results – with 69% of matters resolving without judicial involvement as of 30 June– and there are plans for similar discrete property lists to be rolled out nationally. In Adelaide, the discrete property list is scheduled to commence in January 2020.

The courts plan to seek additional resources from the Government to add more registrars in court buildings around the country.

HARMONISING THE COURTS

Much has been said about the two-court system that assigns the most complex matters to the Family Court, and the majority of family law matters to the Federal Circuit Court, which is a multi-jurisdictional court that hears a number of other matters such as migration, bankruptcy, industrial law, and administrative law. Incidentally, Chief Justice Alstergren said that the number of migration cases coming before the Court is increasing so much that in two years’ time there will likely be more migration appeals pending than family law matters in the Federal Circuit Court.

The Government believes a merger of the Courts will streamline the system, while the Law Council, on behalf of the national profession, strongly oppose the merger on the basis that complex matters, especially those involving risk of physical or mental harm, should be heard by specialist family law judges.

Whatever the solution is, most agree that the current state of affairs is cumbersome and inefficient.

“We have two different courts that are doing similar kind of work with varying complexity, but they’re doing it with different forms, different rules, and different case management principles,” Chief Justice Alstergren said. “So I started a committee earlier this year to harmonise the rules that apply to both courts.” The Joint Rules Harmonisation Working Group is chaired by former Federal Court judge the Hon. Dr Chris Jessup QC and comprises judges from both the Family and Federal Circuit Courts. Chief Justice Alstergren said it was important to get someone outside of the system to provide independent and objective guidance. Chief Justice Alstergren has also engaged two junior Victorian administrative law barristers to assist with drafting the proposed rules.

There have been several unsuccessful attempts to harmonise the rules since the Federal Circuit Court was established 19 years ago. Chief Justice Alstergren expects the consultative process he has initiated to finally lead to the promulgation of harmonised rules.

His Honour intends to consult widely with the profession on the draft harmonisation rules in early 2020.

“We will ensure that, as best as we can, we have broadly speaking the same case management principles in both courts, so when people come to either court they can understand the process and get a consistent approach. We will be able to utilise the resources we’ve got to make the process as quick, smooth and fair as possible.”

“We’re also looking at having a single point of entry. Whether you file in the Family Court or Federal Circuit Court, the case will be treated in the same way. We think these steps will significantly reduce delays.”

THE IMPORTANCE OF BEING RESOURCEFUL

There is no quick fix to the beleaguered family law system. Given the inherently messy and tumultuous nature of family disputes, perhaps “fix” is an unrealistic ambition. But there is no question much more must be done to save parties from unnecessary angst, exorbitant costs and in some cases, serious danger. The initiatives led by Chief Justice Alstergren appear on track to go some way in achieving these goals.

His Honour has made no secret of his views that the family law system is underresourced, and more judges are desperately needed to deal with the influx of matters and their increasingly complex nature. But he is of the view that these budgetary restraints should have no bearing on the Courts getting on with the job of getting their own houses in order.

“We’re trying to do everything we can to be as efficient as possible, and then identifying where all the hotspots are around the country where we need more resources, and then we can go to the Government and say ‘we’ve done what we can, we’ve also prepared a business case based on data to be able to say these are the areas where we need more resources, and here’s what you can expect if you give us those resources’.”

THE PROBLEM WITH REFUSING TO COMPROMISE

Those articles criticising family lawyers ignored another factor contributing to astronomical fees – the refusal of some litigants to settle. These are the cases where one or both parties are driven by spite, revenge or resentment, their judgment clouded by emotion, who have lost sight on the end game.

“Realistically, people who are trying to solve intimate and highly emotional disputes sometimes are better off not coming to a court if the parties can find their way forward through ADR or otherwise,” Chief Justice Alstergren said. “That’s one of the messages we have to get through to people, is that sometimes if they can come to an agreement very early in litigation, or without litigation, they’re much better off in most circumstances, because firstly they can live with the agreement if it’s a fair agreement, nothing is imposed upon them, and in many circumstances they can get on with their lives much quicker.”

“Otherwise there is a propensity for people to issue proceedings and find themselves in a situation where they’re fighting over matters and paying a disproportionate amount of fees to what they’re fighting over, or they’ve got themselves so entrenched that the litigation takes on a life of its own.”

Chief Justice Alstergren said that, by his observation, most lawyers are very good at encouraging more amicable settlements in lieu of the far more expensive litigation path, but foresees an even greater role for lawyers to facilitate early dispute resolution when new practice directions are implemented.

“We’re trying to say to parties that we can save you money, we can get you out of this if you want, or if there are issues in dispute we can reduce some of those issues that have to be decided.”

Very sound advice indeed.