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Federal Judicial Scholarship |
It is a great pleasure for me to again address the biannual
conference of the Family Law Section of the Law Council of Australia
and for
the first time in my capacity as Chief Justice of the Family Court. I have done so in my capacity as Chief
Federal Magistrate at the last two conferences and I have attended every Family
Law Conference
since their commencement in 1984. I am honoured to have been appointed by the
Government to this position and to be the third Chief Justice of the Family
Court. I have spent most of my career
involved with Family Law and I know first hand the contribution made by the
profession to their clients,
to the system generally and to the Court in its
work. And I look forward to working with
the Family Law Section in my capacity as Chief Justice as I did as Chief
Federal Magistrate.
First though let me deal with the past two years and the Family
Court. I then want to explore where I
see the future of the Court and what is “Beyond the Horizon” but fast appearing
for the Court and
for Family Law.
The Past Two Years
Judicial Retirements
Since the last conference was held, the former Chief Justice, the
Honourable Alistair Nicholson has retired.
Justices Jerrard, Robinson, Lindenmayer, Frederico, Chisholm and
Ellis also retired.
Appointments
Justice John Faulks has been appointed to the statutory position
of Deputy Chief Justice.
Justice Jennifer Boland has been appointed to the Appeal Division
following the retirement of Justice Ellis.
Justice Finn is now the coordinating judge for the Appeal Division.
Justice Peter Young, Justice Donna O’Reilly and Justice Timothy
Carmody have been appointed Judges of the Family Court of Australia.
Justice Stephen Thackray has been appointed to the Family Court of
Western Australia.
It is appropriate that I make reference to my predecessor The
Honourable Alistair Nicholson. At both
personal and professional levels as Chief Federal Magistrate I always enjoyed a
cooperative and friendly relationship with
the Chief Justice and had access to
him at any time that I required it.
He fulfilled the role of Chief Justice for sixteen years. He came to the Court at a time when it was
under great pressure and it was extremely under-resourced. He changed all of that. He brought to the Court more appropriate
funding and resources for its work and attained for the Court its appropriate
status in
the Federal judicial system.
Jurisprudentially and more generally he ensured that as our own lives in
Australia have become less insular and more global and as
outlook and mobility
increases he ensured that the Court forged links with Courts of other
countries. He recognised that as
globalisation increasingly occurs we must look to and learn from the experience
in other jurisdictions. He believed that
the Court, which is often regarded as a role model, should provide assistance
to other countries considering changes
to their family law systems,
particularly in our own region. His
advocacy for the rights of children and with the primary focus to be on their
best interest, was a point of reference that we
should never lose.
In particular, the association with New Zealand has continued to
be a close and important one for the Court and I look forward to
continuing to
work closely with Judge Peter Boshier, the Principle Family Court Judge. He and two of his colleagues attended the
Judges Conference last week and he is a presenter at this conference.
One of the last legacies of the former Chief Justice may well prove
to be the most significant, I speak here of the Children’s Cases
Project. In 2003 he set about looking at whether a
genuine, less adversarial process in children’s cases could be devised. The result is the Children’s Cases Program
and I will deal with it in more detail.
Justice John Ellis was appointed to the Court prior to it’s
establishment, initially as a judge designate and was one of the first
judges
of the Court. His contribution to the
Court, particularly on the Full Court and in the last few years as
Administrator of the Appeal Division,
was significant. I got to know him independently of his court
persona after I was appointed as Chief Federal Magistrate. His wisdom and experience are a loss to the
Court.
Deputy Chief Justice Faulks, was appointed to the position after a
hiatus of six years where no appointment was made to fulfil this
statutory
role. Our association pre-dates his
appointment to the Family Court to when we were both partners at Phillips Fox,
albeit in different
states and I will enjoy working with him.
As to the appointment of Justice Boland to the Appeal
Division. I observe, simply because it
is probably more appropriate to do so in the family law sphere than any other,
that in terms of gender
balance on the Full Court has now four women out of
nine. We only need another half to make
it equal, but it is a matter worthy of some note I think, and appropriately so.
Court initiatives since 2002
Since the last conference there have been several Family Court
initiatives that have now reached the stage of implementation.
Family Law Rules 2004 and Case Management
As far as the Rules are concerned they have been in place only
since 29 March 2004. I am grateful to
the Family Law Section for the workshops that they put on around Australia, in
which they involved the Court, in
order to educate practitioners about the
rules.
The Rules were introduced after a considerable amount of work and
there needs to be adequate opportunity for the profession and public
to get
used to them. However if there are
particular rules that are having unintended consequences they should be
re-appraised sooner rather than later.
The Family Law Section meets regularly with the Rules Committee and have
been invited to raise any matters of concern about the Rules. No doubt they will liase with law societies
in each of the states and issues can be referred in the Court’s consultative
meetings
with the profession and other stakeholders.
If there is to be a single point of entry to both courts as proposed
in the Prime Minister’s Framework Statement there will need
to be one Form, at
least for initiating proceedings, in the Family Court and the Federal
Magistrates Court. The design of the
form will be a matter for discussion between the two courts with input from the
profession and other relevant
stakeholders.
I will discuss this in more detail later.
The Court is monitoring some of the areas of case management such
as the Defaulters’ list and will continue to work with the profession
to ensure
that cases which do need a hearing are ready to proceed.
Magellan Project
The Magellan Project, so successfully piloted at Melbourne, is now
running nationally (except in New South Wales) and has been favourably
received
in each of the registries where it is running.
Although Magellan was to be evaluated at 30 June 2004, the
Attorney General has indicated his intention to extend the waiver of legal
aid
guidelines for a further (as yet, undefined) period.
It is hoped that Magellan will eventually be implemented at all
registries of the court. Two weeks ago,
I met with the Minister for Community Services in New South Wales to see if we
could find some way of establishing
a protocol satisfactory to the Department
and the Court to commence it’s implementation in New South Wales. Notwithstanding some more significant issues
about production of material in their file, we were able to reach an in -
principle
agreement. I hope that our
discussion will now be able to be translated into a protocol that will enable
the Magellan project to commence in
New South Wales.
Family Violence Strategy
The Family Violence Strategy comprising five key strategic areas
of action that are planned for implementation, emerged in August
2003, after
review of the court’s practices and procedures in this area and extensive
consultation was undertaken.
A Steering Committee and an external Reference Group will
implement the strategy over a two-year period and the Steering Committee
will
act as standing Committee to provide ongoing advice to the Chief Justice and
the Chief Executive Officer on family violence
issues.
There are two aspects to it, internal and external. There will be an emphasis on information and
communication and a review of all existing security measures in place in each
registry
to ensure safety for all users of the court. This will involve a review of current listing
practices and mediation policies of the court, as well as a review of the physical
environment of the registry premises and training for all staff including
judicial officers in the areas of security awareness
and the dynamics of
domestic violence. There will be a focus
on ensuring that issues relevant to diverse communities and cultural groups are
readily understood and considered
within the strategy.
National Cultural Diversity Plan
The National Cultural Diversity Plan was introduced earlier this
year. It has seven guiding principals to
be implemented over the next two years.
The plan has evolved from an audit which took place in 2001, to review
the delivery of court services to diverse cultural and linguistic
groups and
indigenous clients. A National Round
Table Conference was held in 2003 and the National Cultural Diversity Plan will
be overseen by the national committee
now to be chaired by Justice Mushin, who
will oversee the implementation phase and continue to work in partnership with
many external
organisations.
The Cultural Diversity Plan sets out specific actions to be
undertaken over the next two years, in order to advance the Court’s commitment
to culturally and linguistically diverse clients. It provides a framework for a comprehensive
approach by the Court. The Cultural Diversity
Plan addresses the areas of equity, access, collection of data, partnerships,
education and feedback.
The plan is tangible evidence of the Court’s commitment to
tailoring our services to meet the needs of all members of our community. It is also the first time in Australia, and
perhaps the common law world, that a Court has addressed issues of cultural
diversity
so comprehensively.
Living in Harmony Partnership
The opportunity of a partnership with the Department of
Immigration Multicultural and Indigenous Affairs (DIMIA), in their Living
in
Harmony Program, was suggested at the Roundtable meeting in April 2003. This suggestion led to a series of
discussions and of a formal proposal for the development of a community
education and consultation
model for use both within the Court and as a model
for use by other organisation including other Courts.
The proposal was approved by the Minister for Citizenship and
Multicultural Affairs, Gary Hargraves, in June 2004. A Memorandum of Understanding was circulated
between DIMIA and the Family Court and signed on 17 August 2004.
The partnership aims to develop and strengthen relations between
communities and the Family Court, as well as facilitate cross-community
engagement between new and emerging culturally diverse communities on family
law issues. Resulting from this
partnership, there will be a sustainable long-term model that promotes
understanding and trust of the law and
the court system among emerging
communities which seeks to build long-term working relationships.
There is a five-stage community engagement and education strategy
aimed at Afghan, Somali, Eritrean, Ethiopian, Sudanese and Iraqi
communities
located in urban and rural communities across a number of States. Subject to the outcomes of Stage 1 analysis
and advice, it is anticipated the project will work with communities at
Shepparton,
Parramatta, Adelaide and Tasmania.
A range of approaches, both remedial (addressing areas already
identified by community leaders as being areas of concern) and preventative
(through working with the target communities to address issues at the outset),
will be employed to address issues of concern relating
to families and the
law. The project will run from August
2004 to October 2005.
Self-represented Litigants
Earlier this year, the Court hosted a series of community
workshops to consider how the Court’s initiatives over the last four years
have
improved access to justice for self-represented litigants, and what direction
the court should take. The workshops
were well attended and the feedback from the workshops is being compiled.
These initiatives are important aspects of the Court’s continuing
desire to find better ways of determining disputes and providing
appropriate
services for those who must come to court.
The Children’s Cases Program is another obvious example of the creative
programs and I will discuss the program in more detail later. Creativity and the willingness to change and
learn from other jurisdictions with similar problems will always be, in my
view, an
essential part of the development of the court’s processes to deal
with family law litigation.
The Present & The Future
If I had to choose one success during my tenure, it would be to
improve the respect for the Court and for the family law system. There is nothing new about public
dissatisfaction with family law and particular social issues. The courts exercising jurisdiction in family
law are required to confront social change like it or not, and to make
decisions which
have far reaching effects on families.
It is not surprising therefore that these decisions should be the
subject of public debate and divergent views in the community. Nor is it surprising that unless objective
views are expressed a one sided account will be given and promoted. There has not always been sufficient interest
by the media in providing objective comment and there is nothing new in that.
Nevertheless,
this acceptance does not mean we should not try to educate better
about the work of the Court.
I am constantly surprised by the number of comments I’ve heard by
those who suggest that it would be helpful if Family Court judges
had education
on child related issues. Not only has
this been occurring for many years at the annual judges conference, but in the
last three years the Family Court has
ensured that all of the judges attended a
five day Judicial Education Development course largely devoted to judgment
writing but
including educative sessions covering areas such as information and
communication technology, cross cultural awareness, children
and domestic
violence and self-represented litigants.
The commentators who make these statements are not only ill informed
they are simply wrong, but it highlights the fact that the Court
has not
sufficiently publicised what it does.
Similarly in my view, the failure to publish first instance
judgments of the Court, or at least a significant proportion of them,
on the
Austlii internet site or it’s own web site needs to be remedied. The policy came about on the assumption that
only the cases which were of jurisprudential value should be reported in the
published
reports and no consideration was given to publishing them through
Austlii. I think it is now clear that
litigants and the profession would benefit from and are entitled to access not
only to all the Full
Court decisions but also the first instance judgments that
are given by the Court. The judgments
are after all the window to the Court’s work. Of course the cases will need to
be anonymised before they can be placed
on the Internet and the continued
difficulty about nomenclature remains.
Nevertheless this should not be a bar to reporting cases.
It is difficult to explain what the work of the Court is if the
decisions are not readily available to the public. I therefore hope that you will begin to see
the majority of the Court’s decisions on the website or Austlii.
This Court more than any other affects the lives of ordinary
people and it is important to continue the consultation with the profession
and
with community groups involved in the work of the Court. The court may never be popular because of its
very nature, but its acceptance by the community will be enhanced if it engages
in
genuine consultation with a diversity of relevant groups. It is my intention to meet with some representative
groups including media commentators who are critical of the Court as well as
those who support it. I have already had
one such meeting.
The Profession
All of these changes as ever make it difficult for the practice of
family law. I think in general the
criticism of the profession for encouraging disputes is unfair. First, in adversarial proceedings, my
experience is that most members of the profession do everything they can to
assist parties
in resolving their disputes, particularly parenting disputes,
before they reach a hearing. Family
lawyers understand the issues, can often predict the result and understand that
the satisfaction that their client wants
is often not capable of being
delivered by the Court. They therefore
quite rightly and properly encourage their clients to resolve matters by
agreement. In an adversarial system,
which deals with the cases which do go to trial, I think it is a little unfair
to blame them for playing
an adversarial part in an adversarial model. My view of the profession’s general approach
to resolution of parenting disputes is borne out by the way in which the
profession
have embraced the Children’s Cases Program in Sydney and Parramatta
and are working in a non-adversarial way in a non-adversarial
process.
The other criticism that had been levelled at the profession of
recent times is that of the cost of litigation.
Part of the success of the Children’s Cases Program seems to be that the
cost to the parties is significantly lower than in traditional
adversarial
proceedings. Nevertheless, the Court is
confronted from time to time by cases in which the legal costs appear to be out
of all proportion to
the assets involved in a property matter or in a
children’s matter beyond the reach of most families. I don’t have an easy answer to that problem but
it is a problem for the profession as well as for the Court because both are
brought
into disrepute when disproportionately high costs appear to have been
incurred. If the Court is contributing
by its case management processes to unnecessary expense then that would be a
matter of concern to me
and something I will seek to remedy. However it requires both the court and
profession to ensure that the reputation of family law and access to justice is
not tarnished
irreparably. It was clear
from the hearings before the parliamentary committee that this was of
significant concern to many people.
At the same time we should start looking at parenting cases
differently from property cases in the sense that we expect that people
will
negotiate “in the shadow of the law. In
property cases a decision made by the Court does reflect the law and/or the
reasonable ambit within which discretion can be exercised. In parenting cases decisions the Court is
making in the matters which require a hearing are about families which are the
most dysfunctional,
have the most complex issues and/or have the most
intractable disputes. Those cases are
not reflective of what should be happening in families where the circumstances
of the separation or the degree of
animosity or dysfunction is not so great
that the parents cannot reach agreement themselves.
These cases are the least likely to provide guidance for the vast
majority of parents who are separating and trying to resolve parenting
issues. That is even more so when one
considers that the Federal Magistrates Court is dealing with the less complex
cases. The more complex matters, the
domain of the Family Court, do not present the picture of how most parties
should resolve their matters
where agreement is possible.
For example the role of fathers in the lives of their children is
changing but the reflection of that in settlements should not be
the
responsibility of the Court. The Court’s
responsibility is to decide the difficult cases that for varying reasons,
usually because of significant family dysfunction,
are incapable of resolution
by the parties. The Family Court should
be regarded as the last resort for families.
It is incumbent in my view upon mediators, parties and the profession to
reflect social change in the settlements reached.
Appeal Division
With the retirement of Justice Ellis, Justice Finn will now be
responsible for the coordination of the Appeal Division of the Family
Court. In view of the importance of the
superannuation decisions a Full Court of five will sit and we have started to
hear some of the
appeals.
Family Court & the Federal Magistrates Court
My acceptance of the position as Chief Justice of the Family Court
in no way reflected a dissatisfaction with my role as Chief Federal
Magistrate,
nor any desire not to lead that Court into the future. I am proud to have been given the task of
establishing the Court. The significant
percentage of family law work now being done by the court is a testament to the
success of the case management processes
set up specifically to deal with less
complex matters, as well as to the enthusiasm and hard work of the Federal
Magistrates. I wish Chief Federal
Magistrate Pascoe every success in his role and will watch the growth of the
court with interest.
At the conclusion of the last State of the Nation speech that I
gave at the 2002 conference as Chief Federal Magistrate I said this,
“I’ve
seen the future and the Federal Magistrates Court is in it.”
I reiterate this comment now because part of the change envisaged
in the Prime Minister’s Framework Statement requires a consideration
of the
allocation of resources at registry level between the Federal Magistrates Court
and the Family Court. Just how that might
occur is the subject of ongoing discussion and ongoing work and not yet at a
stage of finality but it is very
relevant to the application of resources
generally. I will say more on this
later.
Although we face challenges in months to come in negotiating the
model for determining use of resources and for single point of entry,
I am sure
the Courts will be able to devise a framework which is in the best interest of
the litigants as well as maintaining the
individuality of the Courts. Chief Federal Magistrate Pascoe and I have
already been involved in discussion on a number of issues and I’m sure we will
have a
cooperative and collaborative relationship which will enable the two
courts to provide efficient services for all litigants of both
courts and in a
way which recognises the role of the Federal Magistrates Court in family law
matters.
In the course of considering this speech I had occasion to look
through some of the speeches that the former Chief Justice had written. The words “At the Cross Roads” occurred in
almost every speech. The first
significant matter arising in my short tenure as Chief Justice is the release
of the Prime Minister’s Framework Statement
on reform to the family law system.
A social change issue at present is the desire of separating
fathers to have greater involvement with their children. This issue formed the focus of the
wide-ranging inquiry into child custody arrangements in the event of family
separation by the
House of Representatives Standing Committee on Family and
Community Affairs (“the Committee”), conducted in 2003. The Committee’s report, “Every Picture
Tells a Story”, tabled in December 2003, had a strong focus on the
importance of reducing conflict between separated parents and on separated
fathers having greater involvement with their children. Flowing from the report was the recognition
of a feeling of helplessness that many grandparents have when a family
separates and
a desire for re-evaluation of the Child Support Scheme.
The government agreed with the Committee on the importance of
these issues and in providing opportunities for families to resolve
disputes
without going to court. Two important
things emerged from the committee’s report in my view. The first one is that, if the role of the
court was to evaluate the best interests of the child in each particular case,
then that
was inimical to a presumption of shared care, and the committee
rejected that proposal. The committee
however, recognising that there was a great dissatisfaction with the
adversarial system. It suggested that a Families
Tribunal for separating
parents (that would not operate in the same adversarial manner as the existing
court process) be established. As we now
know the Government does not propose to implement that recommendation.
From the release by the government on 29 July 2004, of the Prime
Minister’s Framework Statement On Reforms To The Family Law System
(“the
Framework Statement”) we do know the Government’s proposals:
§
The establishment of
Family Relationship Centres (initially 65) across the country to provide
information, advice and dispute resolution
to help separating parents reach
agreement.
§
The Government proposes changes to the Family
Law Act 1975 to make family law cases less adversarial,
“As part of the new family law process the
government will propose changes to the Family Law Act to 1975 to make family
law cases relating to children less adversarial and less likely to escalate
conflict.”
Obviously none of us have seen the legislation yet nor have any
more detail about what precisely is proposed.
However, it is possible that the government will adopt as a model the
Children’s Cases Program.
§
The Framework Statement envisages a
combined Family Law Registry and single point of entry for Family Law matters
between the Family
Court of Australia and the Federal Magistrates Court.
In the Prime Minister’s Framework Statement on reforms to the
family law system, Family Relationship Centres would be established
across the
country to provide information, advice and dispute resolution to help
separating parents reach agreement.
The community sector will be funded to provide these
services. The Federal Magistrates Court
has been funded to outsource confidential counselling to the community sector
and has now built up
a considerable expertise in working with the community
sector. The Family Court has also done
so with its pre-filing referrals and the continuation and strengthening of the
relationship between
the Court and the community sector organisations will be a
vital one in my view. The Court will
seek to have a part in the framework for whatever legislation is required and
the practical operation and interface
with the Family Relationship Centres.
This assistance is to be applauded, as is the Government’s
commitment of 15 million dollars to the Legal Aid system, which will include
the Australia wide operation of a Duty Lawyers scheme.
I hope that the Family Relationship Centres will provide
assistance not only at the time when parties first separate, but also at
the
conclusion of the process of creating parenting orders, whether it be by
agreement or whether it be by Court Order.
From what I have read in the Framework Statement I am encouraged
by the possibility that the Family Relationship Centres will also
provide
valuable assistance once the proceedings are concluded. Community organisations are well placed to
establish programs which will be of great assistance and which if properly
funded would
obviate the need for contravention proceedings or proceedings to
vary orders which now come to Court.
This is for separating parents I think a significant opportunity
and I can hope that the facilities will be funded adequately quality
will be
monitored and that they become available sooner rather than later. The Court will seek to have a part in the
framework for whatever legislation is required in the practical operation as it
interrelates
with family relationship centres.
As far as the Committee’s preference for keeping lawyers out of
pre-court processes, lawyers would not be able to participate in
the joint
sessions with the Family Relationship Centre.
As I understand it, their role, once court proceedings have been
commenced, would not be diminished.
When the Family Court of Australia was established it was unique
because it contained within the court structure its own counselling
service
which enabled it to provide privileged mediation services as well as family
reports for forensic purposes. It was
innovative in the common law world and for many years held as an example of
true enlightened planning. However more
than 25 years after the Court’s establishment there has been a change in the
way in which mediation services are provided.
The Court in its early years was the only service providing mediation
and counselling for separating couples and this was so for
many many years. However there have been changes so that
community organisations have now started to take over this role.
We now understand that there are advantages in community
organisations providing these services.
Whilst it is helpful to have the use of them within the Family Court I
think we all now understand if parents can obtain privileged
mediation without
ever having to come to court, then that is a better option of them.
The Court considering, taking those things into account, that it
should modify its current practices in response to this initiative
and refocus
and expand its child dispute resolution services to be more responsive to the
complex needs of families requiring judicial
determination. This is because most of the privileged
mediation services currently provided soon after filing by the Court will instead
be made
available through the Family Relationship Centres. Indeed legislation may provide that parties
are not entitled to come to court except in exceptional circumstances unless
they have
been through privileged mediation.
Thus matters reaching the court will be complex and difficult and the
parties will generally have already been to privileged mediation.
The Court wants to consider providing services which are generally
non-privileged and include expert assessment and opinion which
is not available
in community based models.
Additionally the families would have the continuity of service by
having one Family and Child Consultant throughout their proceedings
with the
Court. This will provide better rapport
with the family and a more holistic assessment by the Court.
Some of the key aspects of the approach include the proposal for
greater involvement of children. Current
court processes only involve children late in proceedings when a Family Report
is being prepared and children are not usually
interviewed in the Resolution
Phase. The new process would include
children early in the dispute resolution process and aims to ensure that
parents become aware of the
impact of the conflict on their children as soon as
possible in the proceedings. The approach
will provide support for children and an opportunity for them to talk about
their experience and put forward their
views while assisting parents to refocus
on the needs of their children. The
early intervention with children will integrate effectively with the Children’s
Cases Program.
When cases proceed to trial the Family and Child Consultant who
has worked with the family on a docket system will prepare the Family
Report. This will enhance the family’s
confidence that the Child and Family Consultant has had adequate opportunity to
assess the family
dynamics over time.
In a new phase in the model the Court will assist families and
children to understand and implement orders following a determination. At this time appropriate referrals will also
be made to community based services.
This is a more intensive approach to dispute resolution of
children’s matters and involves children more directly. The proposal will however require additional
funding and it remains to be seen whether it will be available. It would operate equally for matters in the
Family Court and the Federal Magistrates Court.
The proposal is yet in the early stages of inception and as I have
indicated will require some funding. If
it is able to proceed it will provide a significantly different service to
families but is a logical progression from the establishment
of well funded
community based organisations now with considerable expertise in dealing with
family disputes after separation.
A Less Adversarial Approach
The Children’s Cases Program being trialed at Sydney and
Parramatta is unquestionably an exciting initiative. It has been described by Justice Faulks as “…the
most important step in litigation for possibly a hundred years or longer.”
Whilst the program itself is different and innovative, it is in a
way the culmination of many years of concern to the Family Court,
and
stakeholders in the family law system generally, that the strictures of the
adversarial system impede the way of decision making
that is in the best
interests of the child.
It is still common place to find that children’s proceedings are
lengthy and expensive with complex and rigid rules about what information
the
court can and cannot take into account.
Too often parties provide the court with unnecessary material that does
not assist judges in their task of deciding which outcome
would be best for the
children concerned. It has been said by
the High Court as early as 1973[1]
that children’s proceedings are not inter-parties litigation in the usual sense
and yet despite these comments, up until recently
no genuine alternative has
been presented. Some members of the
court travelled to overseas jurisdictions on study tour to look at how courts
in other countries decided children’s
cases and to see if we could genuinely
learn from them.
The result of that process was the Children’s Cases Program which
saw the Sydney and Parramatta registries commencing a pilot program
for
children’s cases on 1 March 2004 to operate and be evaluated. The Children’s Cases Program (CCP) was
designed after a careful and extensive examination of certain European civil
law systems
for children’s cases. The
findings have been adapted to the Australian legal context and where we still
have a comparatively strong armory of dispute
resolution services within the
court as well as within the community.
Essential hallmarks of the European model include;
§
A much stronger emphasis upon the role of
the judges compared to the parties in managing cases and determining what
evidence is
material to the decisions that are needed.
§
A greater flexibility for the judge to
shift between the processes of determining contentious material facts and
assisting the parties
to find a consensual outcome through the use of mediation
techniques.
The Working Group established to implement the program contains
members of the court’s judiciary and staff and key stakeholders such
as the
Family Law Section of the Law Council of Australia, Legal Aid Commission of
NSW, the Commonwealth Attorney General’s Department
and the Federation of
Community Legal Centres.
At present the pilot is subject to the parties agreeing to enter
into it and parties may participate regardless of whether they are
legally
represented. Once parties consent to
enter the program they cannot withdraw except with leave of the judge.
Cases are only eligible to enter the program at the conclusion of
the Resolution Phase and they may be referred at the conclusion
of the
Resolution Phase by a judicial officer or mediator. A matter is usually listed within two weeks
from referral. A case coordinator is
assigned to the matter and responsible for checking compliance and to assist
the Judge with case management.
The hearing commences when the matter first comes before the Judge
at the intake hearing. Parties are sworn in and remain on oath
for the
duration. Anything said by the parties
forms part of the evidence. The first
day of the hearing usually includes a statement by the parties (whether they’re
represented or not) as to what they consider
the issues to be. Together with the parties, the judge and
lawyers if the parties are represented, the trial document is settled, which
includes chronology
of background facts, the non-contentious issues, the agreed
issues for determination and directions as to the evidence.
The matter may then be adjourned and the hearing is convened in
such circumstances and at such time as the judge directs, but usually
takes no
longer than three months from the intake hearing. The focus throughout the hearing is on future
parenting and not on historical issues that have plagued the parties.
A key feature of the program is the departure from some of the
traditional features of the adversarial process, particularly from
certain
provisions of the Evidence Act 1995 (Cwth), in particular those
identified in Section 190.
The judge may direct parties to give or obtain evidence on any
relevant issue and the judge may direct this to occur regardless of
what the
parties contend. The judge will
determine what evidence will be given, by whom, and the manner of receiving the
evidence. No subpoena will be issued
without leave of the judge. Parties
usually give evidence by affidavit unless otherwise directed, but evidence of
other witnesses is usually given orally.
All evidence is conditionally admitted, and the Judge determines
the weight to be given to the evidence.
At the discretion of the judge the hearing proceeds as an orderly
discussion between judge, parties, witnesses and lawyers rather
than by the
traditional adversarial process. The
judge may shift between the process for determining the issues and using
mediation techniques to assist in determination. The findings may be made on issues during the
hearing. Judgment may be given in
specific parts rather than in one event at the conclusion of the hearing. Children will be heard by a Family Report or
through an expert. The judge retains the
discretion to interview the child.
The Steering Committee is at present examining different ways of
involving the children in the process including direct participation.
This too I think is an exciting and interesting area. For many years the view has been taken that
generally it is not in the best interests of children to be directly involved
in the
court process with their wishes usually obtained through Family Reports
and/or a Child Representative.
This is not a universally held view however. There are many countries, particularly
European countries, where the children have a much more direct involvement, and
it seems
to be very much in their interest to do so. During this Conference, Judge Eberhard Carl
from Germany will be presenting a paper on the involvement of children in the
family
law process in German courts which is quite different from that in
Australia. His experiences are enlightening.
The question of how children should be best involved in
proceedings needs I think to be re-appraised in Australia and we should be
genuinely open to the possibility that we need to significantly change the way
in which we now include children. The
Children’s Cases Program will enable this to be trialed.
In order to widen the program beyond the present pilot and beyond
the present consensual nature, legislative change will be required,
particularly to some provisions of the Evidence Act.
The program has already gained a great deal of external
interest. Both the Attorney-General and
the Shadow Attorney-General have visited the pilot registries to obtain more
information and last
week the Principal Family Court Judge of New Zealand, two
New Zealand Judges, two judges from and Singapore and Judge Carl from
Germany,
visited the Sydney Registry for a presentation and to view some cases. The Minister for Justice from New Zealand has
already visited it.
Whilst the evaluation is obviously in its infancy, lawyers who
have been involved in the program itself and on the Steering Committee
are
enthusiastic and supportive of the program.
Combined Registry and Single Point of Entry
The Framework Statement said,
“The government will also establish a new
combined registry for family law matters for the Family Court of Australia and
the Federal
Magistrates Courts. The
combined registry will help people navigate the court system without the need
for a lawyer. It will provide
information about the Family Law Courts and channel cases to the appropriate
Court.”
There are two parts to this broad statement. The first is what is described as a combined
registry. The second is a single
point of entry. The two are
different because the first, combined registry, requires an equitable sharing
of registry resources and I mean by that
the resources which provide registry
functions for both courts including deputy registrars and mediators. The second involves case management, both
generic at the point of entry, and then subsequently, whilst confirming the
separateness
of the Courts as Chapter III Courts.
As far as a combined registry is concerned, the Family Court and
the Federal Magistrates Court have commenced work on a model which
will achieve
the aims of identifying the needs of both courts, and a framework for the
allocation of resources. We are already
well under way to an agreed position.
It is important and timely that such a framework is established. First, because it was always envisaged that
some more formal framework would be necessary, but more importantly in my view,
because
it is essential not only to agree on allocation of existing resources,
but to identify where the needs of both courts cannot be
met from existing
resources.
When the Federal Magistrates Court was established four years ago
it was not clear what family law workload it would have or how
the two Courts
would ultimately interact. Several
reports have drawn attention to difficulties for litigants. Although there are protocols between the
Courts which allow for an understanding of which matter should be dealt with,
there are
a large body of matters which do not fall within the protocol. At present the choice as to where the matter
will be heard is mostly an individual one.
In addition, whilst the forms were initially relatively similar, the
adoption of new Forms for the Family Court of Australia and
the non-adoption of
those Forms by the Federal Magistrates Court have now led to the position where
the two Courts have significantly
different Forms as well as Rules. The Government has identified this as
requiring a simpler entry to the family law system.
As far as a single point of entry is concerned I think there is
likely to be little controversy about a common Form and perhaps a
common
file. This will require the Courts to
work together to develop a Form for initiating proceedings which is generic.
The challenge for the courts will be to determine which court,
which judicial officer and what process is used to determine to what
court a
matter is directed.
More events for litigants might be a disadvantage and to what
extent choice of court remains is a significant issue. Some or all choices may involve the
requirement for extra resources.
The Framework Statement was announced about only six weeks ago so
there has not been a great deal of time for the Courts to formulate
their own
plans, let alone collaborative ones. I
can say however that I have already initiated workshops amongst the registry
staff to understand from their perspective how a
single point of entry might
operate. Following the registry
workshops we will need to have workshops involving both of the Courts, the profession
and other interested
stakeholders. I am sure the profession will have strong
views.
In the end the case management processes adopted by the Courts are
a matter for the individual Courts. But
how the determination of which court will hear a matter is established will be
of vital importance, and as I have foreshadowed
might, depending on the model
chosen, have resource implications.
Other Court Initiatives
Suicide Prevention Program
Suicide is a recognised public health issue in Australia and other
western countries. People dealing with
family breakdown are amongst those who have enhanced risk of depression and in
extreme cases, suicide and family
homicide.
There have been few studies in the area, but studies of family homicide
conducted by the Australian Institute of Criminology in 1998
and more recently
in June 2003 revealed that there is a connection between suicide/family
homicide and family breakdown. A British
study[2]revealed
that the vast majority of those who commit suicide make contact with health
professionals within a relatively short time
before death.
While the studies do not
conclude that there is a causal link between family homicide/suicide and the
Family Court (or its processes),
it may be that the court can play a role in
helping to prevent this tragedy.
The pilot was developed
by the court in conjunction with Dr Bryan Rodgers of the Centre for Mental
Health Research, ANU. There are two
aspects to it. A research component will
seek to identify points of stress within court processes (and its interfaces
with other agencies and professions). An
intervention component will include provision of information to clients and
staff and appropriate referral of clients who either
self-identify or are
identified by court staff as being at increased risk.
A memorandum of
understanding is being settled between the Court and the Department of Health
and Ageing. A Steering Committee and
Reference Group has been established and it is hoped that the pilot will be
commenced in early 2005.
New Family Court Website
The original Family Court Website was recognised as a significant
achievement. It won the Australian
Institute of Judicial Administration Website Award in 2000, and has been widely
acclaimed by users and people
in the industry alike. Now, after months of hard work undertaken by
the Family Law Information Service and the IT team, the Court will shortly
launch its
new, enhanced Family Court Website.
There has been a positive change to the look and feel of the site.
But the main change has been to the upgrade of the information
architecture and
technological underpinning of the content management system. This will enable better management and
ongoing improvement of the site as future enhancements may now be made more
easily.
There is also the potential for the further development of
different technical platforms. The
intention is to provide a broader range of information and referral for users
of the site, having regard to the many and varied
groups of people who access the
site.
The Family Law
Information Service team is currently working on enhancing the site for use by
children. The aim is to make that part
of the site more child-friendly with fresh design and content pitched at
children of all ages.
Conclusion
So as usual
there is much beyond or on the horizon, but this time I think much of it is
crucial to the future of family law and
the courts and the profession must be
prepared to embrace significant change.
[1] Reynolds v Reoynolds (1973) 47ALIR499 at 423 per Mason J, see also M and M (1988) 166 CLR 69 at 76
[2] Pirkis and Burgess Suicide and recency of health care contacts. A systematic review The British Journal of Psychiatry Vol 173(12) December 1998 462-474.
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