Australian Government: Attorney-General's Department
Australian Government: Attorney-General's DepartmentAchieving a Just and Secure Society

ALRC Issues Paper Number 22 Part 2

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Case management in the Family Court of Australia

Case management guidelines are an established feature of the Family Court's operations. From the beginning of 1996 the court implemented simplified procedures and those procedures have recently been evaluated. Council notes that the Commission will be considering the evaluation report. Revised guidelines commenced to come into effect in 1998.

Council has no comment to make on the specific questions raised in the Issues Paper but points out that one contentious aspect of the court's case management guidelines (CMG) relates to the operation of CMG 2.9, 7.14, 8.5 and 9.6 which require practitioners to give to the other party a copy of the costs memorandum provided by the practitioner to their client. This matter has been the subject of ongoing negotiation between the court and the Law Council of Australia. Council notes that in Chapter 9 (Managerial Judging) the Commission raises the question of judges inquiring into costs (para 9.4) and this aspect of the CMGs is possibly relevant for consideration in that context.

Managerial judging

The Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act 1975 recommended to government that the Act be amended to enable judges to make Rules of Court in relation to trial management (paragraph 14.54 - Recommendation 110). This recommendation was accepted by government and implemented by Act No 34 of 1997.

Council notes that trial management is one aspect of the broader concept of managerial judging.

A major aim of managerial judging is to streamline trial processes by enabling the judge, for example, to restrict the length of cross examination, to limit the number of expert witnesses, to limit the use of discovery or to dispense with the rules of evidence.

The advantages of managerial judging are thought to be particularly evident in relation to hearings involving children's matters, such as applications relating to child residence and contact orders.

Council has formed the tentative view, in relation to aspects of children's issues, for example, that a much more flexible approach is required and that approach needs to be timely and responsive to individual needs. This could be achieved, for example, by using court appointed experts or dispensation of the statutory rules of evidence. Council also considers that the use of Magistrates in family law may give the court a greater degree of flexibility and more mobility and enable the court to be more responsive to needs in individual cases. These issues are currently being further pursued by Council in its penalties project.

Evidence and procedure in the Family Court

A number of matters relating to child representation were addressed by Council in its report Involving and representing children in family law (August 1996) and Council draws attention to the recommendations made in that report. Council has been advised that the recommendations made in this report are currently being considered by government.

Litigants in person

As a result of changes in legal aid policy and the consequential changes in legal aid funding and an increasing tendency towards self representation in the Family Court in recent years, Council recently decided that when some current projects were completed it would commence a project on litigants-in-person in family law.

The basic aim of Council's project would be to accept self representation as a reality and to try to see what is necessary to make the best of that situation. For example, Council would be seeking to identify the circumstances in which self representation were occurring, the areas in which self representation was considered to be inadvisable (in the applicant's interests), what assistance is currently available to the litigant in person and what further assistance might be required by the litigant in person and the court.

Council notes the very wide focus of the ALRC paper and considers that its own project would complement, rather than duplicate or overlap with, the ALRC's work. However, it wishes to bring its intended work to the notice of the ALRC in order to ensure that the Commission is fully aware of what Council proposes to do and so that the ALRC might wish to consider referring aspects of its own inquiry to Council where it considers that they would be more appropriate for Council to undertake.

The culture of family dispute resolution

The main focus in this chapter relates to the attitudes of judges and the legal profession to alternatives to judicial determination. Council meets in capital cities and major regional centres around Australia and has noted on a number of occasions that the legal profession has confidence in, and a commitment to, the use of PDR services.

In its submission in response to the Attorney-General's Department's discussion paper Delivery of Primary Dispute Resolution Services in Family Law (August 1997) Council said:

Council notes that Issues Paper No 22 seeks comment on the attitude of judges and the legal profession to litigation and PDR, and suggests that this information might be more accurately obtained through a survey questionnaire directed at judges and family lawyers. Council has previously surveyed judges' views on matters with the support and assistance of the Chief Justice of the Family Court of Australia and the Chief Judge of the Family Court of WA. Council has also surveyed the attitudes of family lawyers on specific issues in the past, with the cooperation of the Family Law Section of the Law Council of Australia. These surveys have proved useful in a number of ways, including better policy formulation.

Fairness in family law proceedings

The main areas in which Council has encountered this issue has been in relation to such matters as:

Council's current work in relation to enforcement of child contact orders is also relevant. Council will be reporting on this matter in the near future.

The cost of family law proceedings

The issue of costs in family law has been considered and reported on in a number of studies in recent years, including Access to Justice (Justice Ronald Sackville Chairman - 1994), The Family Law Act - Aspects of its Operation and Interpretation (Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act - 1992), and the Costs of Justice Inquiry by the Senate Standing Committee on Legal and Constitutional Affairs.

Council notes that some inquiries have recommended more detailed studies of the issue. For example, in its report Funding and Administration of the Family Court of Australia (1995) the Joint Select Committee on Certain Family Law Issues recommended that a study be conducted to determine what the legal costs of trials in the Family Court of Australia are to litigants (para 7.59).

One difficulty with such inquiries is that the processes of the court are undergoing regular change (for example, the introduction of the simplified procedures) and such inquiries are probably not fully successful unless the system is reasonably stable. Even an inquiry, such as the present one, which mainly focuses on the effects of the adversarial system on costs to the litigant may be affected by the constant change which is occurring in the family law system.

However, Council questions the need to re-visit the whole issue again.

As a result of changes in legal aid policy and the consequential changes in legal aid funding there is a need to look at self representation, particularly in non-complex matters. To this extent the comments made in relation to litigants in person are relevant.

Council notes that the focus in the paper is on financial costs and draws attention to the social costs of litigation, particular in relation to family matters.

Delay in family law proceedings

Council noted in its interim report Penalties and Enforcement (March 1998) that the processing time for contact enforcement applications varied from less than a month to over 6 months. The court's Case Management Guidelines provide that contact enforcement applications are to be dealt with within 2 weeks. In Council's view, the issue of delay cannot be considered without also considering the question of resources as delay in relation to contact enforcement applications is due largely to inadequate resources.

The social consequences of delay in the family law field is one matter which could appropriately be addressed in the Commission's study.

Enforcement

Enforcement is currently being examined in Council's Penalties project. The Commission's attention is drawn to Council's interim report Penalties and Enforcement (March 1998), which largely looks into enforcement of contact orders. In Council's estimation, more than 80 per cent of enforcement applications to the Family Court relate to child contact orders. Council's final report Child contact orders: Enforcement and penalties is expected to be available in the near future.

Council therefore requests that, in view of its current work in relation to the enforcement of child contact orders, this particular aspect of enforcement of Family Court orders (which in Council's view are quite distinct from other orders of the court) should not be duplicated by the ALRC.

Council also notes that work has been undertaken in relation to enforcement of property orders.

Special issues

Council has noted above the wide terms of reference for the ALRC's adversarial project. With this in mind and having said, at the outset, that Council considers that Issues Paper No 22 tries to cover too many major issues, Council is reluctant to suggest additional matters for inclusion in the Commission's project. However, by way of information only, Council draws attention to a number of matters of relevance.

This Council is currently undertaking a project on the operation of the "clean break" principle (section 81 of the Family Law Act) with a particular focus on spousal maintenance. Council has surveyed the attitudes of the legal profession and others in this area and will be issuing a discussion paper later this year for public comment.

In relation to children's issues, the Family Law Reform Act 1995 came into effect from 11 June 1996 and is to be evaluated when it has been in operation for a reasonable period.

Council has recommended to you that section 63E of the Family Law Act, which enables parenting plans to be registered in the Family Court, should be repealed. You have advised that this matter will be considered later in relation to the evaluation of the operation of the new Part VII of the Act.

Council's report Sterilisation and other medical procedures on children (November 1994) has been before the Standing Committee of Attorneys-General (SCAG) for some time. Council recently asked you if consideration of this important issue could be given a higher priority.

The Commission's Issues Paper also refers to the question of torts and family law. Council will shortly be releasing for public comment a discussion paper Violence and the Family Law Act; Financial Remedies. This paper will have obvious relevance to this aspect of the Commission's inquiry.

The future of family law

Council notes that your address to the National Press Club on the occasion of the 20th anniversary of the Family Law Council in October 1996 is particularly relevant to this question. The current examination of the delivery of primary dispute resolution services in family law (the PDR inquiry) is also relevant.

Summary

As the ALRC has indicated that it will work with this Council, the Family Services Council and NADRAC, Council recommends a coordinated approach to minimise duplication in future work plans. To this end there needs to be a meeting of the ALRC and this Council to consider this issue in more detail.

A number of other matters of relevance to this reference have been discussed with the ALRC's observer on the Family Law Council.

A copy of the Council's submission to the PDR inquiry, and related documents, will be made available to the Commission along with a copy of this letter.

At its meeting in Alice Springs on 21-22 May 1998 the Council agreed that the issues covered in this letter should be raised with the ALRC through you. I have signed this letter on behalf of the Council and by agreement with the immediate past Chairperson whose term of office expired on 30 June 1998.

Yours sincerely,


(R W Hughes)
Director of Research
on behalf of the Chairperson

To View Part 1 of this Letter: Part 1