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

Issue No 28 December 1999

Family Law Council Newsletter

IN THIS ISSUE

Please address all correspondence and inquiries concerning the Family Law Council News to:

The Director of Research
Family Law Council
Robert Garran Offices
National Circuit
BARTON ACT 2600

Telephone: (02) 6250 6375.
Fax: (02) 6250 5917

COUNCIL'S NOVEMBER MEETING IN CANBERRA

Council met at Arts House in Barton on 11 and 12 November. The primary work focus of the meeting was Council's submission to the Senate Legal and Constitutional Legislation Committee on the Family Law Amendment Bill.

The theme chosen for the meeting was young practitioners in family law. In keeping with the theme, Council invited three young practitioners, Ms Jane Atchison of Farrar Gesini & Dunn, Ms Jo Twible of KJB Law and Ms Dianne Simpson of Clayton Utz to come and talk to Council about the issues faced by young family lawyers.

The young visitors discussed issues including legal aid, the care jurisdiction, primary dispute resolution, litigants in person and child support, giving the perspective of young practitioners who are given the bulk of the legal aid work in the jurisdiction.

The visitors explained the mentoring assistance they were given, their reasons for choosing to practice in family law, and the valuable experience family law practice gives young lawyers in all areas from drafting and advocacy through to commercial issues. It was noted that despite their work being valued, it is generally not valued from a revenue perspective.

Council also met with Mr Chris Staniforth, Chief Executive Officer of the Legal Aid Office ACT and Chair of National Legal Aid, and Ms Jenny Hardy, Executive Officer of National Legal Aid.

The visitors discussed legal aid funding, service delivery and the capacity of private practitioners to perform legal aid work. They also discussed delivery of legal aid services to Norfolk Island.

Mr Staniforth discussed changes to legal aid and funding restrictions and stated that there is no money for infrastructure, and that criminal and family law matters compete for funds.

The visitors explained that National Legal Aid had surveyed the capacity of private firms to conduct legal aid work and enlisted the assistance of the University of Canberra with the statistics. The findings included:

The Hon Justice Alastair Nicholson AO, RFD, Chief Justice of the Family Court of Australia was welcomed by the Council. The Chief Justice outlined the Court's Future Directions Initiatives and gave Council an overview of the Court's case management reforms. The Family Law Amendment Bill was discussed, as was the Federal Magistrate's Service. The Chief Justice also described some aspects of the Court's program for Aboriginals and Torres Strait Islanders, focussing on parenting issues in the Torres Strait Islands.

Mr Dennis Farrar of the Family Law Section, Law Council of Australia visited Council and gave his personal perspectives of family law practice in the Australian Capital Territory, and generally.

In particular, Mr Farrar focussed on delays in the Family Court and the Court's increasing workload, legal aid funding, issues surrounding self-represented litigants and the increasing expense of family law litigation. Mr Farrar also discussed problems with the detail required for amended Forms 12A and 17A, as well as some issues relevant to practice in the ACT, such as cross-border issues, e.g., differences in de facto property law.

CHILD SUPPORT - ISSUES PAPER ON INTERNATIONAL ENFORCEMENT

An issues paper entitled International Child Support Enforcement - Proposed New Treaty Arrangements has been produced by the Civil Justice Division of the Commonwealth Attorney-General's Department.

The paper addresses relevant recommendations made by the Commonwealth Parliamentary Joint Select Committee on Certain Family Law Issues in its Report on the Operation and Effectiveness of the Child Support Scheme (November 1994).

The paper also seeks comments on a draft maintenance enforcement agreement with New Zealand, and a proposed agreement between Australia and the United States which will put the existing arrangements on a Federal rather than State basis in the USA.

Comments are sought on the proposals made, and the issues raised in the paper. The closing date for comments is 31 January 1999.

For copies of the paper, or to make inquiries, the contact officer is:

John McGinness
Civil Justice Division
Commonwealth Attorney-General's Department
Robert Garran Offices
BARTON ACT 2600

Telephone (02) 6250 6370
Fax (02) 6250 5911
Email john.mcginness@ag.gov.au

Comments should be sent to the above address or by email to icpu@ag.gov.au

FAMILY LAW AMENDMENT BILL

The Senate Legal and Constitutional Legislation Committee was scheduled to present its report on the Family Law Amendment Bill by 29 November 1999. An extension of time was granted until 6 December 1999. The Report was tabled on 6 December with the Opposition's comments expected to be tabled on 7 December.

Much of Council's work between its August and November meetings was spent scrutinising the Bill. One of Council's Committees provided comments on the Bill direct to Government in early October. Council was then invited by the Senate Legal and Constitutional Legislation Committee to make a submission to its Inquiry. Council spent much of the November meeting finalising a written submission, which was forwarded to the Committee on 12 November.

COUNCIL MEETING DATES FOR 2000

Council will be meeting on the following dates in 2000:

PARENTING PLANS

Council's Parenting Plans Committee's advice to the Attorney-General is nearing completion and should be submitted before the end of February 2000.

FEDERAL MAGISTRATES SERVICE

The Federal Magistrates Bill 1999 and the Federal Magistrates (Consequential Amendments) Bill 1999 were passed in December 1999. Some minor amendments were made.

The legislation establishes Australia's first lower-level federal court, the new Federal Magistrates Service. The Attorney-General has indicated that the Service is intended to provide a cheaper, faster, and simpler method of dealing with less complex civil and family law matters. It is hoped the Service will help ease the pressure on the Family Court and reduce waiting lists in family law matters. It should allow judges of the Federal and Family Courts to concentrate on more complex matters.

It is anticipated that the Federal Magistrates Service will commence operations in some locations in the first half of 2000, with further locations starting later in the year.

The Government is in the process of selecting the Chief Federal Magistrate and the Chief Executive Officer of the Court and appointments will be announced in the near future.

FAMILY LAW COUNCIL'S ANNUAL REPORT

Council's Annual Report has been tabled and was distributed in November. By now all FLC News recipients should have received a copy. Additional copies are available by contacting the Secretariat, or from our website at http://law.gov.au/flc .

TWO NEW JUDGES APPOINTED TO FAMILY COURT

Council congratulates their Honours Justices Jennifer Margaret Boland and Steven Andrew Strickland who were recently appointed as judges of the Family Court of Australia.

Justice Boland was sworn in as a Judge of the Family Court of Australia at the Sydney registry on 29 October 1999. She will fill the vacancy on the bench in Sydney following the retirement of the Hon Justice Josephine Maxwell.

Prior to her appointment, Justice Boland was a partner of the Sydney firm of solicitors, Corrs Chambers Westgarth, where she headed the Family Law Division. She was an acting judge of the District Court of New South Wales from February 1998 to June 1999.

Justice Boland served as the Chairperson of the Family Law Council from 1995 to 1998 and is a former member of the executive of the Family Law Section of the Law Council of Australia. She also served on the Family Law Committee of the Law Society of New South Wales from 1992 to 1997.

Justice Boland was one of the very first accredited specialist solicitors in NSW, in the field of family law. In addition to her expertise as a family law practitioner Justice Boland built an excellent reputation as a business lawyer with a particular expertise in consumer law, medical health law and most notably product liability law.

Justice Strickland's appointment commenced on 22 November 1999 and filled the vacancy on the bench in Adelaide resulting from the recent retirement of the Hon Justice Hugh Burton.

Justice Strickland was admitted as a barrister and solicitor of the Supreme Court of South Australia in 1973. In December 1998, he became the first family law specialist to be appointed a Queen's Counsel in South Australia. He has practised principally in the family law jurisdiction, initially as a partner in a large firm, then as a sole practitioner after obtaining his Masters Degree in Canada in 1979, and since 1984 at the Independent Bar in South Australia.

Justice Strickland has variously held the office of Deputy Chair or Chair of the family law section of the Law Society of South Australia for the past 15 years. Since 1996, he has also been a member of the Council of the Law Society of South Australia. He has been a long standing member of the Australian Institute of Family Law Arbitrators and Mediators since 1994 and is currently a Director of that Institute. He has served as a member of the executive of the family law section of the Law Council of Australia since 1994 and was the Chairman of that section at the time of his appointment.

'SHAPING FAMILY LAW FOR THE FUTURE'

The Hon Daryl Williams AM QC MP, Attorney-General, gave a speech to the National Press Club on 27 October 1999, outlining the Government's directions for the family law system.

The Attorney-General said "...this Government wants to reshape our marriage and family law system to fit the future. The system needs to be rebalanced, to focus more on helping separating and divorcing couples and less on legal process. The aim is to build a new family law system which, like the National Family Strategy, has families at its centre."

The Attorney-General announced the establishment of an advisory group to examine the problems families have as they negotiate their way through the family law system. The advisory group will comprise representatives from major community service groups, professional bodies and academics, and will include organisations such as the Family Law Council and the Family Court. The group will report to the Attorney-General and the Minister for Family and Community Services in mid-2000 with recommendations for action.

The speech also mentioned future directions for matrimonial property and superannuation. A bill is being prepared to amend superannuation legislation and the Family Law Act . Submissions in response to the Governments discussion paper on Property and Family Law gave neither options significant support. Instead the submissions supported retention of the status quo, with some minor modifications. The Attorney-General will be talking with the Australian Law Reform Commission and the Australian Institute of Family Studies about further research in this area.

The speech is available on the internet here.

LITIGANTS IN PERSON

The issue of litigants in person in the Family Court has been raised at every Council meeting this year, by members and visitors alike. A committee was formed on the subject in 1998 and has been examining the impact of unrepresented litigants on the Family Court, its staff, other parties and the litigants in person themselves.

The topic is also currently being examined by the Australian Law Reform Commission in its adversarial reference, and by the Family Court in a study it has commissioned by Griffith University. Council is fortunate to have representatives of both studies on its Litigants in Person Committee. In addition, the Committee has received valuable input from Mr Denis Farrar, a family law practitioner from the Family Law Section of the Law Council of Australia and welcome him to the Committee.

A draft report has been prepared by the Litigants in Person Committee and will be discussed at Council's next meeting in Adelaide on 24-25 February.

Fittingly, the issue of litigants in person has been chosen as the theme for general discussion at the Adelaide meeting.

APPOINTMENTS:

NEW DEPUTY PRESIDENT OF THE AUSTRALIAN LAW REFORM COMMISSION

On 10 November 1999 the Attorney-General announced the appointment of Dr Kathryn Cronin as the new Deputy President of the Australian Law Reform Commission. Dr Cronin has been appointed for a term of three years, replacing Mr David Edwards PSM whose resignation took effect on 16 September.

Council congratulates Dr Cronin on her appointment.

PROFESSOR DEWAR APPOINTED DEAN OF GRIFFITH UNIVERSITY FACULTY OF LAW

Council congratulates one of its members, Professor John Dewar, on his appointment as Dean of the Faculty of Law at Griffith University. Professor Dewar was appointed in September 1999 for a period of five years.

The Family Law Council News is a quarterly newsheet which aims at informing persons and organisations about the work of the Family Law Council. The News is produced under the auspices of the Family Law Council but the views expressed are those of the writer or the Editor and not necessarily of any of its members or members of its committees. The purpose of the News is to provide general information and not legal advice. Every care is taken in the preparation of the News but readers are advised to check the detail of any legislation, cases or other material in it. All inquiries about the Family Law Council News should be directed to the Director of Research, Family Law Council, Robert Garran Offices, National Circuit, BARTON. ACT. 2600.

Editor: Brendan MacDowell
Distribution: Cate Wells
Design: Architype