ALRC Issues Paper Number 22 Part 1

To View Part 2 of this Letter: Part 2

FAMILY LAW COUNCIL

Chairperson Mrs Jennifer Boland
Family Law Council
GPO Box 9925
DX 133
SYDNEY NSW 2001
Telephone: (02) 9210 6229
Facsimile: (02) 9210 6611

3 August 1998

The Hon Daryl Williams AM QC MP
Attorney-General
Parliament House
CANBERRA ACT 2600

Dear Attorney-General,

The Family Law Council has considered the Australian Law Reform Commission (ALRC) Issues Paper No 22 Review of the adversarial system of litigation: Rethinking family law proceedings (November 1997) and wishes to make the following submission in relation to the Issues Paper ("the paper"). A copy of this advice is being forwarded to the ALRC as the Council's submission on Issues Paper No. 22.

Preliminary reaction to the paper

Council had preliminary discussions on the paper at its meeting on 19-20 February 1998 and further considered the matter on 21-22 May 1998. Council notes that the ALRC's terms of reference in relation to this matter are wide and raise many issues. Also, the Issues Paper already acknowledges the work of other bodies in relation to some of the issues raised. Council is concerned, however, that there should not be duplication of effort on a number of matters covered by the terms of reference.

Council wrote to the President of the ALRC, Mr Alan Rose AO, on 16 March 1998 expressing its concerns. In its letter Council noted that aspects of some of the issues raised in the paper were already being considered by other bodies, including this Council, the Family Services Council and NADRAC.

In the circumstances, Council suggested to the ALRC that there might be a need for an audit of the various issues raised in the paper with a view to sharing the work and to avoid duplication of effort.

Mr Rose has replied saying that he agrees with Council's suggestion. Council will discuss the matter further with its ALRC Observer (Mr Barnett) and will cooperate with the Commission in relation to the sharing of the workload and the avoidance of duplications of effort and overlaps in projects.

Information needs

The Family Law Council (FLC), the Australian Institute of Family Studies (AIFS) and the Australian Bureau of Statistics (ABS) have held discussions with the Family Court over the years about the need for more and better data in a number of areas. Council has also been advised that others, including your Department, have also consulted the court on this issue.

There have been two problems from the court's perspective: (a) lack of resources to provide other than the basic data required for the court's own needs, and (b) limitations imposed by the court's computer system (and until fairly recently the lack of an Australia-wide computerised system).

Council notes that the court has put more resources into this area and is upgrading its computer facilities.

The court has indicated to the FLC in the past that it will generally be unable to supply data which is not readily available from existing statistics except in cases where the requesting organisation is prepared to meet the cost of collecting the required information. At the same time, however, it needs to be recognised that the court has been most helpful in providing assistance to the FLC in obtaining data from court sources (sometimes using court resources to assist in doing so) for the purposes of some of the projects undertaken in recent years.

The basic problem for the court in relation to data collection generally, in this Council's experience, is one of resources.

Council is aware that considerable valuable research has been undertaken over the years by officers of the court, such as staff of the Family Court Counselling and Mediation Service. This type of research has, from time to time, been used by Council in relation to its own projects and is known to be valued in a number of quarters.

The court should, in Council's view, be able to undertake whatever research it considers necessary for its purposes. However, there may be room for improved communication and coordination between the court and other interested bodies.

In this regard, in December 1995 this Council and the AIFS jointly organised a research planning seminar which was attended by representatives of the AIFS, FLC, Attorney-General's Department, Family Court of Australia, Family Court of WA, the Law Council of Australia, National Legal Aid, the Family Services Council, NADRAC and 3 invited academics. This type of seminar, on a more regular basis, would help improve coordination of effort at a relatively low cost. The involvement of your office in such a seminar may assist with overall coordination.

Council draws attention to comparatively recent developments in relation to information. The Australian Bureau of Statistics is now producing more data on families. The data being collected and published by the Australian Institute of Health and Welfare (AIHW) is also a major development. For example, Council used AIHW data recently in examining the issue of Step-parent adoptions.

The role and objectives of family law proceedings

It will be important that the issues raised in this chapter be fully considered by the Family Court.

A number of recommendations made by Council in its report Magistrates in Family Law (July 1995) are relevant. A copy of that report is being enclosed with material sent to the ALRC. Council also wishes to draw attention to its project on Violence and the Family Law Act: Financial Remedies. A discussion paper on this issue should be released shortly.

Perceived problems in family law proceedings

Council wishes to comment on three issues raised in this chapter: (a) repeat applications, (b) violent applicants and (c) the jurisdiction of Magistrates.

Council suggests that most repeat applications coming before the Family Court relate to child contact matters. Council produced an interim report to you on Penalties and Enforcement (March 1998) which mainly relates to child contact issues and in which it says, among other things:

A major conclusion of Council is that the repetitive nature of contact orders is significant in that, unlike most court orders, each contact order has the potential to provide multiple and ongoing opportunities for the order to be breached. This factor, combined with the highly emotional circumstances of these cases, suggest to Council that a costly, time consuming or delayed court hearing may not be the appropriate way to process contact disputes and, in the circumstances, considers possible alternatives...

Council will be making a final report to you on this matter by the end of June 1998. This follows a study over a 2-year period of matters coming before the court and an examination of the situation in some overseas jurisdictions. Council considers that there is no one simple solution to the problems of repeat child contact applications and that various situations may require different responses in order to provide satisfactory solutions.

In Council's view this is a complex issue and needs consideration as a specific issue because of the relatively unique nature of child contact orders. In the circumstances Council would suggest that its study will complement the study being undertaken by the Commission and, therefore, there is a need for close liaison on the matter to avoid duplication and overlap.

Violence and family law generally is known to have been of concern to the Family Court for some time and this issue has been the subject of considerable attention in the past. The Family Law Reform Act 1995 contained a number of amendments designed to give the court adequate powers to deal with the issue in respect of children and personal protection matters.

Currently Council is looking into the question of financial remedies for the victims of family violence and, as indicated above, a discussion paper is due to be released shortly.

Council agrees that the issue of dealing with violent litigants is a separate one and notes the relevance of this matter to the operation of the adversarial system.

In relation to Question 5.14 in the Issues Paper, Council draws attention to the fact that the question of robing has been considered on several occasions in the past; see for example, Family Law Council, Administration of Family Law in Australia (1985) at pages 27-34; and Joint Select Committee on Certain Aspects of the Operation and Interpretation of the Family Law Act, The Family Law Act 1975: Aspects of its Operation and Interpretation (1992). The general question of security has been considered in the abovementioned two reports and also in : Joint Select Committee on the Family Law Act, 1980, Family Law in Australia; and Family Court of Australia, 1990, Report of the Working Party on the Review of the Family Court (the "Buckley Report").

Council draws attention to the role of Magistrates in family law and the use of summary procedures in the Magistrates' Courts. Council is of the view that there are some areas where the use of Magistrates may be preferable to a full trial before a Judge or Judicial Registrar.

Constitutional limits on family law reform

Council's Child and Family Services (CAFS) project involves the interaction between the Family Law Act and State and Territory child and family services legislation. This is an area in which the role of the Commonwealth is limited by the Commonwealth Constitution. While such limitations raise difficulties, those difficulties are no insurmountable. The CAFS project, for example, is seeking to overcome these problems through the development of commonly accepted principles and standards of operation.

Protocols have also been developed by the Family Court, in cooperation with the States and Territories, to overcome problems in achieving a coordinated scheme.

Council also points out that cross vesting legislation has also enabled some problems to be overcome, especially in relation to children. In this regard Council retains the view that the Family Court should have power to deal with de facto and child related matters.

Primary dispute resolution services

The following Council reports are relevant to the question of PDR in family law:

Arbitration in Family Law (1988)
Family Mediation (1992)

The discussion paper released by the Attorney-General's Department in August 1997 examined the options available to government in relation to the future PDR needs in family law. Council, and other interested persons and organisations, made detailed submissions in response to the departmental discussion paper. Council understands that the departmental work in this area is currently progressing.

You have also asked the Family Law Council and the Family Services Council to provide advice to him before the end of June 1998 on a number of specific issues by way of follow up action on PDR needs in family law.

Council appreciates the close relationship between PDR services and the court's litigation processes, but questions the need for a further complete examination of this issue having in mind the work currently being undertaken within the Department.

At a wider level, Council notes that NADRAC was established to provide you with coordinated and consistent policy advice on the development of high quality, economic and efficient ways of resolving disputes without the need for a judicial decision. Council is also aware that NADRAC has already issued a number of papers on a range of PDR issues.

Council notes that the ALRC's terms of reference require the ALRC to focus its attention on a number of matters, including "alternative dispute resolution". However, in view of the work already being undertaken, Council strongly recommends that the ALRC should enlist the cooperation of the Department and NADRAC with a view to avoiding duplication. Council also considers that another broad ranging study of PDR in family law is not warranted at the present time.