The single most significant factor impacting costs is the delay in reaching a final hearing, if one is ultimately required. In court registries across Australia there are waiting times of up to two years and, in some instances, even three years from the date of issuing proceedings until the date of any final hearing. We've got to acknowledge that parties don't live in suspended animation while they wait to resolve their case or for a final hearing. Personal and financial circumstances evolve, and that has significant impacts on the parties. This can then increase the legal advice necessary across the life of the case. It can also increase stresses on the parties and increase the likelihood of family violence.
As highlighted in the committee’s first interim report, a key issue raised by many submitters and witnesses has been the delay between separation and the hearing, and the delay between final determination of primary proceedings and breach proceedings by a family court. These delays impact the quantum of costs for a matter. Accordingly, many submitters have indicated that reducing the delays in the family law system will also result in a significant reduction in the legal costs for a party.
This chapter provides updated performance figures for the Family Court of Australia (Family Court) and the Federal Circuit Court of Australia (Federal Circuit Court) from their respective 2019–20 annual reports. The chapter then considers:
the evidence the committee heard in relation to the delays experienced within the courts, how delays may be reduced and how these delays impact the cost of family law proceedings;
other options for reducing legal fees and costs;
how to address perceived bias within the family court;
the concerns raised with respect to family report writers and expert witnesses; and
whether the family court should be less adversarial.
The committee notes that this chapter sets out the committee’s consideration and views on the impacts of delays, costs and other systemic issues specifically within the courts.
Performance of the court
As discussed in the first interim report, only a small proportion of separating families, around seven per cent, have their family law disputes determined by the family courts. Those that do are often characterised by complex social issues, such as family violence, child safety concerns, mental health issues and substance abuse. Furthermore, of those that do make an application to the Family Court, 89 per cent of matters finalised in 2019–20 were finalised within 6 months of lodgement, and 96 per cent within two years with roughly three per cent of cases taking more than two years (see Figure 2.1).
Figure 2.1: All applications to the Family Court of Australia, time to finalise, 2015–16 to 2019–20
Source: Family Court of Australia, Annual Report 2019–20, p. 18.
Of the matters finalised, the majority settle prior to trial. In 2019–20, only 25 per cent of matters reached the trial stage of the proceedings and only 16 per cent of matters were determined at trial by a judge (see Figure 2.2).
Figure 2.2: Attrition and settlement trend in the Court’s caseload, 2015–16 to 2019–20
Source: Family Court of Australia, Annual Report 2019–20, p. 18.
Whilst the Federal Circuit Court Annual Report 2019–20 does not have complementary statistics specifically for family law matters, the report does note that the ‘clearance rate for final order applications in family law was 96 per cent’. More broadly, for all Federal Circuit Court matters:
62 per cent of final orders applications were disposed of within 12 months;
89 per cent of all other applications were disposed of within six months; and
73 per cent of matters were resolved prior to trial.
These statistics suggest that for the majority of families who apply to the family courts for determination of their family law matters, the parties are able to settle their matters with assistance from the court prior to hearing or the court is able to hear and finalise a matter within a reasonable period of time. However, as discussed in Chapter 3 of the first interim report, where matters are protracted or experience significant delays, the impacts on families can be quite severe. These impacts can have a direct bearing on the parent-child relationship; impose financial costs to the parties of legal fees and property maintenance prior to distribution; and have an emotional toll that comes with uncertainty and conflict between the parties. As such, it is clear to the committee that if these complex matters can be expedited and all heard within a shorter timeframe, the benefits across the system and to individuals and families would be significant.
The committee acknowledges that the family courts are acutely aware of the backlog of cases, and that the courts have been working to address that issue through new initiatives, as well as through continued improvement in their annual clearance rates and the appointment of new judges. For example, in 2018–19, the Family Court established a series of case management initiatives known as a ‘blitz’ as a means to fast-track cases and reduce the case backlog. Similarly, in February 2020, both courts commenced the Summer Campaign involving the listing of almost 500 family law cases in the Family Court and more than 500 in the Federal Circuit Court to fast-track cases that had been in the court system for more than two years. The 2019–20 annual reports notes that a key objective of the campaign was to provide families with an opportunity to resolve their long-term family law dispute, preferably through the use of ADR. Both annual reports stated that the:
Summer Campaign was a success in Melbourne and Sydney, assisting with the resolution of a number of older pending family law matters. Unfortunately the onset of the COVID–19 pandemic necessitated the suspension of the Summer Campaign in other locations, but it will recommence electronically in the second half of 2020.
The 2018–19 Annual Report of the Family Court reported that the clearance rate for 2018–19 was 102 per cent for all application types and nearly 108 per cent for final order applications:
The overall clearance rate in 2017–18 was 100 per cent. These results are outstanding and effectively mean that the Court is completing more cases in a year than the number of filings received. This enables the Court to reduce the backlog of pending cases.
With regard to the time between trial and judgement, the Family Court advised that 79 per cent of judgments were delivered within 3 months of trials, and 93 per cent of judgments were delivered within 12 months of the application. The average time from the end of the trial to delivery of judgment was 1.79 months.
Comparatively, in the Federal Circuit Court in 2018–19 the average time from the end of the trial to delivery of judgment was 0.63 months.
It can be inferred from these statistics that a large proportion of the individual submitters who provided evidence to the committee about their family law court experience were in the minority of parties where their court matters proceeded beyond 12 months.
Due to COVID–19, the clearance rate in the Family Court in 2019-20 for all applications was down to 99 per cent and 101 per cent for final order applications. However, if consideration is given to the increased number of matters filed in this financial year (an increase of over 7 per cent on 2018–19), the court actually finalised more applications than in 2018–19
(20 787 compared to 19 966). The clearance rate for the Federal Circuit Court for final order applications in family law matters was 96 per cent for the same period. Interestingly, and as a comparison, the clearance rate for migration applications was 62 per cent.
Figure 2.3: All applications in the Family Court of Australia, 2015–16 to 2019–20
Family Court of Australia, Annual Report 2019–20, p. 19.
The impact of COVID–19 has also resulted in a slight increase in the number of outstanding final order applications in the Federal Circuit Court. According to the 2019–20 annual reports of the Family Court and the Federal Circuit Court, there were a total of approximately 21 129 judicial matters (final order applications) pending across both courts as at 30 June 2020. The Federal Circuit Court had 18 177 pending final orders applications, and the Family Court had 2952 pending final orders applications. The Federal Circuit Court stated:
While the Court has been able to continue with the majority of its workload during the pandemic and has maintained a high clearance rate, there are certain categories of work that have not been able to be conducted electronically at the usual rate they would be undertaken, for example trials for final orders applications. Some trials have needed to be temporarily adjourned if parties do not have access to technology or a satisfactory internet connection, or where there are difficulties arising from access to an interpreter or other procedural fairness issues. It is also accepted that conducting high volume lists and hearings electronically can be more time consuming, so while judges, registrars and staff have been working diligently, the volume of matters undertaken has been lower than it otherwise would have been.
The issue of delays in the family court is not new. As highlighted in the first interim report, the Australian Law Reform Commission (ALRC) report, Family Law for the Future—An Inquiry into the Family Law System (ALRC 2019 Report) found that one of the key themes emerging from its inquiry into the family law system was that it was too slow:
Access to courts and services was so delayed that people told us they had to wait excessive lengths of time to receive assistance or take steps towards resolving their dispute. Many felt frustrated by this, and some said that their disputes escalated and/or they were left in situations that were unsafe for themselves and their children while awaiting access to the courts.
The committee has heard of the personal impact that delays have had on parties seeking to use the courts to finalise family law matters. For example, some parties have experienced significant financial stress, including bankruptcy, while others described how they lost meaningful time and connection with their children. Many individuals communicated the significant psychological impacts that these and other impacts of prolonged proceedings had on them.
The committee was informed that the delay between interim and final hearing can mean that an interim order is in place for many months or even years, such that the ‘stakes in an interim application are high’. Furthermore, the impact of a delay between the granting of an interim and final order can be that during this period, 'children are likely to lose their relationship' with the non-custodial parent 'without any evidence having been heard or tested'.
The key reasons for delays raised in the first interim report were the:
resources of the court; and
role of individual parties to family law matters.
As referenced in the first interim report, Mr James Steel, President, Family Law Practitioners Association of Queensland (FLPAQ) stated:
The main delay that we're seeing at present is the lack of resources in the courts, so that matters simply cannot be transitioned through the court process in a timely manner.
The committee heard that the court utilised the process of over-listing to try and minimise delays, listing more matters than the family court could hear in a day to take into account the possibility that a matter settles on the steps of the court or cannot proceed for another reason. The benefit of this approach is that another matter can proceed in its place without loss of judicial time. However, if the first matter proceeds, then the other matters may not be reached. This incurs both a loss of time and additional legal costs for those parties, who then must attend court again at a later time.
The committee has been advised of a number of initiatives developed by the Australian Government (Government) and the family courts to address the issue of delay (discussed below). However, the committee heard from many stakeholders that the success of these initiatives are dependent on appropriate resources:
The courts themselves are doing the very best they can on the resources that they have—but they are not enough. Changes to the management and streaming of lists that the courts have introduced, early triage and other administrative changes will assist in improving the efficient and effective resolution of family law cases. But these initiatives have to be properly resourced. The dominant difficulty is the chronic underfunding over several decades of the family law system and a failure to make timely appointments of judicial officers and registrars. This has created a backlog of cases, produced delays and frustrated the proper management of the resources that the courts have.
This issue has been somewhat addressed by the announcement in the 2020–21 budget for the Attorney-General’s portfolio of $35.7 million over four years from 2020–21 in additional resources and judges for the Federal Circuit Court to assist with the timely resolution of migration and family law matters.
The Attorney-General’s Department (AGD) has advised that:
$12.8 million of the $35.7 million over four years from 2020-21 is directed to family law matters, including:
an additional judge to hear family law matters in the Federal Circuit Court
five additional registrars and other support staff, and
increased base funding to support the ongoing operations of the Federal Circuit Court.
In addition, Mr Iain Anderson, Deputy Secretary, AGD, advised that:
Two judges were appointed very recently: one to the Family Court and one to the Federal Circuit Court. There are currently, I believe, no vacancies in the Family Court and three vacancies in the Federal Circuit Court. Of those vacancies in the Federal Circuit Court, it is not the case that all of the judges who are being replaced practiced exclusively in the family law jurisdiction. So the government is actively considering ensuring that all those vacancies are appointed …
Role of individual parties
In addition to resourcing issues, the committee heard that one or both parties may directly or indirectly be a contributing factor in delay. This may be due to the highly emotive nature of family law proceedings, which can see parties unable or unwilling to reach an agreement, or unable to accept a lawyer’s advice on the likely outcome and, against advice, continue the matter through to hearing. The committee also heard of experiences where an ex-partner continued to lodge frivolous and vexatious court applications, often as a means of perpetuating further family violence.
The large number of self-represented parties in family law proceedings may also contribute to delays. As noted in the first interim report, Mr Michael Kearney SC, Chair, Family Law Committee, New South Wales Bar Association highlighted research which supported this:
One judge told a research study in 2000, after a very full duty list one day, that the time taken to hear nine matters involving self-represented litigants would have been halved, had they been represented.
There are a number of current and proposed reforms that the committee considers could assist in decreasing the delays currently experienced within the family court system. Firstly, as highlighted earlier in the chapter, the family courts’ new Summer Campaign which aims to review and resolve cases that have been in the family court system for two years or more. Addressing the backlog of cases will assist newer cases to be heard in a faster timeframe due to increased judicial availability.
There is also the triage pilot which commenced on 7 December 2020, known as the Lighthouse Project, which fast-tracks cases involving family violence. All matters dealt with under this pilot will undergo risk screening when they are filed with the family court, with cases being triaged based on that assessment:
High-risk cases would be intensively case managed. There would be an offer of immediate assistance, safety planning and the like. Moderate-risk cases would be, again, offered a safety plan and alerted to the support services that might be available. Low-risk cases might be assessed as suitable for family dispute resolution. For the high-risk cases, the pilot will establish a specialist family violence list, which will be overseen by a judge and intensively case managed, with a view to having a matter dealt with quickly and with appropriate safety supervision.
This pilot includes 'resourcing for four senior registrars, eight registrars and three associates for senior registrars to support the pilot'. By prioritising the hearing and management of these high-risk cases, this will reduce the overall time these matters spend within the court system, which will over time create broader efficiencies and additional judicial time for other matters.
The Lighthouse Project has received recognition from the Queensland Government through inclusion on its inaugural Domestic and Family Violence Prevention Honour Roll – where it was noted that it ‘is a ground-breaking and innovative project to assist in the prevention of family violence by providing early identification of safety concerns, as well as management and support for families that have been affected by, or are at risk of, family violence.’
The committee also sees great benefit in the COVID–19 list which was implemented to deal with any urgent applications filed as a direct result of the COVID–19 pandemic. The family courts have advised that:
All applications have been given a first Court date within three business days of being considered by a registrar. The List is the Court’s first national electronic list, and has ensured that litigants could access urgent family law assistance from anywhere around the country.
Both the Family Court and the Federal Circuit Court received funding in the October 2020 budget of $2.5m:
… to allow the Courts to continue to hear and expand urgent matters through the specialist COVID–19 List. The funding until mid-2022 provided for four registrar-related positions and two registrar-related support staff… The intention is for the COVID–19 list to continue to operate electronically with Registrars conducting the list except where it is more appropriate for the matter to be heard by a Judge. The platform developed of a national electronic Registrar list will be able to be utilised more broadly for other case types even after COVID–19.
The Family Court has also advised that ‘in direct consultation with the Women’s’ Legal Groups, Men’s Groups, Legal Aid and other organisations, it has been decided that the COVID–19 List will be expanded to include other priority and high risk matters indirectly related to COVID–19. This should make a significant impact upon the management and hearing of priority cases in the Courts nationally.’
The courts further advised that they are also in the process of developing and implementing a Registrar-led National Contravention List which would triage all contravention applications within 14 days of filing on a national basis. The Federal Circuit Court has already established Registrar-led Contravention Lists in Brisbane, Newcastle, Melbourne and Sydney. The family courts are currently analysing volumes of filings and contravention list arrangements in various registries and considering opportunities to extend the Registrar Contravention Lists.
The fast-tracking of urgent applications and swift resolution of these and other matters will lead to less protracted long term disputes clogging up the family courts and provide more time for complex matters that are unable to be resolved in such a forum.
In addition to the launch of the COVID–19 List, the family courts have implemented the following three key initiatives:
In the Federal Circuit Court they have commenced the FCC Registrar Assistance Pilot, in which ‘Registrars and Senior Registrars are deployed in a way which is designed to alleviate the pressure on Federal Circuit Court judges by conducting high volume duty lists, interim and interlocutory disputes, as well as conducting dispute resolution in both property and parenting matters where it is safe to do so. Previously the family courts did no parenting dispute resolution and resourcing available for property conciliations was limited. This new pilot is designed to alleviate the pressure on judges, resolve disputes earlier, and to allow judges to focus on hearing trials and timely delivery of judgments.’ The Family Court has advised that:
Anecdotally, instead of a Judge dealing with 15–20 matters in a duty list, the Registrar has been able to deal with the vast majority, with 1–3 referred back to the Judge. Thus far, Registrars have conducted procedural hearings for more than 2600 matters, which is the equivalent of 203 days of assistance.
The Alternative Dispute Resolution (ADR) Project which ‘endeavours to ensure that a dispute resolution framework is available for all matters (so long as it is safe to do so), whether parenting or property matters. The Project involves the development of a sophisticated mediation model tailored to the complexity of the dispute, including longer periods to resolve property conciliations as may be needed, and, for the first time in recent history, dispute resolution for parenting matters. These parenting conferences will have highly trained registrars, skilled in mediation techniques, pairing up where needed with children-specialist Family Consultants. In addition, the courts are ensuring that external mediation and conciliation services are drawn on more frequently to maximise the number of matters that have dispute resolution available to them. This will be embedded in the case management pathway and is expected to resolve/finalise many disputes at a much earlier stage of the proceedings, saving significant cost and stress for the parties, as well as being a more effective outcome for the parties (given that they have by definition agreed to the parenting or property arrangements).’
In the Federal Circuit Court the Discrete Property List, which is a ‘Registrar-run case management list for property-only applications filed in the Federal Circuit Court and aims to:
more closely monitor compliance with orders for production of documents and valuations;
reduce delays in getting financial cases through the dispute resolution process;
expand opportunities for parties to discuss and take ownership of their own dispute resolution planning at any early stage; and
improve dispute resolution outcomes through close involvement in preparation and case management of the case before a dispute resolution process takes place.
As at 31 October 2020, 67% of matters that completed the pilot process have been finalised without judicial involvement, completing its aim to reduce delays in getting financial cases through the dispute resolution process.’
The 2019–20 annual reports of the Family Court and Federal Circuit Court also noted that the courts are accelerating the harmonisation of the rules that delegate judicial power to registrars in the family law jurisdiction. This change will allow registrars to provide greater support to judges by assisting with case management work and free up judicial time so that judges can focus on determining the most complex matters and hearing trials. The committee supports this approach, having heard suggestions from many submitters that an increased use of judicial registrars to triage cases and help manage lists would be beneficial in the efficient and effective running of the court.
For example, Mr Iain Anderson, Deputy Secretary, AGD advised that:
While respecting that it's a matter for the Chief Justice of each court as to how they allocate the court resources, I think it's a strong indication that, in the last budget, there was additional funding for 11½ additional registrars across the two federal family courts. Registrars can serve a lot of really useful functions in terms of helping parties to identify what the critical issues are, to engage in more of an inquisitorial process of inquiring, for the benefit of the court, as to what risk factors there might be and how those should be managed, and leaving to judges the things that only judges can do—so, contested hearings. And we know that contested hearings are only three per cent, roughly, of all family law resolutions. So, if judges are free to concentrate only on those matters that only judges can do, we are finding that registrars can help matters get resolved much more quickly, by consent. There's a pilot underway in the federal family courts at the moment dealing with small property pools—so property pools of $500,000 or less—and so far the court is reporting to us that something like 75 per cent of those matters are being resolved by consent, with the registrars directing that, without needing to go to a judge at all. So registrars are an important part of a move to a less adversarial process and quicker resolution with fewer court events.
The following reforms, which are discussed in more detail in later chapters, are also likely either to reduce the number of cases that reach the family court or increase the likelihood of the matter being resolved more expeditiously before the court, thus decreasing the overall delays within the family court:
the evaluation of the Family Advocacy and Support Service (FASS), which is discussed in detail in Chapter 3, found that ‘[p]roviding support to
self-represented parties was felt to positively impact on preparedness and completeness of evidence and contribute to a significant reduction of court time spent on self-represented matters.’ The FASS is discussed in more detail in Chapters 3 and 5;
the small claims property pilot, known as the Priority Property Pool 500 (PPP 500), running from January 2020 to December 2021, which is aimed at reducing the cost to families of resolving small property disputes, leaving more in the asset pool to be distributed between the parties. It is a two year trial of a simpler and quicker process for distributing property of less than $500,000 between parties following a relationship breakdown. As at 15 November 2020, 72% of matters in the PPP500 Pilot have been resolved without judicial intervention;
the provision of ongoing funding provided from 1 July 2019 for Family Relationship Centres (FRCs) to undertake family law property mediation. These mediation services will support families to reach agreement on their property disputes through mediation, helping them recover financially more quickly after separation;
the legally-assisted property mediation pilot under which Legal Aid Commissions (LACs) in each state and territory are conducting a two year trial of lawyer-assisted property mediation for matters with a property pool of up to $500 000, excluding debt. This trial will support separating families who require legal advice to mediate and reach agreement on a property settlement without going to court, and runs from January 2020 to December 2021;
the Legally-Assisted Family Dispute Resolution (LAFDR) for Culturally and Linguistically Diverse (CALD) and Aboriginal and Torres Strait Islander (ATSI) families pilot which provided legally-assisted and culturally-appropriate family dispute resolution services for CALD and ATSI families who have experienced family violence. The pilot ran from 1 June 2017 to 30 June 2020; and
the Family Violence and Cross-examination of Parties Scheme which protects victims of family violence from being directly cross-examined, or having to directly cross-examine their perpetrators in family law proceedings. LACs have been funded to legally represent parties subject to the ban on direct cross-examination and AGD advised that ‘the insertion of a Legal Aid funded representative is helping the matters settle—so they're actually settling more quickly once the lawyer is involved … leading to better outcomes and quicker outcomes’.
In addition, the committee heard that delays were often caused by a lack of available family consultants, meaning that hearings had to be deferred pending the completion of the expert’s report. The Government has provided additional resourcing for family consultants of $10.7 million over four years ongoing, from July 2017, for the family law courts to engage up to 17 additional family consultants.
The committee agrees that the delays experienced by some parties in the family law courts, especially those of up to two years or more, impose a heavy personal and financial toll on parties and are not acceptable. However the committee also acknowledges the significant work being undertaken by the courts and the Government to address this issue. The committee commends the courts on their clearance rates for 2019–20 of 99 per cent for all applications and 101 per cent for final order applications in the Family Court and 96 per cent for final order applications in family law matters in the Federal Circuit Court. Given the changes to the way the family courts had to operate as a result of COVID–19, these rates are very encouraging.
The committee recognises that the primary factor causing delays in the family courts is the historical backlog of cases, which evidence suggests has been caused predominantly through a lack of resources and delays in filling judicial vacancies over a number of years. The committee notes the evidence from Mr Iain Anderson, AGD, that recent court vacancies have been or are actively being filled. The committee encourages the Government to ensure that any vacancies going forward are filled expeditiously and supports the courts’ new Summer Campaign aimed at resolving these older cases. The committee also acknowledges the additional resources which have been provided to the court in recent years, including additional ongoing funding for more family consultants, additional resources and judges for the Federal Circuit Court, as well as additional registrars and associates for the Lighthouse Project. The committee considers all of these measures will operate over time to reduce the backlog of cases before the family court.
The committee supports the ongoing funding provided from 1 July 2019 for FRCs to undertake family law property mediation and recommends, subject to a positive evaluation, that the following pilots be rolled out across the family law courts and system, with appropriate funding and resources:
the PPP 500 small claims property pilot;
the legally-assisted property mediation pilot; and
the LAFDR for CALD and ATSI families’ pilot.
The committee recommends that, subject to a positive evaluation, the Australian Government fund and expand the following pilot programs across the family law system:
the three-year screening and triage pilot, known as the Lighthouse Project, currently being undertaken in the Federal Circuit Court of Australia, which involves the screening of parenting matters for family safety risks at the point of filing;
the Priority Property Pool 500 small claims property pilot in the Federal Circuit Court of Australia;
the legally-assisted property mediation pilot being undertaken by Legal Aid Commissions;
the legally-assisted Family Dispute Resolution pilot for Culturally and Linguistically Diverse and Aboriginal and Torres Strait Islander families; and
the co-location of state and territory officers, such as child protection practitioners and policing officials, in family law courts across Australia.
As will be discussed in Chapter 5, facilitating the greater use of alternative dispute resolution (ADR)—so that more matters are resolved through agreement with less requiring the determination of the court—will assist to ensure that those intractable matters that need judicial determination can be heard within a reasonable timeframe.
The committee commends the Family Courts on its commitment to reducing delays through using registrars to conduct case management and duty lists and encouraging the greater use of ADR through the new FCC Registrar Assistance Pilot, ADR Project and Discrete Property Lists.
The committee agrees with evidence suggesting that the role of registrars is critical to addressing the backlog of cases and other delays experienced in the family courts. The committee acknowledges the effectiveness of the current expanded registrar roles illustrated through the new and successful registrar lists, including:
the Discrete Property List and the Priority Property Pools List (‘PPP500 List’) - which successfully resolve 70–80% of the property matters in them without the need for judicial intervention; and
the COVID–19 List, which allows for urgent disputes nationally to be dealt with initially within 3 business days.
The committee notes that, should the Lighthouse Project be evaluated successfully and rolled out across the family courts, this would require an increase in registrar resources. As part of this piloted front-end role, registrars undertake a triage process to ensure matters are assessed for risk, and allocated to the most appropriate case pathway. Cases that are assessed as suitable for alternative dispute resolution (ADR) or family dispute resolution (FDR), whether property or parenting matters, could then be accommodated to a greater extent within the courts by the additional registrars recommended below.
The committee also supports the current work of the family courts in accelerating the harmonisation of the rules that delegate judicial power to registrars in the family law jurisdiction, allowing registrars to provide greater support to judges by assisting with case management work and notes the additional funding in the 2020–21 budget for five additional registrars. The committee considers that this will free up judicial time so that judges can focus on determining the most complex matters and hearing trials. The committee suggests that the court give consideration to the triage proposal discussed in the first interim report from Dr Jacoba Brasch QC, President-Elect, Law Council of Australia (Law Council) who advised:
… I regularly turn up on the days where there are 30 matters and delays and delays…I'd wonder how much delay was a factor of that. I would love nothing more than to turn up before a registrar on one of 30 matters competing for time. I want my matter to be heard today, not to be delayed off again, because that has cost, expense and delay of itself. If a dad isn't seeing his children, it can be tragic. I'd love to turn up before one person and have them triage it. 'What's your matter?' 'It's going to run.' Oh, Dr Brasch; go over to that judge. He's ready. What's your matter?' 'It's a consent order.' 'Stay here; I'll do that.' 'It's an adjournment.' 'Stay.' That would be a marvellous system.
The committee recommends that the number of Senior Registrars and Registrars must be significant enough to provide resourcing and support for not only the major registry locations but also regional and rural areas that are serviced by the circuit program in the Federal Circuit Court, which comprises more than 20 per cent of the Court’s filings. The Family Court has indicated that:
In broad terms, to enact all the reforms, the Courts anticipate that they would require an additional 25 to 30 Registrars (a significant proportion of which would need to be Senior Registrars), and relevant Registrar support staff.
The committee acknowledges that the appointment of Registrars will happen over time as many of the reforms being piloted are rolled out more broadly across the family courts.
The committee has also heard calls for additional judges to be appointed to the Family Court. While the committee acknowledges the high case load carried by many family court judges, the committee is of the view that additional registrar resources should be prioritised in the first instance. The significant reforms currently being undertaken which expand the role of registrars to include more case management, mediation, duty lists, determination of interim and interlocutory disputes and contravention matters appear to be highly effective in resolving matters. The committee considers that additional registrar resources will decrease the workload of judges and provide the court with greater flexibility in how they manage and allocate resources.
While some members (Dr Aly, Mr Perrett, Senator Polley and Senator Waters) supported the inclusion of a recommendation for the appointment of additional family law judges in the Family Court of Australia and the Federal Circuit Court of Australia, other members did not (Mr Andrews, Senator Hanson, Senator Chandler, Dr Martin, Senator O’Sullivan, Ms Steggall and Mr Young).
The committee recommends that the Australian Government work closely with the Family Court of Australia and the Federal Circuit Court of Australia to broaden the role of registrars through the delegation of judicial power or specific legislative amendment to further assist with the case management and hearing of appropriate matters in family law proceedings, including (but not limited to):
in property matters, having authority to check a party’s compliance with financial disclosure requirements and to make orders for compliance where disclosure has not been provided;
in the case of senior registrars, the power to make a final order or declaration in appropriate circumstances in relation to property interests, maintenance or financial agreements, where the gross value of the property is no more than $2 000 000; and
the provision of dispute resolution for parenting matters and expanded availability of conciliation in property matters.
The committee recommends that the Australian Government provide appropriate funding to support the engagement of 25 to 30 additional registrars as well as support staff to assist the Family Court of Australia and the Federal Circuit Court of Australia to address backlogs and delays.
The power envisaged by the committee for senior registrars to make final orders or declarations in financial matters would be discretionary and should only apply where a matter is not complex or where the main issues have been resolved and are no longer contested. It would provide the ability to senior registrars, when conducting an interim hearing in which they have been able to address the main contested matters, to resolve any outstanding issues and make final orders or declarations without the need to involve a judicial officer. It will be at the discretion of the registrar whether they consider the matter is appropriate for them to finalise or whether, in all of the circumstances, it should be referred to a judge for final consideration.
The committee also supports the development of a national specific registrar-led contravention list and the retention of the COVID–19 list in some form going forward. These are discussed in more detail in Chapter 4. Ensuring contravention matters and urgent applications are heard and resolved in a timely way, and early actions taken in response to contraventions are likely to minimise the number that lead on to protracted and ongoing disputes, again reducing the demands on the family court’s time going forward.
The committee also considers that a single point of entry into the family law system for all applications would facilitate an effective triage process to be undertaken by registrars from filing, and ensure consistent treatment of like cases. It would also ensure that cases could be assessed for risk and urgency, and allocated to appropriate court and case pathway. A single point of entry would reduce the number of matters transferred between the courts thereby creating efficiencies and cost savings for litigants. Submissions received to this inquiry indicate that the concept of a single point of entry is uncontroversial and supported by a number of stakeholders.
The committee notes the work undertaken by the Joint Rules Harmonisation Working Group to progress the harmonisation of the Family Law Rules and the Federal Circuit Court Rules (in so far as they apply in the family law jurisdiction of the Court), so as to create a single, harmonised set of rules. The committee understands that the draft rules are currently with the profession for consultation. The committee considers that the harmonisation of the rules, forms and case management practices across the courts would support the proposed single point of entry for family law applications as well as create less confusion and greater efficiencies for practitioners, parties and the court.
The committee recommends that a single point of entry into the family law system be established to facilitate effective triage and streamlined case management.
The committee also recommends that the rules, forms and case management of the Family Court of Australia and the Federal Circuit Court of Australia be harmonised as a matter of priority. If necessary, the Australian Government should amend the Family Law Act 1975 to authorise the Chief Justice/Chief Judge and the Deputy Chief Justice/Deputy Chief Judge to draft and finalise the harmonised rules, forms and case management for both the Family Court of Australia and the Federal Circuit Court of Australia.
Proposed court merger
Another measure that is intended to reduce delays is the proposed merger of the two federal family courts. On 5 December 2019, the Attorney-General, the Hon. Christian Porter MP introduced the Federal Circuit and Family Court of Australia Bill 2019 (FCFC Bill) in the House of Representatives. The FCFC Bill proposes to merge the Family Court and Federal Circuit Court into a single court structure to be called the Federal Circuit and Family Court. The Attorney-General has stated that:
The merger will help reduce delays and backlogs in the family law courts and remove the unnecessary confusion, duplication and additional costs that have plagued the existing dual court system for decades.
… the Federal Circuit and Family Court of Australia Bills have been informed by multiple independent inquiries held over the past decade which examined the user experience and efficiency of the existing system. The most recent of those reviews found that this reform has the potential to allow an extra 8,000 cases to be resolved each year.
The FCFC Bill was referred to the Senate Legal and Constitutional Affairs Legislation Committee (LCA Committee) for inquiry and report by 20 November 2020. In the majority report, the LCA committee recommended that the Senate pass the Bill, however, dissenting reports were presented by Labor and Australian Greens’ Senators. On 17 February 2021, the Bill was passed by the Australian Parliament.
Legal fees and costs
As highlighted in the discussion above, addressing the delays in family court proceedings will go a long way to reducing the costs of those proceedings. In the first interim report, Mr Steel described how delays are a major factor in driving elevated legal costs:
… reducing delays in the court system will greatly improve and lower the costs that the parties are being required to pay. Delays mean more interim applications, multiple family reports in parenting cases often being required, updated subpoenas in parenting cases often being required, updated valuations being required in property matters and updated subpoenas in property matters. If parties can be transitioned through the court process—that's the limited number of parties who need the court process—then their costs will be significantly reduced. If they can be transitioned through quicker their fees will be significantly reduced.
The Association of Family and Conciliation Courts (AFCC), Australian Chapter submitted that:
… with increased resources available to intensively triage matters at an early stage the scope of disputes can be narrowed quickly and an increased number of early resolutions reached. AFCC Australia submits that the best way to reduce the legal fees associated with litigation is to assist parties to reach early resolution to their matters.
The committee broadly agrees with this approach and has highlighted the benefits of early triaging of matters and early resolution of matters, both within and outside of the family courts, in its earlier committee view on delays.
The committee also heard significant evidence regarding the disparity between legal costs and the property pool available in a settlement, in extreme cases where the legal costs are greater than the assets in contention. For some, these costs are prohibitive and make the system inaccessible. This leads parties to self-represent, engage partial legal representation for specific matters or not pursue their family law issue at all. As discussed above, self-representation can add to the delays in a matter.
However, the committee was also reminded that only a small proportion of family law matters progressed to trial and that these are highly contested:
It's important to remember that 95 per cent of these matters effectively settle before getting to the hearing stage. So the five per cent of these difficult matters that you're reading about are the ones where the parties are really intractably opposed to each other. So they, by their nature, are unusual and exceptional and so they do incur large amounts of costs.
While the committee is aware that complaints mechanisms are available in all Australian jurisdictions for a party to complain about the costs charged by their lawyer and there are sanctions for lawyers who charge excessive fees, the committee agrees that more needs to be done to reduce the costs incurred by parties.
Capping legal fees
The committee heard a number of suggestions about how private practitioner legal costs might be reduced. One of the key suggestions was that legal fees should be capped; however there were differing views on whether this would actually assist families.
For example, Ms Hayley Foster, Chief Executive Officer, Women's Safety NSW stated that their stakeholders were overwhelmingly in favour of capping legal fees:
Seventy-five per cent of domestic violence workers surveyed and 67 per cent of domestic violence survivors surveyed stated that legal fees should be capped based on the pool of assets. We are a voice for those frontline workers and survivors. Some of the stories that we hear are that people are unable to access the family law system or see it through to its conclusion, and they're appearing unrepresented purely due to a financial cost.
Whereas the Law Council elaborated on some of the limitations imposed by capping:
… there is a concern that if a party were advised that their fees would be capped to a particular sum or percentage of the asset pool, this may make them less inclined to accept advice to settle matters or narrow the issues in dispute as there would be no cost incentive for them to do so. Fixed fees would also see the potential for work to cease at a certain stage if the costs are exhausted and reach the fee cap resulting in only perfunctory assistance provided afterwards, if at all.
Mr Anderson, AGD provided the following commentary on the capping of costs:
Certainly costs can be absolutely disproportionate in family law. The legal profession has said, I think, in evidence and submissions, that part of that is the choice of parties who might wish to just keep fighting. I think that if there were to be a cap on legal costs in family law matters, we'd need to see how that would actually play out in terms of what happened if people wanted to keep instructing their lawyers to make applications and whether the lawyer was having to do work beyond what they were being paid for. I think that might be one challenge.
Furthermore, Mr Anderson continued:
On the other hand, I think that there's a lot to be said for having event based costing—so where there's a set scale of costs for particular types of court matters or particular types of engagements with a client—and making it very hard for parties to exceed that. When you have legal costs that outweigh the total amount of property involved in a separation, by definition both parties to a separation are going to be financially worse off because they're splitting the one amount of property and they're going to have common expenses that they will then have to wear individually… I think it is certainly worth considering the extent to which there can be caps on legal fees in family law matters.
The NSW Bar Association highlighted that the size of the asset pool was only one issue when considering costs and:
… is not reflective of the amount of legal work required to ensure justice is done between the parties in any given matter …
The size of an asset pool is only one issue. The contributions made by parties, their future needs and the existence of and access to financial resources are other issues which sometimes require extensive investigation, analysis and advice. The extent of this work bears no relationship to the overall size of the asset pool.
The committee also heard that the capping of legal fees in family law matters may:
… lead to an exodus of qualified and experienced people into other areas of law that they are highly proficient in and their leaving for family law litigants the inexperienced, the unqualified and the people who are prepared to accept something which isn't market rate for a lawyer.
AGD also raised additional considerations relevant to the effectiveness of imposing capped legal fees:
There can be a lack of certainty or agreement between the parties about the value of some property pools throughout proceedings on which to determine a fee cap. There may be no clear relationship between the value of the property pool and the complexity of the matter (i.e. a matter involving a large property pool will not necessary be more complex or straightforward to resolve than a dispute involving a smaller property pool). This may motivate legal professionals to preference certain matters and be reluctant to take on matters with smaller property pools or complicating factors. There is also a practical consideration as to how such a fee cap would operate for families where there are both parenting and property matters in dispute being heard together.
AGD also highlighted other issues such as who would monitor and enforce compliance with the fee cap and how it would be reviewed and updated would require careful consideration.
The ALRC 2019 report did not include a recommendation on capping of legal fees, however in Recommendation 30 the ALRC suggested that the Family Law Act 1975 be amended to:
… include an overarching purpose of family law practice and procedure to facilitate the just resolution of disputes according to law, as quickly, inexpensively, and efficiently as possible, and with the least acrimony so as to minimise harm to children and their families.
When asked about the implications of Recommendation 30 if adopted, Mr Anderson, AGD advised that:
Legislation is a useful and powerful tool, but it doesn't necessarily achieve everything that one would hope for. Particularly when you come to the practice of courts, in an area such as family law, there's a lot to be done by chief justices in seeking to inculcate a culture, within courts, where individual judges act in a consistent manner. One example of that is the fact that the Family Law Act currently provides for a less adversarial process to be used but different judges are more ready or less ready to adopt a less adversarial approach in different sorts of family law matters.
Having that kind of statement enshrined in the act is a powerful tool in terms of an indication of the way in which family law proceedings should occur, but then it's a matter for the judges as well as individual lawyers and individual parties who also appear before the courts. We should note that, if you go back to before the Family Law Act was passed, even when matters were being dealt with in supreme courts of states and territories, family law matters can be particularly characterised by interparty conflict, by people who are aggrieved by the failure of a relationship and are carrying those sorts of strong emotions into attempting to solve disputes around parenting and property. I think it would be an important aspirational statement, if it were to be enshrined in the legislation, but it only gets you part of the way.
Mr Anderson was supportive of the inclusion of this aspirational statement that would give the Chief Justice and the Deputy Chief Justice some sort of foundation to seek to apply those sorts of procedures where they thought they might work better.
While the committee acknowledges that many issues have been raised during the inquiry regarding the pros and cons of capping legal fees, the committee considers that the capping of legal costs at a reasonable level for matters only involving the settlement of property would create significant benefits to the family law system
The committee considers that many of its other recommendations will have the effect of reducing the delays in the family court system, which will in turn also reduce the legal costs of many family law proceedings involving parenting only or property and parenting. The committee also acknowledges the focus of a number of the pilots on the cost-effective and swift resolution of small property matters, such as the Priority Property Pool 500 small claims property pilot, the Discrete Property List and the legally assisted property mediation pilot discussed in Recommendation 1.
As discussed earlier in this Chapter and in Chapter 5, the committee sees significant benefits in facilitating the greater use of ADR, especially in addressing delays and costs in family law matters. The committee understands that, while the family courts can suggest parties undertake mediation, they are unable to order parties to do so when they consider the circumstances warrant it.
The Family Court has advised that in:
Rakete & Rakete  FamCA 267 and Flora & Flora  FamCA 493, the Court confirmed that, while the Courts have power to refer parties to Family Dispute Resolution without their consent, the mediation of property matters may not fall within the concept of Family Dispute Resolution.
The Family Court therefore suggest that:
… to provide clear power for family law matters to be referred to mediation, a further definition be added of ‘dispute resolution service’ and a new ‘Division 4 Mediation’ inserted into Part II of the Family Law Act.
Given the committee’s Recommendations 2 and 3 proposing greater use of ADR in court matters and increased registrar resources, the committee considers a power vested in judges to compel parties in appropriate circumstances to undertake mediation could be beneficial.
The committee also supports a genuine steps statement being applied in the Family Law Act to property matters. As such, the committee has drafted proposed amendments set out in Appendix 4 to the Family Law Act to assist the court to effectively case manage and encourage the resolution of matters and to control excessive costs. This includes a provision that would the set the maximum costs and disbursements that a legal practitioner may charge a party to proceedings at $50 000 or 10 per cent of the combined value of the parties’ identified property and superannuation, whichever is the higher.
Some of the committee recognises that a cap may have unintended consequences, for example, fewer practitioners deciding to practice in family law creating a supply shortage; a lack of incentive to settle until the cap is reached; and an incentive to settle once the cap is reached. However, the committee notes that safeguards have been included in the draft provision in Appendix 4 so that the cap does not include the costs of dispute resolution and an increase to the cap can be approved by a judge or registrar in exceptional circumstances.
The committee also supports Recommendation 30 of the ALRC 2019 report to include an overarching purpose of resolving disputes as quickly, inexpensively and efficiently as possible.
The committee is also cognisant that 'each state/territory already have professional regulatory frameworks and regulations which provide that lawyers must provide adequate costs disclosure to their clients'. For example:
… Solicitors are extensively regulated by the Legal Professional Act 2007 [(Queensland)] in the manner in which disclosure is to be made and the information which must be provided to clients. Solicitors' fees are subject to an overarching requirement that they be 'fair and reasonable'. Gross overcharging is a matter that is characterised as 'professional misconduct'.
The committee recommends that the Australian Government amend the Family Law Act 1975 to include the proposed provisions set out in Appendix 4 of this second interim report.
The first interim report also considered the application of disappointment fees by some barristers, which were applied when a matter was adjourned or settled at a late stage such that the barrister was unable to obtain other work for the period set aside for that matter. The NSW Bar Association explained that:
Reservation fees therefore seek to promote access to justice by offering improved certainty and comfort to clients that a barrister will be exclusively available to them for the duration of the matter, while providing greater certainty for self-employed practitioners.
The Law Council noted that the disappointment fees are rare and always clearly set out in costs agreements. The fees must also be 'fair and reasonable, proportionately and reasonably incurred and proportional and reasonable in amount'.
Despite this, the committee heard calls for disappointment fees to be banned, as they were considered iniquitous and can have a devastating impact on clients. This is reflected in information provided by the Family Court that:
The current draft of the harmonised family law rules includes a rule that, unless exceptional circumstances apply, a cancellation fee levied by a barrister or solicitor advocate shall not be deemed reasonable.
The committee is aware that the regulation of legal practitioners, including regarding the nature of the fees charged, is a matter for state and territory governments. However, the committee is concerned about the practice of charging disappointment fees in some jurisdictions. The committee is also aware that the removal of such fees may lead some barristers to increase their daily fee to compensate for situations where a matter is unable to proceed at a late stage and they find themselves without work. Alternatively, barristers may be unwilling to reserve their diary for family law work or, indeed, the inability to charge disappointment fees may discourage the late settlement of a matter. Despite this, the majority of the committee is of the opinion that disappointment fees should be banned.
However, Ms Steggall expressed concern that the prohibition of “disappointment fees” (otherwise known as “cancellation fees” or “reservation fees”) would simply mean these payments would be built in elsewhere in a fee schedule as they represent real and significant costs to legal practitioners. Ms Steggall expressed the view that she understands the charging of disappointment fees is not a widespread problem and that implementation of a ban would be difficult as they are essentially part of a contractual obligation between client and barrister. Her final concern was that removing the ability to charge disappointment fees may lead to a reduction in the instances of an early resolution of cases. The NSW Bar Association expressed similar concerns about the removal of such fees, noting that :
… the Legal Profession Uniform Law (NSW) provides that barristers may not charge fees which are not “fair and reasonable”, “proportionately and reasonably incurred and proportional and reasonable in amount”, and must comply with strict disclosure requirements.
Accordingly, Ms Steggall does not agree with the following recommendation.
The committee recommends the prohibition of the use of disappointment fees in family law matters.
Proportionate costs to property pool
As noted above at paragraph 2.48, the committee heard significant evidence regarding the disparity between legal costs and the property pool available in a settlement. As the committee chair reflected at the Sydney hearing:
One of the most constant complaints made to this committee in the written submissions and, indeed, in the hearings that we've had with individuals is about costs—about excessive costs and legal fees that are disproportionate to the total assets of the couple. Only three days ago we heard of a case in Townsville where costs were $170,000 for total assets [of] about $500,000. The next day we heard of costs of $800,000 to $900,000 for total assets of just over $1 million. And yesterday we heard of total legal costs of $500,000 where the assets were only $200,000.
The Family Law Rules 2004 require that, before starting a case, each prospective party must comply with the pre-action procedures contained in Schedule 1. While there are some exceptions to this rule set out in subrule 1.05(2)—such as where a property case involves allegations of family violence, or the risk of family violence, or fraud—all parties are expected to have followed the pre-action procedures before filing an application to start a financial case in the Family Court, unless there are good reasons for not doing so.
Subclause 1(6) of Schedule 1 requires that ‘[a]t all stages during the pre-action negotiations and, if a case is started, during the conduct of the case itself, the parties must have regard to:
(h) the principle of proportionality and the need to control costs because it is unacceptable for the costs of any case to be disproportionate to the financial value of the subject matter of the dispute….’
Unreasonable non-compliance of the requirements set out in the pre-action procedures may result in the court ordering the non-complying party to pay all or part of the costs of the other party or parties in the case. In making such an order, the court may ensure that the complying party is in no worse a position than he or she would have been if the pre-action procedures had been complied with.
There is no corresponding pre-action procedures or a requirement for proportionate costs in the Federal Circuit Court Rules 2001.
However, in January 2020, the Chief Justice of the Family Court and Chief Judge of the Federal Circuit Court, the Hon. Justice William Alstergren, issued a joint practice direction on the Core Principles in the Case Management of Family Law Matters for both the Family Court and the Federal Circuit Court, which included the following relevant principles:
Parties,’ lawyers’ and the Courts’ obligations and overarching purpose
2. The overarching purpose to be achieved is to ensure the just, safe, efficient and timely resolution of matters at a cost to the parties that is reasonable and proportionate in all the circumstances of the case, having regard to the significant impact of family law disputes on children and families.
Lawyers’ obligations about costs
7. Parties and their lawyers are expected to take a sensible and pragmatic approach to litigation, and to incur costs only as are fair, reasonable and proportionate to the issues that are genuinely in dispute. Parties and their lawyers are expected to engage in cost budgeting, and regularly inform their clients and the Court of the actual costs they have incurred and are likely to incur (see Part 19.2 of the Family Law Rules 2004).
The committee accepts the advice of the NSW Bar Association as outlined earlier in this chapter that the size of the asset pool is not reflective of the amount of legal work required to ensure justice between the parties in any given matter. However, it is clearly detrimental to all parties to have the costs of the legal proceeding exceed the amount of the property to be distributed (see also Recommendation 5). The committee understands that work is currently being undertaken by the Family Court and the Federal Circuit Court to harmonise the rules of the two courts, so as to create a single set of rules. As such, the committee recommends that the courts include the pre-action procedure requirement for proportionality of costs in the harmonised rules.
The committee recommends that the Family Court of Australia and the Federal Circuit Court of Australia include the requirement for proportionality of costs currently included within Schedule 1 of the Family Law Rules 2004 within their new harmonised rules of court.
The committee heard evidence about the unbundling of legal services in family law cases:
Unbundling involves a lawyer assisting a client with one or more discrete tasks, rather than on an ongoing basis. Unbundling presents opportunities for consumers to manage their costs while retaining control over strategy in their legal matter. This is particularly beneficial for parties who would be unable to afford full representation. Through unbundled services, parties can seek specific, discrete assistance at key points, which can improve outcomes for those who would otherwise be unrepresented and navigating the system alone.
Caxton Legal Centre explained that family law matters are suited to this model, noting that unbundled family law services are the ‘bread and butter’ of legal aid and community legal centre lawyers:
Family law disputes for the most part do not require a full legal representation model and are more suited to the more affordable unbundled legal services model. The development of unbundled legal services has grown largely out of the family law jurisdiction which lends itself particularly well to this more cost effective way of receiving legal advice and assistance.
However, there are limitations in expanding the use of unbundled services to the private sector:
Unbundling already occurs in the legal assistance sector, but is difficult for the private sector to implement in the current regulatory and common law environment. The need for uniform rules to deal with unbundled legal services was identified through the 2014 Productivity Commission Inquiry into access to justice, and again, more recently, through the stakeholder feedback process of the ALRC Issues Paper.
The committee is aware that the regulation of the legal profession is a matter for states and territories and that a uniform approach to unbundling across all states and territories is required. This issue has been under consideration since May 2017 when the former Council of Australian Governments (COAG) Law, Crime and Community Safety Council agreed to consider uniform rules to deal with unbundled legal services. The committee understands that this work is continuing under the Council of Attorneys-General (CAG), being led by Victoria. The committee is of the view that the CAG should seek to expedite this work with a view to having uniform rules in place within the next 12 to 18 months.
The committee recommends that the Commonwealth, states and territories, through the Council of Attorneys-General, expedite the work on uniform rules to support the provision of unbundled legal services by private family lawyers which commenced in May 2017.
The committee has also heard that the costs of transcripts of court proceedings can be expensive and this impacts on the ability of many parties to be able to properly consider and formulate an appeal. This raises issues regarding access to justice. While the committee does not make any formal recommendation in relation to this issue, it is of the view that the costs of transcripts should be such that they are not out of the reach of the ordinary person.
Online Dispute Resolution Systems
The committee notes the development and release in June 2020 of the online dispute resolution system amica. Amica is an online tool which assists separating couples to determine an equitable property division and to mutually agree parenting arrangements. As noted in the first interim report, the Attorney-General, the Hon. Christian Porter MP, stated his expectation that amica ‘will help reduce the legal bills of separating couples and reduce pressure on family law courts’.
The committee heard from other submitters about proposals for online services to assist with financial disputes. The committee considers that online services of these types have the potential to empower and enable families to resolve matters outside of the family court and commends the Government’s support of such tools. However, the committee cautions that these online services need to provide clear information on where the legal responsibility lies in relation to the advice and services provided.
The committee has also heard about some of the technological changes that have occurred in the family courts during the COVID–19 pandemic:
The Family Court and the circuit court have both been making extensive use of video hearings, for example. I think it's proven to be a very successful way of reaching out to people. Given that the circuit court, by name, is a court that does circuits around the country, using video technology has enabled the court to reach out to people around the country without those people having to wait for a circuit. I think it has a lot of benefit, and there is a lot of discussion, amongst the judiciary and the legal profession, about what happens after COVID. Do we snap back to a pre-COVID insistence to do as many things as possible physically in front of judges and registrars, or can we keep going with this much more flexible, much more accessible and much cheaper way of providing justice? It doesn't necessarily work for a contested hearing, where you're
crossexamining people, but for so many court events, for example, you can do things very quickly and very accessibly using technology. I'm optimistic that some things will change permanently
As Mr Anderson, AGD, noted, this use of technology can assist in addressing concerns regarding delays and costs:
Absolutely. Instead of paying for four hours or so of your lawyer's time for them to physically travel to court, wait until the case is heard and then travel back to their chambers, it might mean a payment for 15 or 20 minutes of their time, because they're heard when they're scheduled to be heard and then they can move on to something else. It would be much cheaper and much more accessible.
As set out in the first interim report, the committee heard from a number of organisations about perceptions of bias within the family law system. Some organisations expressed the view that the system is gender-biased in favour of females; while others instead felt that the system favoured men.
For example, Better Place Australia cited complaints data showing that male participants in Family Dispute Resolution (FDR) consistently felt that the system had a gender bias in favour of women. They suggested that this perception may arise due to the predominantly female composition of the FDR workforce and may be addressed by moving towards a more gender-balanced workforce.
By contrast, Women’s Safety NSW referred to anecdotal evidence that family report writers are biased against women, noting ‘incidents of family report writers accusing mothers who make abuse allegations of being “hysterical, vindictive and manipulative”.’ Similarly, the Feminist Legal Clinic noted that they ‘receive many accounts from women of biased treatment by professionals within the family law system.’
The issue of unconscious bias was also raised with the committee, especially in relation to LGBTIQ families, people with disabilities and those with mental health issues.
While the committee is making no specific recommendations in relation to bias, it considers that Recommendation 9 (professional accountability) and Recommendation 15 (training) should assist to address concerns in relation to bias and unconscious bias. Better and additional training of family law professionals on issues such as unconscious bias, family systems, family violence and trauma informed practice will help to address some of the underlying reasons for any bias that may exist. Ensuring that there are appropriate professional obligations, accountability and complaints mechanisms in place for family law professionals will provide parties with avenues to address issues of perceived bias or incompetency.
The committee also considers that state, territory and federal governments should develop workforce planning initiatives which will encourage a more gender-balanced workforce in professions that service family violence and family law systems. This would support Recommendation 25 to ensure that there are adequate support services available for male victims of family violence.
Family consultants and expert witnesses
The committee received evidence of a number of concerns regarding family consultants and expert witnesses. Key among these were issues relating to bias (discussed above), the delays experienced in being able to meet with a family consultant and a lack of accreditation and training. The impact of a negative family report on legal aid funding was also canvassed.
As discussed in the first interim report, there is currently no formal accreditation process for family consultants and expert witnesses:
Despite the critical role that family reports can play in the outcome of family law proceedings, family consultants are not required to undertake formal training, accreditation or evaluation…
… family consultants are not required to undertake formal family violence training.
Instead there are non‑binding best practice guidelines and minimum standards developed by the courts and set out in the Australian Standards of Practice for Family Assessment and Reporting (the Family Reporting Standards). According to the Family Reporting Standards:
Generally family assessors should have qualifications such that they are eligible for membership or are members of the Australian Association of Social Workers or are registered as a psychologist with the Australian Health Practitioners Regulation Authority, meet the mandated or recommended requirements of those bodies in relation to ongoing professional development, and have professional clinical experience working with children and families.
In addition, the Family Reporting Standards suggest that:
As an expert witness, family assessors should have appropriate training, qualifications and experience to assess the impact and effects (both short and long term) of family violence or abuse, or exposure to family violence or abuse, mental health problems and drug or alcohol misuse on the children and any party to the proceedings.
The committee was advised that 'additional resourcing' was provided to the Federal Court of Australia by the Government in the 2017–18 Budget, to enable the Federal Circuit Court to:
… employ up to 16 family consultants and $180 000 over two years to improve the training available to these consultants. The funding was assigned to the Federal Circuit Court's budget and has been used to develop new induction training and an advanced family violence training program for family consultants.
However, this committee, as well as the ALRC 2019 Report, heard concerns about the ability of family consultants and expert witnesses to appropriately consider issues such as family violence, trauma and abuse. As discussed in the first interim report, during the course of the ALRC 2019 Report and inquiry, stakeholders raised concerns with respect to:
… the possible negative outcomes for children in cases where the report writer is not appropriately qualified or expert in the relevant issues, such as an understanding of family violence, trauma and its impacts on adults and children, child abuse, cultural competency, or disability.
This committee was informed of extensive research on family report writers which suggested:
… that some [family report writers] tend to invalidate coercive control and other forms of family violence when they look for ways to build and maintain the children's relationships with the perpetrator of the abuse.
The committee heard that the impact of an improper or unfounded assessment does not just have the ability to influence the court’s decisions in these family law matters. The committee was also advised that a family report that is unfavourable to one party can sometimes lead to the loss of that party’s legal aid funding. This was canvassed in Chapter 5 of the first interim report. Ms Bronwen Lloyd, Lawyer, Women's Legal Service Queensland informed the committee that often a negative recommendation that was not supported by the evidence in the family report would be sufficient to rescind legal aid support:
If a client has a family report and it has a negative recommendation, legal aid is often cut off, even if the report has flaws and has made assumptions that aren't supported by the evidence. Often I read reports and I get to the end and I find the recommendations are a bit surprising because they haven't been able to build the process to support the recommendation. I don't think that report would stand up if it were in court. I think we'd be able to expose some of the flaws and perhaps get the report righted to be a bit more flexible in their recommendations. But as soon as that report goes to legal aid, it's often used to show that the client doesn't have merit for legal aid and they'll lose their legal aid funding.
However, AGD, in answer to a question on notice noted:
…the evidence of Ms Kylie Beckhouse, then Director of Family Law at NSW Legal Aid, appearing on behalf of National Legal Aid, who gave evidence to the Committee on 27 May 2020, stating that it is incorrect to say a legal aid commission would terminate funding due to one family report. Ms Beckhouse stated that legal aid commissions will examine the merits of the case and whether it is an appropriate case for public monies to be expended.
Similarly, Ms Gayathri Paramasivam, Associate Director of Family law at Victoria Legal Aid, who appeared before the Committee on 24 June 2020, gave evidence that Victoria Legal Aid could assist in the challenging of a family report, provided it was determined that there was still merit in the case. Ms Paramasivam stated that this would involve consideration of all the circumstances around a family report.
The committee heard that to address these concerns there would need to be increased training and regulation of family consultants and expert witnesses. The committee notes that an online Family Violence Training Package has recently been developed for family consultants which includes training on the Child Dispute Services (CDS) Practice Guidelines on Family Violence Screening and Assessment as well as other topics including the impact of family violence, reflective and trauma informed practice, and vulnerable groups.
The committee was also informed of concerns relating to a perceived lack of accountability for family consultants and expert witnesses. As set out in the Family Reporting Standards, these professionals are required to be members of the Australian Association of Social Workers (AASW) or registered as a psychologist with the Australian Health Practitioners Regulation Authority (AHPRA). While these bodies have mechanisms for members of the public to make complaints about professional misconduct, the committee is aware that the AASW mechanism does not appear to apply to social workers who undertake work for the family courts. The AASW webpage states that:
The AASW is generally prohibited by virtue of section 121 of the Family Law Act 1975 from receiving and responding to complaints about social workers (whether a Family Consultant or not) that relate to proceedings of the Family Court of Australia and Federal Circuit Court including anything relating to the content of a report prepared for the purposes of the court proceedings. This includes complaints relating to a court-ordered activity.
The webpage qualifies this advice by saying that where a social worker has:
… engaged in professional ethical misconduct incidental to the contents of a report, but not directly related to the content of a report (e.g. report writer requesting a sexual act in exchange for a favourable report), this is something that may be addressed, either by the Family Court of Australia or the Federal Circuit Court or the AASW, as appropriate, following the conclusion of the matter before the court.
The AASW therefore refers complaints about social workers who are Family Consultants to the Family Court or Federal Circuit Court. However, they do express their preference with regard to family consultants who are members of their association, stating:
It would be the AASW’s preference that its ECMP [Ethics Complaints Management Process] could apply equally to all its members, including member social workers who undertake work for the Family Court of Australia and Federal Circuit Court. However, the AASW is legally required to work within the bounds of the Family Law Act 1975.
… The AASW’s legal advice is that the publication or dissemination to the AASW of any part of Family Court proceedings which might identify parties and witnesses, or persons related to the proceedings would be an offence.
Irrespective of that position, section 121 of the Family Law Act also prohibits the AASW from disseminating the same information to members of the public or to a section of the public. This means that the AASW is unable to disseminate the information (e.g. to witnesses or investigators) for the purpose of investigating and determining the complaint.
For Kids Sake advised the committee in relation to another regulatory body that:
For years, the Family Court – with the acquiescence of the Australian Health Practitioner Regulation Agency – has prevented investigation of its expert witnesses while proceedings are on foot. This has led to a situation where, as happened in 2019, more than seven years had passed between the date of an initial complaint and when a practitioner was brought before a State Administrative Tribunal to be found guilty of professional misconduct.
Ms Zoe Rathus, Dr Helena Menih, Dr Samantha Jeffries and
Professor Rachael Field also discussed this issue in their submission, stating that the 'unsatisfactory nature of the complaints system for [family report writers] has been a problem for many years'. These submitters recommended the establishment of a complaints unit 'for dealing with complaints against family report writers’.
The committee also heard suggestions that section 121 of the Family Law Act should be amended so that it does not apply to family consultants and expert witnesses. At present, this provision operates to restrict the publication of the identity of the consultant or expert witness where they may have been disciplined, charged or convicted. This means that persons seeking to engage an expert do not have the complete picture regarding their abilities and performance. As Australia’s Right to Know Coalition stated:
This anonymity is not afforded to other health professionals in circumstances where there has been disciplinary action taken by regulators or criminal convictions.
With regard to section 121 of the Family Law Act, AGD advised:
Subsection 121(9) lists explicit exceptions where the prohibition on publication does not apply, and includes permitting communications to a disciplining body of the legal profession. There is no explicit exception outlined for communications with oversight bodies for social science or medical professionals. This does not necessarily mean that section 121 prohibits complaints, or the disclosure of family reports, to other bodies performing a professional oversight function, provided that identifying information is not published or otherwise disseminated to the public. However, the department is aware that the interpretation of this provision is the subject of some confusion.
The committee supports the ALRC recommendation that AGD should develop a mandatory national accreditation scheme for private family report writers. The committee acknowledges that establishing an accreditation scheme is a significant task and accepts that it may be necessary to achieve this in stages, with an early emphasis on ensuring persons appropriately qualified and with family violence training are easily identifiable for parties wishing to use their own expert. However, the committee notes that a lot of work already undertaken could be used to inform and develop this scheme, such as:
the Australian Standards of Practice for Family Assessment and Reporting; and
the new induction and advanced family violence training program for family consultants.
The ALRC also noted that previous inquiries have recommended that an accreditation scheme for report writers be modelled on the existing accreditation system for FDRPs.
The ALRC limited its recommendation for a national accreditation scheme to private practitioners engaged by the family courts to prepare family reports under regulation 7 of the Family Law Regulations 1984 (Cth). It did not include court based family consultants or expert witnesses.
According to the ALRC 2019 Report, the Family Court did not agree the accreditation scheme should also apply to court-based report writers, submitting that an accreditation scheme for court-based report writers ‘would be unnecessary as the work of Family Consultants is the responsibility of the Courts and it is the role of CDS [Child Dispute Services] to ensure the competency of its workforce.’ While the committee understands this, the committee considers that the recruitment process of court based family consultants could ensure that they meet the accreditation standards. As such, the committee considers that it is appropriate that this recommendation be extended to all family consultants newly employed by the court from the date that the accreditation standards come into force.
The ALRC 2019 Report also set out the reasons for excluding expert witnesses from the accreditation scheme, including:
Chapter 15 Experts are excluded from the recommended accreditation scheme for private family report writers. While there are private practitioners who regularly conduct family assessments and provide reports to the family courts in children’s matters, there may also be psychiatrists, psychologists, or other practitioners that are called upon to provide evidence to the family courts only in rare circumstances. These experts may be unwilling to undergo an accreditation process before they are able to provide evidence in the family law jurisdiction.
However, the committee considers that further consideration should be given to some form of accreditation for expert witnesses who regularly provide family reports.
The committee also agrees that further consideration should be given to the development of a dedicated complaints mechanism for family consultants and the amendment/clarification of section 121 of the Family Law Act to allow independent professional bodies to consider the misconduct of their members and report publicly on any negative findings. The identification of these family consultants would be in the public interest and can be achieved without the identification of parties to the proceeding. This level of transparency would also increase a party’s confidence in the family consultant and court process. The committee notes that the ALRC 2019 report also discussed the confusion around section 121 regarding whether it prevents communication of details of proceedings to professional regulators as part of a complaint and recommended that it be redrafted.
The committee recommends that the Australian Government lead the establishment of mandatory accreditation, standards and monitoring processes, including complaints mechanisms and ongoing professional development requirements, for:
family consultants, including family report writers employed by the court and engaged under Regulation 7 of the Family Law Regulations and privately engaged family report writers; and
Children’s Contact Services.
The committee has heard suggestions that interviews with family consultants should be recorded. It has been proposed that these recordings could be used for two purposes. The first is to provide independent evidence should there be a need to review the competency of a family consultant or address a complaint made against them under the new accreditation scheme. This issue could be considered in the development of the accreditation scheme’s complaint mechanism.
The second suggestion is that the recording could be made available as evidence to dispute the content of a family report. The committee accepts that there are a number of issues to be considered with regard to this suggestion, including whether this will impede open dialogue and whether it is appropriate for—what dangers might present if—the views of children expressed to the family consultant are disclosed to parents in this manner. The Family Law Council may wish to consider this suggestion when considering how best to reflect the views of children under Recommendation 10.
The committee also recommends that appropriate training be provided to all family consultants, including on issues related to family violence, trauma informed practice and systems abuse. This recommendation forms part of the broader training recommendation included as Recommendation 15 in Chapter 3.
Adversarial vs inquisitorial systems
As detailed in the first interim report, a common theme among submissions was the view that the adversarial nature of the family law system is detrimental to all parties. This is especially the case for children, who may be central, but not party, to a family law dispute.
The adversarial approach in family law proceedings, which has been described as a ‘win or lose’ approach, does not encourage, and can erode the ability of, parents to collaborate in reaching decisions which are in the best interests of the children.
The Queensland Law Society (QLS) described the difference between adversarial and inquisitorial systems as follows:
In the adversarial system, judges are relatively passive in the collection of evidence. Advocates play the role of calling on and questioning witnesses and producing documents and there are complex rules of evidence which dictate how information is to come before a court. The inquisitorial system allows judges to direct a pre-trial inquiry, actively collect or disregard evidence and call and question witnesses. Rules of evidence under the inquisitorial system are somewhat less restrictive. The collection of evidence is however influenced significantly by the Judge. This control by the arbiter of fact risks a party being denied the opportunity to put evidence they consider significant forward for consideration.
The adversarial approach largely depends on the advocate of the party presenting the evidence relevant to their application. Where a person is not legally represented, it falls to the individual to present their case and adduce relevant evidence. Many self-represented parties do not have the skills or abilities necessary to understand the rules of the court and properly adduce relevant evidence and question witnesses. This will often result in the court not being privy to all relevant information necessary to make its decision. This presents a significant concern given the high percentage of people who are self-represented at various times within their family law proceedings.
While the committee heard significant evidence regarding the high family conflict that is part of family court proceedings and there were many calls for a more inquisitorial system, it was also suggested that ‘an entirely inquisitorial system would increase the burden on courts and ultimately the public'.
The committee is aware that, when the Family Law Act was introduced, some of its main purposes were to provide for more simple procedures and to require family courts to proceed without undue formality, with the endeavour of keeping proceedings from being protracted. As discussed in the first interim report, since the Family Law Act was enacted, the Family Court has introduced other initiatives which were significant departures from the traditional adversarial trial. These included the Children’s Cases Program (CCP), whose:
… introduction was motivated by a growing concern that the traditional adversarial system of determining such disputes (albeit modified in children's cases…) had failed to provide the optimal method for determining children's best interests, which the Court was statutorily required to do.
The CCP was followed by the Less Adversarial Trial (LAT) approach, which is now encoded in Division 12A of the Family Law Act. This Division includes five principles for conducting child-related proceedings, including that the court is to actively direct, control and manage the conduct of proceedings and that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties and conducted without undue delay and with as little formality, and legal technicality and form, as possible.
Despite there being an existing 2009 LAT Handbook on the Family Court website, the committee was advised that few judges now practice the LAT in the way the process was originally designed. The ALRC in its 2019 report also noted that while the Family Court is already empowered to implement a less adversarial approach to family law matters, the Federal Circuit Court has never been empowered to adopt the LAT procedures at Division 12A of Part VII of the Family Law Act. The ALRC concurred that there is little evidence that the Family Court is exercising the powers it has to conduct child-related proceedings in a less adversarial manner.
Despite acknowledging the importance of the adversarial nature of family law proceedings to enable stringent testing of evidence before the courts, the ALRC ultimately recommended a less adversarial approach in the family law system, such that:
Combined rules for the Family Court of Australia and the Federal Circuit Court of Australia should provide for proceedings to be conducted under Pt VII Div 12A of the Family Law Act 1975 (Cth) by judges of both courts. Both courts should be adequately resourced to carry out the statutory mandate in s 69ZN(1) of the Family Law Act 1975 (Cth).
As discussed in the first interim report, in December 2017 the Government introduced legislation to establish the Parenting Management Hearings Panel. The panel would be an independent statutory authority involving multidisciplinary and inquisitorial hearings to resolve less complex parenting disputes. The proposal received limited support and the bill lapsed at the end of the 45th Parliament. However, when invited to put forward ideas about how the family law system could be less adversarial, Mr Anderson, AGD, advised the committee that:
One measure that was perhaps too radical at the time—it didn't get through parliament—but which I think is worth revisiting is the proposal for parenting management hearings. That was a proposal where there would be consent based hearings before parties got into the federal family law courts, involving a panel where there would be a legally qualified representative and then a representative with a social welfare type background, and parties would appear before them without lawyers. That was seen as being a very inquisitorial process where parties would be very much asked what the issues were and what would enable the matter to be resolved. I think that that would make a big difference...
The idea of a specialist tribunal was also suggested by Professor Patrick Parkinson AM, with legal representation being optional and tribunal members speaking directly to the parties. This was discussed in more detail in the first interim report. Professor Parkinson similarly described the tribunal model as a big and bold new idea:
One of the most recent of these reforms, for which I was responsible together with Brian Knox, a senior counsel in Sydney, was the idea of piloting an inquisitorial tribunal to decide many children's cases, intended for litigants who cannot afford legal representation. This was a big and bold new idea. The idea was the tribunal would use questionnaires rather than affidavits to get quickly to the issue. The tribunal would ask the questions that they needed to know. A lawyer chairperson would triage the case in the early stages—somebody with decades of experience in family law. If the case couldn't be resolved, an independent children's lawyer would be appointed and the case would be heard by a
threemember panel in a hearing scheduled for no more than two hours. The panel would consist of the lawyer and two other people with expertise in family issues, perhaps a child psychologist or psychiatrist, or an expert on drug and alcohol issues—whatever was appropriate to the matter. The idea was that an expert panel would be able to make sensible decisions about a lot of cases in a couple of hours of hearing, rather than two to three days, as happens in the courts. This was a perfect model for self-represented litigants. The government chose to call these 'parenting management hearings'. I thought the name was dreadful; it was not my name. But the concept was good and the bill was introduced. Nearly $13 million was allocated in the budget, but the pilot program did not go ahead because it couldn't get through parliament. None of the reasons given to oppose it were good ones.
While the committee supports the ALRC’s views, it considers that it would be timely for a review of why these powers are not being used with further consideration being given to whether Part VII Division 12A of the Family Law Act is the best model or whether there are more appropriate and effective ways to make family law courts less adversarial. This should include consideration of the existing Magellan case management program and specialist indigenous lists noted by AGD which employ less adversarial methods. The ALRC has recommended the revival and expansion of the responsibilities of the Family Law Council under section 115 of the Family Law Act. The committee considers the Family Law Council to be the appropriate body to undertake this review.
The committee is also persuaded that a pilot of an inquisitorial tribunal for parenting matters is also warranted. The committee notes that there were concerns raised regarding the previously proposed parenting management hearings including that no merits review was available, that tribunal powers included criminal penalties for non-compliance and that legal representation was not permitted. The committee has considered the evidence of AGD and Professor Parkinson and agrees that an improved proposal which addresses previous concerns and has adequate safeguards for families should be revisited and piloted.
The committee recommends that the Australian Government re-constitute the Family Law Council and that the Family Law Council be tasked with determining how to make the family law courts less adversarial. In the interim, the committee recommends that courts better utilise the less adversarial trial approach in Division 12A of Part VII of the Family Law Act 1975.
The committee also recommends that in considering how to make the family court less adversarial, the re-constituted Family Law Council should consider how best to involve the voice of children in parenting proceedings in appropriate cases. This should include consideration of the establishment of a Children's and Young People's Advisory Board.
The committee recommends that the Australian Government implement a three year pilot of an inquisitorial tribunal model similar to that proposed by Professor Patrick Parkinson and Mr Brian Knox for deciding children’s cases, and which was formerly considered by the Australian Parliament as parenting management hearings, but with adequate safeguards for families and which addresses the concerns raised about the previous model.