ALRC submission to Australian National Audit Office Preliminary Study of the Administration of the Family Court of Australia and the Federal Magistrates Service
(18 August 2003)
The Australian Law Reform Commission (ALRC) makes the following submission to the Australian National Audit Office's (ANAO) preliminary study of the administration of the Family Court of Australia and the Federal Magistrates Service.
The ALRC would like to highlight, for the information of the ANAO, the ALRC's major inquiry into the federal civil justice system that culminated in the report Managing Justice: a review of the federal civil justice system (ALRC 89, 2000), which was tabled in federal Parliament on 17 February 2000.
As a part of our background research for the inquiry, the ALRC undertook and commissioned empirical research in a number of areas, including into practice and procedure in the Family Court of Australia. The ALRC also undertook a broad-based, national consultation program—meeting with, and receiving written submissions from, litigants, the legal profession, community groups and legal centres, legal academics, government departments and agencies, and the various federal courts and merits review tribunals. (Please note: The ALRC's comments on the 'Family Court' refer to the Family Court of Australia, not the separate but aligned Family Court of Western Australia).
It should be noted that the ALRC inquiry took place prior to the establishment of the Federal Magistrates Service (FMS) in 2000—however, our findings clearly supported the need for the establishment of a federal court operating below the level of the Federal Court and the Family Court, which are equivalent in jurisdiction and cost structure to State Supreme Courts (which handle only a small percentage of State matters, the rest being dealt with by District Court and especially Local/Magistrates Courts).
The ALRC released a major Discussion Paper Review of the Federal Civil Justice System (DP 62) in August 1999. Several research reports were published prior to the release of DP 62, which help underpin its preliminary findings and proposals, including:
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Justice Research Centre Family Court Research Part One: Empirical Information about the Family Court of Australia;
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Justice Research Centre Family Court Research Part Two: The Costs of Litigation in the Family Court of Australia;
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Justice Research Centre Family Court Research Part Three: Comparison with the Report on 'The Review of Scales of Legal Professional Fees in Federal Jurisdictions' by Professor Philip Williams et al;
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T Matruglio Part Two: The Costs of Litigation in the Family Court of Australia;
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T Matruglio & G McAllister Part One: Empirical Information about the Family Court of Australia.
All of these research reports can be accessed online.
For your purposes, the relevant discussion and proposals in DP 62 can be found in Chapter 11—'Case and hearing management in the Family Court of Australia'. Chapters 9 (Issues in case management) and 13 (Expert evidence) will likely also be of interest and value for your study.
In the final report, Managing Justice, key discussion and recommendations can be found in Chapter 8—Practice, procedure and case management in the Family Court of Australia. This chapter sets out the ALRC's findings in relation to case duration (a term we preferred to 'delay'), case events and settlement; case management systems; expert evidence; and hearings and appeals in the Family Court of Australia.
Chapter 6—General issues: practice, procedure and case management is also relevant. This Chapter sets out some general principles to be applied to case management, alternative dispute resolution, experts and litigants in the federal jurisdiction, including the Family Court of Australia. Many or all of these principles also could be applied to the Federal Magistrates Service.
The Commission's empirical research on the Family Court litigation process showed that approximately 50 per cent of all contested Family Court cases were resolved in less than six months. About 80 per cent were finalised in less than 12 months and 95 per cent in under two years. The delay of between one and two years can be a particular problem in cases involving children; however this delay relates to only 20 per cent of the cases in the Court. Times taken to resolve cases varied between Family Court registries. Sydney was the quickest, Canberra was the slowest in the ALRC sample. Some registries (Adelaide, Newcastle and Hobart) were reasonably quick in resolving routine cases, but were among the slowest in resolving the more difficult cases.
Although the ALRC figures show cases are being resolved within a reasonable time period, 95 per cent of cases are resolved by settlement between the parties. Significant numbers of litigants and lawyers indicated to the Commission that parties were settling cases because of their frustration with the Court's case management process—when what they really wanted was a fast track to a decision by a judicial officer. This was frequently expressed to the ALRC as the system 'just bullying clients into settling'.
Practitioners and litigants were very critical of the case management practices of the Family Court. These concerns were not directed at the quality of decision making, or at the integrity or professionalism of the judges and court staff. Rather, criticism was mainly directed at the way the Family Court views its functions and how it organises its dispute resolution processes.
In consultations and submissions to the Commission, litigants, practitioners, court officers and judges generally regarded the conciliation, counselling and mediation services provided by the Court as beneficial. However, the inflexible design of the case management system was said to add unnecessarily to costs and delays for many cases and to contribute to poor compliance with directions and orders. The complaint was that there were too many case events in the Court and many or most of these did not assist to advance the matter to trial, or to resolve it.
The Court's stated objective is to provide 'uniformity' and 'standardised practices and procedures'. One submission to the inquiry, from the Brisbane Women's Legal Service, said strict adherence to this policy meant that 'some individual litigants are pushed down particular avenues which do not suit their circumstances'.
Case management systems for family law disputes need to make effective use of judicial time and expertise and facilitate screening of cases, to make what has been described as 'the most important case assessment—that the case is routine'. A lack of continuity in judicial officers managing the cases often forced people to tell their story over and over to different court officers.
In the ALRC's consultations, litigants and lawyers criticised the forms and documentation required in the Family Court. Some practitioners claimed that the Court's efforts to simplify documents and procedures actually had led to an increase in the amount and cost of paperwork needed.
The ALRC proposed that the Family Court substantially improve its forms and initiating documents, its arrangements for discovery of documents and its referral of parties to conciliation and counselling.
Most critically, the ALRC proposed that the Family Court introduce a case management system similar in which each case is allocated to a particular judge and registrar, who take responsibility for the case from commencement to finalisation. Because of the number of contested cases in the Family Court, it is not intended to place judges in charge of routine procedures which may be handled by registrars, but rather to allow difficult or complex cases to referred more easily to a judge for speedy determination—put simply, the Family Court needs a system of 'triage', to sort quickly and efectively the emergency cases from the routine ones.
By way of contrast, the ALRC was very complementary about the way the Federal Court of Australia managed its practices and procedures, describing it as 'a world class court'. The Federal Court's implementation of the individual docket system (IDS) was described as an important initiative in case management practice in Australia. The change was widely approved by those lawyers, litigants, judges and others whom the Commission consulted—although there were suggestions for further fine-tuning.
The key features of IDS as identified by the Federal Court, submissions and consultations are:
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increased judicial involvement and management in all stages of proceedings;
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a single judge is randomly allocated to a case from commencement to disposition;
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cases in areas such as intellectual property, taxation, trade practices (Part IV), human rights, admiralty and industrial law are randomly allocated to a judge on a specialist panel; and
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individually tailored directions, procedures and listings for each case and monitoring of compliance with orders.
Close and continuing supervision by judges under IDS allows them to deal effectively with the trouble areas of litigation, such as defective pleadings, excessive discovery of documents and tactical games by lawyers.
The Federal Court and lawyers report improvements in case processing times since the introduction of IDS. The two problems identified for 'fine-tuning' included the occasional difficulty in getting a hearing before a busy docket judge, and the variable case management practices evolving as individual judges develop their own management styles and practices. The ALRC proposed that the Federal Court's procedural guides be revised regularly. Registry differences should be kept to a minimum. Better listing practices should be implemented to ensure cases are not delayed by an individual judge's hearing commitments.
The ALRC is pleased to see that a number of current reform initiatives in the Family Court of Australia are consistent with recommendations made to that Court in Managing Justice; in particular, the establishment of the new Casetrack information management system and the Caseflow model for pre-trial case management. The Family Court has also recently released for comment completely revised draft Family Law Rules. It is intended that these Rules, after consultation, be implemented to commence operation on 1 January 2004. If implemented in their current form, the Rules will put into operation reforms that are consistent with more than half of the recommendations relating to the Family Court in Managing Justice. These recommendations cover issues such as:
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the use of technology in litigation;
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improved information systems;
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the management of expert evidence and expert witnesses.
On 18 June 2003 the Attorney-General, the Hon Daryl Williams AM QC MP, issued a press release and explanatory material setting out the Australian Government's response to Managing Justice. While noting that many of the report 's recommendations are for implementation by bodies other than Government, the response addresses each of the 138 recommendations made in Managing Justice, including those relating to the Family Court of Australia. The full text of the response can be found online.
It is hoped that the ALRC's work may assist the ANAO finalise its study in relation to the Family Court of Australia and the Federal Magistrates Service.