Resolution and adjudication processes

165       Most families manage their separation without recourse to the family law system. Many, however, seek assistance from one or more of the family law system’s services, such as a FDR service or by engaging a lawyer. While less common, some families approach the courts to resolve their dispute. This section considers what improvements can be made to the system’s processes for resolving and adjudicating family law disputes. The ALRC asks what changes to court processes could be made to provide more timely and affordable resolution of matters and to better manage risk to children. It also asks about the place of alternative dispute resolution processes, as well as how people might be further assisted to resolve matters on their own or with minimal involvement from professionals.

166       There is now clear evidence that many of the people who approach the family law system for assistance today have complex support needs, including in relation to family violence and other safety concerns for children, and that these disputes often involve a co-occurrence of risk issues, such as drug and alcohol misuse or mental health concerns.^[199] In light of this evidence, the ALRC asks what processes, including alternative dispute resolution models and less adversarial decision-making approaches, might be used to assist families with complex needs, as well as how support could be best provided to the parties involved in these matters. The ALRC also asks how misuse of process in family law matters might be prevented.

Timely and cost-effective resolution of litigated disputes

167       Early consultations for this Inquiry revealed significant concerns about the delays currently associated with litigated proceedings in the family courts. These included calls for changes in how cases are managed by the courts and a greater use of orders diverting litigants to low-cost dispute resolution options outside the courts.

168       The SPLA Committee reported in 2017 that ‘delays of nine to 24 months between filing an application and commencement of a trial’ are occurring in some  Family Court and Federal Circuit Court registries,^[200] and that delays may be even longer in regional and remote areas of Australia.

169       Reforms to the Family Law Act in 2006 require parents to attempt a FDR process to settle arrangements for their children before initiating court proceedings, unless one of a number of statutory exemptions applies.^[201] This reform led to a significant reduction in court applications for final orders in children matters.^[202] However, children’s matters continue to dominate the workload of the family courts.^[203] AIFS research indicates that many of these cases involve concerns about family violence or other issues of risk to the child,^[204] and that these matters are more likely to involve lengthy resolution timeframes than less complex cases.^[205]

170       Stakeholders raised a number of concerns associated with the present delays for  families, including:

• the potential for children and parents to spend long periods living in limbo while waiting for trial;
• the safety risks to parties and children arising from delayed resolution of disputes that involve protective concerns;
• the scope for delay and uncertainty to exacerbate conflict;^[206] and
• the potential for clients to consent to outcomes that fall short of the security and protection a court order could provide.^[207]

171       Recent reports and initial consultations raised a number of reform strategies for consideration, including:

• the development of a triage approach to court applications, to ensure that urgent cases are identified and dealt with expeditiously and that families are referred to a resolution pathway that is appropriate to their needs;^[208]
• a more streamlined case management model within the courts, such as the use of a teamed docket system that pairs judicial officers and registrars and possibly family consultants;
• increased use of practice directions and notes to support efficiency and safety. Examples provided in initial consultations were Practice Direction No 2 of 2017 (Interim Family Law Proceedings) in the Federal Circuit Court limiting affidavits in interim proceedings to ten pages and annexures to five;
• greater leadership from the bench to address delays caused by parties and/or their legal advisers failing to meet court deadlines, including through the setting of budgets for matters;
• a greater use of orders diverting litigants to mediation or other dispute resolution services after the commencement of litigation;^[209] and
• limiting the availability of appeals from interim orders.

172       The ALRC seeks stakeholder input about the possibilities for enhancing the timely and cost-effective resolution of disputes that reach the courts.

Small property claims

173       Preliminary consultations for this Inquiry and a number of recent reports have raised concerns about the ‘one pathway for all’ approach to court proceedings and emphasised a need to ensure the availability of dedicated dispute resolution pathways that are appropriate to the nature and complexity of the issues involved.^[210] Particular concerns have been raised in this context about the limited availability of less formal and lower cost dispute resolution options for property matters that involve small asset pools,^[211] including the implications of this limitation for women who have experienced family violence.^[212]

174       These concerns reflect the increasing recognition of economic and financial abuse as an aspect of family violence, and the obstacles faced by those who experience family violence in obtaining fair financial settlements.^[213]

175       A number of suggestions for change to address these problems have been made. These include:

• a recommendation by the Productivity Commission that the requirement in s 60I of the Family Law Act to attempt FDR prior to lodging an application for children’s orders be extended to financial matters;^[214]
• recommendations by the SPLA Committee and Women’s Legal Service Victoria that the family courts promote early resolution of small property disputes through a streamlined case management process with simplified procedural and evidentiary requirements;^[215]
• recommendations by the Victorian Royal Commission into Family Violence,^[216] the Family Law Council,^[217] and the SPLA Committee,^[218] that state and territory magistrates be encouraged to increase the exercise of their Family Law Act powers in relation to property when parties with family law needs are already before the court;
• the implementation of a small claims list in the Federal Circuit Court^[219] along the lines used by the Federal Circuit Court in claims of up to $20,000 under the Fair Work Act 2009 (Cth) and claims up to $40,000 under the National Consumer Credit Protection Act 2009 (Cth); and
• the roll out of an arbitration process for small property claims along the lines of Legal Aid Queensland’s arbitration model,^[220] which is available to legally aided clients for resolution of property disputes of between $20,000 and $400,000.

176       The ALRC seeks stakeholder input in relation to this issue.

Appropriate dispute resolution for cases involving family violence

177       Recent reports have pointed to client concerns about the adversarial nature of court processes and its potential impact on parties who have experienced family violence or abuse.^[221] In particular, the SPLA Family Violence Report noted stakeholder views that the adversarial approach ‘mirrors the dynamic of abusive relationships’,^[222] and concerns that engagement with court processes can re-traumatise people who have experienced family violence.^[223]

178       These views reflect the growing recognition of the negative effects of adversarial processes on people who have experienced trauma,^[224] and the potential adverse implications of this for their parenting capacity.^[225]

179       Alongside the emergence of this knowledge has been a growing awareness of the need for trauma-informed approaches to service delivery in the family law system.^[226] A description of this model of service delivery is provided above in the section that defines the terms used in this Issues Paper.

180       Given the concentration of multiple and complex issues facing many of the families who engage with formal dispute resolution pathways, there is a significant likelihood that parents and children may be affected by trauma arising from exposure to family violence or abuse.^[227]

181       For some groups, trauma may arise from a constellation of long-standing and contemporary issues. For example, any trauma-informed response must incorporate an understanding of the specific experiences of trauma of Aboriginal and Torres Strait Islander peoples, including intergenerational trauma.^[228] In relation to culturally and linguistically diverse groups, depending on culture of origin and migration history, trauma—including from circumstances that have led to forced migration— may be pertinent. Intergenerational trauma may also play a role.^[229]

182       The Family Courts’ Family Violence Best Practice Principles recognise these concerns and exhort judicial officers to manage their courtroom in a way that seeks to reduce the potential for re-traumatisation of parties who have experienced family violence.^[230] This includes through directions or orders about how particular evidence is to be given and orders limiting or not allowing cross-examination of a particular witness.

183       However, a number of stakeholders have suggested the need for greater support for litigants who have experienced family violence or abuse and/or for the development of appropriately designed alternative dispute resolution processes to reduce the potential for re-traumatisation.

184       A key suggestion for addressing the trauma concerns of litigants has centred on recommendations for embedding specialist family violence workers in the family courts, along the lines employed in some state and territory magistrates’ courts, so as to provide support for parties who have experienced family violence.^[231]

185       An alternative proposal made to the SPLA Inquiry was for the expansion of legally-assisted FDR processes. The SPLA Family Violence Report notes in this regard the submission from Women’s Legal Services Australia that a ‘well-supported and safe mediation process, with expert lawyers and mediators’ who have a sound understanding of family violence and family law, can be an ‘empowering’ process for a parent who has experienced family violence, particularly when compared to the traditional court process, which Women’s Legal Services Australia submitted ‘rarely results in a good outcome’.

186       Legally-assisted FDR typically involves a collaborative partnership approach between a family dispute resolution service provider and two legal services. It is designed to ensure that each party is both legally represented and supported during the dispute resolution process. In this way, agencies are able to provide a service to clients in cases that might otherwise be assessed as not suitable for FDR, such as cases involving family violence.

187       The ALRC notes that the Attorney-General’s Department has recently expanded funding to support pilot programs in enhanced, legally-assisted FDR, particularly for Aboriginal and Torres Strait Islander clients and culturally and linguistically diverse clients.^[232] These will be evaluated. The SPLA Committee recommended that, subject to a positive evaluation of these pilots, the Australian Government should expand the availability of legally-assisted FDR.^[233]

188       The ALRC invites stakeholder input about ways of addressing the safety and support needs of litigants at court and the development of alternative dispute resolution options for parties who have experienced family violence or abuse.

Misuse of process

189       The Terms of Reference ask the ALRC to consider the need for reform in relation to ‘family violence and child abuse, including protection for vulnerable witnesses’. A further term of reference asks the ALRC to consider the ‘mechanisms for reviewing and appealing decisions’. An issue that is central to these questions is the potential for court proceedings and other family law system processes to be misused to maintain a dynamic of abuse.^[234]

190       Research conducted by AIFS has shown that patterns of violence involving multiple types of abuse—especially financial abuse, social isolation and threats of self-harm and harm against children—are associated with higher court use and higher rates of unsuccessful engagement with FDR.^[235] Research^[236] and analysis^[237] over a long period of time has highlighted a range of behaviours that can occur in this context, including:

• instigating and re-instigating legal proceedings in multiple courts, including applications for final orders and for enforcement of parenting orders in the family courts;^[238]
• prolonging court proceedings by requiring adjournments and challenging interim and procedural determinations, sometimes with the intent to and effect of exhausting legal funding (legal aid or private resources), also known as ‘burning off’;^[239]
• approaching multiple legal practitioners for advice, particularly in regional, rural and remote communities, to ensure that potential sources of legal advice of the former partner are ‘conflicted out’ of providing advice;^[240]
• making cross-applications in proceedings for personal protection orders;
• using processes in one court to obtain an advantage in another, for example, using family court processes to gain evidence that is also relevant to a criminal matter;
• self-representing in court to create opportunities to personally cross-examine victims about family violence, sexual abuse allegations and other sensitive issues;
• using evidence gathering processes, including subpoenas, to obtain access to sensitive personal material such as the victim’s therapeutic counselling records or sexual assault service records;
• making multiple notifications to child protection agencies;
• challenging and appealing child support determinations;
• deliberately not engaging or delaying engaging with FDR services to delay resolution;
• non-disclosure of income and assets in property and financial matters; and
• attempting to fraudulently gain access to Centrelink benefits.

191       A number of suggestions for reform have been proposed in this area. This includes the SPLA Committee’s recommendation, noted above in the section, ‘Legal principles in relation to parenting and property’, that the definition of family violence in the Family Law Act be amended to include ‘abuse of process’ in the list of examples of behaviour that might come within the definition.^[241] The Committee also recommended strengthening penalties, including costs orders, to respond to instances of misuse of court processes.^[242]

192       In relation to the issue of misuse of subpoenas, the Family Law Council’s 2016 report noted Practice Direction 2 of 2011 issued by the Family Court of Western Australia as a possible response to this concern. This Practice Direction provides that a subpoena directed to a family counsellor will not be issued unless the subpoena ‘is accompanied by a letter certifying that reasonable efforts have been made’ to discuss the ‘possible consequences of compliance with the subpoena, including the impact on the family or children involved’ with the person against whom the subpoena is directed.^[243]

193       Other recent developments in this area include the Australian Government’s recent draft of legislative amendments to protect vulnerable witnesses from direct cross-examination by self-represented litigants in circumstances where allegations of family violence are involved.^[244] The SPLA Family Violence Report recommended that this legislation be introduced into Parliament as a matter of urgency.^[245]

194       Further provisions in this draft legislation are intended to ‘clarify and modernise the powers of the Family Court of Australia exercising jurisdiction under the Family Law Act to summarily dismiss applications without merit’.^[246] If implemented, these changes would bring the relevant provisions in the Family Law Act broadly into line with the powers available to the Federal Court of Australia and the Federal Circuit Court.^[247] They would allow a court to issue decrees in circumstances where it is satisfied that applications or responses to applications have ‘no reasonable prospect of success’ (in whole or part),^[248] and would also allow a court to dismiss proceedings (in whole or part) if satisfied they would be frivolous, vexatious or an abuse of process. This aspect of the amendments goes further than the current relevant provisions of the Act, which do not refer to abuse of process.

195       An additional suggestion made during preliminary consultations involves limiting excessive use of litigation by restricting appeals from interim decisions to cases dealing with questions of law or by requiring leave of the court.

196       The Family Law Council’s suggested trial of a Counsel Assisting model was also intended to address concerns in this area, as this mechanism would limit the opportunities for cross-examination of vulnerable parties by self-represented litigants.^[249]

197       The ALRC seeks stakeholder input about ways of addressing the issue of misuse of process.

Alternative dispute resolution processes

Conciliation and FDR

198       In addition to effecting changes to court processes, stakeholders and recent reports have suggested the need to expand and adapt the family law system’s range of alternative dispute resolution options to facilitate speedier and less costly settlements for client families.^[250]

199       As noted above, reforms to the Family Law Act in 2006 require parents (with some exceptions) to attempt a FDR process to settle arrangements for their children before initiating court proceedings.^[251] Among the dispute resolution options provided by the family law system, FDR is the formal pathway most often used by parents to settle arrangements for children in the 18 or so months after separation.^[252] However, FDR is not currently mandated for property and financial matters prior to filing an application.

200       Another option, discussed above, is legally-assisted FDR. Legal aid commissions and a small number of community sector FDR providers offer legally-assisted FDR processes for children’s matters and for a limited number of property and financial matters, and this process reportedly has a very high rate of settlement.^[253] The registrars of the Federal Circuit Court also refer some matters to Relationships Australia Victoria for privileged conciliation.^[254]

201       In privately funded matters, lawyer-led negotiation is involved in a substantial proportion of property and financial matters, as well as in settling arrangements for children. Diversion to conciliation and mediation services is also available for both children’s and property matters to a limited extent after proceedings have been initiated.^[255]

202       The ALRC is interested in receiving input from stakeholders about the opportunities for developing the range of non-court dispute resolution processes that might be used to assist families to achieve timely and cost-effective resolution of disputes about children and property.

Arbitration

203       During early consultations for this Inquiry, a number of stakeholders suggested that arbitration^[256] processes may offer significant potential to reduce the costs and delays associated with litigated proceedings, particularly in relation to property and financial matters. At present, consensual arbitration services, which are provided for in property and financial matters under the Family Law Act,^[257] are not widely used in Australia.^[258]

204       The Productivity Commission’s Access to Justice Arrangements Report recommended the implementation of strategies to increase the use of arbitration. It noted the example of Legal Aid Queensland’s arbitration model.^[259] This service is available to legally aided clients for resolution in relation to property disputes of between $20,000 and $400,000. The cost is deferred until the process is over and Legal Aid Queensland recovers lawyers’ fees and half the value of its outlay. The arbitrators are specialist family lawyers with training in arbitration.

205       The ALRC is interested in hearing from stakeholders about the potential role of arbitration in resolving family law disputes.

Technology-assisted mechanisms to support client-led resolution

206       Preliminary consultations for this Inquiry revealed a concern to ensure the availability of accessible information and dispute resolution processes for clients with less complex needs, and the importance of providing processes that enable separating families to sort out their issues without incurring significant legal costs. Stakeholders also emphasised the importance for families with less complex needs of being able to manage their separation in a way that maximises their own control over the process.

207       In the family law system, steps in this direction have already been taken with the implementation of Family Relationships Advice Line, Family Relationships Online and the Telephone Dispute Resolution Service.

208       Early consultations revealed an interest in the further development of online resources in this context. Several stakeholders noted the availability of online legal information and assistance services in relation to other legal issues that might be adapted for the family law system’s purposes, such as the FineFixer tool,^[260] developed by Moonee Valley Legal Service in Victoria. This site provides a free online information and advice service for people who receive a fine.

209       Two online tools that were noted in relation to family law matters are the United States It’s Over Easy divorce settlement program, and the Dutch-based Justice42 dispute resolution platform.^[261] The Justice42 tool, developed by the Hague Institute for Innovation in Law (HiiL), was designed to provide separating couples with access to an affordable dispute resolution process. The process includes an initial face-to-face intake process that is designed to ensure cases involving family violence or other safety concerns for parties or children are screened out of the program. The program itself guides separating couples through a series of conversations on family law related issues. If the parties reach an agreement on any of these issues, the agreement will be checked by a lawyer with family law expertise who has agreed to charge a set fee for Justice42 users. If the parties are not able to reach agreement, they are referred to a mediation service.

210       The ALRC invites stakeholder input about the use of online resources as a way of reducing costs and enhancing client control over the resolution of family disputes.

Problem solving decision-making processes

211       The Terms of Reference ask the ALRC to consider ‘whether the adversarial court system offers the best way to support the safety of families and resolve matters in the best interests of children, and the opportunities for less adversarial resolution of parenting and property disputes’. In addition, the ALRC is asked to have regard to the need for reforms to address the issues facing ‘families with complex needs, including where there is family violence, drug or alcohol addiction or serious mental illness’.

212       The SPLA Family Violence Report raised a number of concerns about the adversarial nature of current court processes for families with complex needs, particularly for parties who have experienced violence or abuse. Preliminary consultations for this Inquiry also questioned the appropriateness of the single event model of civil litigation for disputes about the care of children^[262] where parents have complex needs, particularly where there is ongoing conflict and risks to children. These concerns reflect the empirical evidence that a significant number of client families engage in repeated use of the family courts,^[263] particularly when the matter involves issues of family violence or other safety concerns for children. The limitations of the single event model of litigation for these kinds of matters have also been noted by the courts.^[264]

213       Some stakeholders suggested that this circumstance highlights the need to develop a more iterative approach to decision making that can better support the management of risk to children over time, particularly where the protective capacities of the parents have been compromised and the matter does not meet the threshold for intervention by the state child protection system.^[265] In such cases, judicial officers may need to consider ways of reducing the level of risk to the child by enhancing the safe parenting capacity of one or both parties, such as by linking them to trauma recovery, mental health, behaviour change and/or drug and alcohol rehabilitation services.^[266]

214       Such problem-solving approaches are now a familiar feature of state and territory children’s courts and specialist lists of magistrates’ courts, such as drug courts,^[267] mental health lists,^[268] and Koori and Murri courts for Aboriginal and Torres Strait Islander young people.^[269] A problem-solving approach aims to address behavioural problems and risk issues that underlie the dispute, with a view to achieving a more sustainable resolution of the conflict.^[270] The process harnesses the authority of the court to effect change and build capacity in two ways; first by connecting parties to relevant rehabilitation and support services, and second, through judicial oversight of the person’s progress in making behavioural change, typically through the use of part- heard proceedings.^[271]

215       Some stakeholders suggested that the framework in Division 12A of Part VII of the Family Law Act, which was enacted in 2006, could support the development of a problem-solving approach by the family courts in children’s matters. Division 12A contains a set of principles that require judicial officers to conduct children’s cases in a way that considers ‘the needs of the child concerned’ and promotes ‘child-focused parenting’.^[272] In furtherance of these principles, it exhorts judges to ‘actively direct, control and manage’ the hearing process,^[273] including determining the evidence to be called and the manner in which the hearing is to be conducted. It also allows judges to determine children’s matters in stages, through the use of part-heard proceedings,^[274] and permits them, where the court considers it appropriate, to encourage parties to attend a counselling service.^[275]

216       However, the preliminary consultations for this Inquiry suggest that the consistent use of Division 12A powers and the Less Adversarial Trial case management approach applied in the Family Court has waned over time. A number of stakeholders expressed a strong desire for the courts to reinvigorate the Division 12A approach, or to otherwise move towards a more problem-solving approach in appropriate cases.

217       Some stakeholders noted the recent development of an Indigenous List in the Federal Circuit Court in Sydney, which employs a problem-solving approach in parenting matters involving Aboriginal and Torres Strait Islander children.^[276] This model brings together representatives from the Wirringa Baiya Community Legal Centre, the Family Advocacy and Support Service, Relationships Australia and the Men’s Shed in matters involving an Aboriginal or Torres Strait Islander child.

218       On the other hand, some stakeholders suggested that the Division 12A approach is too time consuming for judicial officers to manage in the context of the current hearing delays.

219       The capacity of federal judicial officers to engage in problem-solving approaches is also limited by the requirements of Chapter III of the Australian Constitution and the High Court’s decision in R v Kirby; Ex parte Boilermakers’ Society of Australia, which require federal judges to limit their work to the exercise of a judicial power or a function that is sufficiently ‘incidental or ancillary to it’.^[277] In light of this constraint, judicial monitoring of a party’s behavioural change progress over time may well raise procedural fairness concerns, and is unlikely to be regarded as compatible with the federal judicial role.^[278]

220       Stakeholders in early consultations suggested two alternative approaches to developing a problem-solving approach to decision making for suitable cases. These were:

• A hybrid model, in which the court transfers the role of monitoring the parties’ engagement with services to a registrar of the court or to a community-based family relationships agency.
• An administrative model, such as a non-judicial tribunal. A version of this approach is embodied in the recently developed Parenting Management Hearing Panel, a consent-based inquisitorial style process to support self-represented parties that will be piloted in Parramatta and one other location.^[279]

221       The ALRC seeks stakeholder input regarding the opportunities for developing problem solving decision-making processes within the family law system.

Family inclusive decision-making processes

222       Another non-adversarial model that has been proposed for assisting families to settle arrangements for the care of children is the Family Group Conference (FGC) process, also known as Family Led Decision-Making (FLDM). In response to submissions from Aboriginal and Torres Strait Islander organisations, the Family Law Council’s 2016 report suggested that this process should be considered for family law matters involving Aboriginal and Torres Strait Islander children, given its potential to offer a culturally-safe and family inclusive approach to determining care arrangements for children.^[280] The FLDM process is currently used in child protection systems around Australia to engage members of the child’s extended family in planning and decision making about the child’s care where there are concerns for the child’s safety or wellbeing.^[281] For this purpose, the process has been defined as:

A decision-making and planning process whereby the wider family group makes plans and decisions for children and young people who have been identified either by the family or by service providers as being in need of a plan that will safeguard and promote their welfare.^[282]

223       The Family Law Council’s discussion of FGCs focused in particular on its benefits for Aboriginal and Torres Strait Islander children.^[283] The Council also recommended that FGCs be developed in the family law system for families from culturally and linguistically diverse backgrounds in appropriate matters to allow children to be cared for within their own families and communities wherever possible.^[284]

224       However, the FGC/FLDM process is applied more widely than this within the child protection system context,^[285] and stakeholders have suggested that the model may offer a more appropriate process than traditional court proceedings for matters involving family violence.^[286] The idea of expanding the use of FGCs to family law cases involving family violence was mooted by (then) Judge Boshier of the New Zealand Family Court in 2006, who noted in relation to children affected by family violence that:

[I]t is often a victim’s family who keeps them safe. The [legal] process needs to take this into account, and possibly the best way to do that is to involve those people who have a significant connection with the victim when deciding the best way to provide protection.^[287]

225       The ALRC seeks stakeholder input about the potential use of family inclusive decision-making processes in the family law system.