This is the first instalment in a series of posts covering the National Family Law Conference 2018 (Brisbane) by Sherika Ponniah, Deputy Head of Legal Content, Wolters Kluwer.
Wendy Kayler-Thomson, Chair of the Family Law Section, opened the National Family Law Conference 2018 in Brisbane noting that this conference, being the flagship event on the Family Law Section of the Law Council of Australia’s calendar, is the largest legal event in Australia with over 900 delegates.
The Hon. John Pascoe AC CVO, Chief Justice of the Family Court of Australia
The Honourable Chief Justice John Pascoe’s first speech was made in 2004 to the National Family Law Conference. Today, 14 years later, His Honour gives his last speech to the National Family Law Conference 2018 prior to his imminent retirement. Pascoe CJ congratulates the incoming Chief Justice of the Family Court of Australia, the Hon. William Alstergren (current Chief Judge of the Federal Circuit Court of Australia).
Pascoe CJ outlined the way family law straddles a variety of practice areas such as taxation law and constitutional law and commented on the importance of evidence law in family law practice. Pascoe CJ then outlined the work of the Family Court of Australia including presenting data on the number of filings and stated that the Court has a 100% clearance rate. Statistics, however, don’t tell the full story in a traumatic and emotional jurisdiction where judges must deal with complex circumstances.
Since the Family Law Act 1975 was passed, 50 major inquiries have been run. A simple Act drafted in 1973 has become more and more complex. This underlies the fact that families are both important, complex and continually evolving. The whole community must work to tackle issues in family law to ensure the best interests of children are met.
In 2018, we are in an important time of change and reform – this is the responsibility of parliament but the Family Court will play an instrumental part in advancing the issues before us. The Discussion Paper of the ALRC which was revealed on 2 October 2018 proposes recommendations that CJ Pascoe largely agrees with. CJ Pascoe called for a Royal Commission into Family Law – which will ensure that children are protected possibly bridging the gap between child protection and family law.
Over the years of CJ Pascoe’s tenure, His Honour has seen the rise of family violence. The presence of violence and harm (often perpetuated by substance abuse and mental illness) is seen by the judiciary and profession as on the rise. Reports indicate that although legislative reform in family violence has occurred, we need to continue to better educate the judges and profession on family violence. As data on family violence improves, so will the way we handle family violence.
The Chief Justice thanked the profession and said that the judiciary and the profession working together are a formidable force.
The Hon. William Alstergren, Chief Judge of the Federal Circuit Court of Australia
Alstergren J discussed the work of both the Family Court of Australia and the Federal Circuit Court of Australia saying that Australian families are spending too long and spending too much of their resources on the Court system.
The pending cases in both Courts stands at 21,000. We should all ask: what ingredients are needed to improve case management in both Courts, how can we implement it and how can we measure outcomes?
We need to work within the resources we have but this doesn’t stop us from asking for more resources as long as it is done in a structured way. We need smarter case management before and after early alternate dispute resolution (ADR) so that Courts can triage matters and identify the cases where children are at serious risk.
Working groups are currently being organised and budgets approved to harmonise Court rules. There is also a push to ensure early ADR (and even late ADR) to encourage parties to settle their differences. Private arbitration and judicial mediation is a preferable way to settle a dispute without having to wait for a trial date.
Non-compliance with Court orders is rife in the family law system. The Federal Circuit Court of Australia will be issuing a national Practice Direction to deal with non-compliance. Non-compliance happens at a greater rate when parties are represented – it isn’t just an issue for self-represented parties.
Alstergren J echoed the sentiments of Wendy Kayler-Thomson in saying: We do not need another review, we need action – not in five or ten years’ time but now.
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