This is the second instalment in a series of posts covering the National Family Law Conference 2018 (Brisbane) by Sherika Ponniah, Deputy Head of Legal Content, Wolters Kluwer.
The Attorney-General of Australia, The Hon. Christian Porter, opened his address on the systemic changes to family law by saying that reform is never easy and leaving the status quo as is will never lead to an improved system.
There are two threads to the family law changes proposed: the reform to the Court structures and the reform to substantive family law. Mr Porter focused on the reform to the Court structure.
Mr Porter says that the key goal is to achieve better outcomes to Court users. The current system is creating delay and unnecessary costs to users of the Court system. Pursuing the two Court system has not aided the family and the status of Australian family law. The Western Australian system (one Court) has been a good system.
The problem that we seek to cure is the status quo which has been malfunctioning over many years. The Federal Circuit Court does 80% of the work and boasts the greatest concentration of specialist family law judges in the country. The NSW Law Society agrees that two separate Courts with two separate rules and forms has failed.
Many recommendations have concluded that one Court is the solution founded in commissioned reports. Mr Porter and his predecessor, Mr George Brandis, consulted exhaustively with the heads of the three Courts: the Federal Court of Australia, the Family Court of Australia and the Federal Circuit Court of Australia.
The reforms take the least radical path to change. To their credit, the NSW Bar Association has provided an alternative model – abolishing the Federal Circuit Court and moving the judges into the two other Courts. This plan, however, ignores the fact that plans for structural reform have not gone through consultation with the three heads of jurisdiction.
Better management of appeals means that 1500 more family law matters could be dealt with – so the appeal process has to be addressed. The profession is invited to participate in creating the unified set of Rules and lead meaningful discussions on new processes.
Data analysis is a meaningful way to consider reform options. Three international management consulting firms have provided reports on the family law system. This helps policy-makers unpack problems and identify issues that need structural reform and not just funding. Delays caused to parties are delays that are not doing justice to the parties. There are some problems that cannot be fixed by changing an organisational structure. Data is needed to compare judicial performance. The reports prepared by PwC and others assist to deconstruct known problems. The justice system has suffered from too little data collection.
ALRC discussion paper
The ALRC Discussion Paper concludes that the family law system is not working for Australian families. The ALRC is correct in identifying the lack of case triage. It is the only way that we will see that the correct resources and personnel will be aligned with the correct matters.
The less radical and more cautionary way forward, is that taken by the government, which keeps all three Courts but ensures one set of forms, one point of entry, one set of Rules, one set of Practice Directions and one Chief Justice. Mr Porter said that he is trying to create a unified approach where previous models have failed.
The Bill to amend the Court structure can be viewed here.
Mr Porter concluded by saying that if you have a system in need of fundamental reform, and you fail to engage in a process of reform and parliament miss this opportunity, then it will necessarily be a case that the Australian people will make demands for even more radical change.
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