Firstly I would like to recognise the traditional custodians of the lands upon which we meet and pay my respects to their elders, past and present.
Chief Justice, Judges of the Family Court of Australia, the Federal Circuit Court of Australia and the Supreme Court of Queensland, practitioners.
As mentioned by Wendy, I cannot talk today about the proposed legislation that is currently before parliament. However, I’m sure you would all agree that there is a significant need for change in our family law system.
As Chief Judge of the Federal Circuit Court I embrace the positive obligation to administer the court to the best of my ability, ensuring the effective, orderly and expeditious discharge of the business of the courts with the available resources, pursuant to section 21(B) of the Family Law Act 1975 and section 12 of the Federal Circuit Court of Australia Act 1999.
This duty has to be done with a proper perspective.
Indeed, as Chief Justice French said:
“A proper perspective reminds us all who occupy public office, be it parliamentary, executive or judicial, to see ourselves as other Australians see us…It requires us to examine and re-examine the way in which we do things and to look at ways of doing them better. The Courts are human institutions. There is always room for improvement”.
The Court has a duty to look for improvements in how it manages its cases. Quite frankly, families are spending far too much time and money in our Courts. Those families, who because of delay become more entrenched, more vulnerable and more stressed while they remain in our court.
[Slide 2] Allocation of family law workload as percentage
In looking at improvement we have to consider our current system and its background.
This graph shows the division of the family law workload between the FCC and the FCoA. One can see that since 2005 the percentage of work being conducted by each court has varied with the FCC doing a large volume of the work and the Family Court, the superior Court, dealing with the most complex of the parenting and property cases as it should be.
However, one of the criticisms of having a system with two courts operating with almost identical jurisdictions, is that those courts have different case management systems, forms and rules.
The current system
[Slide 3] current system is in need of change
Our family law system is in need of reform. There has been a chorus of people calling for reform and very few (if any) arguments to the contrary. The courts administering family law are suffering from unrelenting workloads and significant backlogs resulting in unacceptable delays. As will be described later, there are over 105,000 family law proceedings issued each year, at least 20,000 of those require judicial determination. The pending cases in both courts is causing great challenges, not only for the courts but also the litigants.
As at October 2017, a year ago, in the Federal Circuit Court the median time to trial from filing was 15.6 months.
[Slide 4] clearance rate 2003/4 – 2015/16
Indeed the court had been experiencing considerable increase in pending cases. The pending cases in family law across both courts is now 21,000 cases. To put that in perspective, both courts could continue to operate - with no listings whatsoever - for the next 12 months and still not clear the backlog of pending cases. Every year that the clearance rates are below 100% the backlog of cases increases.
We all know the symptoms of a judicial process under great stress:
- Excessive Costs
The discussion we can have
An important purpose of this paper this morning is to invite a conversation. The architecture of that conversation should include us asking:
- What ingredients are needed to improve case management and other court processes?
- How can these be internally implemented?
- How do we measure objectively any performance?
We must be realistic and pragmatic in our approach. We need to look at what can be done within our present means, the resources we currently have. How are they best allocated? That doesn’t stop us from asking for more resources but it must be done in an informed way and with adequate analysis of the benefit of such resources. What is needed, which registries, what will be the benefit from that injection?
So what are the Ingredients?
1. Integrated case management approach
[Slide 5] Unified approach to family law
[Slide 6] Simplified access to family law
A common system of case management that allows the courts to closely manage the work coming in, is vital. This will ensure we are utilising the most appropriate resources available for maximum effect. This is about smarter case management. Case managing a pool of cases with specialist case management judges and registrars, before and after early ADR, allows for triaging the remaining work to trial judges appropriately. It also allows the Courts to identify very early cases in which children are at serious risk and apply appropriate resources to those cases.
[Slide 7] Common case management
2. Harmonisation of Rules and forms
Regardless of which court a matter is filed in, litigants need to know how the case will be dealt with by the Court both at a preliminary stage and, if necessary, the final stage.
There has been a very strong push for a harmonisation of rules. There are currently working groups being organised, a scope of work being produced and budgets being prepared for this very reason. Hopefully, there is little to stop us from achieving this goal in the near future.
It is so obvious it is staggering it hasn’t already occurred.
3. Use of early alternative dispute resolution
The use of early ADR is imperative. However as the national call overs have shown, even late ADR can be successful, and provides parties with a dignified way to settle their differences.
Not all matters will be appropriate for ADR but, equally, litigants should not be locked into years of financial and emotional stress because their lawyers and the courts have not made a genuine effort to resolve matters as soon as possible.
4. Greater use of private arbitration and judicial mediation
Another ingredient is the use of private arbitration in appropriate property cases is an extremely efficient way for parties to quickly obtain a determination and resolution of their dispute, rather than waiting for a trial date. It may be for a preliminary issue or to determine the entire matter. Arbitration was recently embraced in several Registries during the national call overs of family law matters.
We will work with the profession to ensure that the family courts have the capacity to expeditiously deal with issues that may arise during the course of an arbitration. This includes fast tracking applications seeking a review of arbitral wards.
The use of judicial mediation has been to great effect in both courts. A number of substantial cases have been settled with the assistance of judicial mediation, even late in the litigation, saving litigants’ many days in the courtroom, expense, and further stress.
[Slide 8] Compliance with court orders
5. Compliance with Court Orders
Non-compliance with Court Orders is rife in our system. It causes substantial delays and prohibits cases from being heard. We are not talking about those who come to the court unrepresented, it is the represented parties who are most at fault. The ABA, with respect, showed great leadership in calling for greater compliance and significant costs consequences for failure to comply.
We have heard the call and will be issuing national practice directions in the Federal Circuit Court to deal with this.
A specialist court and profession provides obvious benefits and allows for a specialist knowledge and the development of specialist jurisprudence.
Indeed, we are fortunate to have one of the highest number of experienced specialist judges in family law in the world across both courts. There are 75 highly experienced and dedicated specialist trial judges, 33 on the Family Court and 40 on the FCC, with an additional 17 experienced FCC judges conducting trials in both family and general federal law. In addition, Australia also has experienced judges sitting in the Family Court of Western Australia.
In my view, there will always be a need for superior level family law judges to hear complex family law trials and appeals, particularly in parenting cases. But, at the same time, family lawyers should not undersell themselves. In my experience good family lawyers are great lawyers with the ability to apply principles from any number of different subject areas.
The FCC judges currently conduct over 85% of all family law cases. They have enormous experience in family law, with an average of 25 years’ experience between them, many of whom have been experts in their field, former Registrars of the court, highly experienced barristers and solicitors, and many have been on the bench for well over 10 years. Despite the large volume of cases disposed of, like the judges of the Family Court, the FCC judges have an extremely low appeal rate. There are now also National supervising judges and senior registry judges in family law assisting new judges, providing further education and allocating family law cases appropriately.
Indeed, one can hardly suggest there are not adequately trained and specialist judges in both courts. All are extremely capable and hear complex property and parenting cases on a daily and weekly basis. The idea that there is somehow a threat to specialisation by change is at best a complete myth and at worst misleading.
With specialization there comes a warning:
In Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531 at  to , Heydon J cautioned that specialist courts should not lose touch with the “traditions, standards and mores of the wider profession and judiciary”. It is also an important consideration for the profession, for us all to look outside the family law jurisdiction when looking for improvements.
7. The involvement of lawyers in family law litigation
It is imperative, in my view that the profession continue to remain involved in family law disputes. This ensures that litigants are properly advised of their rights and have the opportunity of prosecuting their cases. This leads to the attainment of just and equitable outcomes and outcomes reached in the best interests of the child regardless of intimidation or other pressures litigants might otherwise suffer. Cooperation and innovation is vital.
[Slide 9] list of reports
There have been a large number of reports but little action.
I join with Family Law Section Chair, Wendy Kayler-Thomson, who stated in October 2016: “we do not need another review. We already have the reports and the recommendations from a series of earlier studies and enquiries – what we need is action.” Although she was referring to an injection of funds, I think with respect that the opportunities go much further.
What can be implemented?
Regardless of the outcome of the proposed legislation, there is a lot that can be achieved by the courts and the profession to improve the system.
With that in mind the Courts are focused on the task at hand and are introducing a significant number of changes, across the spectrum, which will have an immediate impact. Not in a years’ time, or in 10 years’ time, but right now.
To demonstrate what can be done now, let me turn to a number of current initiatives undertaken by the Federal Circuit Court in the past year.
National Call-over initiative for all existing cases
[Slide 10] National call over results
Since November last year, the Federal Circuit Court engaged in a number of callovers of family law matters. These were predominantly old cases that had been in the system for many years, where the parties were largely entrenched in their positions, and the costs were at unreasonable levels. Some had trial dates; some did not.
A total of 1660 cases were called over in Melbourne, Sydney, Adelaide and Brisbane with the involvement of 10 different judges. This process involved a call over, an ADR event, and a compliance call over if necessary.
This initiative resulted in an overall settlement rate of 50% nationally. Melbourne achieved an astounding settlement rate of up to 70%. It saved hundreds of judge days in court, costs, and most importantly, stress on families and children.
This also meant that the cases that did not settle could be given a much earlier trial date.
This was an outstanding result, especially for litigants.
Brisbane pilot: for new cases
Now let’s turn to the new case management pilot here in Brisbane.
[Slide 11] Brisbane pilot outcomes (1/3)
In June this year judges of the Brisbane registry commenced a new case management pilot. This was principally modelled on the system used in other commercial and civil courts. We took three of the 10 trial judges and made them responsible for managing all new cases.
This initiative immediately brought forward trial dates from mid-2019 to the end of 2018. The preliminary data appears extremely positive, however the court is still assessing the pilot outcomes as it progresses.
As can be seen in the first graph, the number of pending cases in Brisbane has dramatically decreased. This means that there is no longer a large pool of unallocated cases. Further, new filings are likely to be listed for trial within an eight to nine month period.
[Slide 12] Brisbane pilot outcomes (2/3)
The median time to trial in Brisbane has also significantly decreased. In August 2017 it was 14.6 months. In August 2018 it was 8.7 months, a reduction of 6 months.
[Slide 13] Brisbane pilot outcomes (3/3)
As can be seen on the last graph, the median time to trial has decreased across the court nationally. As a result of the pilot, the reduction in Brisbane is even greater.
The pilot also provides greater consistency in regards to the case management, with the profession able to clearly understand what is required of them.
We are now reviewing the pilot, speaking to the stake holders and assessing what extra resources are required to ensure the model is sustainable. We now aim to implement the pilot in other registries including Parramatta and Melbourne.
How do we measure performance?
In a modern court numerical evidence is important and must be balanced with an examination of quality outcomes.
Overall, the Court’s performance can be best judged, at least in empirical terms, by its clearance rate. That being the percentage of cases disposed of compared with what has been filed in a 12 month period.
Positive results from new initiatives
[Slide 14] graph of FCC clearance rates 2013/14 to August 2018
As a result of the initiatives that have been put in place since October last year, I am proud to say, for the first time in 15 years, the clearance rate for family law cases in the FCC is now above 100%.
In the 1st quarter of 2017/2018 the clearance rate was 95%. In the 2nd quarter of 2017/18, it jumped to 102%.
By March it increased to 103% and I am delighted to say that as of 31 August 2018, the clearance rate has risen to 106.7%.
This means that since October 2017, we have cleared the highest number of cases the Court has ever had in its system. But most importantly, it is sustainable.
The median time to trial has improved from 15.6 months at 30 September 2017 to 12 months at 30 September 2018, a difference of 3.6 months. In Brisbane the reduction in median time to trial is 6 months.
I put this down to two things: the incredible work of the Court and the excellent support and dedication of the profession. The assistance we have received from the Bars around Australia and the law societies has been overwhelming.
Let me give you a few examples.
In Melbourne the Court asked for a list of barristers together with their fees, that be placed on the bar table for those willing to act as mediators and arbitrators on a paid basis. The Court received a list of 142 barristers within four days which included the most senior to the most junior barristers, all agreeing to help on a pro bono basis if needed. Of the 263 cases that were called over at that time, approximately 20 went to pro bono mediation and all of those settled.
In Sydney, AIFLAM and the NSW Law Society provided us with a very helpful list of arbitrators and mediators and a number were extremely helpful to the Court.
In Brisbane, the Law Society and the Bar provided a pro bono mediation service on callover days using the breakout rooms in the Court. Each day of the call over we had three mediators available, one a specialist in property, one specialist in parenting and one who is somewhere in between. The Court referred 10 cases to the mediators. Thanks to the extraordinary work of those pro bono mediators, nearly every one of the matters settled, on the day, in court. This included cases in which parties were unrepresented and were trying to find a way to get out of the system and settle their differences.
In all places the ICLs and legal aid were amazing and continue to deserve all our praise and thanks for their fine work.
I have never been more proud of the profession, including the mediators, legal aid lawyers and ICLs, than when I was conducting these callovers and seeing the great work they do.
If the Brisbane pilot model was implemented nationally the clearance rate could look something like this:
[Slide 15] graph of FCC clearance rates nationally & Brisbane
The national clearance rate of 106.7% is a fantastic result – however the Brisbane pilot has resulted in a clearance rate of 111.5%. I commend all involved for their hard work and innovation on this pilot so far.
There is still a lot to do.
In the words of Chief Justice French, “we should examine and re-examine the way in which we do things, and look at ways of doing them better”.
We should not be slowed in our endeavours or distracted by politics, by fear of change, by incumbency or indeed by a lack of understanding of what the real issues are. We should in fact embrace the opportunity to improve our system.
It is about looking at what can be done now.
This includes, after appropriate analysis asking, indeed demanding, extra resources from Government, with cooperation from the profession and becoming more accountable to litigants.
One might still ask, why embrace change? Because this work, this system of law, and the people who come before our courts, are just too important not to do so.