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Snapshot of project performance data

Objective 1: Increase opportunities for litigants to resolve disputes using settlement strategies rather than judicial determination

Average number of referrals from the kiosk to external programs per day

Average number of referrals from the kiosk to external programs per day

Referrals rates to community organisations from the kiosk continue to rise and currently total around 150 per annum

Referrals are also made to internal events specifically s11f interventions

Percentage of cases settled

Percentage of cases settled

Rates of settlement without judicial determination rose from 67 to 74%

Number of court events to receive final orders

Number of events

Pre-project

Project

National average

01 to 02

33%

40%

31%

03 to 04

30%

30%

28%

05 to 09

29%

23%

29%

10 to 14

6%

4%

9%

15 to 19

1%

1%

2%

20+

0%

0%

1%

Cases are settling earlier with 40% of cases settling after 1-2 court events (from 33% prior to the Project)

Objective 2: Ensure that each court event is constructive and advances the matter toward resolution

Rates of adjournment for conciliation conferences (property matters)

  2008-2009 2010-2011
Held 295 350
Adjourned 17 0
Percentage adjourned 8% 0%

Adjournment rates for conciliation conferences have dropped to zero (from eight per cent)

Objective 3:

Reduce the financial and time burden of litigation to litigants

Average number of attendances per case

 

National average

Dandenong

Average attendance rate (pre-project)

5.0

4.5

Average attendance rate (Project)

5.2

4.0
(Lowest national figure)

Parties participate in fewer events to resolve their case than in any other registry.

Objective 4:

Enhance the Courts focus on the needs of individual litigants

Focusing on Legal Aid recipients

There has been a drop of 38% in the amount of legal aid funding required to fund preparation and trial

Legal aid funding has shifted toward early court events where opportunities for litigants to resolve their case are tailored to individual issues and circumstances.

Sustainability

Federal magistrate workload indicators

2010-2011

National average

Dandenong

Average elapsed hours in court per day

5:09 hrs

5:48 hrs

Total average filings per judicial officer per annum

378 filings

603 filings

Extemp: reserved judgment ratio

81%

89%

File numbers per FM sitting day

3.7

4.8

Current workloads per federal magistrate are above accepted practice and do not support long term sustainability and wellbeing

Map labelling the Dandenong registry, catchment area and State of Victoria

1 Executive summary

1.1 Background

The Dandenong Project was introduced in 2010 to the Dandenong registry. In broad terms, the Project was aimed at testing new case management approaches that would encourage parties to settle disputes using dispute resolution rather than judicial determination. The project aimed to ensure each court event was constructive and advanced a matter towards resolution.

The project was also shaped by a desire to overcome issues arising due to the large numbers of federal magistrates circuiting through Dandenong registry, the constant threat of registry closure and a dissatisfied local legal profession.

The Project introduced:

  • a judicial docket where each federal magistrate manages the cases in their docket from the first court event through to determination
  • a triage system of case assessment to determine the most appropriate case management pathway for a particular case
  • a new case management approach focused on finding opportunities for cases to settle using dispute resolution
  • adjournment of cases to internal dispute resolution undertaken by family consultants
  • referral of cases to community (external) dispute resolution services via a kiosk located at the registry
  • techniques to encourage compliance to ensure matters are ready to proceed on the day they are listed, and
  • the reallocation of legal aid funding toward earlier court events.

The Project was underpinned by introducing Dandenong-based federal magistrates and ceasing to operate Dandenong as a circuit location.

This review was commissioned by the FMC to evaluate and document the Dandenong Project.

1.2 Evaluation methods

In recognition of the multiple objectives of the project, information was gathered through a range of collection methods and sources. Data sources were selected for their reliability, availability and appropriateness.

The evaluation drew on quantitative data collected by the Family Law Courts and also qualitative information gathered from focus groups and interviews undertaken with federal magistrates, staff and key stakeholders.

A range of issues around data were encountered including a lack of baseline data collected for the project and poor data quality. Only data considered as robust has been used.

1.3 Summary of findings against objectives

The following section provides a summary of the reviews finding against the objectives of the Project.

Increasing opportunities for litigants to resolve disputes using settlement strategies rather than judicial determination

  • The Project has resulted in an increase in the number of cases that settle without judicial determination and a significant increase in the number of cases that settle early. Forty per cent of all cases in Dandenong settle in two or less court events, the highest early settlement rate across in the FMC.
  • The triage system of assessment and the early conduct of Child Inclusive and Child Dispute Conferences (s11f interventions) are particularly effective in increasing settlement rates and facilitating the early resolution of matters.
  • The effectiveness of s11f and conciliation conferences in resolving matters is enhanced by (a) not setting a trial date, a practice which focuses parties away from the trial and toward resolution events and (b) conducting those events on a sitting day where lawyers, parties, federal magistrates, family consultants/registrars are all present and focused on finding ways to resolve a dispute.
  • The kiosk delivers a range of benefits including increased awareness of, and access to, services provided by the community sector as well as improving links between those that work in the family law systems. While it may not have the same impact on settlement as early internal resolution events, referral rates are increasing under the project and the kiosk provides the opportunity for parties to receive a broader range of support and services than cannot be offered by the Court alone.
  • The FMC needs to be mindful of, and monitor, the risk of litigants being pushed through the system too quickly without time to fully consider the implications of settlement arrangement they agree to.

Ensuring that each court event is constructive and advances the matter toward resolution

  • Anecdotally, stakeholders reported a decline in avoidable adjournments for court events however robust data was not available to substantiate this observation.
  • The consistent use of compliance checking and enforcement techniques by chambers, staff and federal magistrates has been effective in dropping the rate of adjournments for conciliation conferences from eight per cent to zero.
  • The conduct of conciliation conferences on the same day the docket FM is sitting at Dandenong was identified as providing a particularly strong incentive to comply with orders.
  • Increased familiarity with individual cases under the judicial docket has led to more constructive court events by reducing the need for parties and lawyers to repeat the facts of their case.

Reducing the financial and time burden of litigation to litigants

  • The Project has reduced the average cost and time burden of litigation to parties. Figures indicate both a reduction in the average number of times parties have to attend court and a reduction in the average amount of time it takes for cases to be finalised under the Project. This result is largely attributable to high early settlement rates.
  • The part-time federal magistrate positions proposed for Dandenong (three positions at approximately 0.25 FTE) may compromise the capacity of Dandenong to maintain gains made around timeliness. This risk needs to be monitored.

Enhancing the Courts focus on the needs of individual litigants

  • Through the close management of cases by federal magistrates, and the early use of dispute resolution events which concentrate closely on the issues and circumstances of a particular case, the Project facilitates a close focus on the needs of individuals.
  • Self-represented litigants are not disadvantaged by the Project and are part of a case management process that is better able to focus on their particular circumstances. However, there is a case for the increasing the provision of information (through a range of channels) to self-represented and other litigants about what to expect as they move through the court process.
  • The pattern of legal aid funding in Dandenong has shifted from an emphasis on trial events to an emphasis on early resolution events to match the Project. Savings from trial costs have been reinvested by Victoria Legal Aid into independent childrens lawyers to improve focus on the best interests of the child.

1.4 Impact of the Project on overall court performance and client satisfaction

  • Overall, Dandenongs performance, against standard court performance metrics improved under the Project and Dandenong performs above national averages in many areas. However measures regarding judicial workload raise questions regarding the sustainability of the project in terms of staff wellbeing.
  • Efforts to increase the information available to litigants, particularly regarding what to expect when attending court, are likely to enhance levels of client satisfaction.

1.5 Sustainability

  • The current workload per federal magistrate in Dandenong appears to be unsustainable over the long term. Workload pressures are primarily caused by high case loads. Consideration should be given to increasing the allocation of federal magistrates to Dandenong to reduce the workload to a sustainable level in line with accepted national practices.
  • Workforce planning approaches are needed to support time away from the coal-face of the courtroom and the taking of leave.
  • A chambers assistant role is required in Dandenong to absorb the additional workload associated with (a) the high number of cases in each federal magistrate's docket (b) workload pressures on associates and (c) the dual geographies across which many Dandenong federal magistrates work.
  • The creation of permanent family consultants in Dandenong has created stability in this role and allowed some the issues regarding the previous rotating roster system to be overcome. However, the risk of family consultants feeling over burdened and professionally isolated must be closely managed. This risk must also be managed for registrars.
  • The Project has been largely implemented and sustained without a substantial increase in one-off or ongoing spending. Analysis suggests that should the approach be implemented in other registries in part, or in its entirety, minimal additional expenditure should be required.
  • There were significant risks and inefficiencies associated with running Dandenong as a circuit. The allocation of federal magistrates to Dandenong and the use of the docket system of case management overcame many of these risks and inefficiencies.

1.6 Implementation

Upon reflection, some key learnings emerged regarding implementation. These should shape any future implementation of the Dandenong or other similar projects.

  • Senior sponsorship and drive is critical for a project of this nature, a senior member of the magistracy is needed to drive the project, create enthusiasm, deal with issues as they arise and own the implementation.
  • Use early project planning and management early project planning should include setting down clear project objectives and documenting how achievement of these will be measured.
  • Bring key stakeholders along this includes providing information and education to all stakeholders including members of the legal profession, community organisations, staff and litigants.
  • Create working relationships and culture of no-blame.
  • Ensure the project is implemented by the right people select federal magistrates and family consultants who are able to deal with the pace of work and are willing to trial something new.

To set up and maintain the kiosk, a range of infrastructure and support needs to be in place. For the kiosk to be effective it needs (a) static and active information about the community sector as a whole such as current contact details, nature of services offered and wait times (b) staff who can provide credible, reliable and consistent information and (c) support from federal magistrates, the legal profession, court administration and the community sector.

1.7 Transferability

Both barriers and opportunities exist for replicating and transferring the Project or adapting parts of it for use by other registries and/or courts.

Opportunities exist for registries to identify which of the Dandenong outcomes would be most advantageous to their situation and identify ways in which a pared-down model might be effective. However, some caution should be taken selecting which components to implement. Many of the outcomes achieved in the Dandenong Project rely on the interactions and contributions of multiple components.

Potential barriers for wider application of the model include the pervading culture of the local legal profession, attitudes of federal magistrates toward new approaches, and the level of maturity of the community sector however many of these barriers may be overcome with senior support and commitment to change.

1.8 Conclusion

The review of the Project suggests that overall the changes made to case management processes and techniques have had a positive impact. Overall, more cases are settling earlier, without judicial determination and with less court events. These results, in turn, reduce the burden of litigation to parties with the reduction of legal fees and time required to resolve a case.

One particular benefit of early settlement is the overall reduction in legal aid needed to fund trial lawyers and the redirection of that funding into independent childrens lawyers to represent and promote the best interests of children.

Early settlement does however, raise a risk of litigants feeling pushed through the system too quickly or without time to fully consider the implications of settlement arrangement they agree to. This highlights the need for a further research into the longer term durability of orders under the Project.

Dandenong also faces the challenge of determining how to sustain the current workload as there is evidence of fatigue and long work hours.

Finally, to allow the ongoing monitoring and improvement of the Project, the Court faces challenges around data, not only regarding identifying what information is needed to monitor ongoing project performance but also in regard to the reliability of data available.

While there remain challenges and risks that require further attention, ultimately, it can be concluded that the Project has had a positive effect, delivering justice in a way that better meets the needs of litigants in the Dandenong region.

2. Introduction

2.1 Project background

In early 2010, the Federal Magistrates Court (FMC) implemented the Dandenong Project (the Project) at the Dandenong Family Law Court registry. The Project was designed as a pilot to develop and test new approaches that would (a) encourage the resolution of matters without the need for judicial determination and (b) ensure that each court event was constructive.

Techniques and processes that were piloted as part of the Project are now business-as-usual practice in Dandenong.

The Project comprises alternative case management techniques and processes including:

  • the introduction of a judicial docket each federal magistrate manages the cases in their docket from their first court event through to determination with a view to stopping the disruption associated with cases moving from federal magistrate to federal magistrate
  • a triage system of case assessment used by federal magistrates at the first court date, to determine the most appropriate case management pathway for a particular case
  • a new case management approach federal magistrates focus on finding opportunities for cases to settle using dispute resolution. Under this approach matters are unlikely to be listed for a final trial until options to resolve the dispute have been exhausted
  • adjournment of cases to internal dispute resolution early in a case, matters are referred to Child Dispute Conferences and Child Inclusive Conferences (s11f interventions)1 undertaken by family consultants
  • referral of cases to community (external) dispute resolution services via a kiosk. The kiosk is located at the registry, staffed by members of community based organisations, and assists with making of appointments
  • techniques to encourage compliance federal magistrates use techniques to encourage compliance with procedural orders to ensure matters are ready to proceed on the day they are listed, and
  • the reallocation of legal aid funding funding is directed toward earlier court events to match the focus of the Dandenong Project on exhausting dispute resolution events before focusing on the trial.

The Projects implementation was underpinned by ceasing to operate Dandenong as a circuit location and introducing Dandenong-based federal magistrates.

This review, delivered in early 2012, was commissioned by the FMC to evaluate and document the Dandenong Project.

2.2 Review objectives

The review will examine the Project as a whole, its individual components and its implementation, with a view to:

  • describing the Project and its component parts
  • assessing the Projects delivery against its stated objectives
  • examining the sustainability of the Project over the longer term
  • capturing what lessons can be learned from implementation, and
  • exploring the transferability of the model.

2.3 Evaluation approach

In recognition of the multiple objectives of the Project, information was gathered through a range of collection methods and sources. Data sources were selected for their reliability, availability and appropriateness as a measure.

The evaluation drew on data including:

  • Casetrack data
  • FMC court performance data (also drawn from Casetrack)
  • Australian Bureau of Statistics demographic data and the index of social disadvantage
  • local council municipality profile data
  • data collected by the Dandenong registry (particularly regarding the kiosk)
  • client satisfaction survey data
  • customer complaints data, and
  • data provided by Victorian Legal Aid.

Documents and reports were also drawn upon including:

  • an early internal project review, The Dandenong Project Evaluation and the original project document The Dandenong Project: a family law initiativeprovided useful material, particularly about the Projects original intent
  • Dr Deborah Abslers review of the Dandenong kiosk , Dandenong Project: Post Separation Information & Referral Service Evaluation Report provided data regarding stakeholders views about the kiosk, and
  • Current Findings on Australian Children in Post-separation Disputes: Outer Conflict, Inner Discord by Jennifer McIntosh and Caroline Long.

Project materials were examined. For example:

  • information brochures developed for the Project Information for Litigants and Information for Practitioners and Litigants
  • pro-forma orders developed under the Project by federal magistrates, and
  • agendas for stakeholder consultation undertaken as part of project implementation.

A series of focus groups, meetings and interviews were conducted. Focus groups were held with:

  • Registrars
  • Family consultants
  • Client service staff
  • Associates
  • The legal profession
  • The Collaborate Dispute Resolution Group (with representation from community organisations and the legal profession)

Individual interviews were held with:

  • The Chief Federal Magistrate
  • Federal magistrates
  • The Regional Registry Manager
  • The Dandenong Registry Manager
  • Senior Registrar
  • Senior Family Consultant
  • Dandenong based family consultants
  • Project Manager of the Dandenong; Project
  • Dandenong based registrar
  • A Victorian Family Law Pathways
  • Legal Aid Victoria

Time was also spent time at the Dandenong registry, observing a duty day.

Evaluation challenges and issues

The Project has been in full operation since early to mid 2010. It must be acknowledged that the impact of the Project in some areas may evolve more gradually. There will be value in examining data, where it is available, at the end of another full year of operation.

During project planning, specific performance measures were not identified for use in evaluating the project. Hence baseline (pre-project) data was not collected that would allow a simple project evaluation. For the purposes of this review, baseline data was largely taken from pre-existing court performance data from the financial year 20082009.

Project performance data has been primarily taken from FY2010-2011 court performance data. Data from 2009-2010 was largely disregarded. The Project was partially implemented in this period and there is the likelihood that the call-over conducted during early 2010 will distort figures.

A range of data quality issues were encountered during the review, frequently relating back to the incorrect entry of data by court staff. In some instances data was available, however when the quality of that data was investigated, it could not be relied upon. While having implications for this review, it also has implications beyond this review.

The evaluation provides a means of accessing the shorter term impact of the Project. Longer term outcomes, such as changing attitudes and the durability of orders, will require a more longitudinal approach.

2.4 Governance of this review

A Board, comprising Federal Magistrate Baumann, Federal Magistrate Phipps, Richard Foster (CEO) and Steve Agnew (Acting Deputy CEO) set the overall direction and scope of the review. The Project Board approved all major stages of work and provided overall guidance to the review. To assure impartiality, however, the Board was not involved in the writing of this report.

2.5 Report outline

The sections chapters of the report are presented in a standard manner:

Introduction (this section) – provides the context for the review and introduces the purpose of the review.

About the project – provides a description of the Project and the environment in which it was implemented.

Evaluation approach – provides an overview of the methodology used to evaluate the project

Performance against objectives – presents an assessment of the Project against its objectives and against general court performance measures.

Sustainability – examines the Project in terms of workforce and financial sustainability.

Implementation – provides an overview of the Project’s approach to implementation and captures some of the lessons learned from the Dandenong experience.

Transferability – examines any issues that may impact on the transferability of the project to other registries.

Conclusions – makes final conclusions from the review.

3. About the Project

3.1 Objectives and vision

The Court had a vision for the Project to deliver justice in a way that better meets the needs of litigants in the Dandenong region. 2

The Project identified four key objectives3:

  1. Increase opportunities for litigants to resolve disputes using settlement strategies rather than judicial determination.
  2. Ensure each court event was constructive and advanced the matter toward resolution.
  3. Reduce the financial and time burden of litigation to litigants.
  4. Enhance the Courts focus on the needs of individual litigants including the needs of self-represented litigants and those requiring legal aid.

The project was also driven by a philosophy that if cases suitable for settlement could be moved out of the court system earlier, there would be more time and resources available for the cases that needed scarce court resources. Further, the FMC saw an opportunity to link people into the support provided by the community sector a sector that provides them with a chance for socially better outcomes.

3.2 The implementation in brief

The following provides a brief chronology of the Projects implementation.

  • The Project was conceived in response to increasing concerns about Dandenong. There were unsettling perceptions, internally and with external stakeholders, of Dandenong being neglected, a high degree of churn in cases and an unhappy legal profession.
  • The primary project driver, Federal Magistrate Baumann, appointed a project manager to assist with the implementation of the Project.
  • Initial meetings were held with the federal magistracy in Melbourne to inform them of the pilot project that would be implemented in Dandenong.
  • Meetings were held with Dandenong staff to inform them of the Project.
  • An information and education day was conducted for the Dandenong legal profession and representatives of community-based organisations. Around 120 people attended.
  • Work commenced to clean up existing matters and to get the workload ready to be allocated to a docket. A call-over was conducted to bring forward matters listed to future dates and to integrate them with the new case management approach.
  • The new approach was officially launched by the then Attorney-General the Honourable Robert McClelland MP on 6 July 2010.

3.3 Project initiatives in detail

The Project comprises six components:

  1. Federal magistrates allocated to Dandenong
  2. A triage system and case management process
  3. Internal dispute resolution
  4. External dispute resolution: the kiosk
  5. Compliance checking and enforcement
  6. Legal Aid, independent childrens lawyers and self-represented litigants.

Each was implemented under the Project and is now part of business-as-usual practice in Dandenong.

3.3.1 Federal magistrates allocated to Dandenong

Prior to the Project, Dandenong operated as a circuit location. Fifteen federal magistrates from Melbourne and Tasmania sat in Dandenong on a rotational basis providing approximately a 1.9 full-time-equivalent (FTE)4 workload.

With the Projects implementation, Dandenong cased to operate as a circuit location. Two FTE federal magistrate resources were committed to Dandenong. This was shared among three federal magistrates who worked under a judicial docket actively managing cases from filing through to final disposition. The intent was to allow more efficient case management and to overcome administrative and management issues associated with supporting 15 circuiting magistrates.

During 2012, five federal magistrates are allocated against an approximate 2.5 FTE load. One federal magistrate is committed to Dandenong full-time and one half-time with the remaining load divided.

To support federal magistrates who are dividing time between Melbourne and Dandenong, a chambers assistant was employed. Along with chambers duties, they provide a Dandenong based contact for registry staff, lawyers and others when federal magistrates are sitting in Melbourne.

3.3.2 Triage system and case management process

Under the Project a triage system of assessment by federal magistrates was introduced to improve understanding of the circumstances and central issues in dispute at the first return date. The early identification of issues allows the direction of parties along the best pathway for their case including the direction of litigants to appropriate dispute resolution. Or, in matters not suitable, listing the matter for trial more expediently.

The triage system is closely linked to the case management principles introduced as part of the Project. Under the Project, federal magistrates manage cases on the basis that it is unlikely that a matter will:

  1. receive a listing for a hearing on the first court date, or
  2. receive a listing for a final hearing until the federal magistrate is satisfied that all alternative options have been explored.

The practice of not providing a trial date contrasts to prior practice in Dandenong and current practice in Melbourne where litigants receive a listing for a final hearing at their first court date. In Dandenong, a trial date is not provided until all other efforts to resolve the case have been exhausted.

These approaches work on the hypothesis that if (a) a triage process is used to understand issues and circumstances of a case, (b) lawyers and litigants are kept involved, and (c) parties are given facilities and opportunities to resolve their case, they are more likely to settle without judicial determination.

3.3.3 Internal dispute resolution

The introduction of internal dispute resolution options early in a case intends to support the Projects aim of providing a greater, more tailored and flexible range of dispute resolutions options to litigants.

Parenting matters

For pressing parenting matters, federal magistrates utilise the services of family consultants on duty days. Litigants are usually referred to a Child Inclusive or Child Dispute Conference (collectively called s11f interventions). During the conference, the family consultant makes an assessment of the case. The information gathered as part of the assessment is then presented as expert advice through memo and/or oral advice to court. On duty days advice back to court is usually oral, allowing it be presented on the same day as the conference.

Where matters are less urgent, s11f interventions are booked with family consultants. Most federal magistrates book s11f conferences to coincide with the next return date. This is particularly the case for those federal magistrates who prefer oral evidence in court.

During an s11f intervention, should the opportunity arise for parties to reach settlement, family consultants assist them in coming to an agreement. This is presented back to the lawyers, and then to the federal magistrate, and made into interim or final orders.

While family consultants make themselves available on duty days in Dandenong, this time may also be used for non-duty list s11f interventions, report writing and/or other duties.

Federal magistrates do not usually order family reports5 in Dandenong until all other reasonable resolution options, particularly s11f interventions and/or external dispute resolution, are explored. It was initially anticipated that under the project the ordering of family reports may decline with the increased use of s11f interventions earlier in a case.

Property matters

In the FMC conciliation conferences are used to try and resolve property matters. The Project introduced the practice of holding conciliation conferences, like s11f interventions, on the same day as a court event to allow the federal magistrates to see parties after an event if necessary and to take a closer and more timely interest in the outcome.

3.3.4 External dispute resolution the kiosk

The kiosk was set up under the Project to find better ways of connecting individuals with community support. Its aim is to promote awareness that alternatives to litigation remain open once court proceedings have commenced.

The Dandenong kiosk6 operates in a small room adjacent the courtrooms on duty days (morning only) and:

  • provides information about dispute resolution, contact centres and family relationship programs available in the community
  • makes immediate bookings into dispute resolution/ other services as directed by a federal magistrate in court or as requested by a lawyer or an individual.

At the beginning of a duty list, federal magistrates often explain the role of the kiosk and introduce, in person, the kiosk staff member.

As part of the triage system and case management process, where appropriate, a federal magistrate will refer a party to the kiosk to make an appointment for dispute resolution or other services.

The kiosk maintains current information on services available, contact details and current waiting times. The kiosk is staffed by people from participating community organisations on a roster basis.

The Collaborative Dispute Resolution Group was responsible for setting up the kiosk and now maintains it.

Resources for the kiosk come from three primary sources, each with a distinct role:

  • members of the Collaborative Dispute Resolution Group7 maintain the kiosk and, through the community agencies they represent, provide individuals to staff the kiosk
  • Victorian Family Law Pathways provide up-to-date information to the kiosk such as names of agencies, nature of the services they provide, and current wait times for different services
  • the Court provides administrative support to the kiosk and secretariat support to the Collaborative Dispute Resolution. At present, all resourcing for the kiosk is absorbed by existing roles and existing funding.

Kiosk staff may also help individuals, particularly self-represented litigants, understand court orders pertaining to attendance at a program/community service.

3.3.5 Compliance checking and enforcement

One of the aims of the Project was to ensure that each court event was constructive and moved a case toward resolution. Hence, under the Project, Dandenong implemented approaches that would see it exercise greater control over adjournments with the particular intent of reducing the number of avoidable adjournments.

The Project works under the principle that cases will not generally be adjourned due to avoidable non-compliance with procedural orders. To support this practice, most chambers encourage compliance by undertaking checks prior to court events, contacting lawyers and/or self-represented litigants, and communicating clearly that federal magistrates and registrars will not adjourn a case due to avoidable non-compliance.

Compliance checking is also undertaken by client service staff who check for payment of fees and contact parties to ensure fee payment prior to an event to avoid unnecessary or costly delays due to non-payment of fees.

Federal magistrates use a range of iron fist/velvet glove techniques to send a message to the profession and parties that compliance is required. Practices include:

  • making it clear to parties and lawyers that avoidable non-compliance is unacceptable
  • utilising a scheduled event, even if there is non-compliance, to try and move a case forward, and
  • investigating, in court, why there is non-compliance and putting the pressure back on practitioners to show just cause for an adjournment

The above approaches, along with better communication with the legal profession, aim to respect the contribution of those who comply and to retain federal magistrates responsibility to set the culture of the Court environment.

Compliance techniques have been particularly focused on conciliation conferences for property matters. Conciliation conferences are scheduled, where possible, on the same day as the docket FM is sitting at Dandenong so that if there is an adjournment sought due to non-compliance the registrar can direct the case back to court where lawyers are required to explain to the federal magistrate why they are not fully prepared. The immediacy of the consequence is intended to reduce non-compliance.

Finally, a consistent form of procedural order is used by federal magistrates at Dandenong. The orders are based on a master template, with only small variations between federal magistrates. The use of standard procedural order template intends to encourage compliance by allowing practitioners and litigants to better understand what is required of them to comply with any orders made.

3.3.6 Legal Aid, independent childrens lawyers and self-represented litigants

Legal Aid and independent childrens lawyers

During the early stages of the Dandenong Project, the Court met with Victoria Legal Aid to explore whether opportunities existed for legal aid to trial alternative methods of support within the model. 8

Prior to the Project, Legal Aid resources were focused on providing lawyers for the trial. Under the Dandenong Model the Court proposed that where parties were eligible for legal aid, money would be best spent upfront. Ideally lawyers would be funded to return to court for s11f interventions, family reports or conciliation conferences where they would be available to help parties move toward resolution if the opportunity presented itself. It was proposed that shifting funding away from the trial end of proceedings toward earlier court events would increase settlement rates and reduce the number of cases going to trial.

If savings were found in Dandenong through early settlement, it was proposed that the savings should be reinvested in Dandenong and used to fund more independent childrens lawyers.

Meetings were held with Victoria Legal Aid however no initial commitments were made.

The extent to which the Project has changed the nature of legal aid funding, or increased the availability of independent childrens lawyers, is explored under Project Performance.

Self-represented litigants

The Project aimed to ensure that self-represented litigants were able to effectively participate in family law proceedings.

Through the Project the registry worked with providers of community legal assistance to ensure that, as far as is possible, unrepresented litigants are provided with sufficient support to enable them to make informed choices about managing their case.

Further, it was hoped that as a result of having a more consistent approach to cases and a single federal magistrate managing each case, self-represented litigants would be better able to manage their case.

3.4 The context

In order to evaluate the changes that occurred under the Project, it is important to understand the broader social, economic, legal and court environment within which it operates. An understanding of Dandenongs environment provides the backdrop for discussion about its outcomes, transferability, sustainability and implementation.

3.4.1 Socio economic environment

The Dandenong registrys catchment can be defined as including two major areas Metropolitan (including Mornington Peninsula and outer urban areas) and Country (Gippsland). Although the catchment area cannot be mapped exactly due to inaccuracies of postcodes used in data collection9 the map below in Figure 1 provides an impression. The following data is drawn from the Australian Bureau of Statistics relative index of social disadvantage and data from the Greater Dandenong City Council.10

Figure 1. Dandenong registry catchment by municipal council boundaries

Figure 1. Dandenong registry catchment by municipal council boundaries

Map base prepared by Victorian Electoral Commission
Vicmap spatial data provided by Department of Sustainability and Environment
Parks digital data used with permission from Parks Victoria

Copyright © 2006 State Government Victoria

The metropolitan catchment is defined as: Frankston, Monash, Greater Dandenong, Knox, Casey, Whitehorse, Kingston and Maroondah.

The Australian Bureau of Statistics relative index of social disadvantage places the Greater Dandenong Region in the 64 areas with the greatest relative disadvantage in Australia (from 1336 possible regions). The region is typified by a high proportion of low-income families, unemployed people, people without educational qualifications, households renting from public housing and people in unskilled or semiskilled occupations. In the Greater Dandenong region, 55.0 per cent of the population was born overseas and 58 per cent speak a language other than English at home11. Of the 79 council areas in Victoria, it has the second highest rate of unemployment rate, the highest level of limited English fluency and is ranked in the bottom four areas for income.

In other metropolitan areas:

  • Monash also has a high proportion of the population born overseas and over 40 per cent speak a language other than English at home. However it shows higher levels of income, less unemployment and a significantly higher proportion of the population working in a profession rather than a trade.
  • Casey is the largest Metropolitan catchment area for the registry and has a very high proportion of trades rather than professionals. It does not have the same indicators of social disadvantage as Greater Dandenong, nor the cultural diversity, however recent financial modelling12 has shown it to be at the highest risk of mortgage default across Victoria.
  • Knox has low numbers of the population born overseas, low unemployment, and relatively high average incomes (ranked 13 from 79 in Victoria).

The rural catchment encompasses a wide range of areas from Mornington Peninsula, South Gippsland, Baw Baw, Wellington, Cardinia, the Bass Coast and Latrobe. Latrobe has high unemployment rates, low income and a high proportion of government assisted housing. More traditional farming belts such as South Gippsland and Wellington also have low income but also lower unemployment rates, possibly explained by the high proportion of farming activity. In contrast, the Yarra Ranges has low unemployment rates, and among the lowest levels of Government assisted housing in the state.

There are risks in simplifying such a large catchment area and assuming heterogeneity of people in terms of their socio-economic wellbeing within. However, it appears that demographically there is a proportion of people within the Dandenong catchment who are relatively socially disadvantaged whether it be through unemployment, limited English fluency, low income or low levels of education.

These findings are consistent with anecdotal evidence collected at interview suggesting that in Dandenong cases tend to be socially complex rather than legally complex, that is cases are compounded by issues such as drug and alcohol abuse, family violence, financial hardship, mental health issues and prior or existing proceedings in other courts.13

It was commonly accepted wisdom that Dandenong had a high proportion of cases requiring legal aid, however no data was available to back up this assertion.

3.4.2 The court environment

Dandenong registry, like all family law registries, provides services to both the FMC and the Family Court of Australia. However in the 10 years prior to the Dandenong Project, neither the Family Court nor the FMC had a judicial appointment based in Dandenong. From 2000 the Family Court no longer had a judge sitting in Dandenong and the FMC operated Dandenong as a circuit location.

Prior to the Project, the lack of a judicial appointment led to a sense of uncertainly about Dandenongs future and staff were constantly aware of possible registry closure. With the implementation of the Project, and the enthusiasm created about the project by its sponsors, staff felt relieved about a more certain future. This generated a willingness to participate and try new ways of working.

From interviews and focus groups the following information was gathered about staff attitudes at the time of implementation.

  • Many staff, particularly the client service officers, have been in Dandenong for 20 years or more, have ties to the region, and are very loyal to the registry, the Dandenong area and its people.
  • Dandenong did not have the entrenched case management practices that needed to be undone.
  • Under the circuiting arrangement, Dandenong-based staff were fatigued and frustrated by the duplication of work and complexity of trying to provide services and meet the requirements of 15 different federal magistrates.
  • Some staff who werent based in Dandenong, such as family consultants, were resistant to being rostered to Dandenong. Where requests for volunteers didnt work, managers were often required to conscript staff and manage complex rotating rosters early in the Project.

3.4.3 The legal environment

The process of litigation is largely shaped by two factors (a) the legal culture of the area and (b) the Courts willingness to challenge or shape that culture14(Federal Magistrate, Dandenong)

There is a widely held view that the legal profession in Victoria is focused on the trial. This presented a challenge for the Dandenong Projects focus on early court events and philosophy of not providing a trial date until all other avenues have been explored.

Most comments to the review suggested that although the shift of focus to earlier events may have presented an initial challenge, the legal profession in the Dandenong area adapted to the new way of working. This was attributed to:

  • legal practitioners in the area being supportive of a project that would keep the registry, and hence their practices, open
  • the degree of consultation and information provided to the profession as part of the Dandenong Project, and
  • the willingness of federal magistrates to be consistent and firmly reinforce the new way of doing things.

One federal magistrate commented that the legal environment in Dandenong presented a unique opportunity to take the profession with us and the perfect place to trial something new.

4. Project performance

4.1 Performance against objectives

This section examines the extent to which the Project has delivered against each of its four primary objectives

Objective 1: Increase opportunities for litigants to resolve disputes using settlement strategies rather than judicial determination

During the review, it became evident that not only did the Project aim to increase opportunities for litigants to resolve disputes using settlement strategies, but it also aimed to convert those opportunities into higher and earlier settlement rates.

This section sets out to answer the following questions.

  1. Has the Project increased opportunities for litigants to resolve disputes using settlement strategies?
  2. Has any increase in opportunities to settle converted into higher settlement rates?
  3. Are cases settling any earlier?

Firstly data is examined to determine whether the project has had any impact on settlement. Then the contribution of the Project to any changes is explored.

Opportunities to use dispute resolution

The Project attempts to increase opportunities for litigants to resolve cases through increased access to internal resolution events and services provided by community-based organisations. The primary way in which the Project attempts to increase internal dispute resolution opportunities for parenting matters is through the increase use of Child Inclusive and Child Dispute Conferences (known collectively as s11f interventions).

Internal resolution

The primary way in which the Project attempts to increase internal dispute resolution opportunities for parenting matters is through the increase use of Child Inclusive and Chile Dispute Conferences (known collectively as s11f interventions).

Figure 2. S11f interventions ordered as a percentage of applications filed in parenting matters

National average=37%, Lowest Use 9%, Highest use = 69%, Melbourne = 19%, Dandenong = 35% 
Source: Court Statistics 172010 to 30062011, Family Consultant Workload Completed

Figure 2 suggests that with s11f interventions ordered in 35 per cent of parenting cases, Dandenong is slightly below the national average of 37 per cent in its utilisation of s11f interventions. This equates to just over 300 s11f interventions per year). Its utilisation rate, however, is significantly higher than Melbourne, its cousin registry15 at 19 per cent. Family consultants who are familiar with the approach of both Melbourne and Dandenong registries said there are significantly more opportunities for parties to resolve their cases through s11f conferences in Dandenong than in Melbourne. As s11f interventions have only recently become used as an intervention across the FMC, pre-project utilisation rates do not exist. 16 National utilisation occupies a vast range, from nine to 69 per cent.

It must be acknowledged that family reports can also provide an opportunity for the case to resolve without judicial intervention, however under the Project it was anticipated that their use would decline with the increased use of s11f interventions earlier in cases. However data shows no decline in the ordering of family reports in Dandenong between FY20082009 to FY20102011.

External resolution

Figure 3 below examines changes in rates of referral to community organisations over the life of the kiosk17. While baseline data is not available, the trend line in Figure 3 indicates increasing opportunities for litigants to resolve their cases using external dispute resolution and/or other community services from August 2009 to July 2011.

The average number of referrals average of 1.5 per duty day or around 150 people per year.

Figure 3. Average number of referrals per duty day

The average number of referrals average of 1.5 per duty day or around 150 people per year 
Source: Dandenong registry data

Some comments were made about the number of referrals being low however others felt that if the kiosk is helping 150 people per year in Dandenong access quality information and support from the community sector, then it is adding value.

While most of the referrals to the kiosk come from federal magistrates, some referrals (approximately 10 per cent) also come from self-represented litigants or lawyers directly accessing the service and/or legal practitioners.

Rates of settlement without judicial determination

This section looks whether the Project has increased rates of settlement.

Figure 4 below, shows that in FY 20082009, prior to the Project, 67 per cent of cases were settled without judicial determination. With the implementation of the Project, that percentage rose to 74 in FY20102011.

Figure 4. Dandenong percentage of cases judicially determined

FY 2008-09 = 67% without judicial determination, 33% judicially determined, FY 2010-11 = 74% without judicial determination, 26% judicially determined
Source: Casetrack

It is important to examine this result in the light of national data. Figure 5 compares Dandenongs performance against national averages, the best and worst registries, and Melbourne. The figures indicate that Dandenong is performing better than the national average of 71 per cent and is, across all registries, one of the best performers.

For property matters, having the conciliation conference on the same day as appearing in front of a federal magistrate is reported by registrars as providing a greater incentive to settle cases. Information in Figure 6 below shows an increase in settlement rates at conciliation conferences by nine per cent since the Project.

Figure 5. National comparison percentage of cases judicially determined

National average 71% without judicial determination

Source: Casetrack

Figure 6. Conciliation conference settlement rates

 

20082009 (pre)

20102011 (post)

Number Held

295

350

Number Settled

109

162

Percentage settled

37%

46%

Source: Registrars National Operations Report

The early settlement of cases

Early settlement can deliver a range of advantages including:

  • reducing the effect of protracted conflict between parents which provides better outcomes for childrens emotional and mental health18
  • allowing the allocation of scarce court resources toward cases that have a great need for judicial determination.

When evaluating the Projects impact on when cases were settled, the best available indicator came from data that captured how many court attendances were required for final orders to be made. This data is presented in Figure 7 below.

With the implementation of the Project, there was a significant increase, from 33 to 40 per cent, in the number of cases that received final orders after only one or two court events. This indicates that cases are resolving, without judicial determination, significantly earlier under the Project and well before trial. Against national figures Dandenong is well above the average and is, in fact, the best performer among all registries on this measure.

Figure 7. Number of FMC attendances for final orders

Number of events

Dandenong 
FY 20082009
(pre-project)

Dandenong 
FY20102011
(post implementation)

National average FY 20102011

01 to 02

33%

40%

31%

03 to 04

30%

30%

28%

05 to 09

29%

23%

29%

10 to 14

6%

4%

9%

15 to 19

1%

1%

2%

20+

0%

0%

1%

 

100%

100%

100%

Source: Casetrack

Finding 1. The Dandenong Project has resulted in an increase in the number of cases that settle without judicial determination and a significant increase in the number of cases that settle early. Forty per cent of all cases in Dandenong settle in two or less court events, the highest early settlement rate across in the FMC.

Contribution of s11f interventions, case management and the triage system

Data is not collected to indicate whether settlement occurred as a direct or indirect result of internal or external dispute resolution, independent discussions, negotiation through lawyers or a combination of efforts. Quantitative evidence gathered through consultation combined with the data above provides some indication as to the most likely contributing factors.

The forensic nature of s11f interventions and their early focus on the issues of a case, were consistently identified as having a significant impact on higher early settlement rates in parenting cases. Members of the legal profession clearly identified the s11f conferences, along with the triage system and case management principles, as having the largest bearing on a litigants increased ability to resolve their cases, and early. Lawyers found that the s11f interventions:

  • provided information to their client early in the case which they (the lawyers) were then able to use to managing clients expectation
  • took the heat out of a case early, increasing a clients capacity and willingness to resolve the case either at the conference, individually or through their lawyers
  • ensured litigants feel heard.

One lawyer in a focus group said that s11f were critical in creating more realistic expectations in their clients:

We can tell litigants over and over that what they are asking for is very unlikely to be recommended by the Court, however it often isnt until they hear that advice from either the Family Consultant as evidence or hear it from the federal magistrate, that we (lawyers) can manage their expectations.

The timing of the s11f intervention was viewed as pivotal. On a duty day or the next return date there is most likely to be a pool of resources; namely parties, lawyers, family consultants and a federal magistrates, focused on the case and on settlement. Further, not having a trial date was seen to focus parties on settlement events rather that the trial. These same comments were made with regard to conciliation conferences held for property matters.

One federal magistrate explained:

If you can increase the number of resources working toward an agreement, and provide multiple opportunities for coming to an agreement, you are likely to increase the chance of success.

The legal profession also identified the stability of the Dandenong magistracy, and their consistent adherence to the principles that underpin the project, as assisting with settlement. Lawyers are now better able to brief their clients, manage their expectations, and hence work toward finding agreement.

Most federal magistrates were of the opinion that outcomes achieved with the early and active involvement of litigants are more likely to be sustained over the long term. However other stakeholders raised the risk that given pace of proceedings on duty days, and s11f interventions being relatively quick and high level, that litigants may feel hurried, not fully understood or potentially pressured into early settlement. The FMC needs to be mindful of, and monitor, the risk of litigants being pushed through the system too quickly without time to fully consider the implications of settlement arrangement they agree to.

Finding 2. The triage system of assessment and the early conduct of Child Inclusive and Child Dispute Conferences (s11f interventions) are particularly effective in increasing settlement rates and facilitating the early resolution of matters. 

Finding 3. The effectiveness of s11f and conciliation conferences in resolving matters is enhanced by (a) not setting a trial date, a practice which focuses parties away from the trial and toward resolution events and (b) conducting those events on a duty day where lawyers, parties, federal magistrates, family consultants/registrars are all present and focused on finding ways to resolve a dispute.

Finding 4. The FMC needs to be mindful of, and monitor, the risk of litigants being pushed through the system too quickly without time to fully consider the implications of settlement arrangement they agree to.

Contribution of the kiosk

The kiosk has increased awareness within the legal profession and federal magistracy of the services offered by community organisations. Federal magistrates in particular identified that increased awareness allows the better tailoring of referrals to the needs of litigants. They reported increased knowledge of which organisations offered services, the nature of services offered and waiting times.

On a duty day, federal magistrates are able to identify an appropriate community service, require a litigant to make an appointment through the kiosk, and on the same day bring clients back into court and confirm when they have an appointment. This information can be taken into consideration when determining the next most appropriate court date and event. This immediacy, appropriateness of referral and sense of moving the case forward were identified as having particular benefit.

The kiosk was seen to deliver a wide range of benefits including:

  • increasing the visibility of a coordinated alternative pathway for resolving disputes (jointly by courts, community organisations and the member of the legal profession)
  • increasing the visibility of the community sector, and their services, to litigants who are often information poor
  • increasing access to services that assist people in many aspects of their life, not just in dispute resolution or family law related issues
  • improving awareness of the legal profession of the services offered by community organisations
  • building better working relationships and collaboration between community sector agencies including sharing information
  • facilitating the easy and immediate bookings for services, and
  • allowing legal practitioners, self-represented litigants and parties to self-service access to community services through the kiosk without the need for an order

However the kiosk was not seen as having the same direct level of impact on the resolution of matters as section s11f conferences and was viewed by some as underutilised. One federal magistrate observed that:

Continuing maturation of the model will see better understanding of the services by practitioners and higher usage rates.

A full review of the kiosk was undertaken in November 2010 by Dr Deborah Absler. It is not the intent of this review to repeat that evaluation. The findings of that evaluation are in the report, Dandenong Project: Post Separation Information & Referral Service: Evaluation Report.

Finding 5. The kiosk delivers a range of benefits including increased awareness of, and access to, services provided by the community sector as well as improving links between those that work in the family law systems. While it may not have the same impact on settlement as early internal resolution events, referral rates are increasing under the project and the kiosk provides the opportunity for parties to receive a broader range of support and services than cannot be offered by the Court alone.

Objective 2: Ensure that each court event is constructive and advances the matter toward resolution

The project set out to ensure that each court event was constructive and moved a case closer to resolution. Two primary questions are asked to assess achievement against this aim:

  1. Has there been any decrease in the number of avoidable adjournments due to non-compliance with procedural orders?
  2. Are there any other indicators of court events being more constructive under the Dandenong Project?

Reducing avoidable adjournments due to non-compliance

There is a direct link between creating more constructive court events and enhancing the court experiences for litigants. Prior to the Project, staff reported adjournments due to avoidable non-compliance were frequent. This was attributed to:

  • the time pressures of working on under-resourced circuits. It was attractive to adjourn a case to get through high case loads
  • federal magistrates being unlikely to bear the consequences of a particular adjournments as they were unlikely to hear the case at a later date (due to the circuit), and
  • the lack of consequence for lawyers for non-compliance with procedural orders.

Court adjournments

The review attempted to find data that reflected the number of court events adjourned due to avoidable non-compliance with procedural orders. Accurate data was not available due to inconsistencies in data entry.

Anecdotally federal magistrates, the profession and staff all reported a decline in the number of avoidable adjournments due to:

  • Increased clarity about what is expected of them
  • Consequences of non-compliance
  • Early compliance checking.

Conciliation conference adjournments

Figure 8 provides information shows that adjournment rates for conciliation conferences in Dandenong in FY20102011 decreased to zero per cent from the previous years eight per cent.

Figure 8. Dandenong conciliation conference adjournment rates

 

20082009

20102011

Held

295

350

Adjourned

17

0

Percentage adjourned

8%

0%

Source: Casetrack

Registrars reported that compliance checking by chambers, the culture of non-tolerance of avoidable adjournments, and not having a final hearing date are very effective techniques for ensuring compliance at conciliation conferences. Bringing lawyers back in front of their federal magistrate on the day of their non-compliance, where practical, provides a same day consequence for requesting adjournments.

Even where there is some degree of non-compliance with procedural orders, parties will come to the conference anyway, make progress and sometimes settle. Registrars compared this with Melbourne, where the conciliation conference is not usually connected to a court event, and the federal magistrate may not see the parties again until their trial date some months into the future. Registrars report that this practice does not deliver the same connection between actions and consequences and the motivation to comply.

Prior to the Project, conciliation conference adjournments were more easily given. Client service staff reported a significant flow requiring the cancellation of appointments and interpreters, the setting of a new date, the rebooking of interpreters and other administrative tasks.

Finding 6. Anecdotally, stakeholders reported a decline in avoidable adjournments for court events however robust data was not available to substantiate this observation.

Finding 7. The consistent use of compliance checking and enforcement techniques by chambers, staff and federal magistrates has been effective in dropping the rate of adjournments for conciliation conferences from nine per cent to zero. This ensures that events are constructive and move a matter toward resolution.

Finding 8. The conduct of conciliation conferences on the same day the docket FM is sitting at Dandenong was identified as providing a particularly strong incentive to comply.

Constructive court events

Interviewees observed that under the system of circuiting federal magistrates through Dandenong, parties were often required to repeat the details of their case for each new federal magistrate hearing their case.

The introduction of federal magistrates to Dandenong under a docket system allows federal magistrates to become familiar with the cases they manage. Court time can be used to progress the case, rather than unnecessarily go over ground previously covered.

Finding 9. Increased familiarity with individual cases under the judicial docket contributes to more constructive court events by reducing the need for parties and lawyers to repeat the facts of their case.

Objective 3: Reduce the financial and time burden of litigation to litigants

This section examines whether the Project has been successful in reducing the financial and time burden of litigation to litigants. It explores whether there been a reduction in the number of court attendances required for litigants to conclude their case and whether cases are being finalised in a more timely manner.

Number of attendances required to conclude a case

Figure 9 below shows the average number of times parties need to attend court until their case is finalised. The data shows a reduction in the average number of court events required to complete a case since the Dandenong Project with the average attendance rate dropping from 4.5 to 4 events.

Nationally, Dandenong has the lowest attendance rate. On average, parties in Dandenong are able to attend court 1.2 less times than the national average

Figure 9. National/pre and post project comparison attendance rates

Average number of attendances per case(excl chambers & report write-up)

National average

Best

Worst

Melbourne

Dandenong

Average attendance rate as at 30-62009 (pre-project)

5.0

4.0

7.2

4.0

4.5

Average attendance rate as at 30-6-11 (project)

5.2

4.0 (Dandenong)

8.2

4.2

4.0

Source: Casetrack

Further, as set out in Figure 7 previously, 40 per cent of all cases finalise in one or two court events, contributing to the reduction in average attendance rates. It is worth noting the trial is one of most expensive aspects of litigation and there are likely be significant cost and time savings to litigants in Dandenong with only 26 per cent of cases going to trial (refer to Figure 5 previously).

Because cases are closely case managed under the Project, and potentially brought back for more interim or directions hearings, the profession observed that in cases that go to trial19 (26 per cent of all cases), clients may have higher legal costs.20 However this observation needs to be balanced against the 74 per cent of cases that settle without the need for judicial determination.

Members of the legal profession raised some concerns about the cost to litigants of cases that are going back to an interim hearings rather than directions hearing when the latter is the most appropriate. The cost of interim hearings are higher than directions hearings. This was attributed to federal magistrates focus on trying to get things moving and the perception that interim hearing is more likely to progress the matter than a directions hearing.

Timeliness in resolving cases

The FMC collects data against two key timeliness measures (a) the time for cases to be finalised from their first court event and (b) the time it takes, from the first court event to get to trial (of those cases that get to trial).

The information in Figure 10 presents the time taken for cases to be finalised from their first court event. It shows a four per cent increase, from 53 per cent to 57 per cent, in the number of cases that were finalised within six months during the Project. There was a commensurate decrease in the number of cases that took over 12 months to be finalised from 14 to 10 per cent. Those cases taking between six and 12 months comprised around 33 per cent of cases and have remained relatively steady.

Figure 10. National, Pre and Post Project time for cases to be finalised from their first court event

 

National Average

Best

Worst

Melbourne

Dandenong

 

FY 20102011

FY 20102011

FY 20102011

FY 20102011

FY 20082009 (Pre)

FY 20102011 (project)

% < 6 months

47

57

40

50

53%

57%

% 6 to 12 months

34

33

32

36

34%

33%

% > 12 months

19

10

28

13

14%

10%

Source: Casetrack

When comparing Dandenong to national averages and other registries, it is the best performer with the highest percentage of cases that take less than six months to finalise. It is 10 per cent above the national average figure of 47 per cent.

These figures were likely to be influenced by the large number of cases that resolved early in Dandenong so it is important to also examine figures for cases that go to trial. Figure 11 below shows the average amount of time, in months, it takes to get from the first court event to trial.

There was a slight drop in the amount to time it takes to get to trial in Dandenong from 8.1 months before the project to 7.7 months in FY20102011. Dandenong compared favourably with the national average of nine months. It is worth noting that Melbourne performed slightly better on this measure of timeliness.

Figure 11. National and project data time to trial

  National Average Best Worst

Melbourne

Dandenong

 

FY 20102011

FY 20102011

FY 20102011

FY 20102011

FY 20082009 (Pre)

FY 20102011 (project)

Time to trial (months)

9

6.6

12.8

7.3

8.1

7.7

Source: Casetrack

While the time to trial number is similar for Melbourne and Dandenong, staff who work across both registries observed that in Melbourne there are often no court events scheduled between the duty list and the trial. In Dandenong, active case management involves litigants returning to court and federal magistrates satisfying him or herself that all other resolution options have been explored prior to fixing a trial date.

The ability to work in a timely manner relies heavily on the availability of federal magistrates. In 2012, five federal magistrates are rostered to work in Dandenong with three of the positions at around 0.25 FTE or approximately eight sitting weeks per year. Client service officers observed that the two 0.25 FTE roles in 2011 resulted in some delays because of increasing difficulties contacting chambers in Melbourne to find dates, particularly for urgent applications. There is a risk, with the part-time nature of three of the positions and their implication on availability, of longer wait times for return dates.

Finding 10. The Dandenong Project has reduced the average cost and time burden of litigation to parties. Figures indicate both a reduction in the average number of times parties have to attend court and a reduction in the average amount of time it takes for cases to be finalised under the Dandenong Project. This result is largely attributable to high early settlement rates.

Finding 11. The part time federal magistrate positions proposed for Dandenong (three positions at approximately 0.25 FTE) may compromise the capacity of Dandenong to maintain gains made around timeliness. This risk needs to be monitored.

Objective 4: enhance the Courts focus on the needs of individual litigants

This section will examine the extent to which the Project has:

  1. enhanced the Courts focus on the needs of individual litigants
  2. ensured that self-represented litigants are able to effectively participate in proceedings
  3. ensured that legal aid funding matches the needs of eligible clients.

The needs of individuals

Prior to the project, with Dandenong operating as a circuit, the advent of the Family Relationship Centres and the withdrawal of family consultants to Melbourne, staff described the registry as focused on functional administration and serving the needs of 16 circuiting federal magistrates. This was at the cost of the holistic needs of clients. This was seen to change under the Project. One federal magistrate agreed to participate in the Project because:

the initiative had the ability to succeed because you can reach the litigants

The docket system allows federal magistrates to focus on cases, take a longer term view and manage cases them more closely. Further the triage system facilitates the early identifying of issues and Dandenongs tight case management approach allows federal magistrates to more closely manage the needs of an individual case. This practice benefits the litigants by simplifying the court process. The review was told that prior to the Dandenong clients would lose confidence when they had to tell their story over and over to what has been described as a merry go round.

The pace of proceedings on a duty day has the potential to make a client feel part of a large, impersonal process. On a duty day, the registry is busy with lawyers, litigants, observers and family members who are moving in and out of the courtroom among proceedings that move quickly and shift between different cases. Unavoidably, some of the language of the courtroom is legalistic and potentially alienating for those not familiar with it. A clients experience on a duty day, usually their first experience of a courtroom, is likely to be overwhelming and unlikely to meet their expectations of their day in court21.

Lawyers identified a significant improvement in the focus on individuals under the Project. They saw as critical the ability of federal magistrates to focus on the issues of a particular case despite the noise of the courtroom, and identify a course of action that can be instigated immediately, if appropriate. Where a s11f intervention is ordered and conducted on the same day as the docket FM is sitting at Dandenong, lawyers reported that their clients can, in the calmer and more personal environment of s11f intervention, focus on their particular circumstances, better identify what is in the best interests of the child and feel heard. It was thought to balance the more necessary, but impersonal, nature of the duty list itself.

Through consultation, the review also heard that the kiosk also had an impact on the ability of federal magistrates to meet the needs of individuals. Federal magistrates reported a significant increase in their knowledge of the services provided by community organisations, understanding of who provides those services and information about waiting times. This allows federal magistrates to better tailor their external referrals to the specific needs of individuals. The ability of parties, or their lawyers, to literally walk out of the courtroom and make the appointment as ordered, was identified as particularly helpful in creating a sense of cases moving forward.

Finding 12. Through the close management of cases by federal magistrates and the early use of dispute resolution events which concentrate closely on the issues and circumstances of a particular case, the Dandenong Project facilitates a close focus on the needs of individuals.

Self-represented litigants

It is common wisdom that Dandenong has a high number of self-represented litigants 22.

To support self-represented litigants there is a need for:

  • access to resources to encourage the use of representation
  • support for those people who choose to represent themselves, and/or
  • support for those who cannot afford representation but dont quality for legal aid.

In Dandenong, self-represented litigants have access to a duty lawyer provided by either Victoria Legal Aid or Peninsula Legal Services. Alternatively, self-represented litigants can access legal advice through the Family Law Assistance Program23. Federal magistrates have the expectation that self-represented litigants will have seen a duty lawyer prior to attending court and where this has not occurred, they usually direct them to their services. All of these programs were in existence prior the Project and have been maintained during the changes.

Duty lawyers report that having Dandenong based federal magistrates, and consistency in approach, has significantly increased their ability to advise and manage the expectations of SRLs. The use of s11f conferences is also seen as valuable tools to manage expectations early in the case.

The more cohesive community of support in the family law system built through the Collaborate Dispute Resolution Group and the focus on relationship building in Dandenong, also provides better and more coordinated support for self-represented litigants.

As part of the Project, a brochure was produced for lawyers and litigants that set out what they could expect under the Project. The brochure is no longer in use. A recent client survey found levels of dissatisfaction across the FMC regarding the level of clarify around what was going to happen. This is of particular concern for self-represented litigants.

Duty lawyers raised the concern that self-represented litigants often have the expectation of a family report. As part of the Project they are more commonly ordered to participate in s11f intervention instead. The Court may wish to consider how it can better manage this expectation with self-represented litigants.

Finding 13. Self-represented litigants are not disadvantaged by the Project and are part of a differential case management process that is better able to focus on their particular circumstances. However, there is a case for the increasing the provision of information (through a range of channels) to self-represented, and other litigants, about what to expect as they move through the court process.

The needs of those requiring legal aid funding

In terms of legal aid funding, two primary outcomes were sought:

  • a shifting of legal aid funding toward earlier court events in recognition of the projects focus on settlement and away from the trial
  • the reinvestment of any trial cost legal savings due to early settlement toward independent childrens lawyers in recognition of the need to ensure that the best interests of the child remained paramount.

During early discussions with the FMC, Victoria Legal Aid raised concerns about spending resources up front when the model had yet to prove that it would reduce the need for trial funding. However, over the life of the project, and as the Dandenong approach became more familiar, there was increased willingness to provide legal aid resources early in the cases. Lawyers reported seeing evidence of cases settling earlier when they were involved earlier, particularly around s11f events.

Figures from Victoria Legal Aid provided to this review, revealed that from 20082009 to 20102011 there was a significant drop, by 38 per cent, in the amount of funding required to fund preparation and trial. 24 Further, they reported that the savings made were put into independent childrens lawyers.

Finding 14. For those who require legal aid, the pattern of legal aid funding in Dandenong has shifted from an emphasis on trial events to an emphasis on early resolution events to match the Project. Savings from trial costs have been reinvested by Legal Aid into independent childrens lawyers to improve focus on the best interests of the child.

4.2 Impact of the Project on overall court performance and client satisfaction

While the Project has delivered against many of its initial aims, it is important to examine whether its performance has had any unintended effects on overall court performance or client satisfaction levels.

Court performance

In summary, most of Dandenongs court performance indicators have improved since the inception of the project and most indicators show performance above the national average. Key indicators are summarised at Appendix A.

The areas where figures have not improved relate mostly to workload. Clearance rates have dropped slightly from 101 per cent to 97 per cent, indicating that in 20102011 Dandenong was not disposing of its cases at the same rate as they were being filed. The number of cases that are pending rose by five per cent to 14 per cent. This could indicate that the magistracy are not getting through the current workload, or that may be getting through new work but not through older cases. The number of matters per day for each federal magistrate, while having dropped, was significantly above the national average.

Issues relating to workload are discussed in further detail in the section on sustainability.

Finding 15. Overall, Dandenongs performance against standard court performance metrics improved under the Dandenong Project and Dandenong performs above national averages in many areas. However measures regarding judicial workload raise questions regarding the sustainability of the project in terms of staff wellbeing.

Client satisfaction

A national client satisfaction survey25, conducted across the Family Law Courts found that:

  • 83 per cent of Dandenong interviewees were generally happy with their visit to the court. Nationally this figure was 86 per cent
  • Clients were positive about facilities, safety and service, and
  • Nationally, clients surveyed had concerns about a starting on time, clarity/clarification of what was going to happen and taking the time they expected.

Registry management are aware of the areas for possible improvement identified by the survey.

As this was the first year of the survey it is not possible to make any conclusions about the impact of the project on levels of client satisfaction. However, given that the Dandenong approach to cases differs from the FMCs general approach, and need for more clarity about court processes identified by the survey, efforts to increase information to those coming into contact with the Dandenong registry are likely to enhance levels of client satisfaction.

An examination of complaints data revealed no trends or increase in complaints of a particular nature since the implementation of the project.

Finding 16. Efforts to increase the information available to litigants, particularly regarding what to expect when attending court, are likely to enhance levels of client satisfaction.

5. Sustainability

This section examines the sustainability of the Project in terms of staff wellbeing and financial sustainability.

The following questions are addressed:

  • What has been the impact of the project on workplace stability, resourcing and the wellbeing of staff and federal magistrates?
  • What is the ongoing cost of maintaining the Project in comparison to usual running costs?

Over the long term it will be important to also examine the sustainability of the project in terms of the quality and durability of outcomes for clients and the wellbeing of children under the Dandenong Project. It is recommended that a longitudinal study be undertaken to examine this further.

5.1 Sustaining workforce stability, resourcing and wellbeing

One of the most significant concerns raised during consultation with federal magistrates and FMC staff, was the impact of the Project on employees.

There have been many reported benefits of making the registry whole again in terms of job satisfaction, staff morale, improvements in governance and management capacity but these benefits need to be balanced against the need to manage staff in an environment which can be isolating and where the work can be unrelenting in terms of volume, pace, repetition and social complexity.

Federal magistrates

Dandenong federal magistrates had mixed responses to the work from enthusiastic to seeing it as a duty.

However, there are some themes that emerged from all interviews.

The pace and volume of work was described as unrelenting and minimising the amount of leave federal magistrates are able to take. Practices such as federal magistrates listing cases into leave were not uncommon, and Dandenong was described as having no escape valve.

On average, Dandenong federal magistrates have 603 filings per judicial officer per year. The next closest registry has 443 filings per federal magistrate and Dandenong is well in excess of the national average of 378. Each federal magistrate hears, on average, 4.8 cases per sitting day. This is again, the second highest number across all registries, and is significantly above the national average of 3.7. Federal magistrates in Dandenong spend longer periods of elapsed time in court per day than any other registry except one. Federal magistrates said this practice was necessary to get through the work load.

Extemp judgment rates are high at Dandenong, at 89 per cent. One magistrate explained this as being primarily attributable to not having time to sit in chambers and write judgments and the knowledge that if we dont keep up with the volume of work, we will go under. This figure is also partially explained by federal magistrates in Dandenong being very experienced, a culture in Victoria of using extemp judgments and the low appeal rates.

Figure 12 provides a summary of workload indictors for Dandenong against the national average.

Figure 12. Summary of workload indicators

20102011

National average

Dandenong

Average elapsed hours in court per day

5:09 hrs

05:48 hrs

Total average filings per judicial officer per annum

378 filings

603 filings

Extemp: reserved judgement ration

81%

89%

File numbers per FM sitting day

3.7

4.8

Source: Casetrack

While the high number of filings per judicial officer must be read in consideration of the lower number events that go to trial and the number of cases that resolve with fewer events, the high number of cases per sitting day supports the assertion that that the volume of work is an issue not completely mitigated by other efficiencies gained through the project.

Another warning sign of overload is that cases pending over 12 months have risen, from nine per cent prior to the Project, to 14 per cent. And while this is still below the national average of 18 per cent, the trend should be monitored.

Some federal magistrates in Dandenong recently rotated out of Dandenong and back to Melbourne. The issues involved in managing the tail of exiting federal magistrates dockets and the inevitable lag setting in new federal magistrates was of particular concern to staff because of the disruption and discontinuity it caused.

Finding 17. The current workload per federal magistrate in Dandenong appears to be unsustainable over the long term. Workload pressures are primarily caused by high case loads. Consideration should be given to increasing the allocation of federal magistrates to Dandenong to reduce the workload to a sustainable level in line with accepted national practices.

Finding 18. Workforce planning approaches that support professional development, time away from the pressures of court and enforce the taking of leave are important to the long-term sustainability of federal magistrates in Dandenong.

Family consultants

There are currently three full-time family consultant positions located at Dandenong.

Family consultants described the nature of the work at Dandenong as variously: unrelenting; having a shelf life; repetitive; unbalanced; fast paced; unsustainable; not for the slow and steady types; short, sharp and repetitive; isolating; challenging; and professionally limiting.

There have been ongoing challenges for the managers in filling the three family consultant positions. A focus group with Melbourne family consultants, many of whom were rostered through Dandenong in the early days of the project, revealed a largely negative response to working in Dandenong. A rostering practice that started with volunteers ended up requiring an unwilling conscription model to fill the positions.

To some degree this was rectified by attaching two of the positions to Dandenong registry and permanently filling them with staff who voluntarily applied and were better suited to the work. However regardless of the enthusiasm or willingness of people currently holding the positions, the repetitive nature, high pace, complexity of social issues and lack of on-site clinical supervision limits professional development and poses a high risk of burnout and turnover.

The close working relationship between family consultants and federal magistrates was seen as having both significant advantages and disadvantages. It delivered a greater degree of certainly, the ability for family consultants to better understand the requirements of particular federal magistrates and the opportunity to work collaboratively, within boundaries, to move cases forward. However, at times family consultants found it difficult to push back against requests from federal magistrates (e.g. working back to provide evidence in a case), particularly without the buffer of a Dandenong based manager26 who could advocate on their behalf. This lack of senior supervision was identified as a significant issue, not only in terms of providing a management layer, but also in terms of professional supervision.

Registrars

Registrars indicated that there has been no significant change in their workload, or the nature of their work, since the implementation of the Project.

Issues of professional development and a heightened the sense of isolation from colleagues were raised during interviews. These issues relate more to the nature of a smaller registry than to the impact of the Project.

Associates and chambers staff

To support the Project, a chambers assistant was employed primarily to assist chambers with the management of the high volume of cases. They assist with the administration of consent orders, the duty list, PRD referrals and helping to manage the logistics of the dual geographies across which many Dandenong federal magistrates work. The legal profession, client service staff and associated all acknowledged the importance of this position as a consistent central point for communication and the flow of information.

It must also be noted that where federal magistrate workloads are particularly high, this has an impact on the workloads of associates. Associates reported that they are only able to sustain their work because of the chambers assistant role.

Finding 19. The creation of permanent family consultants in Dandenong has created stability in this role and allowed some the issues regarding the previous rotating roster system to be overcome. However, the risk of family consultants feeling over burdened and professionally isolated must be closely managed. This risk must also be managed for registrars.

Finding 20. The chambers assistant role is necessary in Dandenong to absorb the additional workload associated with (a) the high number of cases in each federal magistrate's docket (b) workload pressures on associates and (c) the dual geographies across which many Dandenong federal magistrates work.

The review notes that the Chief Federal Magistrate, registry management and staff managers are aware of staff-related sustainability issues are were working to address them.

5.2 Financial and resource sustainability

Dandenong not did not have its own budget until FY 20102011. Many of the staff are still attached to the Melbourne registry and/or the Family Court for reporting purposes. The attachment of positions to the Family Court, and Melbourne, is both historical and in response to some of the uncertainly attached to a project. There is some reluctance to attach position to a registry where there is a possibility that the services wont continue in its current form.

Information has been gathered from interviews about changes in staffing levels, operating or other costs and it presented below.

Federal magistrate and staff resources

Prior to the Project, there was the equivalent of 1.9 FTE federal magistrates working in Dandenong under the circuit arrangement. During the FY1011 this number was raised to 2.3 and it is likely to be around 2.5 FTE in 2012. When compared to national averages (see Figure 13 previously), it suggests that the workload per judicial officer is greater than in any other registry and may not be adequate.

Under the Project, a new position of chambers assistant was established. A significant portion of their duties were previously undertaken by registry services staff, such as processing orders made by consent, and the increase in staff number in chambers (around 0.8 FTE) and was partly offset by a reduction in registry services resource requirements .

Prior to the Project, Melbourne-based family consultants were rostered to work in Dandenong on a circuiting arrangement similar to that of federal magistrates. The FTE equivalent numbers under this practice is unknown. Currently there are three FTE family consultants who work in Dandenong.

The issue of the adequacy of these numbers has already been discussed.

There has been no significant change to registrar, client and/or registry services staffing numbers.

Family reports

It was observed by interviewees that Victoria has a culture of ordering family reports. Figure 13 shows family reports ordered as a percentage of childrens cases. Dandenong orders more family reports than the national average of 41 per cent at 46 per cent. It also has the highest proportion of family reports ordered externally at 84 per cent. Interviewees explained this figure by (a) historical practice where there was not family consultant resources readily available in Dandenong and (b) the current three FTE family consultants not having capacity to do a high number of family reports.

It was initially anticipated that the introduction of s11f interventions may decrease the number of family reports ordered, however this has not been borne out in Dandenong.

Figure 13. Family reports

  National average Highest Lowest Melbourne Dandenong
 

FY20102011

FY20102011

FY20102011

FY20102011

FY20082009
(Pre)

FY20102011

Family Reports orders as percentage of childrens matters

41%

57%

33%

52%

46% 
(428 reports)

46%
(453 reports)

% ordered externally

43%

84%

8%

70%

89%

84%
(359)

% ordered internally

57%

16%

92%

30%

11%

16%
(68)

Source: Casetrack

The average cost of an externally ordered family report is around $1850. This equates to a current annual cost of around $664,150.

The kiosk

The kiosk in Dandenong is currently run out of existing funding and resources, and is governed by members of the collaborate dispute resolution group. They have stated to the review that the lack of independent funding to the kiosk creates an ongoing tension with community organisations, who find themselves having to choose between having a counsellor staffing the kiosk or working within the organisation on duty days.

Other costs

The Project has maintained its own budget for registry services such as stationery, video conferencing and other. There has been no significant change to this budget.

It should be noted that with the registry now being fully utilised and more staff being based there, electricity and maintenance have increased.

Finding 21. The Dandenong Project has been largely implemented and sustained without a substantial increase in one-off or ongoing spending. Analysis suggests that should the approach be implemented in other registries in part, or in its entirety, minimal additional expenditure should be required.

Under the system of circuiting federal magistrate to Dandenong, there was a significant amount of file movement between locations to allow chambers to work on them. Dandenong was dealing with 15 chambers and a complex Melbourne records system. Several federal magistrates required every matter for their circuit week at Dandenong be sent to Melbourne for them to review. This meant up to 30 files of varying sizes were couriered to individual federal magistrates in Melbourne and then brought back for the day.

As a consequence of having federal magistrates in Dandenong the following observations can be made:

  • The high courier costs of moving files between locations have been reduced
  • Less staff time in both Melbourne and Dandenong is now used in locating the files, retrieval, sending and locating missing documents
  • The issues and risks associated with the contravention of the document management principle of move least, lose least have been reduced.

Finding 22. There are significant risks and inefficiencies associated with running a registry with the workload of Dandenong as a circuit. The allocation of federal magistrates to Dandenong and the use of the docket system of case management overcomes many of these risks and inefficiencies.

6. Lessons learned from implementation

The following provides a summary of some of the elements that were considered most critical to successful implementation. It is acknowledged that like most pilot projects, there were successes but also mistakes made along the way. These have shaped the lessons learned.

6.1 Critical success factors

6.1.1 Senior sponsorship and drive is critical

One of the key themes emerging from the Project is the importance of having senior sponsors to champion a project of this nature.

At the most senior level, Federal Magistrate Baumann was the main driver behind the Project, creating a sense of urgency and enthusiasm among staff and federal magistrates about the changes the Project would bring. It was seen as critical, during implementation, to have a senior, credible driver of the project to create enthusiasm, deal with issues as they arose and own the implementation.

Among the federal magistrates it was important to create a sponsorship team of at least three to create enough momentum to drive through the changes, support each other and manage the inevitable resistance to the change. Federal Magistrate Phipps, OSullivan and OGuire publically supported the Project, communicating its benefits, building relationships with family law system participants and managing stakeholders expectations.

The registry manager also played a critical role in keeping registry services staff informed and involved and resolving day to day issues.

6.1.2 Use early project planning and management

A 'just get on with it' approach to project implementation has the advantage of not weighing the Project down with unnecessary process and bureaucracy. However, it also comes with risks of people feeling unconsulted, some project risks not being identified and ideas that come from consultation being lost. There needs to be a balance. With the benefit of hindsight, interviewees generally agreed that project planning should have occurred earlier and included earlier and wider involvement of staff.

One of the primary intentions of any pilot is to test the effectiveness of new approaches. Project stakeholders interviewed were eager for process and outcome information and information on specific elements of the project. The lack of early project planning meant objectives werent linked to performance measures nor baseline data collected against which any changes could be measured.

While this evaluation has been able to draw on some pre-existing court data to evaluate the project, clearer objectives and measures captured at the start of the pilot may have seen better information about the project, during the implementation, at its conclusion and longitudinally.

6.1.3 Bring key stakeholders along with you

Prior to the commencement of the Project, the Court conducted an information and education day for the profession and representatives of community-based organisations. Further, the projects steering committee, chaired by Federal Magistrate Phipps, also involved key stakeholders from the Victorian Bar, metropolitan and regional solicitors, Victoria Legal Aid, Victorian Pathways, Family Relationships Centres and court administration. The involvement of these key stakeholders, through the information day and ongoing communication, was seen as critical in garnering their support.

At face value, Dandenongs approaches largely involve changes in techniques and practices by federal magistrates, however these changes all have flow on effects for other staff and the registry. For any future implementation of the Dandenong Project's approaches, involvement of regional and registry management on project boards/steering and other planning groups early in the project would create a sense of inclusion, assist in identifying all of the risks and issues associated with implementation and overcome some sentiment of the project being done to Dandenong from outside.

6.1.4 Create working relationships and a culture of no-blame

Those who participated the Project acknowledged the importance the no-blame and cohesive culture that existed in Dandenong. Congruous with this culture was the importance of informal communication channels to resolve issues and communicate about the project.

Personal relationships were seen as critical to the implementation. In addition to the willingness of federal magistrates and staff to work together, the registry layout played a role in facilitating working relationships. The registry is small, with offices and counters across two floors in a relatively open environment. Staff are not isolated from each other by floors or petitions. This layout, while perhaps not ideal for many court purposes, aided in the building of relationships and the informal resolution of issues.

6.1.5 Ensure the project is implemented by the right people

It has been observed that to pilot a new way of working, it is critical to ensure that the right staff are selected to be involved with the Project they need to be flexible, willing to try something new and capable of leading others. For example, the Project required federal magistrates who could deal with social complexity, were able to set boundaries, and who were willing to trial something new. It also required federal magistrates who were comfortable in a leadership role. Family consultants were needed who were willing to try new approaches and work independently. There isnt always the luxury of handpicking staff, but the benefit to a new project having the right staff to lead and implement it cannot be underestimated.

6.2 Setting up the kiosk

The following provides a summary of the lessons learned from setting up the kiosk in Dandenong. These insights were gained largely through individual and group interviews with those involved in its set up and ongoing running and users.

  • For the kiosk to work in any location, there needs to be a level of maturity within the community organisation network. The links between organisations need to exist, or at least be being built.
  • Development of supporting infrastructure (such as static and active information such as contacts, wait times) and a willingness of the court administration to provide support is crucial.
  • The kiosk needs to be setup and supported by a group (dispute resolution) with representatives from the Court, community organisations and the legal profession. The latter is particularly important to increase the professions understanding and utilisation of the kiosks services
  • The kiosk must be credible from the outset that is staffed with someone who has the wherewithal to provide credible, reliable and consistent information and who can liaise comfortably with litigants, federal magistrates and the legal profession. During the first 12 months in Dandenong, Pathways funded the kiosk position, staffing it with someone who was known in the Court and active within the Collaborative Dispute Resolution Group network.
  • Community organisations need to be willing to release someone. They need to believe they are adding value even if they only get two referrals per half a day. That can be a challenge when they have to give up multiple appointments to staff the kiosk.
  • The kiosk needs support from the Court key federal magistrate sponsors need to understand the benefits in the kiosk and promote it.

7. Transferability

Both barriers and opportunities exist for replicating and transferring the Project, or adapting parts of it for use by other registries and/or courts. These are discussed below.

7.1.1 Opportunities

Many aspects of the Project appear to be transferable and some elements of the model are already in operation in other locations27.

The success of the model may encourage other FMC registries to trial it. If so, the administrative structure developed to support the project and the lessons learned from implementation, will be of benefit.

Opportunities exist for registries to identify which of the Dandenong outcomes would be most advantageous to their situation and identify ways in which a pared-down model might be effective. However, some caution should be taken selecting which components to implement. It must be understood, for example, that just increasing the use of s11f interventions may not result in an increase in settlement rates if not combined with close and differential case management practices, not providing a trial data and/or conducting the events when the docket FM is sitting at Dandenong. Many of the outcomes achieved in the Project rely on the interactions and contributions of multiple components.

Registries contemplating change would do well to weigh the opportunities the Project presents in light of the barriers listed below and the lessons learned from implementation.

7.1.2 Considerations and barriers

Interviewees indentified barriers for wider application of the model. These included the pervading culture of the local legal profession, attitudes of federal magistrates toward new approaches, and the level of maturity of the community sector.

Overcoming legal cultures in some regions, particularly where the legal profession has a stronger influence on the practices of a court, is seen as particularly problematic. Approaches such as stronger judicial leadership, the provision of education to lawyers and the consistent and firm application of any new processes or principles may assist in overcoming such barriers. It must be recognised that changing legal culture is a long term challenge and the model relies heavily upon support from lawyers, particularly in facilitating the settlement of cases.

Opposing judicial philosophy and entrenched practices were also identified as barriers to implementation. However through education, word of mouth, assignment, and judicial leadership some, but not all, resistance to change may be overcome. It is important to note that there is always likely be some underlying opposition to any change and while that opposition must be acknowledged and understood, it is not necessarily a reason to maintain existing practices. It is important for registries to build a critical mass of supporting federal magistrates who are willing to put their neck out to implement the changes and challenge existing practices.

Dandenong was aided by not having an entrenched way of doing things. Rather than trying to undo existing practices, in Dandenong we almost had a clean slate. For example, werent trying to overcome an existing practice of giving a final hearing date at the first return date.' Dandenong federal magistrate

The kiosk relies on a critical level of maturity of the community sector. In Dandenong this is characterised by working relationships between members of the community sector, the Court and the legal profession (developed through the Collaborate Dispute Resolution Group), the availability of active information available such as current contacts and waiting times (provided by the Pathways Group) and the willingness of community organisations to provide resources to staff the kiosk. Without this level of maturity a kiosk is unlikely to have credibility with the legal profession or the magistracy.

These considerations and barriers should be read in conjunction with the critical success factors of the Project. Many of these barriers may be overcome with senior support and commitment to change.

One remaining concern is the lack of longitudinal evidence to support the durability of the outcomes achieved under the Project.

8. Conclusions

The review of the Project suggests that overall the changes made to case management processes and techniques have had a positive impact. Overall, more cases are settling without judicial determination, earlier and with less court events. These results, in turn, reduce the burden of litigation to parties with the reduction of legal fees and time required to resolve a case.

One particular benefit of early settlement is the overall reduction in legal aid needed to fund trial lawyers and the redirection of that funding into independent childrens lawyers to represent and promote the best interests of a child.

Three components of the Project are identified as being particularly instrumental in achieving these results: (1) the use of the triage system of assessment and close case management to identify the relevant issues and refer parties to the most appropriate dispute resolution and/or other services for their circumstances; (2) the early use of s11f interventions and conciliation conferences; and (3) their conduct on a duty day to ensure that all available resources the federal magistrate, lawyers, family consultant, registrars, and/or the parties, are at hand to facilitate an agreement if the opportunity arises.

The kiosk has an effect on improving opportunities for parties to resolve their cases. Beyond that, it also allows seamless referral to community organisation for services that go beyond simple dispute resolution or family law.

Efforts to improve compliance have been effective in reducing avoidable adjournments, particularly in conciliation conferences. Adjournment rates for conciliation conference are now negligible.

The introduction of the docket has allowed court events to move forward wherever possible. This contrasts with the previous circuiting arrangement, where parties were likely to stand in front of a new federal magistrate for each court appearance and repeat the details of their case. When combined with the risks and inefficiencies of circuiting 15 federal magistrates through Dandenong in a year, there is little to recommend reintroducing a circuit to, or removing the docket from, from Dandenong.

The project is not without its challenges and risks.

Early settlement raises a risk of litigants feeling pushed through the system too quickly or without time to fully consider the implications of settlement arrangement they agree to. This highlights the need for a further research into the longer term durability of orders under the Dandenong Project.

Dandenong also faces the challenge of determining how to sustain the current workload. Effective responses should ensure that the short-term demands of high caseload do not outweigh the long term wellbeing of federal magistrates and staff. Evidence of listing cases into leave, fatigue and long work hours were all cited and highlight the importance of workforce planning that promotes the wellbeing of staff.

Finally, to allow the ongoing monitoring and improvement of the Project, the Court faces challenges around data, not only regarding identifying what information it needs to monitor performance but also in regard to the quality of data input by staff.

This review has highlighted the range of initiative that made up the Project and evaluated their effectiveness. While there remain challenges and risks that require further attention, ultimately it can be concluded that the Dandenong Project has had a positive effect on its aim, namely delivering justice in a way that better meets the needs of litigants in the Dandenong region.

Appendix A: Dandenong performance data

 

National figures

Dandenong

 

20102011

20082009

20102011

FILINGS final orders filed

15568

1305

1400

DISPOSALS final orders finalised

15292

1313

1360

CLEARANCE RATE

95%

101%

97%

INTERIM ORDERS ratio interim to final orders (filed)

1.0

1.0

1.1

TIMELINESS - % finalised by timeframe

% < 6 months

47%

53%

57%

% 6 to 12 months

34%

34%

33%

% > 12 months

19%

14%

10%

PENDING

% < 6 months

52%

64%

56%

% 6 to 12 months

30%

27%

30%

% > 12 months

18%

9%

14%

PENDING DISPOSAL RATIO (PDR)

0.78

0.54

0.63

POINT OF FINALISATION % judicially determined

29%

33%

26%

 TIME TO TRIAL (median months)

9.0

8.1

7.7

ATTENDANCE RATE average (excl. chambers and report write up)

5.2

4.5

4.0

ADJOURNMENT RATES average number of adjournments per case as at FY0809

1.0

0.6

0.6

MATTERS PER DAY

File numbers per FM sitting day 200809
Count of individual file numbers with having a hold event divided by FM sitting days (excl. Chambers)

3.7

7.7

4.8


Footnotes

1 S11F interventions include Child Dispute Conferences (CDC) and Child Inclusive Conferences (CIC)

2 Federal Magistrates Court of Australia, 2009, The Dandenong Project: a family law initiative, Canberra. p2.

3 To clarify the objectives of the project, the evaluation team examined early project documents, particularly The Dandenong Project: A Family Law Initiative (2009). Objectives were further clarified through interviews with key federal magistrates involved in the projects conception. Interviewees included include Chief Federal Magistrate Pascoe, Federal Magistrate Baumann and Federal Magistrates Phipps, McGuire, Reithmuller and OSullivan. There was also an interview with the Projects Manager, Steve Agnew.

4 Based on rosters provided by the FMC and the assumption of 34 sitting weeks being the equivalent of one full time Federal Magistrate.

5 A family report is a written report ordered and prepared by a family consultant that contains the family consultants professional assessment of a family. It includes recommendations for arrangements that will best meet the future care, welfare and developmental needs of the child/ren.

6 Technically, the kiosk existed prior to the Dandenong Project however its integration into the Dandenong Project means that it is now considered as part of the Dandenong Project and will be considered as such here.

7 The Collaborate Dispute Resolution Group comprises representatives from community organisations, duty lawyers and court staff

8 Federal Magistrates Court of Australia, 2009, The Dandenong Project: a family law initiative, Canberra, p2

9 Inaccuracies occur because lawyers frequently lodge applications and use the postcode of their office rather than that of the party they represent

10 Profiles of Victorian Cities can be accessed at http://socialstatistics.com.au/

11 Profiles of Victorian Cities can be accessed at http://socialstatistics.com.au/

12 Reported in the Herald Sun on 3 December 2011 based on a report commissioned by Australians for Affordable Housing. http://www.heraldsun.com.au/news/more-news/families-feel-the-housing-squeeze/story-fn7x8me2-1226212

13 Some caution needs to be taken in accepting the above assertion without evidence however, many of the staff who made the observations work across both Melbourne and Dandenong; and may be able to make comparative reflections.

14Melbourne and Dandenong are often considered to be cousin registries with many family consultants, registrars, associates and federal magistrates working between Melbourne and Dandenong. Further, they are managed by the same regional registry manager and work within the same broad legal and family culture.

15Section 11f interventions came into existence in 2006, however it took some time for them to be commonly used across the FMC. For this reason, and due to a lag in data collection, a comparison of pre-project and project utilisation rates will not provide a fair assessment of the impact of the Project on usage.

16While the kiosk is considered to be part of the Dandenong Project, it commenced operation in August 2009 some months prior to the implementation of the other project elements.

17 Journal of Family Studies, Vol. 11, No. 1, April 2005, Current Findings on Australian Children in Postseparation Disputes: Outer Conflict, Inner Discord by Jennifer McIntosh and Caroline Long

18 This percentage is an approximation and doesnt account for those cases that settle during a trial.

19Observation by lawyers who attended the profession focus group

20 Lawyers report that clients often have unrealistic expectations about their first day in court, thinking it will be like the trials they see on television. And while lawyers do make efforts to make their expectations more realistic, it isnt always possible

21 No data has been made available to this Review to confirm this assertion

22 Note: While not part of the Dandenong Project, it is worth noting that support is provided to self-represented litigants through the Family Law Assistance Program (FLAP). FLAP is a self-help clinical legal service designed to assist who do not have legal representation. It is administered by supervised students from Monash University and funded by the Commonwealth Attorney Generals Department. SRLs are assisted with presenting their own case before the Court, or with the assistance of a Barrister, if required. Further, students take clients through the legal process, providing information on required forms, how to lodge an application, and if necessary, how to appear before a registrar or judge, court etiquette and the numerous other procedures required by the Court. 

23 Source: Family Law Courts User Satisfaction Survey, 2011

24 Figures provided during a telephone interview. At the time of publishing written figures have not been provided.

25By way of comparison, in Melbourne, over the same period there was also a drop of 24 per cent.

26 Family Law Courts User Satisfaction Survey 2011

27 While a family consultant manager does spend one day week in Dandenong, this part-time arrangement does not facilitate the need to sometime manage issues as they arise The manager did not feel that this arrangement provided them with the ability to read, respond, anticipate and forecast around resourcing and support to the extent they would like to.

28 For example, a kiosk already exists in Geelong, Canberra, Newcastle and Parramatta.