1.1
The Joint Select Committee on Australia’s Family Law System (committee) was appointed by the Australian Parliament in September 2019. Since that time, the committee has undertaken a comprehensive two-year inquiry into the family law and the child support systems. As part of this inquiry, the committee has received over 1700 submissions, held 13 in camera hearings and 13 public hearings.
1.2
Much of the evidence received by the committee was from individuals and families with first-hand experience of the family law and child support systems. The committee acknowledges the heartfelt contributions of all who offered their personal stories—your evidence has provided the foundation for the inquiry and the motivation for the committee’s work of finding ways to make the system better.
1.3
Having closely considered this evidence the committee has prepared and tabled three substantive interim reports to date:
The first interim report canvassed the various themes and issues raised in evidence received throughout the first 12 months of the inquiry (tabled October 2020).
The second interim report detailed the committee’s conclusions and recommendations in relation to the family law system (tabled March 2021).
The third interim report outlined the committee’s conclusions and recommendations with respect to the child support system (tabled November 2021).
1.4
This final report is the culmination of the committee’s work.
Scope of the final report
1.5
In its second interim report tabled in March 2021, the committee outlined its conclusions on a number of matters and made 29 recommendations with a focus on reducing delays and costs; improving the enforceability of orders; refining the family violence framework; amending the Family Law Act and Alternative Dispute Resolution; as well as a number of other related issues. The committee is pleased that the Australian Government (Government) has responded quickly to a number of these recommendations. In particular, the committee commends the Government’s injection of $100 million in funding for the Federal Circuit and Family Court of Australia (Family Court) over four years for a number of initiatives.
1.6
The committee has also met privately with the Chief Justice of the Federal Circuit and Family Court of Australia, and the Chief Judge of the Family Court of Western Australia to discuss the work of the respective courts and the committee. These discussions have informed the committee’s deliberations on this final report.
1.7
This final report will note any government actions and Family Court initiatives since March 2021. Given there have been a number of developments, the committee also makes some further recommendations to supplement those made in the second interim report. The recommendations in this report are intended to be addressed in concert with recommendations made in the second and third interim reports.
Response to the committee’s second interim report
1.8
This section discusses the following developments since the tabling of the committee’s second interim report:
Reform of the Family Court;
National Contravention List;
Expansion of the Family Advocacy and Support Services Program;
National Information Sharing Framework;
Children’s Contact Services; and
Increased funding for legal services.
A merged Family Court
1.9
On 1 September 2021, the Federal Circuit Court of Australia and Family Court of Australia merged to become a single entity. Whilst the merger is not in response to this committee’s work, the merged entity will nonetheless address a number of recommendations such as creating a single point of entry to the Family Court system. Other benefits from the merger include:
A new case management pathway;
Harmonised family law rules;
New family law practice directions;
A focus on dispute resolution;
Enhanced child expert reporting processes; and
1.10
The Family Court also expects the merger to better address 'the increasing complexity of risks to children and vulnerable parties', achieve 'early dispute resolution in both parenting and financial matters', and 'promote and ensure ongoing compliance with Court orders'.
Reform of the Family Court
1.11
In a supplementary submission, the Attorney-General’s Department (AGD) told the committee that it will be providing $60.8 million over four years to transform the Family Court’s approach to case management, so that family law matters can be 'resolved in a more timely and effective manner'. The AGD explained:
This initiative will enable the family courts to give effect to a new approach to managing and resolving family law cases, supported by the engagement of a range [of] non-judicial staff (including registrars, family consultants, Indigenous liaison offices, and legal and administrative staff).
1.12
The recruitment of non-judicial staff is critical to this, relieving caseload from judges and resolving cases more quickly before people enter the court system. The AGD elaborated:
The key feature of this approach is that Senior Registrars and Registrars will have a greater role in triaging matters upfront, hearing interim applications, and conducting alternative dispute resolutions, so that judges can focus on those functions only they can perform. The initiative also funds a Central Assessment Team to centralise the processing of family law applications in support of key aspects of the government’s structural reforms of the family law courts, the creation of a single point of entry for family law matter and a reconfigured appeals process.
1.13
The committee had previously recognised the need for more non-judicial staff to provide more capacity to case manage upfront. Pleasingly, the Government has provided the funding and in turn, the Family Court has responded, with recruitment and on-boarding of new staff now at an advanced stage.
National Contravention List
1.14
Compliance with court orders has been a concern raised by many submitters and witnesses to this inquiry and formed the basis of a key recommendation of the committee. In response, the Family Court established the National Contravention List on 1 September 2021. The list has been created to 'efficiently deal with applications on a national basis in a timely, cost-effective and safe way for all litigants'. Significantly, all applications are given a return date within 14 days of filing, apart from 'those that are listed for final hearing within 8 weeks from the date of filing, which will be listed to the Judge or a Senior Judicial Registrar'.
1.15
The recruitment of additional non-judicial staff such as Registrars will assist with the operation of the National Contravention List as recommended by the committee.
Expansion of the Family Advocacy and Support Services Program
1.16
Consistent with the committee’s recommendation, the Government will expand the Family Advocacy and Support Services (FASS) program to all Family Court registries:
The Government is providing $85 million over three years from 2022–23 to enhance the [FASS] program. Funding under this measure will commence 1 July 2022, and terminate on 30 June 2025. The measure will extend the operation of the FASS program past the previous termination of 30 June 2022. Additionally, this measure will expand the geographic profile of this program, as recommended by the Committee and the Australian Law Reform Commission, establishing the FASS in an additional 26 registry and circuit locations in Queensland, New South Wales and Victoria, ensuring every location with a family law court registry and/or circuit has a FASS to support family law litigants who have experienced family and domestic violence.
The expanded FASS will maintain the services of the existing FASS, including the dedicated men’s support workers to assist male victim-survivors of family and domestic violence and alleged perpetrators, with funding provided to further enhance the services by allowing for the engagement of specific mental health supports to better meet the non-legal needs of service users.
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These services will provide significant support for alleged victims and alleged perpetrators who attend the Family Court.
National Information Sharing Framework
1.18
A lack of information sharing between the Family Court and state/territory agencies was raised by many contributors to this inquiry as leading judges to make decisions that often were not informed by all of the facts. Information about child safety, family violence and other matters held at the state or territory level has not been able to be easily shared with the Family Court. This led the committee to recommend that this framework be progressed. The Government has recognised this and announced '$29 million over four years to enable the finalisation and implementation of the National Strategic Framework for Information Sharing (the Framework) between the Family Law and Family Violence and Child Protection Systems'. The Framework will:
… facilitate the two-way exchange of information between the federal family law courts on the one hand, and the state and territory courts, agencies and organisations responsible for responding to and managing family safety risk on the other. This will ensure that decision makers in these institutions have access to all relevant information about family violence and child protection risk, enabling them to make sound decisions that protect family safety, including in relations to access to children.
1.19
At a practical level, this funding 'will provide for the equivalent of up to 29 family law information sharing-related positions, comprising 9 registrar‑related positions (at various levels), 4 registrar-related support staff, and 16 registry staff, which will commence from 1 January 2022'.
Children’s Contact Services
1.20
The Government has indicated that it is progressing work on accreditation for Children’s Contact Services (CCS) consistent with the committee’s recommendation.
1.21
In addition, there will be an increase in funding for CCS to 'increase the capacity of the existing 64 services to provide maximum services to families particularly at peak times such as weekends, establish 20 new services and reduce wait times'.
1.22
Whilst this was not a recommendation from the committee, the limited capacity of CCSs for parents seeking supervised visits was a recurring theme in much of the evidence received.
Increased funding for legal services
1.23
In response to the committee’s call for increased funding to legal aid and community legal centres, the Government has announced the following budget measures:
As part of the Women’s Safety Budget Package, the Government is providing $129 million over four years from 2021–22 for increased funding to help vulnerable women access justice. The funding will support women’s legal services to deliver dedicated assistance to women across a range of legal problems, including family law and family violence. This will increase the provision of legal information, advice, and representation services to women.
The funding will be delivered through the national Legal Assistance Partnership 2020–25 (NLAP). The Government has increased legal assistance funding by approximately $350 million over four years from 2021–22, including around $310 million for the NLAP, bringing total funding delivered through the NLAP to more than $2.3 billion over the life of the agreement. Under the NLAP, states and territories determine funding allocations to individual service providers.
Further evidence and recommendations
1.24
The committee has received further information in relation to a number of projects and programs including the:
Priority Property Pools under $500 000 (PPP500) pilot;
Federal Family Violence Orders;
New case management model; and
1.25
This information is discussed further in this section, followed by a number of additional recommendations proposed by the committee.
Lighthouse Project
1.26
The Lighthouse Project (the Project) is:
… the Courts’ primary response to increasing levels of family violence and family safety risks, particularly for women and children, and calls to ensure comprehensive risk screening at the point of entry into the family law system. This world-leading and universally supported Project is being piloted in the Adelaide, Brisbane and Parramatta registries of the Federal Circuit Court and is funded until 30 June 2022. In essence, the Project involves three key features:
1. A specialist risk screen and web based application designed for the family courts (Family DOORS Triage);
2. Safety planning and service referral; and
3. Differentiated case management based on risk level, with the Evatt List specifically designed for the highest risk cases, targeting family violence and other family safety risks.
1.27
In response to questions on notice, the Family Court noted the following results of the Project to 30 July 2021:
The majority of litigants complete the screen shortly after filing, indicating acceptance of the process;
Two thirds (62%) of litigants are initially classified as high risk and of those:
63% are victims of family violence; and
50% had four or more risk factors.
320 matters have been placed onto the Evatt list, of these 18 have already been finalised within six months of filing with safe and appropriate orders.
91% of Evatt matters have an Independent Children’s Lawyer appointed.
79% of Evatt matters have made enquiries with co-located police and/or child welfare officials.
1.28
Furthermore, the Family Court also observed:
The project was successfully implemented due to good pilot design and consultation, coupled with the decision [to] stagger the roll-out to pilot sites.
Risk identification is important for litigant safety and the prioritisation of Court resources.
The Pilot has generated data on the risks experienced by litigants, which was not previously available.
The Evatt List is a fundamental change to the Courts’ management of high-risk cases which front loaded litigant engagement enabled more intensive case management and resources for high-risk matters at the earliest opportunity.
69% of legal staff surveyed agreed or strongly agreed that the Evatt list will assist in addressing
risk for vulnerable families; and
74% of Evatt List survey respondents reported receiving referral to support services from the
Family Counsellor with more than half of them accessing support services after referral.
1.29
The Family Court has recommended:
(a)
to expand the Project nationally to all parenting matters;
(b)
to include parenting & property matters to close the unintended design gap; and
(c)
that the benefits of the Pilot warrant increased funding to support expansion of the Pilot, commensurate to the level of expansion.
1.30
In proposing the Project’s expansion to all registries and to also include parenting and property matters, the Family Court has cited the following benefits:
All litigants will receive the benefit of risk screening, and the court will immediately become aware of high risk cases so that then can be appropriately managed from the commencement of proceedings;
Litigants will receive the opportunity to address safety risks that impact on their mental and physical health and improve their parenting, to decrease risk to children;
Receiving early information about risk soon after filing enables triage to the most appropriate case management pathway with specialist and intensive resources available to the highest risk cases;
Screening provides an opportunity for referrals to legal support such as FASS and to police and child welfare authorities; improving litigant safety and the safety of children;
Most importantly, these benefits will be provided to all litigants regardless of filing location, rather than being limited to select pilot locations.
1.31
In its second interim report, the committee recommended, subject to a positive evaluation, that this pilot be expanded. The committee is supportive of initiatives that quickly identify high-risk families, provide appropriate support services and fast-track their cases. Protecting vulnerable children and their parents is a priority of this committee. Having received a positive evaluation and further information about the successes of this pilot, the committee agrees with the Family Court’s assessment and makes the following recommendation. Of course, any expansion would also require additional resourcing to ensure its success.
1.32
The committee recommends that the three-year screening and triage pilot, known as the Lighthouse Project, be expanded to:
all Federal Circuit and Family Court of Australia registries; and
to include all parenting; and parenting and property matters.
1.33
The committee also recommends that the expanded Lighthouse Project be appropriately resourced with additional funding for Senior Registrars and Registrars, and relevant professional and technical support staff.
Priority Property Pools under $500 000 (PPP500) pilot
1.34
The committee has followed the Priority Property Pools under $500 000 pilot, also known as the PPP500, with interest. The Family Court provided an update:
For the past 18 months the Courts have been successfully piloting PPP500, a simplified way of quickly resolving property disputes which minimises risk and legal costs, and best preserves the parties’ scarce assets they need to move forward with their lives. It has been developed for parties who are particularly vulnerable and are reluctant to engage with the court system by making the court process easier, cheaper, and quicker to navigate. PPP500 commenced on 1 March 2020 in four Pilot registries of the Federal Circuit Court: Adelaide, Brisbane, Melbourne and Parramatta. Data collected to date demonstrates that:
75% of cases are disposed of by Registrars without the need for any judicial involvement;
Cases are deal with swiftly, with usually only one court event before dispute resolution finalises the case;
Less than 5% of PPP500 cases need a significant hearing before a Judge; and
Even when cases are referred to Judges, they are well prepared and easier and quicker to deal with.
1.35
The Family Court outlined how PPP500 works in practice:
The PPP500 List involves intensive work prior to the first court date, and close monitoring of compliance with orders, to ensure parties come to court as little as possible. Parties are given every opportunity to take ownership of their dispute, participate in dispute resolution and settle their case at the earliest possible stage, without expending a large proportion of their assets on litigation. Proactive case management not only leads to early settlements, but reduces judicial involvement so that Judges can focus on the most complex cases.
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The Family Court put forward the benefits that this pilot could provide if the PPP500 were to be expanded:
It is well known that litigation in the Courts can be very costly and time-consuming and can lead to long-term acrimony between the parties. Many people, particularly those who have been victims of family violence, are also very reluctant to engage in Court action due to the cost and the ongoing conflict with the perpetrator. The Pilot of the PPP500 process is currently only operating in Adelaide, Brisbane, Melbourne and Parramatta until June 2023. Given the success of the Pilot, the increasing prevalence of family violence (including financial abuse) and the number of vulnerable litigants engaging in the court process, there is an urgent need for the PPP500 List, which has clearly proven to be effective, to be expanded to all court locations on an ongoing basis. This will mean that all vulnerable litigants with small property pools, including in remote and regional locations, can benefit from this expedited, low cost option for resolution of their dispute.
1.37
The committee is supportive of programs and initiatives that reduce costs and delays for all families, and encourage timely resolution of disputes. Sometimes a timely resolution can only be achieved with the assistance of the Family Court. To date, the PPP500 has demonstrated its value in minimising the time in court whilst assisting vulnerable parties to resolve their disputes and move forward without liquidating the modest assets they share. In its second interim report—similarly to the Lighthouse Project—the committee recommended that, subject to a positive evaluation, that this pilot also be expanded. The final evaluation will be provided to the government in April 2022. In the meantime, these pilots have been extended until 30 June 2023. The committee is satisfied that the pilot’s extension provides certainty until the final assessment can be completed and considered.
1.38
The committee recommends that, subject to a positive evaluation, the Priority Property Pools under $500 000 pilot, also known as the PPP500, be expanded to all Federal Circuit and Family Court of Australia registries.
1.39
The committee also recommends that the expanded Priority Property Pools under $500 000 program be appropriately resourced with additional funding for Senior Registrars and Registrars, and relevant professional and technical support staff.
Federal Family Violence Orders
1.40
In March 2021, the Government introduced the Family Law Amendment (Federal Family Violence Orders) Bill 2021 into the Parliament. In introducing the bill, the Hon Dan Tehan MP, Minister for Trade, Tourism and Investment stated:
Everyone has the right to feel safe and to live free from violence. Despite this, the incidence of family violence remains unacceptably high, and victims continue to experience profound physical, financial and psychological impacts. The scourge of family violence has no place in our society. Every single death as a result of family violence is one too many.
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Minister Tehan explained the purpose of the bill:
The bill will establish federal family violence orders and provide for their criminal enforcement. This reinforces the government's recognition of family violence as not a private matter but a criminal matter of public concern. Victims of family violence who have matters before the family courts will no longer need to separately go to a state or territory court to seek enforceable protection and will be able to apply for a federal family violence order.
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Whilst offering similar protections to family violence protections orders issued by state and territory courts:
… this bill will reduce the need for vulnerable families to navigate multiple courts when they are already before a family law court, saving them time and money, and allowing victims and survivors to access protection when they require it most.
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Funding of $1.8 million over four years will be made available to support the implementation and enforcement of Federal Family Violence Orders. This is in addition to family violence funding for the Family Court of nearly $24 million.
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Although not commenting directly on this funding, the Family Court noted the high proportion of cases involving family violence and the important role this bill would play in addressing these issues:
However, if properly resourced, the Bill would enable the Courts to strongly address concerns about family violence that arise before it. This includes recent data from the Notice of Child Abuse, Family Violence and Risk which indicates 65% of parties before the Federal Circuit Court allege they had experienced family violence and 65% of parties who undertake the risk screening in the Lighthouse Pilot are screening as high risk. Given the acceptance that family violence is under-reported to police and noting that increased efforts of the Courts to identify family violence within matters before it, it is anticipated that over 2,600 FFVOs applications may be made per annum.
1.45
Notwithstanding the critical role that Federal Family Violence Orders (FFVO) would play, the Family Court made the observation that FFVO’s would be 'new work not currently being undertaken by the family law courts'. Furthermore, that:
… additional resourcing is fundamental in ensuring the Courts are able to efficiently and effectively manage the additional workload associated with ensuring parties are given the necessary protections within a timely and cost effective manner, whilst also ensuring the other work of the Courts is not delayed – noting delays in finalising parenting or property matters impacts on parties financially and emotionally, and ongoing Court proceedings can be a trigger for escalating conflict.
1.46
Whilst it agrees that additional resourcing is required to ensure the success of the FFVO initiative, the committee believes that it would be premature to call for more funding at this time, given the proposed additional allocated funding and the fact that the bill has not yet passed the Parliament. Notwithstanding this, it is the committee’s view that a lack of funding should not be an impediment to the success of the FFVO’s or the other work of the Family Court. The Government should maintain a regular dialogue with the Family Court to ascertain whether the allocated funding continues to be sufficient and whether further funding is warranted.
1.47
The committee recommends that if the Family Law Amendment (Federal Family Violence Orders) Bill 2021 is passed, the Australian Government continues to consult closely with the Federal Circuit and Family Court of Australia to ensure that it has sufficient resources to implement and enforce Federal Family Violence Orders.
New case management model
1.48
As part of the Family Court merger and with the introduction of new Senior Registrars and Registrars, the Family Court has instigated a new case management model from 1 September 2021. The Family Court described this new model:
There will be a single consistent case management pathway which will [be] adopted in both Divisions of the [Family Court]. It has been designed to streamline procedures and to enable cases to be moved through the family law system as efficiently, and with as little detrimental impact on families and children, as possible. The new case management model will feature significant assistance from Registrars in the early stages of cases, in the form of triage and early case management. As far as possible, duty lists will be conducted by Judicial Registrars and interim hearings will be conducted by Senior Judicial Registrars. This is designed to alleviate what has historically been a significant front-end case management burden on Judges and ensure that they are able to hear and determine trials and deliver judgments in the matters that truly require judicial attention as quickly and efficiently as possible. This case management process will build on the significant success already experienced in pilots involving front-end registrar case management, including the Registrar Assistance Pilot and the Discrete Property List.
1.49
The committee is supportive of this model and expects that it will lead to better outcomes for families by expediting the process where it can be, and diverting people from the court system where appropriate.
1.50
In bringing down recommendations 2 and 3 in the second interim report calling for additional registrars and an expansion of their powers, the committee stated the following view prior to making recommendation 5:
… the committee considers a power vested in judges to compel parties in appropriate circumstances to undertake mediation could be beneficial.
1.51
Accordingly, the committee drafted a series of proposed amendments to the Family Law Act 1975 (Family Law Act), some of which would have the effect of authorising the Family Court to compulsorily refer matters involving parenting and property to mediation and arbitration.
1.52
As pointed out by the Family Court, whilst the 'Courts may have power to refer parties to Family Dispute Resolution without their consent, the mediation of property matters may not fall within the definition of Family Dispute Resolution in'the Family Law Act. Furthermore, the Family Court offered that:
… many of the most suitable and qualified mediators, particularly in relation to complex financial cases, such as retired family law judges and highly experienced family law barristers, do not fall within the definition of Family Dispute Resolution Practitioner in FLA s 10G, which has the consequence that their services do not fall within the definition of Family Dispute Resolution.
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The Family Court articulated the benefit of using alternative dispute resolution instead of the court system:
… a strong emphasis on safe dispute resolution (including mediation) is a key component of the new case management system. Parties will be encouraged to resolve their disputes without judicial determination whenever this can be done safely. Dispute resolution, including mediation, not only enables the parties to have input into and ownership over the outcomes of their cases, but it enables those cases to be resolved in a timely manner, sparing the parties significant stress and expense, and in turn, enables the Courts to dedicate judicial resources to cases that cannot be resolved and genuinely require judicial determination. This is consistent with a growing international trend towards recognition that dispute resolution is beneficial to litigants and that judicial determination should be treated as a last resort. This is particularly so in family law matters, where ongoing conflict can have a significant detrimental impact on families and children, and where the costs of litigation can significantly erode the property available for distribution between the parties.
1.54
The Family Court also noted that such a power would be consistent with other courts such as the Federal Court of Australia. The Family Court confirmed that it was in support of a similar power to compel parties to arbitration.
1.55
The committee’s proposed amendments to the Family Law Act would also provide immunities for family consultants when conducting mediation for the following reasons:
Family Consultants are currently engaged in Court-based FDR events as Family Counsellors. Imperative to the Court’s focus on dispute resolution is the requirement to protect all Court staff undertaking dispute resolution conferences. The Family Law Amendment (Federal Family Violence Orders) Bill 2021 includes provisions providing protections and immunities for Registrars conducting dispute resolution conferences. However, there are no equivalent protections for Family Consultants who conduct joint dispute resolution conferences with Registrars in parenting matters.
Pursuant to s.10D all communications made to family counsellors are confidential. This distinction offers some protection for the family consultant acting in this role who, like the Registrars acting as FDRPs are not providing opinions or making decisions. The role of the FDRP and the family counsellor is limited to exploring the relevant issues and areas for compromise with the parties. Family Consultants have immunity when exercising the functions of a Family Consultant pursuant to s11D of the FLA.
However, there is no immunity provision for Family Consultants when authorised as Family Counsellors pursuant to s10C(1)(c), (d), (da) and (e) of the FLA, or Family Dispute Resolution Practitioners pursuant to s10G(1)(c), (d), (da) and (e) of the FLA. The proposed immunity would enable Family Consultants to engage with parties in a manner unhampered by fears of reprisal, thus enhancing their ability to facilitate open discussions and promote child-focused dispute resolution.
1.56
Similar to the committee, the Family Court has also called for referee powers and the use of technical experts to be expressly described in the Family Law Act for use in alternative dispute resolution:
In addition to requiring judges to determine issues that fall outside the scope of their legal expertise or place significant demands on their (already limited) time, the absence of referee powers has the undesirable consequence of creating ‘sticking points’, or circumstances in which disputes about technical matters prevent parties from finalising cases that could otherwise be resolved without the need for judicial intervention.
1.57
The committee echoes its call for a number of amendments to the Family Law Act as specified in Appendix 4 of the second interim report.
Arbitration schemes
1.58
In the first and second interim reports, the committee explored the use and benefits of arbitration. In its submission to the inquiry, the AGD described how arbitration is used by parties to family law matters:
Arbitration can allow a matter to be resolved by an impartial adjudicator (usually a family lawyer), and the resulting arbitral award can be registered as if it were an order of the court on the consent of both parties. Currently, arbitration is only used in the family law system to resolve property matters and can be undertaken through private agreement between the parties or by referral from a court. While arbitration is usually cheaper than going to court, the cost of private arbitration can be prohibitive for some parties.
1.59
The committee is supportive of arbitration as a means by which to resolve family law disputes, and to avoid costly and time consuming litigation. In its second interim report, the committee discussed the National Arbitration List. Since that time, a long-standing arbitration scheme administered by Legal Aid Queensland (LAQ) has been brought to the committee’s attention. The LAQ arbitration program 'is available to legally aided clients to resolve less complex property disputes'. More complex asset pools and living arrangements for children are excluded from this program. In responses to questions on notice, LAQ explained how the program works:
At least one person must be legally aided, but both parties may be legally aided, for LAQ arbitration. The responding person may be privately represented or legally aided. Both parties must be legally represented in arbitration.
Parties must give full consent to participate in arbitration and can withdraw their consent at any time.
LAQ funds the legally aided person’s contributions towards outlays such as real estate valuations and medical reports on future needs. If a transfer of real estate is required to give effect to consent orders, then LAQ will fund the legally aided person if they are unable to afford this cost.
LAQ maintains a panel of family law practitioners, arbitrators and real estate valuers to support the operation of the arbitration program.
1.60
LAQ provided an overview of how legal fees and other charges are attributed:
Legal aid is not free. A legally aided person’s contributions (initial and/or retrospective) towards the cost of arbitration are levied by LAQ according to the value of the property and income. The maximum amount levied to a legally aided person is 20 percent of the benefit received or actual costs, whichever is the lesser amount. The retrospective contribution levied against the legally aided person results in a first charge in favour of LAQ on the money or property recovered by the legally aided person.
LAQ offers a ‘user pays’ systems for those not entitled to legal aid to cover their half of the arbitrator’s costs and any outlays (e.g. real estate valuation and/or medical report on future needs). If the actual arbitration fees exceed the user pays amount of $1076.35, then no further contribution will be recovered. If the actual fees are less than the upfront contribution, then this amount is refunded to the person at the conclusion of arbitration. The person is responsible for their own costs of legal representation.
Where a person is in default following the issuing of an award, LAQ funding is available to legally aided persons to register the award and/or enforcement of orders.
1.61
According to LAQ, the benefits of this program are:
• Arbitration provides a low cost, faster alternative to court proceedings. On average [over the last three years], 13 percent of matters referred to the arbitration program receive an arbitral award.
• Arbitration provides an opportunity for a small portion of matters to settle by consent while arbitration is underway. This results in lower legal costs for the parties and may be a reflection of the small pools involved. On average [over the last three years], 19% of matters settle prior to the award issuing.
• Awards are delivered by independent, qualified arbitrators in a similar format to court judgments.
• Parties can elect to make oral submissions to the arbitrator or have the matter determined on the papers. Where oral submissions occur, the format is by phone to the lawyer’s office. The arbitration format may benefit parties impacted by family and domestic violence.
• LAQ’s arbitration program is significantly self-funded.
• Arbitration is supported by initiatives such as the Federal Circuit Court of Australia’s introduction of the National Arbitration List in 2020.
1.62
An Australian Government funded trial of legal aid commissions is currently underway to assess the merits of this type of arbitration. There are some key differences between the LAQ program and the trial including an increase in the upper limit of the net asset pool and the types of assets that can be included—such as investment properties—and excluded, such as superannuation. In essence, the trial will 'support separating families who require legal advice to mediate and reach agreement on a property settlement without going to court.' The committee is supportive of this approach and recommended that this pilot subject to positive evaluation be considered for extension.
1.63
The committee is encouraged by LAQ’s largely positive assessment of its arbitration program that has been in operation for nearly 20 years. Furthermore, this type of program would appear to work well with the existing National Arbitration List, currently administered by the Family Court. On completion of the broader trial and subject to a positive evaluation, the committee is of the view that consideration should be given to establishing this type of arbitration model nationally.
1.64
The committee recommends that the Australian Government, subject to a positive evaluation of the two-year trial of lawyer-assisted mediation by legal aid commissions, considers funding and establishing a national arbitration scheme, similar to Legal Aid Queensland's arbitration program, for property-only disputes in cases where net combined assets are valued at $500 000 or less.
1.65
Development and implementation of this program should be in consultation with the Federal Circuit and Family Court of Australia, legal aid commissions and other relevant stakeholders.
The Hon. Kevin Andrews MP
Chair