6.1
Earlier in Chapter 3 of this report, the committee outlined evidence received from individual parties to family law matters in relation to delays in the court system. This is a well‑recognised issue and has been acknowledged in a recent report by the Australian Law Reform Commission (ALRC). The ALRC found that one of the key themes emerging from its inquiry into the family law system was that it was too slow:
Access to courts and services was so delayed that people told us they had to wait excessive lengths of time to receive assistance or take steps towards resolving their dispute. Many felt frustrated by this, and some said that their disputes escalated and/or they were left in situations that were unsafe for themselves and their children while awaiting access to the courts.
6.2
This chapter first looks at the performance of the Family Court of Australia (Family Court) before examining delays and resourcing in the courts as presented in evidence to the committee.
Performance of the Family Court
6.3
In April 2018, PwC provided the Attorney-General's Department (AGD) with a report titled Review of efficiency of the operation of the federal courts. The PwC report looked at the five years from 2012–13 to 2016–17 and found that the percentage of pending cases older than 12 months had grown by 38 per cent in the Federal Circuit Court of Australia (Federal Circuit Court) during that period, compared to five per cent in the Family Court. Around 29 per cent of all Federal Circuit Court pending final order cases were older than 12 months, compared to 42 per cent in the Family Court. In addition, the national median time to trial has grown from 10.8 months to 15.2 months in the Federal Circuit Court, and from 11.5 months to 17 months in the Family Court. Further, PwC reported that approximately three per cent of Federal Circuit Court and 11 per cent of Family Court matters are subject to reserved judgments.
6.4
In answers to questions on notice, AGD offered the following more recent information on the backlog of pending final applications:
According to the 2018–19 annual reports of the Federal Circuit Court and the Family Court, there were a total of approximately 20 500 judicial matters (final order applications) pending across both courts as at 30 June 2019. The Federal Circuit Court had 17 478 pending final orders applications, and the Family Court had 2 979 pending final orders applications.
6.5
With regard to the number of cases that a judge will hear per day, AGD noted that this will differ depending on the type of case and the stage of proceeding, but provided the following general figures:
Judges in the Family Court may hear between five to 10 cases per day in a duty list for a case management hearing.
if the Judge is hearing a final hearing, there is usually only one case listed per day.
Judges in the Federal Circuit Court will hear anywhere between 15 to 25 matters per day in a duty list, which is the first return date for the case (i.e. the first court hearing).
when Judges are on circuit in regional locations, this figure could be 50 or 60 matters [per day].
Judges in the Federal Circuit Court may have one to three cases listed per day if they are hearing interim defended hearings, or final hearings.
6.6
In 2018–19, the Family Court established a series of case management initiatives known as a blitz as a means to fast-track cases and reduce the case backlog. Chief Justice The Hon Will Alstergren described the initiative in the Family Court's Annual Report 2018–19:
Between 18–21 March 2019, 196 property cases, 87 matters in Melbourne and 109 matters in Sydney, were called over and referred to private arbitration, mediation or other forms of Alternative Dispute Resolution (ADR).
Parties were also able to seek orders from the Court to assist in progressing matters towards resolution such as for the appointment of single experts, disclosure or updated valuations. Compliance hearings for these matters were listed between May and August 2019. In the Melbourne registry, those matters that were not suitable for referral to [Alternative Dispute Resolution] were able to be listed for trial in the next three months due to the recent appointment of new judges.
6.7
Chapter 2 of this report outlined some workload statistics of the Family Court. In its Annual Report 2018–19, the Family Court reflected on its performance record:
For a number of years, the Court had been the subject of criticism regarding the length of time in having matters dealt with, which in some cases, extended up to two to three years.
6.8
The Annual Report further stated:
… that having to wait years to have a family law dispute brought to resolution is unacceptable and now, with the timely appointment of new judges this financial year, the Court is in a much better position to reduce those delays.
6.9
The Family Court claimed that its performance, as measured by the clearance rate of cases, had improved in recent years:
It is therefore pleasing to report that, for the first time in many years, the Court has achieved a clearance rate of 102 per cent for all application types and 107.6 per cent for final order applications. The overall clearance rate in 2017–18 was 100 per cent. These results are outstanding and effectively mean that the Court is completing more cases in a year than the number of filings received. This enables the Court to reduce the backlog of pending cases.
6.10
There has been a marginal improvement in clearance rates from 2016–17 to 2018–19, with more cases being cleared than being lodged, with judgments delivered within 3 months and 12 months of trial remaining steady. Table 6.1 displays the statistics for the last three financial years.
Table 6.1: Performance of the Family Court of Australia during the periods 2016–17 to 2018–19
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|
|
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2018–19
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102 per cent
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79 per cent
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93 per cent
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2017–18
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100 per cent
|
75 per cent
|
93 per cent
|
|
2016–17
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98 per cent
|
79 per cent
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93 per cent
|
Source: Family Court of Australia, Annual Report 2016–17, Annual Report 2017–18, Annual Report 2018–19. A clearance rate of 100 percent means that the number of new cases equals the number of cases cleared or finalised.
6.11
The majority of applications (87 per cent) to the Family Court were finalised within six months of lodgement. Approximately 92 per cent were finalised within 12 months, 96 per cent within two years, with roughly three per cent of cases taking more than two years. Figure 6.1 shows that the proportion of cases resolved in a specific period of time has remained largely unchanged over the last five financial years.
6.12
Figure 6.2 outlines the percentage of lodged cases that reach various stages in the court process. Similar to the previous figure, the numbers of cases that reach individual stages remained static over the last five financial years with 14–16 per cent of cases lodged reaching a judgment.
6.13
In answers to questions taken on notice, the AGD explained the average time taken from the end of the trial to delivery of judgment:
Family Court of Australia
The courts have advised the department that in financial year 2018-19 in the trial division of the Family Court of Australia, there were 640 final judgments delivered. The average time from the end of the trial to delivery of judgment was 1.79 months.
Federal Circuit Court of Australia
The courts have advised the department that in financial year 2018-19 in the Federal Circuit Court of Australia, there were 4761 final family law judgments delivered. The average time from the end of the trial to delivery of judgment was 0.63 months.
Family Court of Western Australia
The Western Australian Department of Justice has advised that the Family Court of Western Australia (FCWA) does not track decision delivery times, but instead focuses on monitoring reserved decisions to track timeliness of the delivery of the decisions. For the 2019 calendar year, the five FCWA judges delivered all reserved decisions within 3 months from the end of the trial and/or last day for filing of written closing submissions, except for 6 reserved decisions which were delivered within 3–6 months from the end of the trial and/or last day for filing of written closing submissions.
The impacts of delays
6.14
The President of the Law Council of Australia (Law Council), Ms Pauline Wright told the committee that 'delays and lack of resources continue to let down families at this difficult time in their lives'.
6.15
At the committee's Townsville hearing, Mr James Steel, President, Family Law Practitioners Association of Queensland stated that 'clearly, the longer a matter goes on, the higher the costs will be for the people involved in those proceedings'.
6.16
There are significant financial impacts that delays can have on individuals and families:
From my experience, some of the delays that have occurred in the Family Court have been extraordinary. People have actually ended up having to go bankrupt while they have waited for a judge to make a decision over two years. It's just ridiculous. So I don't think that it's fair just to levy that at the Federal Circuit Court bench. I think there are some similarities in the Family Court bench as well.
6.17
There are also effects on parties more broadly as a result of delays:
The single most significant factor impacting costs is the delay in reaching a final hearing, if one is ultimately required. In court registries across Australia there are waiting times of up to two years and, in some instances, even three years from the date of issuing proceedings until the date of any final hearing. We've got to acknowledge that parties don't live in suspended animation while they wait to resolve their case or for a final hearing. Personal and financial circumstances evolve, and that has significant impacts on the parties. This can then increase the legal advice necessary across the life of the case. It can also increase stresses on the parties and increase the likelihood of family violence.
6.18
In some cases, there can be changes to personal circumstances if a case is delayed, Mr Paul Doolan explained the difficulties in delays and provided an example:
They don't stop loving other people. They don't stop buying a business. They don't stop buying real property. Things occur in their lives. The number of cases I've had in the last five years where I'm dealing not with one separation but two separations, in the context of one matter—because one party has in the four years of waiting for a trial repartnered and had a child and that's broken up as well—and you end up with multi-party litigation is remarkable.
Partly, it's just families changing over time. Partly, the delay means, as with valuation reports needing to be updated, personal circumstances changing. For someone I gave advice to in 2016 it was, 'Your matter's pretty simple because you're only in a partnership with her and you only own this business.' But in 2020 it was, 'You've got a child to this new person and you've broken up with her and she wants to bring a claim against you as well, and that business you started didn't go very well but the business your ex-wife started is going really well.' The situation's changed now.
6.19
The committee heard that 'because of the delay in achieving a final hearing, the stakes in an interim application are high' and that 'orders made on an interim basis can prevail for years'. Furthermore, the effect of a delay between the granting of an interim and final order is such that during this period, 'children are likely to lose their relationship' with the non-custodial parent 'without any evidence having been heard or tested'.
6.20
Another witness added:
… there needs to be more resources and a far more streamlined approach taken to these matters. I've heard of cases where people are waiting three, four, five and six years just to have a case heard to get a decision, and in the meantime they're not seeing their children.
6.21
Ms Megan Mitchell, Commissioner for Children and Young People highlighted the significant consequences of delays on children in particular:
I've had young people come to talk to me who have been involved with the court for six or seven years. I just think that's child abuse, myself—systems abuse. They've been going back and forth in the midst of very vexatious relationships between their parents, and I just think that we need to be really cautious of the way the system is inflicting trauma on the child, as well as the trauma of the separation itself.
Factors leading to delays
6.22
This section discusses the key reasons for delays including:
resources of the court; and
the role of individual parties to family law matters.
Resources of the court
6.23
A number of submitters argued that delays were being caused by a lack of resources in the court. One witness explained:
It does need more resources to move things through more quickly, because if they're able to move things more quickly then it's less stress on everybody.
6.24
Mr James Steel, President, Family Law Practitioners Association of Queensland stated:
The main delay that we're seeing at present is the lack of resources in the courts, so that matters simply cannot be transitioned through the court process in a timely manner.
6.25
Ms Deborah Awyzio, Chair, Family and Domestic Violence Committee, Queensland Law Society (QLS) told the committee about the current workload of Federal Circuit Court judges:
The statistic we are aware of is that there are judges in the Federal Circuit Court who have up to 600 matters in their docket. So, if you had double the capacity of judges, that reduces it to 300 matters in each judge's particular docket. I would suggest that would have a significant impact on delays.
6.26
In his submission, Professor Patrick Parkinson AM, Dean of Law at the University of Queensland made a similar observation about judicial workloads:
Some judges’ dockets have blown out to 500-600 cases when 300 is probably an absolute maximum to be able to give much serious attention to cases early in the process. Making decisions after only skimming the file briefly is much worse than leaving matters to registrars who can triage cases and refer to judges those issues which need judicial consideration. Making decisions in a rushed manner with a very limited understanding of the facts and issues involved in the case can result in dangerously poor decision-making.
6.27
This view was supported by others including Ms Rachel Field, Member, Family and Domestic Violence Committee, QLS:
Inadequate numbers of judges and other delays in the system are causing people to stress. Also, all other elements of the system need further resources. Those include legal aid, community legal centres and family dispute resolution provisions. In addition to that, in order for people to be able to participate effectively in the system, they need to get access to counselling and other more holistic forms of support. That's our position: rather than reconstructing a whole new family legal system, it is possible for this system to work effectively, but it does need to be adequately resourced in order for that to happen.
6.28
The NSW Bar Association remarked on how delays can be compounded, especially in regional areas:
For example, the Federal Circuit Court sits on circuit, say one week every two to three months in regional areas such as in New South Wales, Broken Hill, Coffs Harbour, Dubbo, Lismore, Orange, Port Macquarie, Tamworth, Wagga Wagga and Wauchope. Due to a lack of Judges and resources to deal with the cases when they are listed, cases may not be reached and are listed either at the next circuit or taken back to the 'home Registry' of Sydney, Parramatta or Newcastle.
6.29
Overlisting was cited as another reason for delays, as courts attempt to anticipate those cases that settle 'on the steps of the court'. The NSW Bar Association explained:
To safeguard against a waste of judicial time a procedure known as 'overlisting' is often invoked. It is a process whereby the court lists for hearing more work than can actually be done so that if a case stops for any reason another one is ready to take its place without loss of judicial time, which is in short supply.
If, however, the first case listed does proceed, the others, sometimes up to three overlisted cases, do not get dealt with. As a consequence, a great deal of the parties’ costs and time are wasted.
6.30
Whilst acknowledging some of the initiatives being undertaken currently by the Family Court, Ms Wright argued that these initiatives required additional resources to ensure their success:
The courts themselves are doing the very best they can on the resources that they have—but they are not enough. Changes to the management and streaming of lists that the courts have introduced, early triage and other administrative changes will assist in improving the efficient and effective resolution of family law cases. But these initiatives have to be properly resourced. The dominant difficulty is the chronic underfunding over several decades of the family law system and a failure to make timely appointments of judicial officers and registrars. This has created a backlog of cases, produced delays and frustrated the proper management of the resources that the courts have.
6.31
In an answer to a question taken on notice, AGD explained that the recent initiative to 'pilot risk screening, triage and a specialist family violence list' would also include 'resourcing for four senior registrars, eight registrars and three associates for senior registrars to support the pilot'. Notwithstanding this, AGD also explained that 'courts are responsible for the management of their administrative affairs including the appointment of registrars'.
The role of individual parties to family law matters
6.32
The committee heard that one or both parties may directly or indirectly be a contributing factor in delay. At the committee's Brisbane hearing, Mrs Susan Price, Director, Men's Rights Agency assigned some of the blame for delays on parties themselves. Ms Wright agreed observing that sometimes clients could provide instructions that extended the length of a legal matter:
… there are also problems with clients who will listen to your advice but will want to take every procedural point that they can. You wouldn't classify those people as vexatious, but they will certainly take every point that they can, despite your advice.
Self-representation
6.33
Some witnesses put forward a view that self-represented litigants are the cause of some delays. Mr Michael Kearney SC, Chair, Family Law Committee, New South Wales Bar Association highlighted research which supported this:
One judge told a research study in 2000, after a very full duty list one day, that the time taken to hear nine matters involving self-represented litigants would have been halved, had they been represented.
6.34
Mr Kearney attributed this increase in self-representation to the limited legal aid budget and spelt out the consequences:
Underfunding legal assistance has meant a significant number of parties cannot afford legal representation in family law matters and appear, by necessity, unrepresented in court. These factors have contributed to crippling judicial workloads. Both courts now have backlogs of more than a year's worth of cases. Many Federal Circuit Court judges have between 400 and 500 cases in their dockets; some have as many as 630.
6.35
Mr Kearney added that 'the provision of additional funding for legal aid will go some way to addressing the increase in self-represented litigants and decrease the pressure on the court'.
6.36
Dr Heather Nancarrow, Chief Executive Officer, Australia's National Research Organisation for Women's Safety drew the committee's attention to more recent research which outlined some of the issues associated with self-representation including:
… potential delays, frivolous claims, cross-examination, inappropriate questioning of other witnesses, use of proceedings to control or intimidate a victim, the capacity to effectively present and test evidence, and the possibility of adverse outcomes.
6.37
Dr Nancarrow provided an example citing that 'there's also been confusion, particularly by self-represented litigants, about what equal shared parental responsibility means'. Dr Nancarrow pointed out that equal shared parental responsibility does not simply mean equal time but can also include 'joint decision-making about major long-term issues, such as where a child goes to school, or major health issues would no doubt be very useful'.
Vexatious claims and abuse of process
6.38
The use of vexatious claims as a part of proceedings and abuses of process were also raised in Chapter 4 of this report. This section briefly touches on this issue again in relation to delays. In its submission, the National Council of Single Mothers and their Children quoted one member who alleged that an ex-partner continued to 'lodge frivolous and vexatious court applications' for a period of eight years post-separation. A witness asserted that an ex-partner was 'constantly cancelling mediation' as a way of causing delay:
In my personal opinion, it seemed that she was intentionally doing that to delay the process. She actually had all her mail directed to her parents' house and was saying that she wasn't getting the mail, even though my solicitor was forwarding emails to her as well. So, it did seem as though it was game playing. As to the reporting, she said certain things in that mediation that showed that she didn't want to participate in the coparenting arrangement-it was actually quite the opposite-which I would say appears that she was intentionally stopping access and saying different things in her affidavit to what she said in the mediation portion.
6.39
This was a trend also observed by Australian Women Against Violence Alliance (AWAVA):
In a survey of victims-survivors run by AWAVA, a respondent indicated: 'My ex has kept me in Family Court for seven years and has perpetrated his violence on me and my children through this institution. This is not recognised as violence, so it's not addressed and services are not developed to support victims.' The family law system at present, instead of validating the experiences of violence that women and their children have been subjected to, allows for the same violent dynamics enacted by perpetrators to occur—that is, silencing, coercive control and undermining of mother-child relationships.
6.40
Ms Hayley Foster, CEO, Women's Safety NSW reported that it was sometimes difficult for the court to identify and dismiss vexatious claims:
… the court needs to be able to have the expertise and the knowledge base to be able to do that and to be able to assess when they are unmeritorious and vexatious, and that's not always happening. At the moment, we're finding that people are being dragged through the court process by somebody who's using that process as a vehicle for coercive control …
6.41
In addition, Ms Foster argued that an improved process leading to dismissal of vexatious claims would achieve a reduction in delays:
… but if they had the mechanism to dismiss those unmeritorious claims and make the right judgment and expedite those, then it wouldn't drag out.
Different approaches
6.42
The committee has heard about a number of different approaches that are either currently being trialled or proposed as ways to reduce delays.
6.43
The potential use of judicial registrars to triage cases and identify those that can be resolved quickly was suggested. Dr Jacoba Brasch QC, President-Elect, Law Council reasoned that some matters are simply delayed because of the number of other competing matters also needing to be heard and explained how a triage system would work:
… I regularly turn up on the days where there are 30 matters and delays and delays…I'd wonder how much delay was a factor of that. I would love nothing more than to turn up before a registrar on one of 30 matters competing for time. I want my matter to be heard today, not to be delayed off again, because that has cost, expense and delay of itself. If a dad isn't seeing his children, it can be tragic. I'd love to turn up before one person and have them triage it. 'What's your matter?' 'It's going to run.' Oh, Dr Brasch; go over to that judge. He's ready. What's your matter?' 'It's a consent order.' 'Stay here; I'll do that.' 'It's an adjournment.' 'Stay.' That would be a marvellous system.
6.44
National Legal Aid (NLA) also advocated for a similar position noting that NLA was able to 'assist in improving triage and streaming of matters at the family law courts via our family dispute resolution programs and [Family Advocacy Scheme] services'. In addition, NLA also noted that triage was not a single point in time exercise, but rather an ongoing process occurring at different stages of a family law matter, particularly for those matters involving allegations of family violence.
6.45
Other submitters such as Victoria Legal Aid called for a comprehensive process recommending the 'introduction of an intake, triage, risk assessment and case management process for the family law courts'. Better Place Australia expounded the benefits of this type of approach including improved service delivery:
The establishment of a teams-based triage process in the family courts would ensure that complex and high-risk matters are directed to appropriate alternative dispute resolution processes and specialist pathways within the court as needed. The development of simplified court procedures would enable client support services both into and out of the court to better facilitate their services in a timelier manner.
6.46
In its submission, the Australian Dispute Resolution Advisory Council proposed that 'the family law system prioritise the need to promote self‑determination at all stages of the family law system' through the following approaches:
removing the focus on the court and the adversarial system as the centrepiece;
introducing a comprehensive triage system at all stages and not only at the tertiary stage;
actively promoting and channeling disputes to the appropriate [Family Dispute Resolution (FDR)] processes at each tier of the proposed system; and
applying a rebuttable presumption that all families should be directed towards [Dispute Resolution] until and unless assessed as inappropriate by a specially trained and supported triage system.
6.47
There was also a call to limit exclusions to mediation. Relationships Australia explained:
The existence (proven or otherwise) of family violence should not exclude families from the simplified pathway. Exclusion would be problematic because a streamlined pathway could benefit those suffering from family violence by minimising their exposure to protracted and harmful conventional court processes.
6.48
Furthermore, Relationships Australia highlighted a position put forward during the ALRC inquiry which explained how cases involving family violence could be mediated effectively whilst still protecting a victim from continued abuse by an alleged perpetrator:
The existence of family violence allegations or family violence orders (whilst a serious issue) should not be seen or presumed to be an automatic impediment to ADR as an appropriately skilled [FDR Practitioner] commonly will arrange for FDR/ADR in a manner, keeping the parties separate and which avoids exposing a party to family violence or otherwise accommodates a vulnerable party by creating a level playing field for negotiations.
6.49
Professor Parkinson detailed the previous approach of case management used by the Family Court:
Towards the end of Alistair Nicholson’s time as Chief Justice of the Family Court, the Court developed a sophisticated case management process using registrars and family consultants to manage all the early stages of the litigation process. What that meant was that in most cases, judges did not need to be involved until it was clear that the matter would need to be set down for trial. Since the great majority of cases eventually settle, that was a highly efficient way of managing the caseload, preserving judicial time for trials and judgment-writing, and focusing attention on ways to settle the dispute without going to trial.
6.50
Professor Parkinson put forward his view that this method was displaced by the Federal Circuit Court that had more of a focus on early detailed judicial involvement:
Its processes involved judges in case managing every matter from the beginning, in individual judicial dockets. That approach frequently involves a great deal of routine procedural work that registrars could do, such as making orders for discovery, or requiring a respondent who has not filed a response by the requisite time, to do so within a certain period.
6.51
Further to this, Professor Parkinson recommended that priority be given to 'the appointment of more registrars in the Federal Circuit Court with the goal that they triage all family law cases and only refer to judges those matters that require urgent or interlocutory decisions'.
6.52
The Family Law Reform Coalition submitted that the legal process was an inappropriate place to address family separations and that these processes were simply too slow and suggested:
… the need for urgent processing of cases that reach the family court and inevitably involve families that are vulnerable, should be clear. Having families wait for several weeks before a first meeting or hearing, only then to be referred for a case conciliation conference five or six weeks later is simply not good enough; lifelong damage to children can occur in this time.
… an initial, substantial hearing and actual judicial action on day one, as opposed to the mere scheduling of later activities, could resolve many issues and significantly reduce court case loads. International models of much more effective judicial practices are available, particularly in northern Europe, whereby substantive decisions are made within a matter of weeks. A conciliation/arbitration approach to family separation, even within the court system, is the best approach to allow this to happen.
6.53
Mr Anthony Smith, appearing in a private capacity with the Men's Rights Agency put forward the suggestion of using contested interim hearings as a means of circumventing delays, a practice that Mr Smith indicated was commonly used before 1995:
… contested interim hearings, not on the papers, because that gets you nowhere, but with allegations tested in cross-examination. That used to be done in a two hour to a half day type window.
Recent and proposed reforms
6.54
There are also a number of initiatives being pursued by the Government that are aimed at reducing delays in the family law system. This includes the COVID-19 list dedicated to prioritising urgent family law matters that have arisen as a consequence to the COVID-19 pandemic. This list is discussed further in Chapter 8.
6.55
In addition, AGD told the committee about a new pilot program that has been established to fast-track cases involving family violence:
The [Government] committed $13.5 million towards it. It is operational in three registries initially, the Parramatta, Brisbane and Adelaide registries, but together, as Mr Anderson said in his opening statement, they constitute 42 per cent of filings. We are expecting there to be a significant reach in terms of the initial pilot stage. As you mentioned, there are three elements. The initial part would be: when matters are filed with the court the parties are asked to fill in an online screening process, which is a modified version of [the detection of overall risk screening tool]. It's a clinical tool which was initially developed by Relationships Australia, and the court are modifying that for their purpose. Depending on the outcome of that risk screening exercise, the matter would be appropriately triaged according to the level of risk. High-risk cases would be intensively case managed. There would be an offer of immediate assistance, safety planning and the like. Moderate-risk cases would be, again, offered a safety plan and alerted to the support services that might be available. Low-risk cases might be assessed as suitable for family dispute resolution. For the high-risk cases, the pilot will establish a specialist family violence list, which will be overseen by a judge and intensively case managed, with a view to having a matter dealt with quickly and with appropriate safety supervision.