The 1973 bill to establish the Family Law Act 1975 (Family Law Act) was based on a series of principles, including:
Where a marriage had irretrievably broken down the legal shell should be destroyed with the maximum of fairness and the minimum bitterness, distress and humiliation;
The future of the children of a broken marriage needs to be considered by the best possible tribunal assisted by the skills of Welfare Officers and other counselling staff where needed;
The financial dispute between the spouses should be resolved as quickly and as finally as possible; and
The whole process should be performed with dignity, relative privacy and as little expense as possible. (emphasis added)
Regrettably, some of these objectives remain elusive almost half a century after the introduction of the Family Law Act. Throughout the course of this inquiry, four issues have been raised continually in submissions and hearings: extensive delays, excessive legal costs, the difficulty of enforcing court orders, and the timely and fair resolution of family violence allegations.
People find themselves in the family law system because of the breakdown of relationships. For the most part, they are ordinary families who entered a marriage or relationship with the best intentions, but for various reasons, find it difficult or impossible to sustain. They are generally of ordinary means with little apprehension that the breakdown of their relationship can result in substantial legal fees. These are not commercial relationships where the parties’ contract with each other for economic profit and are able to ameliorate risks in various ways. And if parents suffer financially, so do their children.
While legal advice is necessary to ensure that the interests of the parties is properly considered, and fair fees are charged, lawyers and other professionals should not be profiteering from the financial and emotional stress of a relationship breakdown. That is contrary to the principles upon which the Family Law Act was based. Nor should they engage in practices or encourage their clients to engage in behaviours that unduly and unnecessarily delay the resolution of cases. While most lawyers do not engage in these practices, some do, bringing both the profession and the family law system into disrepute.
Delays
The maxim ‘justice delayed is justice denied’ has been applicable to the Family Court for many years. Hundreds of Australians, men and women, have told the committee of the emotional and financial strains of being trapped in a seemingly endless process of multiple court appearances, ongoing delays and confidence sapping years of unresolved litigation.
To their credit, the current leadership of the courts has made considerable efforts, despite the challenges occasioned by the COVID–19 restrictions, to reduce backlogs and hasten proceedings. This has involved a greater use of Judicial Registrars, the practice of call-overs of cases and the creation of a special COVID court list.
The committee is of the strong opinion that these measures should be incorporated into the ongoing operation of the Court. Accordingly, the committee recommends an increase in the number and role of the Registrars.
Legal costs
Complaints about excessive legal costs are not new. Almost 30 years ago, Justice Michael Kirby observed in Law Society of New South Wales, Council v Foreman (No 2) (1994) 34 NSWLR 408 at 422 that “something appears to be seriously wrong in the organisation of the provision of legal services in this community when charges of this order (some half a million dollars) can be contemplated still less made.”
Judges have made similar complaints in a series of more recent cases. In 2014, Justice Loughnan observed that “a forest of trees has been killed” in Daher & Halabi [2014] FamCA 178. A year later, Justice Bennett stated in Eldred & Eldred (No 2) [2015] FamCA 188 that “there is something askew in the proportionality of the wife’s representation when her retention of senior counsel, for which the court is now asked to certify, has contributed in no small part to the wife being left with nothing more than a modest business and an unpaid debt to her legal advisors ...”
Similar observations have been made by judges in other cases.
The committee has heard evidence of legal costs nearing or exceeding the total assets of the parties.
In Simic & Norton [2017] FamCA 1007, Justice Benjamin singled out cases filed in the Sydney Registry of the Family Court of Australia, noting that he was not based in that Registry, but regularly heard cases filed there.
I have become increasingly concerned about the high levels of costs charged by the legal profession in property and parenting proceedings and in my previous judgments I have expressed these concerns in that regard. Such comments have seemingly gone unheeded.
In the Sydney Registry of the Family Court I have observed what seems to be a culture of bitter, adversarial and highly aggressive family law litigation. Whether this win at all costs, concede little or nothing, chase every rabbit down every hole and hang the consequences to family law litigation is a reflection of a Sydney-based culture by some or many litigants or whether it is an approach by some legal practitioners or a combination of both, I do not know.
Whichever is the cause, the consequences of obscenely high legal costs are destructive of the emotional, social and financial wellbeing of the parties and their children. It must stop.
The committee concurs. These practices must stop wherever they occur. Hence our recommendations to cap fees in property disputes, introduce a requirement for proportionality in family law costs generally and to ban disappointment fees.
Unless approved by a judge or registrar in exceptional circumstances, the committee proposes that legal fees in property matters be capped at $50 000 or 10 per cent of the parties’ identified property and superannuation whichever is the higher. This cap will not include mediation or arbitration.
Secondly, the committee recommends that there be a requirement for proportionality of costs in all family law matters.
Thirdly, the majority of the committee recommends a prohibition on the use of disappointment fees, adopting the comments of Justice Benjamin that “I have grave difficulty in endorsing, as fair and reasonable or proportionate, terms in fee agreements which provide for barristers to be paid for doing nothing.”
Enforceability of orders
The third significant cause of complaint to the committee concerned the fact that many court orders are simply ignored by parties and not enforced by the courts. This is an injustice which brings the court processes into disrepute.
Accordingly, the committee recommends the establishment and funding for a Registrar-driven National Contravention List to deal with parties breaching orders of the family court. This would involve the appointment of an additional seven Registrars (of the 25–30 referred to earlier) to ensure that all contravention applications can be triaged within 14 days. The committee also recommends that the Australian Government review the Family Law Act to consider whether additional penalties should be included to deter the contravention of orders, including specific penalties for repeated non-compliance.
Family violence
As detailed in the first interim report of the committee, a series of issues relating to family violence were raised in many submissions to the inquiry. The committee has made a series of recommendations about the subject including the need to have a consistent definition in Commonwealth, state and territory legislation, and more streamlined and consistent procedures for investigating claims and determining applications.
Other issues
The committee has made 29 recommendations in this second interim report. Important other proposals include the implementation of procedures to enable the court to investigate claims of a party wilfully misleading the court, and the accreditation of professionals in the family law system. There are also a series of recommendations about making the family law system less adversarial.
Further final report
This second interim report represents the committee’s final and concluded views on the matters contained in it. However, the committee has had insufficient time to consider several issues relating to child support that were raised in many submissions. Accordingly, the committee will conduct a further, short inquiry into these matters, utilising the evidence already provided to it, before tabling a third and final report.
I thank my colleagues on the committee for their constructive and thoughtful consideration of often complex issues. I also thank the members of the secretariat for their untiring and professional assistance to the committee.
The Hon Kevin Andrews MP
Chair