Pre-empting the current review into the Family Court System the Australian Attorney General, Christian Porter, announced on the 30th May 2018 that the Family Court and the Federal Circuit Court will merge. The change is to take effect from the 1st January 2019. The new court will be called the Federal Circuit and Family Court of Australia (FCFCA). A new Family Law Appeals Division of the Federal Court of Australia (FLAD) will also be established to hear appeals from the FCFCA.
Western Australia has it’s own family court however it appears that the appeals divisions will hear some appeals from the Family Court of Western Australia although the Attorney General does not have the constitutional power to merge the Western Australian court into the rest of the country.
The intention is to speed up the process of settling family disputes which end up in court.
“Family break-up is a traumatic time for both parties and children, as well as the wider family. We have a responsibility to ensure that systems are in place to assist those families who cannot resolve matters without legal intevention are as efficient, and that the systems itself does not exacerbate the trauma of family break up, especially for children.
It’s estimated that these reforms will improve the efficiency of the federal family law system by up to a third, with the potential in time to allow up to an extra 8,000 cases to be resolved each and every year.”
Christian Porter, Attorney General
The Family Court currently hears family law cases involving complex financial arrangements, trusts, serious parenting arguments, allegations of child abuse in custody arrangements and protracted family disputes.
The Federal Circuit Court deals with the rest.
The new court will be divided into two divisions:
- Division 1 will comprise the existing judges of the Family Court of Australia and deal only with family law matters.
- Division 2 will comprise the existing judges of the Federal Circuit Court of Australia and deal with family law matters and general federal law matters.
The Attorney-General said reform of the courts dealing with family matters is long-overdue.
In the 2016-2017 financial year there were about 106,000 family law applications.
- almost 44,000 divorce applications in the Federal Circuit Court
- almost 14,200 consent order applications in the Family Court (consent order applications are when the parties are able to reach agreement without requiring a court judgement)
- about 25,600 interim order applications between the two courts (interim orders as orders made during a court case before the final trial hearing)
- almost 20,500 final order applications across both courts following a final hearing (trial)
- costs for families in the Family Court are estimated to be up to 4 times those of the Federal Circuit Court
- matters in the Family Court require 45% more attendances by litigants than the Federal Circuit Court
- days per trial in the Family Court are double that o fthe Federal Circuit Court
- approximately 29% FCC matters and 42% of Family Court matters pending final orders are over 12 months old.
- approximately 350 appeals are filed in the Appeal Division of the Family Court each year.
The Federal Circuit Court finalises over 85% of the final order family law matters.
“Despite the number of cases filed each year remaining relatively static over the past five years, the number of family law matters awaiting resolution has grown from 17,200 to 21,000 and the median time taken to reach trial has grown in both courts, 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.”
Christian Porter, Attorney General
The time it takes to reach trial is considerably longer in some court locations. Mr Porter believes that the merger could see an extra 8,000 cases being resolved each year. Some cases are taking three years or more to be resolved through the court.
In 2016-17, almost 1,200 families had their disputes transferred between the Family Court and the FCC. The waiting time to have a case transferred averaged 11.1 months in the FCC and 4.6 months in the Family Court. In both cases, litigants had to restart their proceedings using the procedures of the alternate court.
Australian Law Reform Commission Report
A current wider reaching review of the family law system, not just the courts, is currently being undertaken by the Australian Law Reform Commission is due to report back to the Government by March 2019.
The issues paper makes interesting reading for anyone wondering about the focus of the enquiry. https://www.alrc.gov.au/inquiries/family-law-system
Media Release by the Attorney-General
The media release justifies the change as being to help families save time and costs in family law disputes.
“For too many families, disputes over property and custody of children, are being exacerbated by inefficiencies and growing delays in the court system caused by the overlapping jurisdiction and significant variations in the operational rules, processes and practices of the Family Court and Federal Circuit Court.”
“One key issue causing exacerbating delays for many families is the high number of cases transferred between the two courts. Almost 1200 families’ cases are transferred between the two courts each year, some after having been in court for more than 11 months. This means those families must start the whole court process again in the other court with completely different rules, procedures and processes. This and other inefficiencies mean highly skilled and trained judicial officers are being hampered from hearing and resolving more family law cases requiring resolution because of inefficient and often duplicated administration.”
Christian Porter, Attorney General
See the media release from the 30th May 2018 by the Attorney General here. https://www.attorneygeneral.gov.au/Media/Pages/Court-Reforms-to-help-families-save-time-and-costs-in-family-law-disputes.aspx
Fact Sheet – Structural reform of the federal family courts
A fact sheet on the proposed changes is available on the Attorney Generals Website. https://www.attorneygeneral.gov.au/Media/Documents/Court-reforms.pdf
The Government expects to introduce legislation in the Spring Parliamentary sittings. Subject to passage of legislation, the FCFCA and the FLAD will commence operation on 1 January 2019.
Initially, the Federal Court and both divisions of the FCFCA will maintain their existing court rules. Following consultation with the judiciary, legal profession and other stakeholders, the new court will update its rules with a view to achieving consistency in forms, procedures, administrative matters and practice directions.
Transitional arrangements will be put in place for proceedings before the courts at the time of the commencement of the reforms to ensure that matters before the courts at that time are dealt with as effectively and efficiently as possible, and with the minimum of inconvenience and delay.
The structural reform of the federal court’s page is located here https://www.ag.gov.au/LegalSystem/Courts/Pages/Structural-reform-of-the-federal-courts
No consideration of Alternative Dispute Resolution
There is no mention of Alternative Dispute Resolution as an alternative to people going to court. We hope that the law reform review will identify more creative alternatives to the proposal to merge the courts such as providing additional resources and support to educate separating couples about negotiation and the effects of conflict on their children and the many alternatives to litigation through family dispute resolution.
The focus of this reform is on improving the efficiency of a service that many families would be wiser to avoid altogether.
“This single new court, the FCFCA, will help Australian families resolve their disputes faster by improving the efficiency of the existing split family law system, reducing the backlog of matters before the family law courts, and driving faster, cheaper and more consistent dispute resolution,”
“This significant structural change is designed to dramatically increase the number of family law matters finalised each and every year, and reduce the backlog of unresolved cases on hand at any one time. The purpose of the reform is to ensure Australian families experience shorter waiting times, and a reduction in the potential for conflict caused by prolonged and acrimonious family disputes.”
“The FCFCA will have one single point of entry for all federal family law matters to provide a consistent pathway for Australian families needing to have their family law disputes dealt with by court proceedings. Families will have one new court with one set of new rules, procedures and practices designed to ensure that their disputes will be dealt with by the FCFCA in the most timely, informed and cost effective manner possible.”
Christian Porter, Attorney General
We hope that a wider view of the family law system will provide the Attorney General and other decision makers the opportunity to see the benefits of more families not using the family court at all. The best way to reduce the conflict caused by prolonged and acrimonious family disputes is to provide support for families to resolve their disputes themselves with the assistance of professionals rather than handing over their fate to the hands of an overworked family court judge.
Innovations in alternative dispute resolution such as those being offered by the not-for-profit, Interact Support established by Mediation Institute directors can make more of a difference for families that combining courts. Interact Support has video mediation high conflict family dispute resolution for those couples who are turned away from standard government funded Family Dispute Resolution services as well as Mediator Facilitated Negotiation which is a lower cost method for people who are too high conflict to negotiate directly but unwilling or unable to pay the tens of thousands of dollars that lawyer negotiation typically costs.
Integral to the Interact Support High Conflict Family Dispute Resolution Services is the use of the New Ways for Families Course which teaches participants skills to help them to be better negotiators and about the genuine, long-term harm that exposure to family conflict causes children.
Many people are being advised by their lawyers to file for exemptions to Family Dispute Resolution and go straight to court for parenting matters and to bypass any discussion of family dispute resolution for property matters.
It is disappointing to see the assumption in the Attorney Generals statement that all of the cases in the Family Court are there because the families can’t resolve their issues without legal intervention in the form of going to Family Court.
“We have a responsibility to ensure that systems in place to assist those families who cannot resolve matters without legal intervention are as efficient as possible and that the system itself does not exacerbate the trauma of family breakup, especially for children.”
Christian Porter, Attorney General
A reduction of the 22,000 cases that go to family court would be easy to achieve simply by tightening up the exemption rules and raising the threshold for access to the court and requiring mandatory alternative dispute resolution for property matters.
Education for lawmakers, lawyers and separating families about the potential for people to be empowered to make their own decisions regarding how to care for their children and how to divide up their assets is needed as well.
It is ludicrous that government funded services offering 2 hours of “free” family dispute resolution are seen to fail if they can’t help a couple to sort out their issues in that time and the only other alternative is to spend 2 or more years fighting in court.
The customised, nuanced and highly individual agreements that can be reached in Family Dispute Resolution take a little more time to achieve than is generally provided by the publicly funded system and yet not enough people automatically think of engaging an independent Family Dispute Resolution practitioner to work with their family to achieve this outcome. Once agreement is reached getting enforceable consent orders is a relatively simple, administrative process.
Mediation Institute Students and Members can now see upcoming webinars on the Events tab on our website.
If you know the event you are looking for you can search or if you are not sure you can browse the calendar view or click on the View As button and view a list or day view.
We will progressively populate the event calendar with Mediation Institute events as well as conferences and other events of interest to our members.
What if I can’t make it to an event live?
Tutorials are recorded and uploaded to the Members area and a link is usually also added to the event in the calendar.
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From time to time as a mediator, you may be in a position to make a decision about whether to proceed with mediation or FDR when there is a potential conflict of interest.
If there was a genuine conflict of interest you would be required by ethical standards to withdraw from the proposed mediation and hopefully help the client to find another provider.
If you are not sure if there is a genuine conflict of interest have a look at these resources.
Basically, if a prior relationship or some personal benefit that may flow to the mediator is likely to bias the process either for or against one of the participants then you have a conflict of interest.
As part of your Mediation Institute Membership, you can always give us a call for a quick 2nd opinion if you’re facing an ethical dilemma.
Believe me, it is much less work for us to have a chat than it is to investigate a complaint about professional conduct so we are happy to be a sounding board.
What do you do if there is something that raises a red flag but you genuinely believe that you will be able to facilitate the dispute resolution process without bias?
Waiver of a potential conflict of Interest form
You MUST disclose to the potential clients as soon as you become aware of the potential conflict of interest.
If you AND the clients believe that the potential conflict of interest is not going to be an issue you can proceed however you should document that agreement to proceed with a potential conflict of interest waiver form.
There isn’t a standard form provided by any authority however we have an example of the one used by Interact Support in the Mediation Institute Members course area.
You will have to log in to the member’s course to access the file https://mi.study247.online/courses/9/
Other examples wanted
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