COURT OUT – Trial Separation – 1999

The Federal Government is trying to reduce the primacy of the Family Court by pointing couples to counselling, mediation and magistrates instead. Bernard Lane reports.

[Montage of photographs with comments alongside is centred in the article}

Photo: Family Court Chief Justice ALASTAIR NICHOLSON

 ” The Family Court counsellors develop a considerable expertise in dealing with crisis situations”

“We’re considering new rules on trial management to enable judges to shorten proceedings”

Photo: Federal Attorney General DARYL WILLIAMS

 “We want people to stay out of court and that means highlighting the availability of alternatives and increasing the availability of those alternatives”

“It’s the change of attitude in the community that’s the hard part”

Photo: Father after Divorce author MICHAEL GREEN

 “The whole level of expertise of the court reporting from psychiatrists, psychologists and counsellors is, generally speaking, very,very poor and entirely suspect”

Photo: Men’s Rights Agency director SUE PRICE

 “If men think there is bias in the court, I hate to confirm it, but yes there is. Men have been treated most unfairly”

Which court? In the near future the Family Court may not be so famous, or infamous, depending on your point of view. As more engaged couples get nudged into marriage education, fewer may end up in court as a breakdown statistic. More families in trouble will be encouraged to see their local psychologist for mediation rather than the court registry. Of the few that who must litigate their way out of relationship conflict, more will go before an informal magistrate, not a superior judge of the Family Court.

For almost a quarter of a century , the courts, families and conflict have been bound together. As federal Attorney-General Daryl Williams remarked recently, “The Family court dominates public perceptions of family law.” But not for much longer if government reforms live up to its rhetoric.

The Family Court has sold itself as the “one-stop shop” for family law, offering everything from information through counselling to verdict. But the Government has begun to free up the market and it will be heavily promoting a range of competitors, including a new federal Magistrates Court. In an interview with the Australian this week, Williams said: “People ought not to look to the Family Court as the sole place for resolving breakdown issues.” 

The new family policy has many origins, but the familiar argument over the Family Court is certainly one of them. It is an argument that appears scripted: attorney-general criticises court for inefficiency and delay; chief justice blames government for insufficient funding. But something more interesting is happening. By promoting conflict prevention and alternatives to litigation beyond the court, the Government appears to be executing an outflanking manoeuvre.

It will not make the Family court redundant. Williams speaks of the court being “liberated” so it can focus on its core business: complex cases, such as those involving child abuse, that only superior court judges can resolve. Even so, the court will become less prominent if more and more Australians take their troubled relationships elsewhere. But, line any family law reformer, Williams must contend with ingrained attitudes, some deeply irrational, and even modest success cannot be guaranteed.

Reform begins with prevention. A few years ago, Williams recalls, “the common catchcry was that we’re spending $1 million a year on relationship education and $100 million a year on the Family Court in relationship breakdown”. Now  there is a brace of preventative programs, worth about half the court’s budget; more is on the way. People have to be prepared for the inevitable conflict of relationships, Williams says. “They need to understand what is happening when it occurs and how to handle it, so it’s relationship education, I think that is crucial.”

Couples in a Perth pilot program launched last month will have vouchers entitling them to a modest $200 worth of pre-marriage education. A national information line, available by phone or internet, is being set up. This will help direct people to the new range of family services, many of them not as well known as they should be.

The Family Court’s Chief Justice Alastair Nicholson says: “I’m very much in favour of more effort being put into preventing relationship breakdown.” But he adds a rider: “I’m not sure that it’s going to in any sense obviate the need to devote resources and effort to dealing with the consequences of relationship breakdown as well.”

For conflict prevention, and for conflict resolution without litigation, the Government is increasingly looking to non-government agencies such as Relationships Australia and Centacare, and private practitioners, among them lawyers, psychologists and arbitrators. What might this mean for the Family court’s in-house counselling service, which is a considerable institution? A few years back, Williams intimated that a courthouse was no place for counselling, as if once families crossed the threshold they might become possessed with the litigious spirit. Now there seems room for both in-court and beyond-court services, even if the Government expects community counsellors to develop a much wider reach that the court counsellors, who may sometimes be called upon to train them.

Williams concedes that agencies in the community have tended to deal with general relationship problems rather than specific family disputes, but says the quality of their counselling and mediation is assured. Nicholson says his counsellors have greater expertise in resolving “crisis situations” – and litigants have them available on the spot. But he can see an opening for community-based arbitration, such as a dispute about the value of a business in a property settlement. anyway, Nicholson says, there are signs of better cooperation between the court and community agencies. “For example, we’re arranging the sharing of premises on the Gold Coast,” he says. The Government wants to encourage co-operation, too.

Williams and Nicholson agree that sometimes there just won’t be an alternative to litigation. Only 5 per cent of cases begun in the Family court ultimately need a decision by a judge. But litigation in the court can still be costly and subject to lengthy delay; this can worsen the family dispute. Superior court judges are wasted on simpler disputes while the registrars, because of constitutional restraints, are not equal to them. Registrars are only quasi-judges who lack full authority.

Enter Williams’s new magistrates, intended to be cheaper and more adaptable than superior court judges, yet free of the registrars’ constitutional restraints. Nicholson says he saw the need come time ago for magistrates to deal with simpler matters quickly yet finally. But Williams was determined the magistrates would be independent of the court. It seems he feared their contamination by what is seen as the overly formal and bureaucratic culture of the court.

Nicholson protests his judges are thinking about more streamlined hearings, but says the options are limited because so many litigants appear without lawyers. “I don’t believe the Magistrates Court is going to solve that problem either,” he says.

Williams says he will announce soon the name of the chief magistrate, to be joined by 15 colleagues next year. As for the kind of cases they might take, Williams suggests a father’s attempt to enforce a contact order when the mother pretends the child is ill. “His only resort at the moment is the Family Court. His solicitor says: ‘Give me $3000 before I file the application and I’ll need $3000 more before we go to court.” Then the solicitor says: ‘We’ve got a waiting list for these cases of 18 months’ – and all the father is looking for is next weekend.”

With streamlined procedures and a regional presence, the new Magistrates Court is supposed to reduce delays, costs and travelling time for litigants, as well as cater for unrepresented parties.

Nicholson has work waiting for the magistrates. “Where’s the child going to school or what religion is the child to be brought up in ….they’re not issues that are going to take an enormous amount of evidence and time to deal with,” he says.

‘I’m concerned that the funding may be removed and the work will remain’ _________________________ Family Court Chief Justice ALASTAIR NICHOLSON

 But can the magistrates, who will also have to relieve the Federal Courts of some of its work, make a big impact? Williams hopes so. “As an ideal, you would decrease the size of the expensive courts – the Family court and the Federal Court – and increase the size of the inexpensive court.” But he is quick to say he does not know whether that will happen; it depends on the range and number of cases the magistrates prove able to absorb.

Nicholson points to the small size of the first complement of magistrates, He has 21 registrars, “pretty well flat out”, dealing with the kinds of applications he imagines will go to the magistrates. “So it’s difficult to see that number of magistrates knocking a very big hole in that workload,” he says. He would like to see more appointed.

Some of the money to fund the magistrates will be clawed back from the Family Court’s budget, since its workload is expected to lighten. But Nicholson says, “I’m concerned that the funding may be removed and the work remain.”

With such a range of family work being done in such a variety of places, the job of co-ordination will be a vital one. There will be prevention programs scattered across the country, conflict resolution inside and outside the Family Court, and litigation before magistrates as well as judges. Williams talks of directing the people to the right “pathway”so that no matter where they first encounter the sprawling system, they get consistent information and referral advice. The well-beaten pathway has always led straight to the Family court. As reform proceeds, however, more and more signposts will point elsewhere.

Bernard Lane is The Australian’s High Court Correspondent