Annual report [1997-98] - Family Court of Australia

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The Family Court of Australia – annual report 1997-98 served by a steering committee representing the Court, the Attorney-General’s Department, the profession and legal aid authorities. The report made a number of recommendations, some of which were put in place shortly after its completion. Several others were awaiting my final consideration at the time the Court embarked on a major strategic planning exercise just after the end of the financial year. Early feedback from this project suggested to me that the case management guidelines required re-visiting and that the evaluation report would be affected by such an exercise. As a consequence the remaining recommendations will be re-considered when these issues are brought together for the purposes of future planning. Primary Dispute Resolution (PDR) During the previous financial year the Attorney-General foreshadowed his intention to review the provision of counselling and mediation services within the Court. A Departmental discussion paper, ‘Delivery of PDR Services in Family Law’, was subsequently tabled. The Court responded to this by way of a major submission which was forwarded to the Attorney-General in late 1997 and was also widely circulated to interested organisations and individuals. The submission canvassed the various options available to the Government in considering issues of coverage and possible overlap of service delivery. It stressed the importance of maintaining primary dispute resolution within the Family Court as a diversion from litigation, reiterated the high settlement figures obtained, particularly at the voluntary level, and noted that attention needed to be given to issues such as security, the professional expertise developed by Court counsellors and mediators and the extent to which legal practitioners and others are confident in referring customers to them. The Court argued that were PDR services to be made less accessible to customers – for example, if the existing counselling and mediation services were reduced or removed – opportunities for litigation would increase. This would result in additional family distress (particularly in children’s matters) and more private and public costs. This concern proved to be correct. Charges for voluntary counselling and mediation were imposed in mid-1997 and the Senate disallowed the legislation five months later. During the period in which the Court was required to collect these charges the counselling customer base decreased by 10% and the numbers of post-filing cases increased by approximately 25%. Such an increase in the numbers of people entering the litigation pathway carries with it an attendant risk that more cases will proceed to trial. I have for some time been concerned that the Court’s narrow definition of ‘mediation’and broad use of ‘counselling’fail to describe accurately the services it provides. Both here and overseas ‘mediation’is used as an all embracing term, which includes a number of processes ranging from the purist non-directive model to dispute resolution which falls short of litigation. ‘Counselling’is a rarely used term and ‘conciliation counselling’is also not commonly understood. The historical rationale for the Court’s adherence to the purist view was to minimise confusion between the services provided by its conciliators and mediators. There is some evidence to suggest that customers are confused by the nature of the differ- 19
The Family Court of Australia – annual report 1997-98 ent services and that men in particular are reluctant to attend counselling sessions because they see them as being intrusive and biased in favour of women. If an overly restricted use of terminology is obscuring the nature of our primary dispute resolution direction it may be time to reconsider the language we use, although no decisions will be made until extensive internal and external consultation has taken place. Proposals for reform of superannuation law In May the Attorney-General’s Department released a discussion paper which set out its proposals to amend the law relating to the treatment of superannuation in family law. This paper emphasised the uncertainty and inconsistency which result from the current treatment of superannuation and pointed out that this may lead to inappropriate outcomes. The major recommendation of the paper is that where parties are unable to agree about the division of the proceeds of superannuation the Family Law Act should be amended to include a presumption that the interest acquired by a spouse from the commencement of cohabitation to the time of separation should be divided between the spouses equally. The Court has responded to the paper. Its response recognises the need for the issue of superannuation to be considered but warns that any reforms must be accompanied by a consideration of all the financial provisions of the Act, given that widespread amendments in this area (except for superannuation) were contained in the Amendment Bill which lapsed with the calling of the 1996 election. The Court’s response also cautions that the adoption of a presumptive approach to the division of superannuation is inconsistent with the broad discretion available under the Act in relation to the property of parties. It sees the proposals as representing a significant – but unacknowledged – shift towards a community property approach rather than the current separate property regime which underscores the Act. Arbitration proposals For several years the Attorney-General’s Department and the Court have been engaged in discussions about the role arbitration might play as an alternative to litigation. The 1991 amendments provided for the inclusion of both mediation and arbitration, with the momentum to establish mediation resulting in the establishment of the Melbourne pilot shortly thereafter. The Court proposed a Court-annexed model of arbitration which would have allowed integration with its other PDR services. The Attorney-General’s preferred model is one which may be Court-referred, but which will essentially be provided outside the Court. There will be no opportunity for non-consensual, Court-ordered arbitration, no requirement for a rehearing by the Full Court on review of private arbitration, nor for a full rehearing on review of court-referred arbitration. Amendments to the Family Law Act and Regulations will be required and Rules will need to be drafted. I see the proposed model as being a step in the right direction, but the reduction in the Court’s ability to provide arbitration as it does in relation to other PDR services is likely to detract from its success and widespread use. 20
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Annual report [1997-98] - Family Court of Australia

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