LSB November 2018_Web

The PwC review was commissioned on
7 March, 2018. It is dated April, 2018.
It wasn’t released to anyone except the
Government until August, shortly before
the Bill was tabled and the version that was
released was redacted. In preparation of the
review, PwC was provided with statistics
from both courts. They did not consult
with the profession at all nor with any other
participants in the family law system.
FLS and LCA have serious reservations
about the reliability of a number of the
“findings” in the report, which are said
to be the evidentiary basis supporting the
proposal. The report contains some basic
factual errors, jumps to conclusions, and
suggests some “efficiency opportunities”
which are “likely” to reduce delays. But
even the report highlights that a substantial
amount of further work is required to
analyse whether the recommendations in
the report might achieve its aims.
And here’s a groundbreaking excerpt,
well into the report at page 69.
“Stakeholders to the family law system should
be consulted on specific proposed changes to
understand where parties will be most affected
and if there are particular barriers to change
requiring action”.
Well, how about that? Asking those who
use the system?
And what was the Government’s reaction
when LCA proposed exactly that – some
proper time for consultation? Furious
opposition, with demands that the Senate
Committee charged with examining the
Bill produce its report in October so that
the Bill would come into force as of 1
January, 2019.
THE REACTION FROM THE COURT
It has been broadly reported that a
substantial number of the FCoA justices
(none of whom were consulted about
the proposal, or had any involvement
in the PwC review) issued a statement
in response to the PwC report and the
proposal generally. The Chief Judge of the
Family Court of Western Australia, Justice
Thackray, who had been a highly regarded
and long-serving member of the Appeal
Division, was removed from his role earlier
in the year, and has now retired completely
(despite being well short of his compulsory
retirement age). Readers will know that it
is remarkable for a group of sitting judges
to issue a public statement. It speaks of a
grave concern for such a step to be taken.
One can only speculate as to how many
of the current FCoA justices, who have
completed their requisite years of service
to become eligible for a pension, would
choose to remain in the new generalist
court, as the proposed “Division 1”
gradually atrophies.
CONSULTATION WITH THE PROFESSION
This will be a very short paragraph. There
was none. Not from the Government
since this plan was formed (earlier this
year). And not from PwC in preparing its
review. And not prior to the release of
the Bill, until a few days before (and then
embargoed).
WHY IS THE PROFESSION CONCERNED?
The usual argument that Governments
launch against lawyers who oppose
legislative change is that we are acting in our
self-interest. That we are “protecting our
turf ”. That we are really a union looking
after our members.
That is not why the Family Law Section of
the Law Council are opposing the proposal.
Because in reality it won’t actually affect us
in whether we still have work to do. There
will still be a Court, the law remains the
same, and the number of clients needing
our help won’t diminish. But in our view the
system will be worse off – and it will be our
clients paying the price.
COSTS PENALTIES FOR LAWYERS
The Bill introduces some provisions
to allow the Court to make costs orders
against lawyers, and the Attorney-General,
and some media reports, have sought to
argue that this is a positive change which
will reduce costs for litigants.
November 2018 THE BULLETIN 7