1.4 A THEME FOR REFORM: DISCLOSURE, UNDERSTANDING, ACTION
A theme that recurred in the course of the discussions and reading during the Review was that family violence must be disclosed, understood, and acted upon. This seems true at every point in the family law system – whether we are thinking of a lawyer interviewing a client, a dispute resolution practitioner dealing with a new case, or the work of a counter clerk at a family court, or of a judicial officer. In each case a proper response requires that the violence be disclosed, understood and acted upon.
This simple analysis suggests a useful approach to reviewing the various components of the system, and the system overall: how adequately does each component foster disclosure and understanding of family violence, and contribute to an appropriate response? As will be seen, this seems a fruitful question to ask about the legislation, the various rules and procedures of the system, and the way individuals go about their work in family law.
Each of the three steps presents a challenge for the system. There are factors that tend to inhibit victims of violence from disclosing it at all. When it is disclosed, understanding what is involved may be no easy task – family violence takes many forms, and it is easy to miss, or misunderstand, what is going on. Most obviously, even when family violence is disclosed and understood, the task of responding appropriately to it can present very difficult choices.
The three step analysis is not, of course, the whole story. The family law system needs to focus on the child’s interests, distinguish between true and false claims and denials, and provide affordable and expeditious justice. I hope these and other matters will be given appropriate consideration in the Report. Nevertheless, improving the family law system in this area requires that we work towards the goal of ensuring that when family violence occurs, it is disclosed, and understood, and that there is an appropriate response.
Part 2: Practices and procedures of the federal family courts in cases with family violence issues
This Part is primarily concerned with what the Terms of Reference refer to as the appropriateness of the practices and procedures relating to matters before the federal family courts where issues of family violence arise, and ‘whether the legislation and procedures support best practice for handling family violence matters’.
It is a somewhat complex topic. The relevant rules and procedures are contained not only in the Family Law Act 1975 but also in the rules formulated for each of the two courts; and it will also be necessary to consider matters of policy and practice relating to both the Family Court of Australia and the Federal Magistrates Court. Although issues of family violence can arise in other cases before the family courts, the focus here will be on parenting proceedings – that is, proceedings under Part VII of the Act in which at least one party seeks a parenting order. Parenting orders may include various aspects relating to the care of a child, such as with whom the child is to live, spend time or communicate and the allocation of parental responsibility for the child. The orders may also include procedural matters including processes for resolving disputes about the effects of the order.37 Orders can be made following adjudication, or - as the majority are - with the parties’ consent.
It will be necessary to discuss the procedures that apply generally to parenting cases as well as the specific rules that apply to cases involving issues of family violence.
Because of the complexity of the topic, a detailed account of it is set out in Appendix 3 (Family Court) and Appendix 4 (Federal Magistrates Court). In this chapter it will be sufficient to discuss the main issues; readers who wish to know more detail may consult these appendices.
The Family Court of Australia and the Federal Magistrates Court
The ‘federal family courts’ referred to in the Terms of Reference are the Family Court of Australia and the Federal Magistrates Court, both of which exercise jurisdiction under the Family Law Act 1975 to hear family law matters.38 They are the main courts in which parents may seek judicial determination of the arrangements for the care of their children following family separation.39
The Family Law Act sets out in Part VII the legislative requirements applicable to parenting proceedings, including the principles to be applied and some matters relating to procedure. It applies whether the proceedings are in the Family Court or the Federal Magistrates Court.
More detailed aspects of procedure are dealt with in the Rules made under the authority of the legislation.40 In the case of the Family Court, the Rules are the Family Law Rules 2004; in the case of the Federal Magistrates Court, they are the Federal Magistrates Court Rules 2001.
Because the Federal Magistrates Court is not a specialist family court (it also deals with other types of cases), its Rules deal with matters other than family law cases. There is however a part of the Rules that specifically deals with family law proceedings, and on some matters the Federal Magistrates Court Rules adopt some of the rules in the Family Law Rules 2004 (ie the Rules that apply in the Family Court). In addition, the Family Law Rules 2004 will apply to fill in any gap that might be left in the Federal Magistrates Court Rules.41
Although each court has jurisdiction to deal with parenting matters, in practice arrangements exist under which, broadly speaking, the more complex cases go to the Family Court (the legislation provides for cases in one court to be transferred to the other). Applicants are instructed not to file a parenting matter in the Family Court unless it is ‘of a complex nature requiring the determination of the Family Court of Australia’.42 Although ‘complex nature’ is not defined, it probably refers to cases involving multiple parties, for example where child welfare agencies are involved, cases where there are the allegations of sexual abuse or serious physical abuse of a child, ‘family violence and/or mental health issues’, or cases where a party seeks orders preventing a parent from having any contact with a child, and cases where there are ‘multiple expert witnesses, complex questions of law and/or special jurisdictional issues, international child abduction under the Hague Convention, special medical procedures and international relocation’.43
The Family Court of Australia (the Family Court) was established as a superior court of record in 1976 by the Family Law Act 1975. Appeals from a judge of the Family Court go to a Full Court of the Family Court, normally consisting of three judges;44 there can be a further appeal to the High Court of Australia in the rare cases where the court grants special leave.
The Federal Magistrates Court was established under the Federal Magistrates Act 199945 and commenced operation on 23 June 2000. Appeals from family law decisions of Federal Magistrates go the Family Court, where they are heard either by a single judge or a bench of three. The ‘objects’ stated in the Federal Magistrates Act 199946 and in the Rules,47 emphasise that the court is to be informal, fast and cheap, and is to encourage settlement. These themes are echoed elsewhere.48 There is no separate statement of objects in relation to family law matters.
The work of the Federal Magistrates Court is about 90% family law,49 but it also hears applications relating to a broad range of federal laws including child support, bankruptcy, migration, administrative law, human rights, trade practices, and intellectual property. In practice, some Federal Magistrates specialise in family law while others hear matters across a range of federal law. The Federal Magistrates Court now deals with the majority of family law matters.50
As a result of cooperation between the two courts – which have had to share resources since the Federal Magistrates Court began – and in particular a recent development called the ‘combined registry initiative’, the two federal family law courts now operate a single registry, in which all proceedings before the two courts are commenced. The Initiating Application (Family Law) now provides for parties to elect into which court the application is filed. The federal family law courts have recently entered into a Memorandum of Understanding (MOU) about sharing administrative resources and the working relationship between the two courts.
At the time of writing this Report, the Federal Magistrates Court and the Family Court of Australia are separate courts. In May 2009 the Government announced that it accepted the recommendation of the Semple Committee that the two courts should be merged into one Family Court of Australia, which would have two tiers, the lower tier replacing the Federal Magistrates Court. This possible development does not need to be considered in any detail in this report, since the issues relating to family violence, and the questions relating to the most appropriate procedures, will remain the same whether there is to be one court with two divisions or two separate courts (although no doubt the implementation of any recommendations would require different mechanisms).
The incidence of family violence concerns in cases coming before the Family Law Courts
Many of the parenting cases coming to the family courts raise issues of violence (often combined with other issues, such as the impact of mental illness or substance abuse). In 2003 a study by AIFS of 300 cases found that more than half the cases coming before the family courts were found to involve issues of violence.51
As might be expected, the proportion of cases involving violence was higher among the cases that needed adjudication, and many of the cases involved what the researchers considered allegations of ‘severe’ violence. The frequency and severity of allegations lead the researchers to conclude that for cases litigated in the Family Court ‘allegations of violence appeared to be “core business”’.52 The incidence of violence issues in Federal Magistrates Court cases was somewhat lower (62 67%) than in the Family Court (79%), but was still well over half the cases requiring adjudication. Allegations of child abuse frequently accompanied allegations of family violence.53
The researchers noted that caution should be applied when drawing inferences across the family law system from a study of 300 cases,54 but the research (consistently with the anecdotal evidence I received during this Review) indicates that issues of family violence (and often associated child abuse concerns) form a significant part of many parenting cases that come before both the federal family law courts.
The high number of cases involving violence issues is relevant to this Review. It means, in my view, that it would be unrealistic to treat issues of violence as if they were exceptional. The implications of this will be further examined elsewhere in this Report.
Differences in procedures between the Federal Magistrates Court and the Family Court of Australia
Although the Family Law Act applies to both courts, the rules applicable are not identical. Details are set out in Appendices 3 and 4. The more important differences appear to be the following.
In the Family Court when applying for final orders parties are not permitted to file an affidavit in support of the application. Instead they must complete a questionnaire. The filing of affidavits occurs at a later stage. Affidavits are filed, however, in relation to interim applications. By contrast, in the Federal Magistrates Court affidavits are normally filed together with the application.
In the Family Court, initial procedural matters are normally handled by registrars. In the Federal Magistrates Court, cases are initially allocated to a Federal Magistrate, who will then normally remain in charge of the case until it is completed.
The ‘less adversarial trial’
Although Division 12A applies to proceedings in both courts, the particular practices known as the ‘less adversarial trial’ in the Family Court are not generally adopted in the Federal Magistrates Court. In the Federal Magistrates Court, each Federal Magistrate handles the case as he or she sees fit, without necessarily adopting any particular practice; although, of course, applying the provisions of Division 12A.
Similarly, there is no equivalent in the Federal Magistrates Court to the ‘Child Responsive Program’ that has been developed in the Family Court. In the Federal Magistrates Court, litigants are frequently referred out to dispute resolution, which is a confidential process. Under the Family Court of Australia’s Child Responsive Program, the parties’ interactions with the family consultant are not confidential, and reference can be made to them later if the Family Consultant gives evidence.
Different rules apply in relation to consent orders. In particular, r10.15A of the Family Law Rules 2004 (which requires parties to explain how orders attempt to deal with the issues in child abuse cases) does not apply in the Federal Magistrates Court.
Family consultants and other resource issues
It appears that the Federal Magistrates Court may have less access to family consultants. On this and other resource issues, it has not been possible to identify all the facts and issues. It does appear, however, that in practice the Federal Magistrates Court does not often have family consultants available to do the work that they do in the Family Court ‘less adversarial trials’, and it has to rely more on external sources for family reports.