27 November 2009 Executive Summary 4 Recommendations 11 Part 1: preliminary 18 1 terms of reference 18


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Applying the Terms of Reference involves some assumptions about the nature of the family law courts. The answers to questions such as what is ‘best practice’, and whether the court provide appropriate support for families at risk of violence will depend in part of what is seen as the nature and role of the family courts. In this discussion I will suggest that an understanding of the purposes of procedures in the family law courts requires a model of the courts that goes beyond the traditional ‘adversarial’ view of what courts do.55

The traditional (‘adversary’) model

It has been customary to think of courts in our legal system as based on ‘the adversary system’. In the adversary system, the initiation and control of the proceedings is largely in the hands of the parties. They essentially control what happens. Cases come before the court only when one person (the ‘applicant’) starts a case, seeking some remedy against another party (the ‘respondent’). It is for the applicant to decide what orders to seek, and what evidence and argument to put before the court. Similarly, it is for the respondent to decide whether to defend the proceedings, and what evidence and arguments to use.

Traditionally there is a single trial, or hearing, in which the evidence and arguments are presented, at the end of which the judge makes orders that dispose of the case and delivers a judgment that makes the necessary determinations of fact and applies the relevant rules of law, and thus contains the reasons for the orders.

Such proceedings are characterised as ‘adversarial’ because the conduct of the case is in the hands of the adversaries, the parties. It is sometimes said that the adversarial system is not really a search for the truth, only for the better of the two stories presented to the court. There is some substance in this. Because the judge does not conduct any independent inquiry or investigation, the court is indeed limited to hearing the stories the parties tell, and, while its task is to assess the plausibility of these stories, it has no way of knowing whether either is true: the court will never know whether there might have been other evidence, not called by either party, that would have led to a more accurate result. Thus if neither party presents the true facts, the judge might perform the task impeccably, judging the two cases presented to the court, and yet reach a result that does not reflect what is actually true.

The court needs to make arrangements for cases to come on for a hearing: ‘case management’. Under the adversary model, case management is directed to ensure the orderly disposition of cases, ensuring, for example, that parties are not taken by surprise, that cases are heard in appropriate sequence (urgent cases may be given priority) and that the court’s time is not wasted. To ensure the court’s time is not wasted, one finds systems of pleading or other measures to ensure that by the time the case come on for hearing it is clear what the issues are, and each party has had a chance to assemble their evidence and argument. Also, especially in recent times, the court encourages settlements, for example by supporting mediation and other dispute resolution techniques. Within the adversary model, a settlement represents an excellent outcome: it is what the parties want, and the case gives way to allow the court to deal with other cases that require adjudication. In recent times, there has been increasing emphasis on making efficient use of the court and its resources.

Based on this model, one might say that the objective of family courts, like that of other courts, is to ‘facilitate the just, quick and cheap resolution of the real issues in the proceedings’.56

Features of the Family Law Courts that do not entirely fit with the adversary model

The adversary model just summarised does not entirely fit the role of the family courts in children’s cases. There are at least four reasons for this: the ‘paramount consideration’ principle, the idea that the court process should not harm children or parties, the need to address the process of family separation and its consequences, and the role of the court as part of a system of support for families.

First, the principle that the child’s best interests must be the paramount consideration means that the court has a commitment to the interests of a person, the child, who is not normally57 a party to the proceedings. This contrasts with the adversary model, in which the main issues relate to the competing interests claimed by each of the parties. This principle has profound implications for the way the court handles the case. For example, it means that the court is not bound by the proposals advanced by the parties. It has an obligation to consider other possible outcomes, if it thinks some other outcome might be better for the child.58 Similarly, whereas under the adversary model the court does not query applications for consent orders (because the court normally assumes that the parties are the ones to determine what is in their own), under the Family Law Act 1975 the court still has an obligation to treat the child’s best interests as paramount, and may refuse to make a consent order that it considers would not be in the child’s interests.59

Second, the emphasis on the child’s interests also leads to the idea that the court process itself should benefit children, or at least should damage them as little as possible.60 Consistently with this, there are restrictions on the extent to which parties can have children interviewed and examined for the purpose of litigation. Again, one of the purposes of the use of family consultants, and of the less adversarial proceedings, is to help the parties identify and focus on the interests of the children, rather than their own conflict. These processes often include a deliberately educative component, which may involve confronting the parents with information about the child’s views and understanding of the situation, and may involve helping parties to understand more general facts about child development and children’s needs.

The idea that the process itself should not harm the children implies also that the process should not harm the parties, since the children’s interests will normally depend to a large extent on the parties’ continuing capacity for good parenting. Thus the process itself should do whatever is possible to help reduce conflict between the parties and avoid damaging them.

Third, whereas on the traditional adversary model the court’s essential task is ended by the court making a single final adjudication of the rights of the parties, family courts have to deal with a continuing process for the family. After the ‘final orders’, the parents and children normally remain involved with each other, and will have to continue to deal with difficulties and differences. A number of features of the present system illustrate this point. When the case first comes before the court, for example when it deals with interim matters, the purpose of the exercise is not simply to prepare for the final hearing: the child’s best interests remain paramount, and the court has to consider what orders, dealing with the period leading up to the trial, will be best for the child. Similarly, sometimes in difficult cases the court will adjourn a case in order to review at a later time how particular arrangements have worked. The court may also order the parties to attend family counselling, family dispute resolution and other family services.61 Indeed, the court may require the parties to attend post-order programs, designed to assist them in their continuing parenting when the court’s orders are in operation.

Fourth, the family courts do not stand alone, but are increasingly thought of as part of the ‘family law system’. Other parts of the ‘system’ include the community-based dispute resolution services, notably the Family Relationships Centres established and funded following the 2006 amendments, the state and territory child protection departments, various services for families and children such as the child contact centres, the Australian Federal Police and state and territory police, and so on. The work of the ‘family pathways’ groups in seeking to help those working in different parts of the system understand each other and work together is a manifestation of this way of thinking, which stems in part from the ‘Pathways’ Report of 2001.62 As it was said in the Family Relationship Services Australia submission:

We recognise that the Family Courts are a central and significant component of the family law system but they do not operate in isolation.

The capacity and performance of the broader service system has a significant impact on the outcomes for families and children who have contact with the court. This includes the range of services that collectively make up the ‘Family Law System’ encompassing the legal aid commissions, community legal centres, private practitioners, government-funded family relationship services and government agencies. Related service systems including law enforcement, child protection, mental health and drug and alcohol services also contribute to improving the safety and wellbeing of children and parents affected by family violence.

The features that set the family courts apart from the adversary model are emphasised in Division 12A of the Family Law Act, which was inserted into the Act by the amendments of 2006. These provisions involve what is generally known as the ‘less adversarial’ approach.

The key section for present purposes is s 69ZN, which says that the court must give effect to certain principles when ‘performing duties and exercising powers’ and when ‘making other decisions about the conduct of child related proceedings’.63 The principles are:

Principle 1: ‘the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings’.

Principle 2: ‘the court is to actively direct, control and manage the conduct of the proceedings’.

Principle 3: ‘the proceedings are to be conducted in a way that will safeguard:

(a) the child concerned against family violence, child abuse and child neglect; and

(b) the parties to the proceedings against family violence’.

Principle 4: ‘the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child focused parenting by the parties.

Principle 5: ‘the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible’.64

The family law courts’ objectives

For these reasons, the traditional ‘adversary’ model does not give an adequate idea of what the family courts are and how they work. Having regard to the features indicated above, the basic objectives of the family courts in relation to children’s cases could be usefully summarised as follows:

1. To facilitate the just, quick and cheap resolution of disputes about children; and

2. To provide authoritative support for children experiencing conflicted parenting.

The first of these objectives reflects the traditional role of the court, and picks up the language of the Civil Procedure Act 2005 (NSW).

The formulation of the second objective is intended to recognise the four elements described above. Some further discussion of this second objective is necessary.

The reference to providing support to children reflects the ‘paramount consideration’ under the Family Law Act 1975. This is also emphasised by Principle 1 and Principle 3 of Division 12A, quoted above. Providing support could consist of a single decision, or a series of decisions over a period of time, and is not confined to the adjudication of disputes. It would include, for example, an order requiring the parties to attend some external counselling or other service, or an order appointing an Independent Children’s Lawyer. The idea that the court should actively manage the proceedings is a strong theme of Division 12A, stated clearly in Principle 2.

The adjective ‘authoritative’ indicates that what distinguishes the role of the court from that of other agencies is its power to make legally binding orders.

The term ‘conflicted parenting’ emphasises that it is the conflict between the parents that has brought the matter to the court and may continue to be the problem. The adjudication of particular disputes may in some cases finalise the matter, and remains a vital part of the courts’ role, but more often the court has to deal as best it can with the underlying problems, which can compromise the parents’ ability to provide for the child’s developmental needs.

The formulation does not expressly refer to the courts being part of a system, but it is intended to be implicit. It is obvious that authoritative support of children experiencing conflicted parenting will be more likely to contribute to children’s interests if it is done as part of a system of support for families.

This analysis of the current role of the family courts will, I hope, assist in the identification of possible improvements to the present system.

Before leaving this topic, two observations should be made. First, it foreshadows the position adopted later in this Report, that there is no real difference in the roles of the two courts, and in principle there seems no reason why there should be different procedures in each. Second, it is a description of the existing role of the courts. It is a question of policy how far the courts should be expected to engage in authoritative support of children in conflicted parenting, and what resources and facilities this task might require.

The purposes of practices and procedures in the family law courts

It seems useful to identify the purposes of practices and procedures in the family courts. Seven purposes can be identified, the first three generally reflecting the first of the two objectives (the just, quick and cheap resolution of disputes) and the remainder having more to do with the second (the authoritative support of children).

1. Defining issues and identifying evidence

As in all civil justice courts, there are rules about the way proceedings are commenced and what each party needs to do thereafter. They provide for the applicant to file some document setting out the nature of the application, for that to be served on the respondent, and for the respondent then to file and serve a document setting out the respondent’s position: thus each party knows what orders the other seeks.65 In addition, there are procedures for parties to file affidavit evidence: thus each party knows the nature of the evidence each party will use. There will also be opportunities for discovery, for documents to be subpoenaed, and for other measures taken to ensure that (to put it simply) each side puts their cards on the table.

Ideally, this process will lead to a situation in which there is no misunderstanding about what each party wants, and irrelevant and inadmissible material is eliminated. As lawyers say, ‘issue is joined’. Ideally, this situation should maximise the possibilities of the parties reaching agreement, since as far as possible the parties know where they stand.

2. Setting a timetable

Second, there are procedures having to do with setting a timetable for the conduct of the case. This process includes identification of cases that have priority and aspects of cases that need urgent consideration (for example, an urgent application to prevent a party from taking a child overseas).

3. Facilitating settlement

Third, there will normally be processes that encourage the parties to reach agreement. In the family law system, there are measures encouraging parties to reach agreement even before they approach the court. In addition, in family law as in other areas there are mechanisms that encourage settlement at every stage as the case progresses, up to and including the final hearing.

4. Risk assessment

At present, the procedures do not specifically deal with risk assessment. However there are special procedures dealing with certain types of risk, namely the risk of family violence and child abuse that might flow from parenting arrangements. There are also measures in place to deal with risk to persons attending court.

As will be discussed, it is an important question of policy whether this objective should continue to be limited to these categories of risk or extended to a process of risk assessment generally.

5. Early intervention

Another objective of some of the existing procedures could be described as ‘early intervention’. That is, the court takes some early initiative to attend to the best interests of the child, even if this is not necessarily applied for by one of the parties. An example would be notifying the state or territory child protection department where there are concerns about a child’s safety.

Early intervention is different from merely facilitating a settlement, since the focus is on the child’s best interests, not the reaching of agreement in itself. In many cases, of course, the two objectives coincide, since it is normally in the child’s interests for the parties to agree on arrangements. A procedure whereby parties are referred to counselling could be seen as combining the two objectives: the counselling would be intended to help the parties understand and focus on their children’s needs and interests, and, if possible reach an agreement that would benefit the child.

6. Evidence gathering

The traditional role of the courts is to receive evidence (from the parties), not gather it. But some of the rules and procedures of the family law courts go beyond this and can only be explained by reference to the court seeking to gather some evidence that is important for the child’s interests, whether or not the parties seek to put it before the court. This objective underlies some of the powers of the judicial officer under Division 12A, and explains some of the provisions (and protocols) that bring to the court evidence from outside agencies, such as the state and territory child protection departments.

7. Referral and support

Finally, it is one of the objectives of the system that the court should provide appropriate referral and support for family members who come to the court. This objective is more evident in matters of practice than in the written rules of procedure.

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