Wednesday, 30 May 2018

6PR – Mornings with Gareth Parker



Subjects: Family Court Reform

GARETH PARKER: Let us begin, though, with a regular guest who usually joins us on a Thursday. We've asked him to come on a day earlier today because he's got big news about changes to the way the family law system works. The Attorney-General is Christian Porter.

Christian, good morning.

ATTORNEY-GENERAL: Morning, Gareth.

Yeah, so, biggest changes to the Federal Court system in a couple of decades. It's a very substantial reform and designed to try and make life easier for people during very hard periods in their lives.

GARETH PARKER: And it is a hard period. Anyone who's been through it, whatever side of it you're on, knows that it is stressful, it can be expensive, and it can certainly be very time consuming. What's the goal here, the main goal of these changes?

ATTORNEY-GENERAL: Well, WA maintains its own family law system effectively, but in the rest of Australia, there are two courts that presently deal with family law matters, the Family Court and the Federal Circuit Court. And having two courts that deal with matters, for 10 years has been the subject of criticism and complaint, and suggestions that you have to have a single entity. Because what happens is that people list in one court and get bounced around like family law footballs from court to court, which wastes their time and money, it delays matters.

And over time, what's happened is the waiting period before your matter is finally resolved has blown out, transfers have caused massive wastes of time, and a backlog has developed. And ultimately, if you're in this sort of situation, which many people would have experienced out there, as your listeners first hand, or have got family members who have been through it or are going through it, it's a miserable time in your life. And if you're in court for longer than you need to be, and the longer the resolution takes, then you're in each other’s faces and that is difficult for the couple, it's terrible for the kids.

So, this reform is designed to have one single court, a single point of entry, a simplified single system of rules and forms and procedures, that will cause waiting times to start to reduce, the backlog to be dealt with, and we hope somewhat better outcomes for everyone who's using the courts.

GARETH PARKER: So, how long on average does it - and obviously cases are different, there's simple one, there's complicated ones, but how often, on average, does it take to get through the system, and what do you hope to cut that by?

ATTORNEY-GENERAL: Well, at the moment there are 22,000 matters listed for a final order, for a final resolution, 22,000-odd a year. And there is a backlog now of 21,000 cases, which has grown up over time. And we think that …

GARETH PARKER: So, that's about a year late then…?

ATTORNEY-GENERAL: Yeah, effectively. And, there are a small number of cases that have been outstanding for many years, and they're often very complicated and litigious matters. But what we are wanting to achieve, and what our goal is, is that when these reforms get fully bedded down, and that will take some time, is to move up to 8000 more matters through a year. So, to hear and resolve 8000 more matters.

The goal here is to resolve more matters a year than are being listed. It's a bit like a one-day cricket run rate; you can't let the run rate fall too far behind because that's how you get this backlog.

And in recent years, the waiting time to trial has blown out. So, for instance in the Family Court of Australia, the waiting time to trial not that long ago was 11 months and it's now gone up to 17. And that's a big difference because that's six extra months that people in these really difficult circumstances aren't able to resolve, move on, and start their life again after the relationship breakdown. So, it's very important reform, and we think that having a single point of entry, a single court, single set of rules.  I'll give you one example,22,000 matters are listed every year for final resolution; 1200 matters get transferred from one court to the other, and some people wait on average 11 months to have a transfer from one court to the other, and then they have to start again, literally start again …

GARETH PARKER: And join the back of the queue.

ATTORNEY-GENERAL: Yeah. New court, new rules, new forms.

So, imagine the amount of money and time and angst that that causes for that family, not the least of which is a massive waste of very expensive and highly trained judicial resources, which we can better apply to dealing with more first instance matters. So, this system has been crying out for reform for over a decade. And the Prime Minister, myself and others have been working very hard to try and make it a better system for the families using it.

GARETH PARKER: So, one thing I am interested in, you did make the point - and this is right - that the West Australian Family Court, whilst it operates under the federal law, has its own sort of system. How is the West Australian system captured by all of this or is it not captured by all of this?

ATTORNEY-GENERAL: Well, it's not immediately impacted. But there can be a long run benefit for West Australians using the West Australian system. And that is this new Federal Court that we're creating, we're also giving them $4 million to totally redraft their rules, procedures, practice directions, forms from the ground up for this new entity. And what historically has happened is that the WA court system has watched any reform that's happened federally and usually they adopt a very high percentage of the reforms in process and procedure and rules and practice management that occurs. So, there's a good opportunity for WA to dovetail off this reform and make itself an even better court, but largely the West Australian jurisdiction is kind of unique.

GARETH PARKER: Alright. So, there is a backlog in WA as well, I don't know if it's of the same scale as what you've described. Is that, I mean, whose problem is that, so to speak, to try and bring that down, is that a State Government issue?

ATTORNEY-GENERAL: It's a shared problem. And we're always looking for ways to try and get the most out of the resources that exist in the courts, and obviously always reassessing the adequacy of those resources. But one of the things that I have found going through this process in great detail, and it was process started by my predecessor George Brandis, is that some people will say the solution is just more judges. But applying more very expensive judicial resources to a system that's fundamentally dysfunctional in terms of its structure and the waste and inefficiencies and duplication overlap you get by transfers and a failure to properly triage and adequately assess the seriousness of cases, and then properly apply the right judicial resource to the right case, just isn't fixed by more of the same. Which is why we've headed down this very fundamental path of reform and merging two courts into one and giving Australians a simple pathway into the system, and we hope a much shorter experience inside the system.

GARETH PARKER: Okay. Separately, George Brandis was also talking about perhaps alternatives to in-court litigation to resolve matters. Where are you at in terms of that issue? Because it does seem to me that, if you can keep people out of courts as much as possible, if you can negotiate outcomes - not always possible, get that, but if you can somehow figure up lower costs, less confrontation or less adversarial methods of resolving these things, then that is in everyone's interests.

ATTORNEY-GENERAL: Yep. So, there's about 46,000 divorces in Australia every year, and happily that number's kind of stabilised and actually come down a bit in recent years, and there's any number of thousands of de facto couples that separate, and it's actually hard to determine how many. But 70 per cent of all of the couples whose relationship ends don't come into the court system. So these reforms do deal with those 22,000 final order listings that come into the court system.

But you're right. Having more people able to deal with their relationship breakdown outside of the court environment, by consent, negotiation, mediation, agreement is very important.

Now, we already spend a lot of money, particularly through the legal aid commissions in every state, who do a great job in working out those types of mediated settlements. The next step along that type of path and theory is what we're calling parenting management hearings. They're actually conducted inside the court, but what they're meant to do is have a non-litigious process inside the court where a panel of experts can help mediate agreements between parties, which again we think will try and avoid these long and costly experiences, which often end up in a trial, which is, of course, a very costly exercise. So we're constantly looking for new ways to keep the number of people up, who are able to resolve these things without a trial, or without even going to the court.

But ultimately, there are always going to be people who, because of disagreements, will end up needing a court and needing a trial, and our job as a government is to make that they're not spending 17 months waiting for that resolution, but a much shorter period of time, which is better for them and their kids.

GARETH PARKER: As the chief law officer of the country, as Attorney-General, should it be legal for sitting MPs to be able to collect money from media outlets for interviews?

ATTORNEY-GENERAL: Look, I don't, that's a contextual question about a whole range of different circumstances, and whether or not you need a law that says that you shouldn't do it- you know, I wouldn't do it. I think it's pretty unusual, and obviously you're referring to Barnaby Joyce and the baby situation. But look, I can earnestly say to you that spending my time on those 22,000 families who need better services in courts……

GARETH PARKER: No, I get that, I get that, but - but - people, including pretty much every one of you and your colleagues have said: well, I wouldn't do it. Should anyone be able to do it? Is this really what we expect of elected people?

ATTORNEY-GENERAL: As the first law officer of Australia, I don't think you pass a law in every instance where someone may have not exercised perfect judgement. All of us are responsible for exercising judgement, and I'm not in the business of passing a law to try and make perfect people.

GARETH PARKER: Have you seen the promo?

ATTORNEY-GENERAL: No, I haven't actually.

GARETH PARKER: Are you going to watch the interview?

ATTORNEY-GENERAL: Mate, I think I might try and get on Foxtel or Sky and watch some cricket overseas instead.

By the way, we haven't had a chance to talk about Justin Langer's appointment.

GARETH PARKER: Quite right.

ATTORNEY-GENERAL: It's not terribly newsworthy now, but I've got to say, I reckon Australian Cricket is going to turn a corner in some great hands with that bloke. He's fantastic.

GARETH PARKER: Yeah, I agree with you. Good deflection. Appreciate your time this morning.

ATTORNEY-GENERAL: Excellent. Thanks mate.

GARETH PARKER: Christian Porter, the Attorney-General. That was a leg glance if ever I've seen one, extending the cricket metaphor.