Wednesday, 30 May 2018

ABC Adelaide – Mornings



Subjects: Family Court Reform

DAVID BEVAN: Well, let's welcome Attorney-General Christian Porter to our program. Good morning to you.


DAVID BEVAN: Can you explain what changes are you making to the Federal Court and the Family Court?

ATTORNEY-GENERAL: Well, the simplest summary I can give is to say that we are turning two courts into one, creating a single new court that will be called the Federal Circuit and Family Court of Australia, and that new court will be tasked with designing for itself a simplified, single set of rules, procedures, case management practice direction, and the goal here is to have more Australian families spend less time in court, less money on legal fees, and get quicker resolution of family law matters, during which is obviously one of the most difficult times in any couple's life.

And what we've experienced over the last decade of having two courts dealing with the same types of matters and having people bounce between the courts like family law footballs and delays, time to resolution has blown out and that means more legal fees and more angst for the parties involved.

DAVID BEVAN: But how will combining two courts and putting it into one, how is that going to make the system more streamlined?

ATTORNEY-GENERAL: I'll give you this example. There are 22,000 matters listed for what's known as final order resolution, so listed for a final order every year. And of those 22,000, 1200 end up being transferred from one court to the other, either to or from the Federal Circuit Court or to or from the Family Court and people can wait on average 11 months to have their matter transferred out of one court into the other court. And then when they're transferred, they start again in a new court from scratch, with a new set of rules, forms, processes, procedures.

So just imagine the angst it causes for those 1200 families, the time, the cost, the waste of judicial resources.

So by having a single point of entry with proper triage, with proper analysis and consideration of the complexity of matters, having a very detailed allocation of the appropriate matter to the appropriate judge, having better case management going through, having no transfers having appeals now under this system to be heard by a superior court in the Federal Court, and freeing up judicial resources inside the new court to hear first instance coalface trials, means that we're going to be able to make the absolute maximum use of very highly skilled and trained judges, and we'll be able to move families through the system faster and with less grief

DAVID BEVAN: Cases, though, that are bouncing between the Family Court and the Federal Court, am I right in thinking they would be the more complex cases?

ATTORNEY-GENERAL: Not necessarily. In fact, sometimes it's because and often it's because a mis-assessment has been made earlier about the complexity. What the two courts do at the moment is they make a determination about where matters should go based on what you could call a four-day protocol. They ask whether the matter will go to trial, and if so, whether the trial is likely to be more or less than four days. And that's a very unsophisticated measure of complexity. You're better off when you've got 22,000 matters, spending more resources upfront at the earliest possible stage to analyse the complexity based on a range of criteria of a matter, and then allocate that very early to a judge who will hear the matter right through to its conclusion. And these are the types of efficiencies that we think can be driven in to a structural change of having one single court, one single set of rules, procedures, which are vastly improved from the dual set of rules and procedures that we've got at the moment.

DAVID BEVAN: See, I'm just wondering if the, and what you're saying, it sounds great, but I'm wondering if the majority of people who are listening to this conversation right now who find themselves in the Family Court, or frankly, who have given up, thinking: what's the point of even trying to sort out the trouble that I've got with my ex-wife, husband, I just won't even bother, I've resigned myself to our situation. Those run of the mill cases, basically what they need is not a dispute over a jurisdiction. They just need a judge available to sort out a simple matter of custody. Do you see what I'm saying? These run of the mill cases.

ATTORNEY-GENERAL: Well, of course, and that's precisely what these reforms are designed to achieve. I'll give you another example, David, so depending on whether or not at the moment you end up in the Federal Circuit Court or the Family Court, one of the courts; you're twice as likely to have twice as many interlocutory and intermediary appearances before the matter's finally resolved. Now, that's very strongly indicative of the fact that we can better design the system of rules and processes so that people don't have to keep attending the court at multiple instances before there's actually a final resolution. And so with things like custody, what this reform is designed to do is not only ensure that people get allocated to the right judge as early as possible but their cases are managed in a way that there's less time physically spent in court, less court appearances and that matters are sorted out as much as humanly possible by consent. So, those are the types of reforms that will actually make for a far more efficient system.

DAVID BEVAN: Will you be putting more judges on the bench to hear more cases?

ATTORNEY-GENERAL: Well, what we are doing is by moving the appeals up to the Federal Court, we're able to utilise eight existing judges, who at the moment are dealing with appeals in the Family Court of Australia, and have them predominantly dealing with first instance trial matters. What you've described is the run of the mill matters that need sorting out. So, by virtue of this reform we're able to free up the resources that already exist in the court, and that will make a very considerable difference. That alone, we think, will allow us to move 1500 more matters through the court to final determination every year, which contributes to us being able to start to turn around the increase in wait times and start eating into the backlog of cases.

DAVID BEVAN: I imagine you're going to need some serious legislation to get these changes through, so when will that happen, and when do you think the changes will actually occur so the people turning up will see a difference in the court room?

ATTORNEY-GENERAL: We're going to - the goal is to move legislation through this year, and to have the new court set up to be operational on 1 January next year. And right now, we've got people who will be working in the courts on designing a single set of rules and that will continue after the court is created on 1 January next year. So, it will take a while for the reforms to bed down but when they become fully mature, and the entire system is operating, all of our analysis tells us that we'll be able to move thousands more cases through more quickly each year which would decrease the waiting times, and which will eat into the backlog.

DAVID BEVAN: It breaks your heart, doesn't it, the Family Court? It's…

ATTORNEY-GENERAL: I mean, 22,000 matters listed, that represents 40,000 plus Australians. And anyone who's been through it or knows people who've been through it, know that it's a completely miserable time in peoples’ lives. And what the system has done by having two courts and duplication overlap, confusion, inefficiencies, is it's just compounded that misery. And so, the Turnbull Government has very much focused on the way in which we can engage in structured law reform to actually help people at the coalface of the system, which is what this is.

And people have been talking about a merger of these two existing courts for more than a decade. But finally the work has been done to make sure that we do it in a way that increases efficiency and can decrease the difficulties and angst of the families in the system.

DAVID BEVAN: Do you have the judges on side?

ATTORNEY-GENERAL: Well, I have consulted, at exhaustive length, with the Chief Justice of the Federal Court, the Chief Judge of the Federal Circuit Court, the Chief Justice of the Family Court. We've gone through this forward and backwards.

I mean, obviously at the end of the day it's the Government's decision as to how to structure the courts, and the courts respond to that. So, it's not a matter of supporting or not supporting but what I can say is that we have analysed…

DAVID BEVAN: That answer suggests to me that you haven't.

ATTORNEY-GENERAL: No, no, that's not the case. The fact is that it's just one of those things that the separation between the judiciary and executive means that it wouldn't be appropriate for me as Attorney-General to talk about them supporting or not supporting.

But what I can say is that we've exhaustively analysed all of the difficulties and the issues and the inefficiencies that arise in the present system. We are, all four of us, in complete agreement as to what they are. And then I've taken that back and proposed a way in which we fix it. And those three heads of jurisdiction will be responsible for drafting all of the new rules, forms, procedures for this new entity and they are very much on board with that project.

DAVID BEVAN: You wouldn't want to do it if the judges were vehemently opposed to this. You'd want them on board…


DAVID BEVAN: …if this is a fundamental change. So, have you got enough support from them to make this work? I suppose is what I'm saying

ATTORNEY-GENERAL: I'm just saying that with the separation of the executive and judiciary, I just wouldn't use the word support. And what I would say though, as I have said, is that the heads of jurisdiction are working with the Government. We've all agreed on what the problems are. This is the way in which the Attorney-General and the Turnbull Government's determined to fix those problems and the heads of jurisdiction are working with us. The reality is that the work complexion for a small number of judges would change as they do less appellate work and more coalface run of the mill first instance trial work. And some judges may be happy about that, some judges may be less happy about that, but the reality is that we're not changing and reforming and fundamentally restructuring the system for the benefit of judges or lawyers or people working inside the system. We're doing that to benefit the tens of thousands of Australian families who are spending too long in court and too much money on lawyers.

DAVID BEVAN: Christian Porter, thanks for your time.

ATTORNEY-GENERAL: David, thank you, cheers.