Report puts Family Court in the dockBy Bernard Lane (High Court correspondent)
20 August 1999
The Family Court runs its cases in a rigid and bureaucratic way, forcing some litigants and their lawyers to front up for unnecessary and costly court appearances, the Federal Government's key law adviser has found.
Federal Attorney-General Daryl Williams QC seized on the draft report, to be released today by the Australian Law Reform Commission, as vindicating his proposal for family law magistrates to work independently of the court.
Mr Williams said the law reform finding, that Family Court procedures were not tailored to a range of cases, was "particularly significant, given the Government's determination that the new separate federal magistrates service should be flexible and innovative".
But Chief Justice Nicholson defended his court's case management and said the proposal for a separate magistracy, with virtually the same jurisdiction as the court, was "a bit like saying we don't like the Supreme Court so we'll open another Supreme Court".
"It's a deliberate attempt to downgrade the importance of family law," he said.
The judge suggested the law reform commissioners had been "snowed" by self-interested lawyers.
"One of the problems about case management is that it's always seen by the legal profession as interference with their particular right to conduct litigation in the way they see fit," he said.
The Law Council of Australia, a source of criticism quoted by the commission, was not challenging the court's ultimate right to control the system, according to the council's chairman of the family law section, Steve Strickland QC. But Mr Strickland said the court needed to listen when some litigants and their lawyers told the court they did not need all the standard procedures, such as directions hearings. Otherwise, unnecessary appearances imposed costs.
"I don't just mean legal costs, I mean the cost of someone taking a day or a half-day off work, or getting a babysitter to look after children," Mr Strickland said.
But Justice Nicholson said the commission had relied on outdated complaints and misinterpreted data, and not given enough weight to the special nature of the court's work, its achievements and reforms.
He rejected as "quite unworkable" the commission's key recommendation that each case be assigned to a particular judge-led team rather than coming before a series of different judges and registrars, as now happens.
He said this would be "an enormous waste of judicial officers' time" since the court had only 48 judges and opened 58,000 cases a year, 95 per cent of which would be settled before trial.