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E29: New Court. New Rules.

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On the Show Today You’ll Learn

This month Ben and Heather had a look at the new rules governing the Federal Circuit and Family Court of Australia which merged in September 2021.  While the Family Law Act has not changed, the newly merged Court has been given increased resources and has implemented new processes to speed up the Court process which has been mired in logjams for a number of years.

Ben and Heather cover off the following questions:

  1. Why have the Courts merged?
  2. How do the new Court rules actually affect separating couples who head to Court?
  3. How does the new “case management pathway” work?
  4. How has the increased emphasis on dispute resolutions impacted proceedings?
  5. What is the affect of additional Court resources?
  6. How do the new rules impact on Property Settlement disputes?
  7. How do the new rules impact on Children’s Matters?
  8. How is the Court using electronic hearings to fast track proceedings?

Links & Resources Mentioned in This Episode

Federal Circuit and Family Court of Australia website – this new site has a wealth of information about family law in general, what to expect at Court and the new Court rules.

These videos are available on the Court website but also can be viewed on YouTube:

The following sections of the Court website provide great tips for navigating Court proceedings

There’s plenty more on the new Court website and we encourage you to explore.

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Full Episode Transcript

Welcome! New court.  New rules.

Benjamin Bryant: Welcome to The Family Matters Show podcast. I’m your host, Benjamin Bryant from Bryant McKinnon Lawyers, and I’m here again with my partner in crime and family law expert Heather McKinnon to record episode 29. Can you believe it, Heather?

Heather McKinnon: Sometimes it just seems that time went like nothing Ben. I’m so proud of us. We’ve kept up the routine and over the last three years we’ve really got a great library of resources to help our clients and the broader community. It’s excellent.

Benjamin Bryant: Yeah, I’m proud too Heather and I feel like we’re getting better and better at this and becoming more accustomed to sitting in front of these microphones. Even at eight a.m. this morning. And this month, Heather, we’re going to need all of our podcasting skills because we’re going to get into the weeds of family law. So, the challenge for us is going to be to keep it interesting and to avoid a lot of lawyer-speak. Do you think we can do it?

Heather McKinnon: As Mr Macron, the French president, said, “I don’t think, I know”.

Benjamin Bryant: Well, I guess the challenge is accepted. Many of our listeners will have heard on the news about the merging of the Federal Circuit Court and Family Court. This happened in September 2021. On today’s show, we’re going to talk about how this will affect anyone who has to go through the family court system. But before we get into the new court rules, I do want to remind everyone that they can send us questions in confidence at any time to familymatters@bryantmckinnon.com.au or message us on Facebook. And please don’t forget to share this show with friends and family who might be starting out on the path of separation. There will be plenty of things on our growing library of podcasts to help them. Okay, let’s get into the new court rules. Are you ready, Heather?

Heather McKinnon: I think so.

Why did the Federal Circuit and Family Courts merge?

Benjamin Bryant: Heather, you’ve been in the game a long time, so you’d be acutely aware that the merging of the two courts is actually going back to the future. At one time we had a single family court and that changed to become the Family Court and the Federal Circuit Courts. And now we’re just going back to having one court. What is going on here?

Heather McKinnon: It’s all about politics Ben. So, at different times in the political cycle, there’s needs to cut back expenditure and to reorganise institutions as big as the Family Court to try and save money. So, these rules are really heralding a new era because along with the rules, there’s been a massive increase in judicial resources, which is going to really help us get the work done.

Benjamin Bryant: Hmm. And we’ll get to that a bit later in the show. Look, I understand the benefits of the new court rules. I understand because we have one set of court forms now and one entry point, and it’s one set of fees and it’s much easier to navigate, at least in the first couple of months that we’ve been using it. But do you remember the reasons why the court was split into two originally back in the day?

Heather McKinnon: It really was about salary dollars. So, the salaries of Family Court judges are paid in the top tier of judicial officers. And when the Federal Circuit Court was established, they actually called the judges “magistrates”, which a lot of egos didn’t like. But they really cut the salaries down. So, they employed a lot of people at that time at a much lower rate than they had to if they had kept going with the same judicial level. So, it really was an economic remodelling, if you like. But it’s also important to remember that philosophically, the “small L liberal” side of politics believes that government should be less involved in the regulation of families. It’s just a philosophical mark between left and right, and there was a really big feeling at that time that the government should take its hands off.

Heather McKinnon: And there was also still a really big sentiment around about no fault divorce that the introduction in 1975 of the no fault divorce legislation was going to cause families to separate at a greater rate. And you still hear those arguments today about: it’s the Family Court that causes family breakdown. Well, most people who are learned in the field will tell you that the rate of family breakdown has stayed fairly constant through time. We know that about one third of relationships fail, and that’s never altered. So, it’s now 2021 and I think even the liberal side of politics realises that the government has a role to help regulate families, particularly given the research around family violence and the fact that women and children still suffer much worse outcomes when families break down. And so, we’ve matured, if you like, as a country. And I think now there’s a willingness to accept that we’ve got to resource the court properly, we’ve got to have child experts who can really help us make decisions about children. So, I think it’s less politicised than it was when I was a young practitioner. And finally we’ve come home to a realisation that this is a part of the budget that the Commonwealth government’s got to set aside each year. We’ve got to properly resource it and we’ve got to train professionals who can help.

Benjamin Bryant: And we’ll just have to wait to see when the next economic remodelling ends.

Heather McKinnon: That’s right.

How are new Court rules going to make a difference to separating couples?

Benjamin Bryant: And so, Heather, if we leave aside the impact on a lawyer’s day job, how big a deal is it that the courts have merged? Is it really going to make a difference to our clients? For example, we still have the Family Law Act.

Heather McKinnon:  Look, I think everything’s still the same in that the Act sets out how we apply the law. That is, it’s very child focussed and it’s all about justice and equity. What has changed is the staffing levels. That’s what’s going to make a difference to the clients because we now have many more people within the institution to try and apply the law quickly and with a bit more detail.

Benjamin Bryant: And one of the things Heather that I think is going to have a big change, and I think it has in the last couple of months this has been in operation, is the cost notices. So, I think obviously lawyers and court is an expense and the time is a factor to consider when going to court and the delays, but also expense is a huge factor for clients. And of course, with the new rules, there’s a requirement now that for each Court event, not only does your lawyer have to disclose to you how much costs you’ve incurred, but your ex’s lawyer also has to disclose to them how much they’ve incurred, but also exchange the costs analysis so that every step of the way you’re aware not only how much you’ve spent in the system, but also what your ex has spent in the system. And I think that’s pretty important and it’s really interesting as a lawyer as well, I must say, to see what the other side costs are because we don’t know. We’re a little bit different, we do fixed fees, so it’s quite easy for us to do these notices because we’ve already got a fee agreement set out. It’s so interesting seeing the other side’s costs.

Heather McKinnon: Yeah, I mean, the variation is phenomenal. And this revealing of pricing is going to sort out a lot of the pricing issues that have plagued the court. We are aware that particularly in the big cities, there’s price gouging where people are paying exorbitant amounts of money for what is realistically a process driven pathway that should be pretty similar across the board. So, it will be interesting to see how serious the judges are about imposing that obligation. Certainly, the rules are there. We’re filing. It’ll be a matter of time now to see whether or not they enforce that provision for tardiness with people and not doing the right thing, whether they’re going to really call that out. I think it will lead to a shift in pricing and certainly make it more obvious and open to clients what that task should cost.

Benjamin Bryant: Yeah, that’s right. I think it’s also a reality check.  When they’re spending tens of thousands of dollars in their family law matter, does it really matter about one more night if it’s going to cost you 60 grand? So, I think it’s a really good, in-your-face kind of reminder just what the cost of this is going to be.

Heather McKinnon: And certainly, it is for those people who are funding it. And certainly, choice in pure market economics is really important. But we’re still left then with the large majority of children’s matters which have been funded by the public purse. But at least these new cost provisions even require us to set out if someone has a grant of legal aid, what the tax payers have spent to get the matter that far.

What is the new “case management pathway” or order of events in Court proceedings?

Benjamin Bryant: And Heather the change that’s going to probably most impact our client is the new case management pathway or, in other words, the order of events at court. Can you summarise the key changes here?

Heather McKinnon: Well, the first one is that in property matters, you can’t file in court unless you can show there’s been a genuine attempt to try to resolve the matter. So at the moment, the way that we’re doing that is we’re exchanging information with the other side’s lawyers. We’re ringing them up to see if we can have a discussion about the case. In some cases, the party is able to agree to mediate early and try and resolve the matter. So we’re using every sort of option we have in our armoury if you like to try and get matters resolved without having to go to court. 9:52 So it means that when we sign the certificate, when we’re going to court to say that the parties have made a genuine effort to resolve the matter, the judicial officer can be pretty sure that people have put in a big effort to try and get it to that part of the entryway. 10:09 Of course, one of the biggest problems in this jurisdiction is one side just not engaging whatsoever. So that’s an age-old problem and it’s still there. So, you and I are signing off every day to say, “Look, we’ve tried, but the other side just won’t engage in negotiation”. We need the court’s help. 10:29

Benjamin Bryant: And one thing Heather that I’ve noticed is that with a new case management pathway, there’s been a lot of resources pumped on by the court on their website, which is great. There are actually little, pretty glossy diagrams, which you can have the look at to see what the first court event looks like. What is an interim hearing if you need to make a decision and the maximum interim hearings you can have? What does a trial even mean? What do you need to do before you get to trial and also the timeframes that the court expects as well? For example, the first Court event is probably the most nerve wracking for clients, and there’s this really awesome resource (and we’ll attach it and put the link on the podcast page) about what to expect at the First Court event. Because a lot of people, of course, think the first court event you’ve got to battle it out, something magical is going to happen, it’s going to be fixed and someone’s going to win and someone’s going to lose. That may have been the case before some judges previously, but it’s certainly not the case now, with the first court event really being like a case management, see what’s happening? How can we narrow the issues? Where does the matter need to go to from here?

Heather McKinnon: And it’s more like a conversation. For the people in northern New South Wales, the new senior judicial registrar is a very skilled woman called Tracey Flintoff, and her role in that first court event is to find out from the lawyers or the parties if they don’t have a lawyer. Why are you here? What’s stopping this matter from resolving? For example, do we need valuation? So, she’ll go about making orders that there’d be valuers appointed? There might be arguments about people not disclosing important documents like tax returns, bank statements. So, it’s much more hands on at an early stage by a judicial officer to really limit the areas that are preventing people from having a good go at settling.

How will increased emphasis on dispute resolution affect the Court process?

Benjamin Bryant:  And as you mentioned before, Heather, the court is emphasising dispute resolution in the system now, and we were talking before about pre-action dispute resolution, which is now a requirement for property and parenting matters. There’s also an emphasis on dispute resolution during the court process now, isn’t there?

Heather McKinnon: Yeah, absolutely. And we’ve already seen in a couple of cases that the senior judicial registrar who’s managing the file will send parties back for a second mediation. Those things happen when you’ve had a mediation, and the mediator might report back to the court that the reason it didn’t settle was there wasn’t an evaluation of a house. Or it didn’t settle because the wife inherited money 20 years ago, but didn’t have evidence of it. So, the mediators are sort of taking much more active role in reporting back: if these things were done, I think this couple might have a chance at resolving it outside of court. So then the senior judicial registrar will pick up that cue and have a discussion with the parties about: Look, go back and mediate but before you do it, fix up the things you should have done the first time. So I think it’s going to be in property matters really hard to get a date for a hearing. Yeah, I think they’re going to really keep forcing you to identify what’s preventing the settlement.

Benjamin Bryant: The alternatives? Yeah. And with a parenting matter Heather more recently, there’s been the introduction of an alternative dispute resolution event with a registrar – so like a mini judge, someone that can make orders on the spot. But also, what was called a family consultant, now a court child expert, but basically someone from the court like a counsellor or a psychologist or something like that to actually do the ADR process with the parties on the day. It’s a great resource to have, you know, we’ve done quite a few of them and they’re really, really successful. So it’s a great initiative from the court.

Heather McKinnon: And I think one of the good things there is that they realised people need time. And so they’ve given people the dignity of a whole day with a judicial officer and a clinical psychologist who are just there to focus with the couple on what’s happening in their family. So it brings them out of that flight and fight response and gives them heaps of time to explore what’s actually happening and problem solve I think one of the really interesting things is as a result of the use of, you know, Teams or technology, we’re getting judicial officers and child psychologists Zooming in, if you like, from all around Australia. And so you get to see a whole lot of different problem solving skills from people who work in the Family Court all over the place.

What is the difference between a judicial registrar and a judge?  When can you expect to see a judge?

Benjamin Bryant: And Heather people, when they decide to go to court, as I said, they want the winner and the loser on the First Court event, and some people are disappointed to learn that you’re not even before a judge at the first court event. What is the difference between a registrar and a judge and how do you think that’s going to speed things up?

Heather McKinnon: Well, senior judicial registrars are judges, but we have a legislative set of rules that… What can that judge at that level do? So senior judicial registrars, apart from their planning and management role, can run interim hearings, and it’s up to them to decide whether they’re happy to have a go at an interim hearing or whether it’s one that should go up the tree to a more senior judge if there’s some complex matters. At every tick of the box, if you like, there are levels of skill required to help, and the senior judicial registrars are going to be the workhorses of the court in really doing a lot of the work that traditionally would have been done by judges that were applying huge skill and training to management, and they didn’t need to do that. So we’ve got another tier in the tree if you like.

Benjamin Bryant: So, when can one expect to see a judge?

Heather McKinnon: Well, you always have a judge at a final hearing. So, their job now is really to run those trials and we’re seeing a rapid clearing of backlog. I mean, we’re exhausted. We want Christmas because they’re just pumping them out. We’re getting judges again using a Microsoft Teams so that, we can have a hearing with a judge in Hobart, somebody in Launceston, somebody in Shepherd and you get them from all over the place. But it means that we’re really trying to clear that awful lot of backlog. The other time that you’ll see a judge is in a complex interim hearing. So, for example, if you’ve got a case where you’ve got to make a finding on whether there’s an unacceptable level of risk for a child. Say there’s allegations of sexual abuse or serious physical or psychological harm. My view is those cases will be triaged and the senior judicial registrars will probably send those to duty judges.

The Court has set ambitious case turnaround times.  Is this realistic?

Benjamin Bryant:  The court mentioned some pretty ambitious timeframes. I think if you were to file a document, they’d expect to have the first court event within six weeks, I think, and previously in Coffs Harbour, we’ve waited three to four months. You’re in and out of the system within 12 months. And as you know, you’ll be usual for two to three years, perhaps three or four years, for complex matters. And once you get your final hearing, judgement is going to be delivered in three months when previously it’s been perhaps 12 months or more. So, these are pretty ambitious. Do you reckon the court can do it?

Heather McKinnon: Well, if you’re looking at metrics, as you know, I’m fascinated by practise management. And before these amendments, there was one admin team member for every six judges. With the changes, there’s one on one. So those staff ratios have been completely turned on their head and I think it will work. But I think the next year is going to be cleaning up the last three or four years. So, we’re not really going to see meaningful change I don’t think until 2023. But with the staffing levels that are there, there must be a rapid improvement in the timeline for dispute resolution.

Do the new rules mean changes to how children’s matters are handled by the Court?

Benjamin Bryant: That’s right, we’ve got to keep remembering it’s a moving feast, the court’s still figuring it out. And Heather in their wisdom, the federal government are changing some of the wording that was standard in family law. So court child dispute services are now called court children’s services. Child dispute services staff used to be called family consultants, but now of course, they’re court child experts. Instead of child dispute or child inclusive conferences, we’re now having child impact reports. This may be a bit confusing for clients who have been through the process before or are being advised by friends or family members who have. But overall, are there any meaningful changes to how children’s matters will be handled by the court?

Heather McKinnon:  No, I think we have a very well-developed system in Australia, where in children’s matter, we recognise the most important input comes from those child experts. So, the family report process has been around now for nearly 50 years. We do have a problem recruiting child experts into the court, and there’s a real obvious need to get the universities on board to give more focussed attention to master’s degrees in this field. I noticed this morning I was reading in the ABC that there are something like 230 psychiatrists waiting for accreditation, and during the pandemic there’s been a backup of two years now where they haven’t been able to do the final exam. So, you’ve got all these systems problems that are impacting on the change, but I would really hope that we’re identifying now where the shortfalls are and right around Australia. We know that the education and training of social scientists in the field of mental health and the ability to analyse families is a huge labour market shortage. So now we’re through the worst of the pandemic, I’m hoping that the university sector can really start to address that specialist training and get some of these really good young graduates up to speed because there’s a huge gap.

Benjamin Bryant: Calling all young undergraduates. And Heather. I think it’s also important to remind our listeners that the Family Law Act hasn’t changed how the court operates or manages the case pathway has changed, but the Family Law Act hasn’t. We’re still here about the best interests of children, and we’re still here, finding that nuanced balance between risk and relationships: so are the children at an unacceptable risk of harm versus the benefit of children have a meaningful relationship with both their parents. So that bit hasn’t changed, just how the court approaches it or the name of the person that is in meeting with the children or the parties may have changed.

How will new technologies make separations simpler and smarter?

Benjamin Bryant: And Heather finally, one of the goals that has been identified by the new court rules is making separations simpler and smarter. And the court will be leaning on new technologies to fast-track things, including electronic hearings. How is this going to change the client’s experience in family court proceedings?

Heather McKinnon: I think the pandemic has been a gift. Certainly, when clients have hearings before judicial officers that aren’t final trials, they will normally now just sit in their solicitor’s office in a calm environment and take part on screen. I think that has been revolutionary in that the anxiety of going into one of those scary court buildings, having to face your ex-partner in really stressful situations, a lot of that’s now been removed, and I think it’s here to stay. I also think for regional families, the ability to run final hearings by computer is incredibly sensible. If you look back prior to the pandemic, if we had to travel into a capital city with our client and their witnesses, it was thousands and thousands of dollars in travel time, cost of travel, accommodation, dislocation of the family away from their home. So, it has brought us into the real new age, and that’s one of the benefits of all the hard work we’ve done during the pandemic.

Benjamin Bryant: I know it’s so interesting that just a couple of years ago, it was normal that if we wanted to appear by telephone, you’d have to seek permission for that. More recently, you almost have to ask for permission for face to face. But Heather, one of the things that you mentioned before, is that you don’t need the judge in your town or in your city. You can get a judge from anywhere in the country Zooming in and essentially determining a matter which is great.

Heather McKinnon: And also, it means that we can bring in expertise. I know that in the work we do as independent children’s lawyers, we often are involved in families where the children are of indigenous background. And we have a couple of judges who are passionate about the field and very skilled in the way they run hearings involving Indigenous extended clans, and that’s another huge theme that the court could really benefit from: specialised judges who are willing to put their hand up and say, we will do these cases outside our own patch.

Goodbye for now…

Benjamin Bryant: Well, thank you, Heather, that was a great discussion, and I think we’ve managed to avoid too much lawyer speak… I think,

Heather McKinnon: Yeah, look at the hundreds of rules, you know how I love them, Ben. But I think it’s really good news and I hope that we’ve come through that politicisation of the Family Court. I think moving forward, the politicians have probably laid down their swords and realise it’s a pretty silly thing to turn into a political battle.

Benjamin Bryant:  Just before we leave the topic, I just want to remind our listeners that there are great resources on the Federal Circuit and Family Court website, so make sure you check them out. We’ll put a link in the podcast page. Also, what is really important these days is a central practise direction issued by the court and the new court rules, so we’ll make those links available. But they are readily available on the Federal and Federal Circuit and Family Court of Australia web page.

Benjamin Bryant: Next month, we are really going to get right to the heart of separation, exploring the question, Do I stay or do I go? Some of our listeners may be well past this question, but everyone starts here. We have an amazing guest to help us explore this crucial question. Elizabeth Shaw is the CEO of Relationships Australia, and she’ll be joining us from Sydney. Elizabeth is a clinical psychologist and an executive coach. She’s been the head of Relationships Australia for almost six years and recognises the critical nature of that simple question: Do I stay or do I go? We are so excited to have her join us and hope that you will be back to listen to her thoughts and advice. If you have specific questions that you would like to put to Elizabeth, please send them to familymatters@bryantmckinnon.com.au or message us on Facebook. We’d love to share whatever you have in mind. As I always say at the end of this show, please don’t forget to share this podcast with friends or family who need it. Also, a reminder that you’ll find a link to the resources about the new court rules, plus a full transcript of today’s show in the show notes on our website. Goodbye for now, and we hope to have your ears again next month.

 

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