Bar Association of Queensland's Annual Conference
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Thank you for your invitation to be here today. I am honoured to have the opportunity to your annual conference.
This is the second time I have address one of the Queensland Bar Association's conferences. However there have been some major changes to our legal system since the last time I was here, with the merger of the Federal Circuit and Family Court of Australia taking effect in September last year.
This marks a major change in the history of Australia's family court system – and we're already starting to see the benefits.
Family law system – need for reform
The need for meaningful reform in the federal family court system has been apparent for years, with seven major inquiries since 2008 indicating a need for reform.
Cases before the family courts have increased in volume and complexity.
There has been an alarming growth in the incidence of cases involving child abuse and family violence. These now make up the majority of cases.
And of the 18,300 notices filed in the former Federal Circuit Court between November 2020 and 2021, 64 per cent of parties alleged they have experienced family violence.
Our court system ought to be of benefit to our community. However the dual court structure and overlapping jurisdiction between the Family Court and the Federal Circuit Court had led to inefficiencies, confusion, delays, additional costs, and inconsistent experiences for many court-users.
Put simply, it led to poor outcomes for children and families.
One of the clearest problems with our federal and family court system has been the extensive backlog of cases.
Previously it could take up to 26 months for a case to be resolved in the Federal Circuit Court, with the median time to trial being 21 months.
For the Family Court, it could take up to 38 months for a case to be resolved, with the median time to trial being 24 months.
The impact of these delays was highlighted in recent inquiries by the Australian Law Reform Commission and the Joint Select Committee on Australia's Family Law System, with hundreds of Australian men and women sharing their stories of the emotional and financial strains caused by prolonged litigation.
The Inquiries heard how excessive wait times escalated family disputes and left parents in situations that were unsafe for themselves and their children.
They heard how the frustration from delays and the depleted of resources led forced parents to accept what they felt were unfair settlements.
And they heard how the complexity of the process left people feeling disempowered, unable to navigate the system without professional help.
These are some of the reasons why there has been widespread recognition that the previous structural arrangements in the courts – with separate rules, practices and processes – were just not working effectively for Australian families.
A single point of entry
The Government's structural reform of the Federal Circuit and Family Court of Australia has been based on extensive analysis of the evidence and significant consultation with the courts and other family law stakeholders.
The reform is designed to create a modern court that is responsive to the needs of litigants.
It provides a consistent pathway for Australian families navigating through the federal family courts, with a single point of entry for first instance federal family law matters.
The previous two federal family law courts have been brought together to ensure consistency in process and, importantly, certainty of the family law pathway.
There is also now a single set of rules, procedures, case management, and practice.
A new duty on parties
In addition to these structural and procedural changes, the reform is also designed to drive cultural change, with the legislation imposing a duty on parties to act consistently and with the overarching purpose of facilitating the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible.
If a lawyer fails to comply with this duty, a judge may order that they personally bear costs. These provisions recognise that parties may need assistance from their lawyers to act consistently with this duty and require lawyers to assist their clients to comply.
If, for example, a party wants to prolong litigation as a strategy to increase costs to the other party, their lawyer would be obliged to explain that this would be contrary to the overarching purpose and may have adverse cost consequences for their clients.
This objective is underpinned by a principle that ought to be at the heart of every proceeding within our justice system – that outcomes for Australian families should be timely and just.
Consistent appeal pathways
This once in a generation structural reform implements a more effective approach to family law appeals.
The new appeal process mirrors the Federal Court model. It brings both courts into lockstep on their appeal pathway, providing a logical harmonisation and consistency in practice and process for the Commonwealth courts.
And because most appeals will be able to be heard by a single judge, the court will have greater flexibility to manage its appeal workload, thereby freeing up considerable judicial resources.
Improving the efficiency of the courts in this regard will have important flow on effects for the experiences of court users, including reducing the delays in the family law system and improving the overall time it takes for families to have their matters dealt with.
New approach to case management
Along with these changes, the government has provided the court with an additional $60.8 million in funding to reform and optimise its case management processes.
This includes funding to establish a Central Assessment Team to centralise the processing of over 106,000 family law applications per annum.
As part of this, we have increased the number of Senior Registrars and Registrars and enabled them to have an enhanced role, which includes triaging and managing cases upfront, and conduct alternative dispute resolution.
Senior Registrars have the responsibility to hear interim applications and conduct alternative dispute resolution.
Only Senior Registrars with the appropriate skills and aptitude to undertake this role will be recruited. But this will be supplemented with ongoing training and professional development.
Crucially, complex interim hearings will still be dealt with by judges.
Not only with this increase access to alternative dispute resolution, it will also shorten the time that families spend in litigation.
It will reduce the emotional and financial costs experienced by already vulnerable families and assist them to find a workable and lasting resolution to their dispute.
And it will free up judges time so they can focus on trials and complex cases
Creating a more efficient judicial system
I've already mentioned that prior to our reforms it could take up to 26 months for a case to be resolved in the Federal Circuit Court and 38 months in the Family Court – timeframes that can only be described as shocking.
Thankfully, this reform will enable an estimated 8,000 additional cases to be finalised each year. This will have a massive impact on court wait times.
The primary target is for around 90 per cent of family law cases to be finalised within 12 months, with the median time to trial to be approximately 10 months – meaning wait times and finalisation rates will be cut in half.
This will make a massive difference to countless Australian families during a very challenging period in their lives.
The impact so far
It has only been a few months since the reforms were implemented, but we are already seeing the early signs of success.
Since the reforms commenced, registrars have undertaken around 13,000 court hearings which would otherwise have been undertaken by judges.
As a result, the average docket size for judges has reduced dramatically.
In May 2021, the average number of matters for judges of Division 2 of the FCFCoA was 330. This has reduced to 193 as at 31 January 2022 – a decrease of over 41 per cent.
This has freed judges to focus on trials and complex cases involving family violence and other risks to children.
Over 7,500 dispute resolution conferences have been conducted in the last 16 months, with more than 50 per cent resolving.
This has been supported by the new case management reforms and accompanying funding for additional registrars and family consultants to conduct alternative dispute resolution conferences.
Significant inroads are even being made into the large backlog of family law cases, with the pending caseload having fallen by 12 per cent since September 1 last year. Many of these cases have been in the court system for years.
The number of cases awaiting trial in Division 1 of the FCFCoA has also substantially reduced, falling from 300 in the largest registries to around 50 cases.
These are significant results, which will have a real impact on communities in Queensland and around the country.
Increased access to alternative dispute resolution is saving costs and trauma for parties. Reforms to shift the front-end case management work from judges to registrars is providing a pathway for more cases to be heard quickly, efficiently and cost‑effectively. And it's providing a pathway for high-risk cases to be identified early, to ensure the safety of vulnerable parties and children.
The Benefits for regional and rural Queensland
The increased number of registrars available to conduct hearings and dispute resolution conferences has also provided greater access to justice for litigants in rural and regional Queensland.
Already there are additional registrars located in regional areas including Townsville, Cairns and Rockhampton.
This will help people in those areas access the same court services as those in the city, whether this is face to face or via an electronic platform.
The Government has also committed to expanding the Family Advocacy and Support Services to an additional 26 locations across Australia, from 1 July 2022. This will enhance access to critical frontline legal and social support services for parties in family law matters involving family violence.
In Queensland this access will increase from three existing locations to a total of 11 locations in all FCFCoA registries and circuit locations, across rural and regional areas.
This highly effective program contributes to the likelihood of timely and satisfactory resolution of legal matters, helps reduce risk and the power imbalance between victims and alleged perpetrators of family violence, and supports holistic legal outcomes.
I acknowledge the concerns raised by some stakeholders. Further reforms may be necessary to refine the new processes, and feedback from practitioners and other legal experts will be important in the process.
The government will continue to monitor and review the reforms, to ensure they achieve the intended outcome of a modern court responsive to the needs of litigants.
But Australia's family law system has a proud history of innovation. It is supported by incredibly hard-working and dedicated legal professionals – including members of the Bar Association of Queensland.
Thank you for your time, your professionalism and hard work, and your dedication to the administration of Justice.
I hope you enjoy the remainder of your conference.