24 October 2006
No light house-keeping: family law renovations By Melinda Chiew, CCH senior writer
The nations top figures in family law representing government, the courts and practice came together at the 12th National Family Law Conference in Perth to discuss the effects of the recent family law overhaul.
The question posed by conference theme, "Surfing the seas of family law - major reform or a little light house keeping?" was answered in no uncertain terms by Attorney General Philip Ruddock, who repeated his view that the 1 July amendments represented "the most significant changes to the system since 1975 - the reforms are major and they need to be".
The Hon Chief Justice of the Family Court Diana Bryant said she felt privileged to lead the Family Court through "what I consider to be one its most consequential periods of its history". Remarking that it may have been more appropriate to entitle her speech "A lot's happened in the last two years", she said that the development of the less adversarial approach is a qualitatively better one for parties involved.
But her Honour was concerned about the uncertain direction of the Family Court, and urged the government to provide a blueprint for its future.
The Chief Judge was conscious of delays in the court but saw the implementation of a case management docket system as a positive development. "I hope that during the next two years we will reduce delays, improve case management, provide a better process for litigants and have a plan for the courts," she said.
Chief Federal Magistrate John Pascoe described the very rapid growth of the Federal Magistrate Court and its jurisdiction, not just in the area of
family law but also in its other jurisdictions, such as trade practices. He lamented that the court was straining under an overwhelming workload and
lack of administrative resources, with accommodation of the courts being a continuing problem.
Dispelling the widely held misconception that there was a poor relationship with those in the Family Court and the Federal Magistrates Court, his
Honour said "there are strong and personal friendships and excellent working relationships between federal magistrates and judges of the family
court in all registries".
He said one of the most significant arrangements arising from the Combined Registry project was the establishment of the Family Law Courts Board. The Board, comprising the Chief Justice of the Family Court, the Chief Federal Magistrate and their respective CEOs, oversees the shared arrangements of the courts. And while admitting there was, at times, friction, his Honour assured that, "there are no issues the Board has been unable to resolve. Our deliberations often take place over shared tea and biscuits."
But each speaker expressed the seemingly paradoxical views that a period of consolidation and stabilisation was required to assimilate the reforms, while also admitting that there was still much to be done.
Ian Kennedy, Chairman of the Family Law Section of the Family Law Council contended that while "the only constant in family law … has been endless change; the only constant in the Family Law Section … has been endless growth".
Mr Kennedy congratulated the government on its initiatives but said there were still many structural issues that need to be dealt with. He said an effective family law system required the integrated efforts of all the three key players represented at the address: the government, courts and legal practitioners.
He expressed Family Law Section's disappointment at the rush-through of legislative changes without adequate community consultation. For example, for the Shared Parental Responsibility and Child Support schemes, the community only had a week to respond to over 300 legislative provisions. "In our opinion, rushed legislation is always bad legislation" he said.
Mr Kennedy hoped that there would soon be a period of stability and consolidation and that the rate of change would slow, "although in the experience of the last 30 years that's probably too much to expect".
Wayne Butler the executive secretary of the Shared Parenting Council suggested that the Law Council needed to "Get out of the dark ages and assist in the implimentation of new Family Law changes immediately or face further legislative measures to force the courts to make more children focused parenting outcomes. "Children , after seperation must be able to enjoy the love and affection of both parents in an equal or substantially equal way as outlined in the new Family Law Act" said Mr Butler.
He also stated that there was some three years of consultation with extensive submission time and that it was somewhat late to now complain that there was not enough time. Mr Butler was critical of the slow pace of change and a number of recent judgements showed that case law precedent and extremly limited contact for fathers was continuing.