Not everything that counts can be counted

Australia’s family law system has found itself at the centre of another two parliamentary inquiries in 2020, and the NSW Bar has been actively involved in representing the interests of our members, and the broader community, in response to each.

A Commonwealth Joint Select Committee, led by Kevin Andrews MP and Senator Pauline Hanson, is currently investigating eleven broad terms of reference including information sharing between the family law system and state child protection systems and any reform that may be needed to the Family Law and Family Courts’ structures.

Meanwhile, the Senate’s legal and constitutional affairs committee is considering another iteration of the Government’s fundamentally flawed merger proposal, reintroduced on the last day of parliament in 2019.

There is widespread agreement among court users, the legal profession, the parliament and judiciary that Australia’s once world-leading family law system is not serving the best interests of children and families as well as it could or it should at this time.

The fundamental question is how can we work together to improve it?

The New South Wales Bar Association believes the path to reform need not be complicated, costly or lengthy. Instead, the solution requires two primary commitments from the Federal Parliament, neither of which is particularly novel.

First, a commitment to resourcing parts of the family law system that work well when adequately funded and resourced but have been starved by successive governments of the support they require to function effectively.

Second, a commitment to implementing improvements identified by stakeholders, and supported by landmark research, to strengthen a standalone, specialist Family Court to promptly and appropriately resolve matters including those involving family law, family violence and safety.

At the core of so many of the issues confronted by the system is a chronic and sustained lack of proper funding and resources for the Family Court and the Federal Circuit Court. The impacts are borne by children and families already at their most vulnerable, and by judicial officers faced with unsustainable, crippling workloads and unsafe workplaces.

Failures by successive governments of both persuasions to properly support and invest in the system have resulted in unacceptable delays and costs that directly impact on the accessibility and quality of justice.

Some families are having to wait up to three years, or longer, to have their family law disputes resolved. Broader costs and impacts to the community also result from family breakdowns not being determined in a timely manner.

Underfunding legal assistance has meant a significant number of parties cannot afford legal representation in family law matters and appear by necessity unrepresented in court. These factors have contributed to crippling judicial workloads. Both courts now have backlogs of more than a year’s worth of cases. Many Federal Circuit Court judges have between 400–500 cases in their dockets, some as many as 630.

There is understandably much frustration with the current state of Australia’s family law system. This frustration is shared by the New South Wales Bar, whose members assist and represent families, children and survivors of family violence in the broader family law system – not only in the courts but in the provision of advice and in various forms of alternative dispute resolution – and witness first-hand the impacts of a system in crisis each day.

The vast majority of family law matters do not involve direct engagement with the court system. But for those matters and for the most intractable of matters that cannot otherwise be resolved – such as those involving allegations of family violence, child abuse or complex financial issues – the courts have a critical role to play.

Barristers play an important role in facilitating the just and efficient resolution of matters at all stages. Barristers in NSW appear on a daily basis assisting clients in the Federal Circuit Court and the Family Court, on an extensive pro bono basis as well as in matters funded by Legal Aid NSW and on private retainers. We both act as mediators and arbitrators and assist and represent clients in all forms of Alternate Dispute Resolution. Barristers contribute voluntarily, unpaid, to the development of the law and procedure of both courts.

Barristers also make an important contribution to relieving pressures on judicial officers and the courts. One judge told a research study in 2000 after a very full duty list one day that the time taken to hear nine matters involving self-represented litigants would have been halved had they been represented.

We recognise the cost of accessing justice can be prohibitive, and this remains a great concern to us. Costs appropriately form a specific term of reference of Joint Select Committee’s inquiry, which is currently holding public hearings in states and territories around the country. We reject, however, the broad assertions levelled on occasion as to inappropriate and excessive charging by the Bar.

The legal profession is a profession, not a business. It is unlawful for a barrister in NSW to charge more than is ‘fair and reasonable in all the circumstances’ of a case. Regard must be had under section 172 of the Uniform Law as to whether costs in any case reasonably reflect factors including the level of skill, experience, specialisation and seniority of the lawyers concerned, the complexity or difficult of the issues involved in a matter, the labour and responsibility required. Full disclosure is required to the client.

No barrister is above the law – charging more than a fair and reasonable amount for legal costs can constitute unsatisfactory professional conduct or professional misconduct and result in disciplinary action.

The Legal Profession Uniform Law provides comprehensive consumer protection, investigatory and disciplinary frameworks to handle the regrettable but few instances where over-charging or inappropriate billing does occur, in all areas of law.

Of the 79 complaints received by the Association’s professional conduct department last year, 11 related to costs.

Anyone can refer a practitioner under the Uniform Law, including the courts, and anyone with a specific complaint against a practitioner should do so.

The reputations of hard-working barristers must not be tarnished by spreading unsubstantiated rumours or malcontent about what practitioners reasonably, ethically and legally charge.

Importantly, lawyers should not be made scapegoats for Parliaments’ consecutive failures to properly resource the family law system.

Without doubt the most significant factor that impacts on the cost of a case – in terms of monetary, time and social cost – is entirely out of the control of the Bar. That multiplying factor is delay caused by a family law system in crisis.

The Productivity Commission’s 2020 Report on Government Services found the backlog of all pending non-appeal applications in the Family Court has grown from 4,997 to 6,720 (34 per cent) since 2012–13, while the backlog of all pending applications in the FCC has grown from 31,067 to 50,791 (63 per cent).

In the last financial year, the Federal Circuit Court disposed of just 62 per cent of family law final order applications within a year, falling significantly short of its target of 90 per cent. In addition to the strain of its family law work, the number of migration cases filed continued to rise for the fourth year.

None of this can be said to be the fault of the legal profession.

To the contrary, barristers contribute significant value to clients and to the courts.

Barristers play an important role in facilitating the just and efficient resolution of matters at all stages and ensure a client’s case is effectively and professionally put to the court to consider.

In matters that settled by way of the filing of applications for consent orders in 2018–2019, over 86 per cent involved cases where lawyers were acting for either both parties or one party.

Reservation fees, charged by only a small amount of counsel and in limited circumstances, have received disproportionate focus by the Joint Select Committee to date.

As members know, a barrister is not entitled to charge a ‘reservation fee’ unless it is covered by the fee disclosure and costs agreement with the client. Reservation fees are not charged by all barristers and if a barrister is able to obtain further work for the remainder of the unused days, the barrister will not charge for that period. If, however, the barrister is not able to obtain alternative work, the commercial opportunity to generate fees which would otherwise have been generated has been lost. Reservation fees therefore seek to promote access to justice by offering improved certainty and comfort to clients that a barrister will be exclusively available to them for the duration of the matter, while providing greater certainty for self-employed practitioners.

Costs are undoubtedly a significant focus of the Committee but it is important to remember they are not the only focus.

We will never shy away from explaining or answering questions as to why, how and what barristers charge. We must be transparent and accountable, so that the public can have confidence in our profession, in the courts and in the administration of justice.

It is, however, disappointing that at the time of writing, other deserving terms of reference have not occupied more of the Committee’s attention, such as the impacts of family law proceedings on the health, safety and wellbeing of children and families involved.

Reservation fees are a red herring from the real issues at stake. If reservation fees were a direct contributor to backlog or social injustice, as has been suggested by some, then the disposition rates and backlogs in registries in jurisdictions where reservation fees are generally not charged would be significantly lower than in other jurisdictions where they are. This of course is not the case because there is no causal link between the charging of reservation fees and impediments to accessing justice.

The Joint Select Committee has also raised for consideration the question of whether fees should be capped or tied to the asset pool in a family law matter.

It would be difficult, if not impossible, to create an enforceable, fair system of tying fees to the size of an asset pool. The value of assets is simply not reflective of the amount of legal work required to ensure justice is done between the parties in any given matter. It would necessarily be an arbitrary restriction and not justifiable.

In a parenting context, it would be to the significant detriment of at least one (if not both) parties to constrain the fees permitted to be incurred. Some of the most difficult cases involve litigation in relation to abuse and violence by a well-resourced and relentless party who is alleged to be the perpetrator – to constrain the expenditure on legal fees of the victim of such conduct is to expose such a person to significant and obvious risk in any such proceedings.

In a financial context, in many cases one party to the marriage has control over the assets and the income. If fees were tied to the value of the asset pool, there would be a greater incentive to hide assets. Moreover, a restriction on the amount of fees which could be charged would mean that fewer resources will be available to be deployed to discover and value undisclosed or fraudulently disposed of assets or financial resources. This would result in considerable injustice, including to women who may have filled the role of homemaker and parent during the relationship while the male controlled the income producing assets, and continues to do so.

Creating a class of matters in which legal fees are capped is not the solution to costs caused by the chronic under-funding of the system for more than a decade. Adoption of any such proposal would only serve to heighten the difficulties and injustice experienced by some litigants.

The importance of maintaining public confidence in the legal profession and in the administration of justice must also extend to judicial officers and the courts.

The landmark 2019 report by the Australian Law Reform Commission into the family law system suggested that establishing a federal judicial commission warranted further consideration. The report noted that during the previous reporting year, the Family Court received ten complaints about judicial conduct and nine about delays in delivery of judgment.1 By comparison, during the same period the Federal Circuit Court received 32 complaints about judicial conduct and 66 complaints about overdue judgments.

The Association has long supported calls by the Law Council to create a federal judicial commission, based on the model of the judicial commission of NSW, to provide not only a fair and transparent manner to deal with complaints about judges by members of the public but also a fair process for federal judges who are the subject of allegations currently aired publicly through media reports.

The Association has made detailed submissions to the Joint Select Committee and appeared in March to give evidence. We will likewise engage with the ongoing Senate inquiry into the Federal Circuit and Family Court of Australia Bill 2019.

Fundamentally, the Association suggests five recommendations.

First, properly fund and resource the family law system, and commit to doing so on an ongoing basis. The 2017 House of Representatives inquiry into ‘A better family law system to support and protect those affected by family violence’ recommended that the Government ‘considers the current backlog in the Federal Family Courts and allocates additional resources to address this situation as a matter of priority’.

In 2018 the former Chief Justice of the Family Court, the Honourable John Pascoe AC CVO, confirmed that ‘many of the difficulties apparent with the system, and particularly with the Family Court, can be solved by an injection of funds, and particularly into legal aid’.2 The current Chief Justice of the Family Court and Chief Judge of the Federal Circuit Court said in April 2019 that ‘There is no doubt that there are unacceptable delays in both courts and an unacceptable backlog… there’s no doubt there is a need for further resources’.3

The Chief Justice has said that adding ‘an extra judge in every major registry would make a massive difference’ to backlogs.4 It is certainly a start.

Second, maintain a specialist, stand-alone and properly resourced Family Court in Australia to continue to provide specialist assistance to children, families and survivors of family violence.

Third, adopt the Association’s Family Court 2.0 Model and relocate judicial officers hearing family law matters and the family law jurisdiction of the Federal Circuit Court into a second division within the Family Court.

Fourth, oppose the reintroduction of the Government’s merger proposal, which was rejected by the 45th Parliament and continues to be opposed by groups including the Law Council and Women’s Legal Services Australia out of concern it will only harm children and families.

Last, carefully consider and engage with the recommendations of the Australian Law Reform Commission’s landmark review of the family law system, including recommendations to overcome any jurisdictional gaps and improve information sharing between state-based child protection and family violence prevention, and Commonwealth family jurisdiction.

But beyond these recommendations, something more is needed to really change the system.

That is, the political will to commit to driving reform.

Children and families will continue to suffer if parliament chooses to focus more on headlines, spreadsheets and scapegoating than committing to do what is needed to fix a system in crisis.

The opportunities these inquiries present for meaningful, holistic reform of the family law system are too important to waste.