Family Court of Australia - "Finding a Better Way" - Less adversarial trials

104 Pages·2007·0.65 MB·English

FAMILY COURT OF AUSTRALIA
Finding A Better Way
A bold departure from
the traditional common law approach
to the conduct of legal proceedings
April 2007
Finding a Better Way
ISBN 978-1-920866-04-4
© Family Court of Australia 2007
www.familycourt.gov.au
This work is copyright. Apart from any use as permitted under the Copyright Act 1968, no part may be
reproduced by any process without written permission from:
■ Chief Executive Officer
Family Court of Australia
GPO Box 9991, Canberra ACT 2601
FAMILY COURT OF AUSTRALIA
Finding A Better Way
A bold departure from
the traditional common law approach
to the conduct of legal proceedings
By Margaret Harrison
April 2007
ii
A Bold Departure from the Traditional Common Law Approach to the Conduct of Legal Proceedings
Finding A Better Way:
Acknowledgements
I have been greatly assisted in the writing of this publication by a number of people who
were themselves instrumental in the development and implementation of the Court’s less
adversarial trial project.
Particular thanks go to former Chief Justice Alastair Nicholson, Justice Stephen O’Ryan
and Ms Virginia Buring who gave unstintingly of their time and knowledge and provided
me with invaluable information and encouragement. I am grateful also for the assistance
given by Justices Dessau, le Poer Trench and Moore, family consultant Ms Ilana Katz and
Ms Judith Walker of Legal Aid New South Wales.
Despite the efforts of all involved responsibility for any errors in the text is solely mine.
Both Shirley Lavers and Josie Cox of the Family Court Austin Asche Library at the
Melbourne Registry were endlessly patient with my requests for material and always
managed to find what I needed.
A valued friend and former colleague, Danny Sandor, died prematurely in early 2006. In
his capacity as Chief Justice Nicholson’s senior legal associate Danny made an enormous
contribution to the development of the new procedures, as he did with so many other
initiatives during his time with the Family Court.
Margaret Harrison
April 2007
Family Court of Australia iii
From the Chief Justice
Foreword
This publication is an important record of the Family
Court of Australia’s move away from the traditions of the
common law adversarial trial to what is now known as the
less adversarial trial (LAT). The approach was developed
by the Court in response to a long recognition of the
need to provide better ways to decide disputes between
separating parents when the best interests of children
is the paramount concern. It is a significant change in
approach to trial procedures in Australia, the benefits
of which were recognised with the passage of Division
12A of Part VII of the Family Law Act 1975 in May 2006. It was a bold approach that
will make immeasurable differences to the lives of those Australians experiencing family
breakdown who have been unable to resolve parenting issues and come to the Court for
a hearing before a judge.
The Court, under the leadership of the Hon Alastair Nicholson AO, RFD, QC, had
embarked on the pilot project, known as the Children’s Cases Program (CCP), when I
became Chief Justice in 2004. It was obvious to me that it was a major advancement in
the ongoing efforts of the Court to more effectively hear disputes about children, and one
that accorded with my own experiences about the limitations of conventional adversarial
hearings.
The decision to proceed with the pilot had been taken after Justice O’Ryan visited
Germany and France in May 2003 to examine European approaches at first hand. He
met with many judges, public servants, lawyers and academics while there. Thanks in
particular goes to Judge Eberhard Carl who gave so generously of his wisdom, his time
and attention both then and during his subsequent visit to Australia in September 2004.
The earliest results of the CCP pilot evaluations confirmed that the Court could not
go back. Indeed, it has now been decided to apply the less adversarial approach to all
Family Court of Australia hearings and over the next year the Court will be developing its
processes to make this happen.
Further, it is my expectation that when other jurisdictions have an opportunity to
examine this process over time, they will be encouraged to critically examine whether
elements of it can enhance the way that traditional litigation is conducted, particularly
in the way in which the judge controls the proceedings. It is also my hope that the less
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A bold departure from the traditional common law approach to the conduct of legal proceedings
Finding A Better Way:
adversarial approach the Family Court has begun will lead to changes in legal education,
at the very least. For example, the importance of communication skills to speak directly
to and engage with the parties in the LAT process are skills that the modern judge should
usefully possess.
I acknowledge the work done within the Court and beyond. The progress from pilot
to legislation has only been achieved through the dedication and commitment of many
people.
In particular, I acknowledge the Hon Alastair Nicholson for his vision and passion, and
the Hon Geoffrey Davies AO for his early guidance; Justice Stephen O’Ryan accompanied
by Virginia Buring who travelled to Europe with an open mind and returned with a new
concept, and the six pilot judges at Sydney and Parramatta who volunteered to step outside
their comfort zone and try something so new. I also acknowledge the members of the
Steering Committee and the organisations behind them (especially the Commonwealth
Attorney-General’s Department for the work it did on the legislation, the support of New
South Wales Legal Aid Office, Community Legal Centres and the Family Law Section
of the Law Council of Australia); Joanna Kalowski, whose training skills and insights
helped to move the judges to more inclusive and child focused decision making; the legal
practitioners who grasped the challenge with enthusiasm and spread the word to their
colleagues; and the litigants who consented to participate in the pilot. Without their
cooperation nothing would have been achieved.
The Hon Diana Bryant
Chief Justice of the Family Court of Australia
April 2007
Family Court of Australia v
Acronyms
CCP Children’s Cases Program
CRP Child Responsive Program
FLA Family Law Act 1975
LAT Less Adversarial Trial
MCA Matrimonial Causes Act 1959
vi
A bold departure from the traditional common law approach to the conduct of legal proceedings
Finding A Better Way:
Introduction ix
Contents
PART ONE 1
The origins of Australian family law 1
Focusing on adversarial and inquisitorial systems 4
Characteristics of the Family Law Act and the Family Court – then and now 9
Statutory provisions illustrating the special nature of children’s cases 16
Family Court procedural reforms 18
The Magellan Model : an example of differentiated trial management 22
Self represented litigants – catalysts for change 23
External scrutiny of the Family Law Act and the Family Court 25
Other reviews and reports 27
Conclusion to Part One 33
PART TWO 35
The countdown to reform: inquiring and exploring 35
England and Wales 35
New Zealand 36
The Family Court’s implementation program 38
The German process in disputes involving children 39
Ensuring valid implementation 43
Legislative amendments 48
Other features of the less adversarial trial model 50
The involvement of children 50
The role of the family consultant 50
The Child Responsive Program 52
An informal environment 53
Family Court of Australia vii
The discontinous trial 53
Evidentiary issues 53
Family violence 56
Evaluation 56
Conclusion 58
Appendix A 60
Division 12A of Part VII of the Family Law Act 60
Appendix B 67
Steering Committee issues 57
Appendix C 70
Conduct of a CCP hearing – step by step 70
Index 76
Footnotes 79
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A Bold Departure from the Traditional Common Law Approach to the Conduct of Legal Proceedings
Finding A Better Way:
‘The adversarial model was premised on the
assumption that civil litigation was essentially a
private matter. The parties were left to conduct
proceedings as they saw fit and according to their
own timetable. The judge assumed a passive role,
intervening like an umpire only if a non-delinquent
party sought the imposition of sanctions.
The responsibility was upon the parties alone to
identify the issues in dispute, and it was for the party
making an assertion to prove it, without assistance
from his or her opponent.
The judge, being the impartial arbiter, was left with
the job of determining the contest according to what
was presented to her or him. The judge could not
transgress beyond the issues and evidence presented by
the parties. All steps in the action were intended to
lead up to a climactic trial.’ 1
G. Davies, ‘Justice in the 21st Century’, paper delivered at the Family Court of Australia
Judges’ Annual Conference, Challenges for the 21st Century (July 2000), at 5.