Kevin Andrews (Menzies, Liberal Party) Share this | Hansard source

On behalf of the Joint Select Committee on Australia's Family Law System, I present the committee's report, incorporating dissenting reports, entitled Improvements in family law proceedings: second interim report.

Report made a parliamentary paper in accordance with standing order 39(e).

by leave—The 1973 bill to establish the Family Law Act was based on a series of principles, including that the financial dispute between the spouses should be resolved as quickly and finally as possible and that the whole process should be performed with dignity, relative privacy and as little expense as possible. Regrettably, some of these objectives remain elusive almost half a century after the introduction of the Family Law Act. Throughout the course of this inquiry, four issues have been raised continually in submissions and hearings: extensive delays, excessive legal costs, the difficulty of enforcing court orders, and timely and fair resolution of family violence allegations.

People find themselves in the family law system because of a breakdown of a relationship. For the most part, they are ordinary families who entered a marriage or relationship with the best of intentions but, for various reasons, find it difficult or impossible to sustain. They are generally of ordinary means with little apprehension that the breakdown of their relationship can result in very substantial legal fees. And, if parents suffer financially, so do their children.

While legal advice is necessary to ensure that the interests of the parties are properly considered and fair fees are charged, lawyers and other professionals should not be profiteering from the financial and emotional stress of a relationship breakdown. That is contrary to the principles of the Family Law Act and the principles upon which it was based.

The maxim 'Justice delayed is justice denied' has been applicable to the Family Court for many years. Hundreds of Australians have told the committee of the emotional and financial strains of being trapped in seemingly endless processes of multiple court appearances, ongoing delays and confidence-sapping years of unresolved litigation. To their credit, the current leadership of the courts has made considerable efforts, despite the challenges occasioned by the COVID-19 restrictions, to reduce backlogs and hasten proceedings. This has involved a greater use of judicial registrars, the practice of call-over of cases and the creation of a special COVID court list. The committee is of the strong opinion that these measures should be incorporated into the ongoing operation of the court. Accordingly, the committee has recommended an increase in the number and in the role of the registrars.

Complaints about excessive legal costs are not new. Almost 30 years ago, Justice Michael Kirby observed: 'Something appears to be seriously wrong in the organisation of the provision of legal services in this community when charges of this order'—in the case he was referring to, of some half a million dollars—'can be contemplated, still less made.' Judges have made similar complaints in a series of more recent cases. In 2014, Justice Loughnan observed that 'a forest of trees has been killed' in one case before him. A year later, Justice Bennett stated that there was something askew in the proportionality of the wife's representation when her retention of senior counsel had contributed in no small part to the wife being left with nothing more than a modest business and an unpaid debt to her legal advisers. The committee has heard evidence of legal costs nearing or exceeding the total value of the assets of the parties. In 2017, Justice Benjamin said:

… the consequences of obscenely high legal costs are destructive of the emotional, social and financial wellbeing of the parties and their children. It must stop.

The committee concurs. These practices must stop, wherever they occur—hence our recommendations to cap fees in property disputes, introduce a proportionality requirement in Family Court costs generally and to ban so-called disappointment fees. Unless approved by a judge or a registrar in exceptional circumstances, the committee proposes that legal fees in property matters be capped at $50,000 or 10 per cent of the parties' identified property and superannuation, whichever is the higher. This cap will not include mediation or arbitration. Secondly, the committee recommends that there be a requirement for proportionality of costs in all family law matters. And, thirdly, the majority of the committee recommends a prohibition on the use of disappointment fees, adopting the comments of Justice Benjamin:

… I have grave difficulty in endorsing, as fair and reasonable or proportionate, terms in fee agreements which provide for barristers to be paid for doing nothing.

The third significant cause of complaint to the committee concerned the fact that many court orders are simply ignored by parties and not enforced by the courts. This is an injustice which brings the court processes into disrepute. Accordingly, the committee recommends the establishment and funding of a registrar-driven national convention list to deal with parties breaching orders of the Family Court. This would involve the appointment of additional registrars to ensure that all contravention applications can be triaged within 14 days. The committee also recommends that the Australian government review the act to consider whether additional penalties should be included to deter the contravention of orders, including specific penalties for repeated noncompliance.

As detailed in the first interim report of the committee, a series of issues relating to family violence were raised in many submissions to the inquiry. The committee has made a series of recommendations about the subject, including the need to have a consistent definition in Commonwealth, state and territory legislation and more streamlined and consistent procedures for investigating claims and determining applications. The committee has made 29 recommendations in this second report. Important other proposals include the implementation of procedures to enable the court to investigate claims of a party wilfully misleading the court and accreditation of professionals in the family law system. There are also a series of recommendations about making the family law system less adversarial. This second report represents the committee's final and concluded views on the matters contained in it. However, the committee has had insufficient time to consider several issues relating to child support that were raised in many submissions. Accordingly, the committee will conduct a further short inquiry into these matters, utilising the evidence already provided to it, before tabling a third and final report.

I thank my colleagues on the committee, some of whom are in the House today, for their constructive and thoughtful consideration of often very complex issues. I also thank the members of the secretariat for their untiring and professional assistance to the committee. I commend the report to the House.

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