FAMILY LAW COUNCIL

MINUTES

20-21 February 2014

Location:Attorney-General’s Department, Barton ACT

Present
Members:(Chair) Professor Helen Rhoades – Melbourne University – VIC

Ms Kylie Beckhouse – Legal Aid – NSW

Justice Robert Benjamin – Family Court of Australia – TAS

Mr Jeremy Culshaw – Culshaw Miller Lawyers – WA

Ms Jennie Hannan – Anglicare WA – WA

Dr Rae Kaspiew – Australian Institute of Family Studies – VIC

Judge Kevin Lapthorn – Federal Circuit Court – QLD

Ms Colleen Wall – Nguin Warrup (Black Drum) Ltd – QLD

Observers: Mr Phillip Cameron – Family Court of Australia – NSW

Ms Pam Hemphill – Family Law Courts – SA

Professor Lawrie Moloney – Australian Institute of Family Studies – VIC

Mr Steve Hackett – Family & Relationship Services Australia – ACT

Ms Adele Byrne – Federal Circuit Court – VIC

Magistrate David Monaghan – Family Court of WA – WA

Mr Geoff Sinclair – Family Law Section – Law Council of Australia – QLD

Mr Greg Manning – Attorney-General’s Department – ACT

Ms Tamsyn Harvey – Attorney-General’s Department – ACT

Various officers of the Attorney-General’s Department – ACT

Secretariat: Mrs Kim Howatson – Attorney-General’s Department – ACT

Summary of Actions Arising

/

Date Completed

(i): Secretariat to mark October 2013 meeting minutes as final and arrange for the minutes to be uploaded onto Council’s website. / underway
(ii): Secretariat to remove ‘draft’ from the letters to the Chief Judges and arrange postage. / Posted on 28/2/2014
(iii): Magistrate Monaghan to forward the Secretariat the Family Court of Western Australia’s Practice Direction for distribution. / Provided on 20/2/2014
(iv): Secretariat to collate the ideas discussed and draft a letter to the Attorney-General for Council’s approval. / Emailed to members 24/3
(v) Secretariat to circulate the link to the 2010 SNAICC report, Working and Working Together, for information only. / 7/4/2014
(vi): Dr Kaspiew to draft a submission for Secretariat to circulate to Council members for input. / Final document provided to National Plan Secretariat on 14/3/2014
(vii): Secretariat to draft a letter to the Attorney-General informing him of the submission being made and attach the final submission for his information only. / Not completed
(viii) Secretariat to put ‘Circuits and access to family law services in regional areas’ on the next meeting’s agenda for further discussion. / 6/3/2014

The following is a summary of items discussed:

Welcome

  1. Professor Helen Rhoades welcomed members and observers to the Family Law Council (Council) meeting in Canberra. She welcomed a new attendee to the meeting, Mr Greg Manning, attending as an observer for the Attorney-General’s Department. Professor Rhoades also welcomed backMagistrate and Principal Registrar David Monaghan, attending as an observer for the Family Court of Western Australia. Magistrate Monaghan was previously an observer on Councilfrom 2005 to 2009.
  1. Various staff from the Family Law and Courts Tribunal and Justice Branches of the Attorney-General’s Department attended throughout the two days. The staff benefited from hearing discussions about policy areas they are working on or have an interest in.
  1. Apologies were received from Ms Yvonne Marsh from the Department of Human Services – Families and Child Support Policy as well as Professor Rosalind Croucher and Mr Khanh Hoang from the Australian Law Reform Commission.
  1. Professor Rhoades noted that Council’s report on Parentage and the Family Law Actwas delivered to the Attorney-General on 17 December 2013 and that the response is pending.
  1. Also noted was Professor Rhoades’representationon behalf of Council at the Chief Justice’s Family Law ForumMelbourne in November 2013 and on the same day, Ms Kylie Beckhouse’s representation on behalf of Council at the Productivity Commission’s ADR Roundtable in Sydney. Council acknowledged its participation in the recent confidential consultations conducted by KPMG on the review of the performance and funding of the federal courts, particularly the significant agreement amongst members and observers on the issues raised.

Declarations of Conflicts of Interest

  1. A declaration of a potential conflict of interest was provided by Professor Rhoades in relation to a later agenda item involving court report writing in children’s cases and appropriate steps were put into place. No other conflicts of interest were declared for this meeting.

Minutes of previous meeting

  1. Council accepted the minutes of the meeting held in October 2013 without any changes. All but one of the action items were completed from the October meeting. This item was later discussed and adraft letter was finalised for the Secretariat to arrange postage to the Chief Judges.

ACTION (i): Secretariat to mark October 2013 meeting minutes as final and arrange for the minutes to beuploaded onto Council’s website.

ACTION (ii): Secretariat to remove ‘draft’ from the letters to the Chief Judges and arrange postage.

General Business

  1. It was noted that Council’s secretariat had received only a small number of phone calls since the previous meeting. Of note, the most common calls were incorrectly received and should have been to the Family Law Section of the Law Council of Australia – not located in the Attorney-General’s Department.
  1. Council’s Secretariat recently attended an information session held by the Information, Privacy and Freedom of Information Commissioners. Relevant matters will be addressed by the Secretariat and will appear on Council’s website as appropriate relating to privacy and the information held by Council.
  1. Council discussed issues raised informally during a discussion between the Attorney-General’s Department, the Legal Advice Service and Relationships Australia Queenslandregarding the recent increase in subpoenas being issued for intake notes, notes during counselling and mediations. Concerns were raised about the progressive widening of the subpoenas on service providers. It was unclear if the concerns raised throughout the sector were due to the administrative burden caused or if they related more to practitioners’ obligations.
  1. Further discussion on this issue highlighted a Practice Direction, issued by the Family Court of Western Australia relating to subpoenas to service providers that took effect on 1 January 2012. Magistrate Monaghan agreed to forward the Practice Direction to the Secretariat for distribution as information only. It was noted that the Practice Direction was developed in consultation with the sector. The practicality of the Practice Direction in other jurisdictions was discussed further.

ACTION: (iii) Magistrate Monaghan to forward the Secretariat the Family Court of Western Australia’s Practice Direction for distribution.

  1. Council agreed to monitor the issue on a short term basis and may revisit it at a later meeting.

New Terms of Reference ideas

  1. Council discussed current issues as well as long-term concerns about the family law system as being potential new terms of references for the Attorney-General to consider issuing to Council formally.
  1. A letter to the Attorney-General will be drafted proposing a number of topics that Council considers to be of significant importance and are achievable for Council to undertake. Council and its observers agreed that quality support, such as a research assistant, was critical in providing quality advice to the Australian Government.

ACTION: (iv) Secretariat to collate the ideas discussed and draft a letter to the Attorney-General for Council’s approval.

Updates from observers

  1. Ms Pam Hemphill provided a report for the Family Law Courts that included: an update on professional and practice issues such as the fact sheets on all of the Child Dispute Services interventions on the impact of conflict and of violence on children which will soon be uploaded to the Court’s website; a working group being established to develop Professional Directions for Child Dispute Conferences; and the development of theDRAFTAustralian Standards of Practice for Family Assessments and Reporting.
  1. Ms Hemphill also discussed: professional development and training, including the National Seminar Series, Indigenous cultural competence training and peer reflection consultation training; staffing, including changes and current vacancies; the taskforce for the sharing of experts’ reports between the child protection and family law systems; and some of the work being undertaken by the Children’s Committee.
  1. Mr Geoff Sinclair, on behalf of the Family Law Section of the Law Council of Australia (FLS), reported on: the progress of the International Parental Child Abduction legal resource; the next FLS Executive meeting being held in Sydneyon 21-22 February 2014; FLS’s contribution to the Productivity Commission’s Inquiry into Access to Justice, KPMG’s review of federal courts and the Australian Taxation Office’s draft Taxation Ruling TR 2013/D6 in relation to property proceedings; a review of the work and composition of the Regional Committee, and various professional development opportunities including the 16th Biennial National Family Law Conference to be held in October 2014.
  1. Magistrate David Monaghan, on behalf of the Family Court of Western Australia, reported on: the WA Law Reform Commission Discussion Paper ‘Enhancing Laws Concerning Family and Domestic Violence’, released in December 2013; the work being done by the WA Family Pathways Network and the Family Court of Western Australia in the development and implementation of a kiosk to assist families with court processes; the Communicare project to assist violent offenders with therapeutic services, and the revision of the Form 4 - expected to commence being used in March 2014.
  1. Mr Phillip Cameron, on behalf of the Family Court of Australia, noted there had been no Judicial appointments and one Judicial retirement since the previous Council meeting. He noted the development of the family violence planto be used in conjunction with the 2012 Family Violence Best Practice Principles and highlighted a number of other interesting issues from the 2012-2013 Annual Report. He also discussed the heightened sense of anticipation in the Family Court from the change of government, the appointment of the new Attorney-General and current KMPG review – noting that the Family Court is continuing to conduct ‘business as usual’ as far as possible.
  1. Mr Cameron also discussed the recent release of Cisco Jabber Video software,to be used in conjunction with the Internet Protocol Video Conferencing (IPVC) system which was implemented in all registries in the past 12 months. The Cisco Jabber software allows people outside of the courts to connect to the court’s IPVC system using their own PCs or laptops at a minimal cost providing they have a webcam and broadband internet connection. Cisco Jabber will be used for court-related matters including court hearings and family consultant interviews. The system has significant potential use for remote locations and to assist in the management of cases where there are significant security, family violence and abuse concerns.
  1. Professor Lawrie Moloney, representing the Australian Institute of Family Studies (AIFS), provided a written overview of AIFS’s recent studies and activities and discussed work AIFS is currently undertaking. Professor Moloney also discussed the webinar series which is proving to be a useful tool for the sector.
  1. Following Professor Moloney’s update, Dr Rae Kaspiew also from AIFS, reminded meeting attendees to participate in the professional practices survey and the survey on family violence amendments, both currently being undertaken by AIFS.
  1. Ms Adele Byrne reported on behalf of the Federal Circuit Court on issues including: filing statistics; judicial workloads – highlighting pending retirements which will impact on judicial resources with the need for planning to ensure the current high caseload can be maintained; the increased reporting of risks (through Form 4’s) as a result of the expanded definitions of ‘abuse’ and ‘family violence’ and the evaluation of the Federal Circuit Court’s pilot in South Australia of a Notice of Risk.
  1. Ms Byrne also discussed the work being undertaken on the proposed amendment to the Federal Circuit Court rule that currently restricts the release of family reports to the parties and their legal representatives. The proposed amendment would allow for the wider release of family reports to welfare agencies and other stakeholders.
  1. Mr Steve Hackett reported on behalf of Family & Relationship Services Australia (FRSA). He discussed: the success of the FRSA National Conference held in Canberra in November 2013; the imminent expiration of the Family Support Program contracts and the uncertainty of the length of future contracts; the FRSA Senior Executives’ Forum and Parliamentary Briefing Day to be held in March 2014, and changes in FRSA staff.
  1. Mr Hackett also mentioned that early preparation is underway for the 2014 FRSA National conference in Adelaide entitled, 'Wellbeing for Children, Families & Communities: Future Policy, Programs & Practice.' This will be held on 4-6 November. A call for papers will be distributed in April.

Update from the Attorney-General’s Department

  1. Ms Tamsyn Harvey provided an update on behalf ofthe Attorney-General’s Department on current work priorities including: the work being undertaken by the Taskforce, chaired by Professor Richard Chisholm, to identify the legal and practical impediments and issues related to the sharing of experts’ reports between the family law system and child protection system; the commissioning of AIFS to evaluate the impact of the changes to the family law system after the commencement of the Family Law Amendment (Family Violence and Other Measures) Act 2011;the publication of the Independent Children’s Lawyers (ICL) Report on the department’s website and the work that will flow from the report, and the examination of the property provisions of the Family Law Act in consideration of recent cases.
  1. Ms Harvey also acknowledged Council’s report on Parentage and the Family Law Act being delivered to the Attorney-General in December 2013.

AIFS Independent Children’s Lawyer Study

  1. Dr Rae Kaspiew provided anoverview of the findings of the mixed-methods research project that examined the use and efficacy of Independent Children’s Lawyers (ICL) in the family law system, published in May 2013. The research examined the extent to which having an ICL involved in a family law matter improves outcomes for children.

Expert Reports in matters involving Aboriginal Children

  1. Ms Colleen Wall discussed some of the issues of significant traditional importance to Aboriginal people and outlined associated impediments for them to engage with the family law system. She articulated the importance of those issues to be considered when developing expert reports for use in the family law system.
  1. A document produced by Aqua Dreaming Ltd, presented by Ms Wall on its behalf, was circulated with meeting papers and assisted Council to understand some of the critical issues. Council thanked Ms Wall and her colleagues for providing a thorough insight into issues that are often not understood by non-Indigenous people.
  1. During the discussion, the publication Walking and Working Together (2010), published by the Secretariat of National Aboriginal & Islander Child Care Inc (SNAICC), was mentioned and agreed for Council’s Secretariat to circulate the link for information only.

ACTION: (v) Secretariat to circulate the link to the 2010 SNAICC report, Working and Working Together, for information only.

Expert Reports in the family law system

  1. Ms Pam Hemphill outlined what an ‘expert report’ was, including an overview of the different types of expert reports: family reports; individually commissioned expert reports, and ‘single expert’ reports. Ms Hemphill discussed many issues including qualifications of the report writers and how the reports are used in the court system.
  1. Issues such as quality assurance, expected standards of reporting, sharing of the reports, the costs involved and who the reports are for (courts or clients) were also discussed.

Discussion on the Stanford case

  1. Justice Robert Benjamin provided an overview of the results of the decision on Stanford & Stanford [2012] FamCAFC 1. Justice Benjaminlead a discussion on the complexities involved in that case andCouncil discussed pre and post Stanford considerations.

National Plan to Reduce Violence against Women and their Children 2010-22 (National Plan)

  1. Dr Rae Kaspiew drew Council’s attention to the recent call for submissions to inform the development of the Second Action Plan under the National Plan. Council agreed that it should make a submission and Dr Kaspiew agreed to draft a response for Council’s input. Council agreed to advise the Attorney-General that it had made the submission for his information.

ACTION: (vi) Dr Kaspiew to draft a submission for Secretariat to circulate to Council members for input.

ACTION: (vii) Secretariat to draft a letter to the Attorney-General informing him of the submission being made and attach the final submission for his information only.

Circuits and access to family law services in regional areas

  1. Judge Kevin Lapthornlead a discussion on the impediments to providing quality Circuit Court services to regional Australia. He provided a detailed overview of the challenges faced and the commitment ofJudges and staff who provide Circuit Court services.
  1. It was apparent that the high workload levels and often poor facilities impact on the provision of court services in regional areas. Council raised concerns about the cases where clients are abandoning applications due to costs, time and lack of facilities and that these actions are not often in the best interests of the children involved in these cases.
  1. Council agreed to put this issue on the agenda for the next meeting with the view of drafting an own motion letter to the Attorney-General outlining some of the current challenges.

ACTION: (viii) Secretariat to put ‘Circuits and access to family law services in regional areas’ on the next meeting’s agenda for further discussion.

Guest speaker: Deputy Chief Justice John Faulks

  1. Deputy Chief Justice Faulks spoke with Council in relation to the Full Court’s decision to overrule the ‘special skills’ principle in property matters – Kane & Kane [2013] FamCAFC 205. His Honour highlighted a number of sections of the Family Law Actthat pose a challenge in considering such cases. Council thanked the Deputy Chief Justice for his time and interesting discussion.

Family Violence and financial disputes

  1. Council re-visited this issue – last discussed in June 2012. Council raised concerns about difficulty in accessing affordable advice on financial matters and the need to ensure people subject to family violence aren’t disadvantaged. Council agreed to return to this issue again in the future.

Productivity and judicial resourcing