Tardy family lawyers could be forced to pay costs

Attorney-General Christian Porter

Attorney-General Christian Porter

Family lawyers could be hit with personal costs orders if they fail to help resolve disputes as “quickly, inexpensively and efficiently” as possible and if their fees become disproportionate to the issues in dispute, under laws to be introduced to parliament today.

The legislation will also merge the Family Court and lower-level Federal Circuit Court to create a “Federal Circuit and Family Court”, to streamline the family law system. The new duties to be imposed on lawyers and their clients come after a Family Court judge last year attacked the “obscenely high legal costs” charged by family lawyers and an apparent “win at all costs, concede little or nothing, chase every rabbit down every hole” approach to litigation.

Lawyers hit with personal costs orders will be unable to recoup the fees from their clients.

Warring couples will also be obliged to resolve disputes as quickly as possible, and if they drag out matters with the intention of running up the costs of the other side, or refuse to accept a reasonable settlement offer, they could face indemnity costs orders, mirroring laws that apply in the Federal Court.

Attorney-General Christian Porter said the current system, with two separate courts handling family law, was “letting Australian families down”.

“The government is absolutely determined to reduce delays and costs,” he toldThe Australian. “Legal practitioners play a key role in advising their clients and ensuring that disputes are resolved as quickly and cheaply as possible.”

While most lawyers acted in their clients’ best interests, he said anecdotal evidence suggested an “unnecessarily litigious approach” in some cases increased costs and delays for clients at “an incredibly stressful and difficult time”.

The changes come amid crippling delays in both courts and Mr Porter has said the reforms will allow an extra 8000 cases to be resolved every year.

The Family Court’s existing judges will form Division 1 of the new court, while the Federal Circuit Court’s judges (who currently handle almost 90 per cent of family law cases) will form Division 2. Appeals will be stripped from the new court and handed to the Federal Court. Judges on the new court will be required to have appropriate experience — Division 1 judges will need specialist family law expertise (as is the case for Family Court judges), while lower-level and appeal judges will be required to have “appropriate knowledge, skills and experience” to deal with the kinds of matters that may come before them.

This is aimed at addressing a major concern of lawyers and domestic violence experts that judges appointed to the new court to handle child custody disputes would not have the necessary expertise. The Australian understands only about four Family Court judges will be sent to the Federal Court to handle family law appeals — less than half the 11 judges currently on its appeal division, freeing up the remainder to sit on trials. However, lawyers are questioning whether this will be enough.

Under the new laws, family law appeals from Division 2 will now ordinarily be dealt with by a single judge, instead of three judges, as is the practice currently.

The changes come after a PwC report found a wide gap in efficiency levels between the existing courts. It said Federal Circuit Court judges finalised about 338 cases a year, while Family Court judges finalised 114, and Family Court appeal judges wrote an average of 26 judgments each. It found litigants in the Family Court spent about $110,000 per case compared with $30,000 in the Federal Circuit Court.

According to the report, the median time to trial in the Family Court has blown out to 17 months, up from 11.5 months five years ago, while the median time to trial in the Federal Circuit Court had increased to 15.2 months, up from 10.8 months. Some litigants are waiting up to three years to resolve their disputes.

However, some Family Court judges have been angered by the statistics, which they say reflect unfairly on their productivity

Mr Porter said in May he intended to phase out Division 1, as existing Family Court judges retired, but last week he told The Australian he could not prevent future governments from appointing judges to the superior division.

What the Family Court shakeup really means for families

The disputes are acrimonious, often drawn out and, in many cases, financially crippling. And that’s just for starters.Christian-Porter-family-court

The family law system in Australia is groaning under the weight of a vast backlog of more than 20,000 cases and families are waiting up to five years for bitter child custody and property disputes to be resolved.

In Sydney or Melbourne, lawyers say a feuding former couple would consider themselves lucky to get a hearing date for a parenting dispute in 18 months’ time. Meanwhile, children are left in limbo.

“Eighteen to 24 months is about right in Sydney now. Eighteen months is often considered ‘winning at life,'” says one experienced family lawyer, who is familiar with waiting times in both cities.

The delays are just one of a range of pressing problems facing the Family Court of Australia and the Federal Circuit Court, both of which hear family law cases across the country.

Federal Attorney-General Christian Porter believes the answer to the delays is clear. In a surprise proposal, announced in May while a wider review of the family law system is still under way, Porter said the 42-year-old Family Court of Australia would be scrapped as a standalone court and merged with the lower-level Federal Circuit Court, which also handles migration cases.

The proposal is based on a report by consultants PwC Australia, commissioned by Porter’s department and handed to the Turnbull government in April, which says the Federal Circuit Court is more efficient at clearing family law cases than the Family Court.

But experts say the figures, stripped of context, are misleading and the Family Court deals with the most complex 10 per cent of cases. The Federal Circuit Court, itself labouring under a growing workload, handles the rest.

Former Family Court judge Peter Rose, QC, who served on the bench for 13 years, says the plan is “simplistic” and the figures being cited are “a classic example” of the saying popularised by Mark Twain: “There are three kinds of lies: lies, damn lies and statistics.”

He says the Federal Circuit Court deals with a high volume of largely straightforward cases, while the “strict diet” of the Family Court is complex cases. Porter and PwC, meanwhile, say the two courts are often handling similar cases.

Rose agrees there should be “one stand-alone, specialist Family Court” in Australia, but it is the family law work of the Federal Circuit Court that should be merged with the specialist Family Court. More resources are also required, and strong leadership of the court is critical.

NSW Bar Association President Arthur Moses, SC, has been a vocal critic of the merger and says “a justice system is not to be judged on spreadsheets”.

“It is to be judged on the quality of justice delivered to people at the most vulnerable time in their lives,” he says.

Moses says the Federal Circuit Court already has a “crushing workload”, with each judge having approximately 500 matters in their case list.

“It makes no sense for the ­Attorney-General to propose to collapse into that court all of the most complex family court matters, which are the most important matters that our court system deals with — the care of children and relationship ­issues,” he says.

Family lawyers say clients are looking for more than just a speedy resolution and court resourcing needs to be increased to tackle the backlog of cases.

“Not all litigants would say that a good experience is created by speed alone,” says Gadens partner Jodylee Bartal. “Family law matters can be complex and require a specialist response. Litigants want fair processes and outcomes.”

The Turnbull government is expected to introduce legislation to give effect to the merger within the week.

Brett McGrath, a family law expert at Marsdens Law Group, says “the devil will be in the detail” with the plan. The “objectives of the merger, to provide a single entry point, to streamline and reduce complexity, and minimise delay and costs are fully supported by the profession”, he says, but “at this stage, there is a lack of detail around how the objectives will be met”.

One of the concerns expressed by lawyers is the potential loss of specialisation. Under the new structure, appeals would no longer be heard by specialist appeal judges in the Family Court, who would return to doing trial work in the new Federal Circuit and Family Court.

Peter Magee, managing partner of family law at Armstrong Legal, says appeals from the new court will “go to a general appeals division of the Federal Court, where you get a bunch of judges who have never done a family law case”.

“That is a big unknown as to how that will be dealt with. They may be smart people; they may get it right. But it’s a concern that they won’t be aware of the nuancing, or psychological research, or the day-to-day practices, or issues that are faced on a regular basis,” Magee says.
He says delays in the Federal Circuit Court are already pronounced and if a case was filed in that court today, “realistically you cannot tell clients it will not be decided until 2020”.

“You won’t get a hearing in 2019,” he says.

Speaking to Fairfax Media, Attorney-General Christian Porter says “there really isn’t a serious argument that there won’t be adequate experience on the Federal Court” to hear family law appeals.

Porter says he is “absolutely assured” that the judges on the Federal Court will be “more than capable, in terms of ability and experience, to hear family law appeals that will come up from the newly created [court]”, and they will be “complemented by new personnel”.

“We will be creating what will be known on the Federal Court as the family law appeal division,” Porter says. “I’m working on the personnel of that with the chief justice of the Federal Court.”
Porter says the bulk of family law appeals relate to property disputes, and the court is well equipped to handle the complex legal issues in those cases.

Porter has said the merger would result in an extra 8000 cases being resolved each year, a claim that has raised experts’ eyebrows. The figure comes from the PwC report, released publicly by the Attorney-General on Friday.

The report estimates an extra 4080 matters could be resolved each year if the jurisdiction for family law matters was combined in a “single court entity” with one point of entry, rather than being shared between the Family Court and Federal Circuit Court.

PwC says other changes – such as increasing the number of appeals heard by a single judge instead of a bench three judges –  would help make up the rest of the 8000 cases.

Porter says the PwC figures show the Family Court of Australia, established in 1976 and staffed with specialist judges, is not as efficient as the Federal Circuit Court. The latter deals with a higher volume of family law matters alongside migration cases and was set up in 2000 to provide a “quicker, cheaper option for litigants” in family law matters.
The PwC report says it costs taxpayers about $17,000 per finalised matter in the Family Court compared with $5500 in the Federal Circuit Court, while the parties pay about $110,000 and $30,000 respectively. It also says Federal Circuit Court judges finalise more orders per year than Family Court judges: 338 compared with 114.

Critics say the output of the two courts can’t be compared in this way. The Family Court hears a range of more complex cases, including those involving international child abduction, serious child sexual abuse and family violence, along with cases where the hearing is expected to take more than four days.

But Porter says the matters the Family Court deals with are “not radically more complex, they’re modestly more complex”, and this complexity does not account for the differences in the courts’ output, a view supported by the PwC report.

In a document titled “Fact Not Fiction”, released by a number of Family Court judges on Thursday, unnamed members of the court took aim at Porter’s suggestion the Family Court finalised 2750 matters in 2016-17 while the Federal Circuit Court disposed of 17,000 matters a year.

The comparisons were “entirely misleading”, the judges said, because the Federal Circuit Court figures include many cases in which the court made a consent order, meaning the parties reached an agreement without a court hearing. The Family Court dealt with 13,919 cases by consent in 2016-17.

Family lawyer and mediator Zoe Durand, the principal of Mediation Answers, says she can understand in principle the merits of creating a single court but she also has concerns about the potential loss of expertise and specialisation.

Over time the jurisdiction of the Federal Circuit Court has increased significantly, Durand says, “so the kind of matters the two courts deal with don’t look as different as before”.

“However, the Family Court does remain the court for more complicated family law matters,” Durand says. “When you look at what the Attorney-General has said he’s very focused on numbers, but is that the only way we assess the quality and value of what the court is providing to society?”

Supreme Court rules for Colleen McCullough’s husband in Will dispute

Colleen McCullough

Colleen McCullough

Acclaimed Australian author Colleen McCullough left her entire estate to her husband Ric Robinson, the NSW Supreme Court has ruled at the end of a costly and bitter dispute over her multimillion-dollar estate.

In a judgment delivered on Friday, Justice Nigel Rein found a July 2014 will in which McCullough named the University of Oklahoma Foundation as her sole beneficiary was “not her last will and testament”.

He said the will, made at the Hilton hotel in Sydney, was revoked by two documents signed or initialled by the author on October 24, 2014, which left her estate to Mr Robinson. Justice Rein arrived at this conclusion while finding Mr Robinson was not a “wholly reliable witness”.

The legal battle was characterised by wildly conflicting evidence and emotions ran high over the course of the eight-day hearing, which concluded in early June. Justice Rein described the dispute as a “most unusual case” and said if “the track of the truth in this matter is to be found, it is narrow and poorly lit”.

His ruling is a blow to McCullough’s close friend and executor Selwa Anthony, who launched proceedings in the Supreme Court to uphold the validity of the so-called Oklahoma will.

Ms Anthony told the court McCullough cut Mr Robinson out of her will in July 2014, shortly before her death on Norfolk Island on January 29, 2015, after finding out her husband had “taken a mistress” and “spent all the money”.

Ms Anthony accused Mr Robinson of taking advantage of his wife’s ill health to change her will. Mr Robinson vehemently denied the claims and the court found Ms Anthony had not established Mr Robinson coerced his wife into signing the documents.

At stake was a multimillion-dollar estate ranging from McCullough’s art collection to royalties from her 1977 hit The Thorn Birds and other books, plus an estimated $2.1 million in real estate and cash. But the couple had also racked up a series of debts.

Justice Rein found there were aspects of Mr Robinson’s evidence that seemed implausible, including the “rather unlikely” claim that McCullough encouraged him to take a mistress.

Both sides of the dispute agreed the marriage between McCullough and the financially-dependent Mr Robinson, 13 years her junior, was at crisis point by mid-2014.

The court heard McCullough called the Norfolk Island police to the couple’s property, Out Yenna, on June 24, 2014, and told her husband it was because she was “afraid” of him. He moved out briefly but the pair had reconciled by July 17.

Justice Rein said that by October 2014 the marriage “was not so acrimonious as to necessarily preclude as a possibility that Colleen would decide to reinstate Ric … as the sole beneficiary of her estate”.

He said the need for the litigation was “caused by” Piria Coleman, the solicitor who drafted the Oklahoma will and “failed to prepare a fresh will in the usual fashion” in accordance with McCullough’s instructions.

Ms Coleman gave extraordinary evidence that she drafted documents in 2014 and in January 2015 to “placate” Mr Robinson and “protect” McCullough by making him believe he would inherit his wife’s fortune when he had in fact been disinherited.

Justice Rein rejected that evidence. He said Ms Coleman “may have come to feel that Colleen was unwise or Ric not deserving enough for Colleen’s change of heart or both” but she had not acted in accordance with Ms McCullough’s wishes, which was a “most serious breach of her obligations to Colleen as her solicitor”.

Justice Rein ordered each side to bear their own costs.