Reformers return fire at Family Court

Bernard Lane - High Court Correspondent

The Australian Friday 18/2/2000

The Family Court is a beleaguered and defensive institution with a history of failed reform and hostility to constructive criticism, the federal Government's chief law reform advisers have reported.

The Australian Law Reform Commission yesterday urged yet another external review of the court, saying lawyers who used the court had little confidence in internal reform.

In a 700-page report of the federal justice system, the law reformers have made an issue of the vigorous attacks made on them by Family Court Chief Justice Alastair Nicholson, when in a discussion paper last year they criticised the court's bureaucracy as inflexible.

His reaction to criticism by anyone but court-sanctioned experts helped explain the frustration and lack of trust among family law practitioners, and helped justify an external review within two years, the report said.

Justice Nicholson had attacked last year's proposals for changes in case handling, yet law reformers later learned the court had been considering similar reforms internally, commission president David Weisbrot said.

Yesterday's report suggests that in his attempt to discredit the law reformers last year, Justice Nicholson misrepresented overseas experts on case management.

In an interview with The Australian, the Chief Justice rejected these accusations as "nonsense" and said the law reformers had been sloppy, irresponsible, engaged in a cover-up of past failings, were poor scholars and biased.

"The whole thing has been, I think, a quite vindictive reaction to the fact that we pointed out their deficiencies," he said.

He said the reformers had failed at first to interview key experts and collect essential information. The commission blames the court for delayed provision of material it requested. Justice Nicholson's longstanding complaint is that the court is underfunded, but the report says until it is clear funds are efficiently used, it will be hard to mount a case for more.

The report found that court's judges were divided over Justice Nicholson's criticism. Some judges said they were "happy for the (law reformers) to say things that judges felt constrained from saying" and others were "mystified at the fuss" their Chief Justice made.

Justice Nicholson said: "Obviously, there'll always be, among 53 judges, a few people who'll no doubt be disaffected about something or another. I know that I have the full support of the judges."

The Law Council of Australia said the reformers' commentary on the Family Court was "balanced and pragmatic".

The main points of the report

Federal Court good for the economy Corporate lawyers rated the Federal Court 'world class'. Law reformers say Federal Court dispute resolution should be sold overseas as a part of Australia's promotion as a regional finance centre. The court's expertise in intellectual property - important to foreign companies - was singled out.

Class actions called to order Twenty Federal Court class actions now under way with potential claims of $3 billion.  

Reformers say need for clearer rules about how judges choose between competing class actions arising from the same dispute.

Also, more attention to ethics of lawyers on both sides of a class action, and fairness of cost agreements with class members.

Cost cutting Case for better information about going rates for legal fees. Legal bodies should publish sample fee rates on their Web sites.

Courts should change the way they calculate costs, putting an end to lawyers' charges for photocopying and 'perusal of documents'. New fee scales should  be based on 'case events' of varying complexity, from taking client instructions, through discovery process to trial and judgment.

Costs would be higher at start of proceedings to encourage early settlement.

Litigants would have a better idea at outset of costs they could recover from the other side if they win.

Parties would have to pay any extra costs they run up, discouraging needless litigation.

Benefits of lawyering

People represented by lawyers were more likely to reach a settlement, and avoid a costly hearing, in federal tribunals.

Other articles that made mention of the problems identified in the ALRC Report:

Discussion of the problems associated with the political-judicial activism undertaken by the Chief Justice of the Family Court and his hostility to criticism were raised in The Australian & Brisbane Courier Mail editorials and in an article published in the Australian Financial Review [19/2/00].

Courier Mail editorial Saturday 19-2-2000 says under the heading "Reform essential for Family Court"....

"....... Justice Nicholson's defensive response to the commission's report is of concern, given the obvious need for reform in the court. The Family Court is addressing many of the problems raised in the commission's report. But if the court is to improve on its record and become more consumer friendly, it is important for it to encompass independent criticism."

The Australian, even more direct, said,

"Public need must guide the Family Court"

"...........The court is now entering a crucial period. In two years there may be an external review. An alternative, more streamlined court, using magistrates, is being set up, and its rationale is closer to the original that the contemporary Family Court. It is time for Justice Nicholson, who has been chief since 1988, to ask himself whether he has the detachment and judgement to lead the court through this difficult period. His court inevitably suffers unfair and sometimes virulent attack and it is understandable that someone in his position may become less able to identify constructive criticism. But as he himself often says, the court's work and the welfare of its litigants are vitally important. Those public interests must ultimately decide the question of leadership."

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