• Introduction
• Current framework for resolving disputes under the PRA
• The Federal experience
• Other Australian jurisdictions
• Overseas experience
• General issues for discussion
• Evaluation of key features of the family court
• Options for incorporating key features

INTRODUCTION

9.1 The aims of this chapter are to:

(a) identify any deficiencies in the current framework that impede the delivery of a “fair, accessible, timely and affordable process for dispute resolution”¹ under the Property Relationships Act 1984 (NSW) (“the PRA”); and

(b) canvass options for reform that will stimulate further discussion. Since the issues canvassed and the options suggested are the result of a preliminary examination, the Commission would welcome the views of the community, practitioners and others with an interest in this area.²

9.2 In inquiring into “the process of decision making or determination of rights”³ and assessing the need for reform, this chapter first considers the current framework for resolving disputes under the PRA and examines the processes that are in use in NSW in the relevant courts, ranging from the various types of primary dispute resolution methods to litigation. This is followed by a discussion of how similar family/relationship disputes are addressed in the federal sphere and in other Australian and overseas jurisdictions. The chapter then identifies the “issues for consideration” that have arisen out of the discussion of the current framework in NSW and suggests the need for a different approach. The perceived deficiencies of the current framework are considered in the context of a discussion of key features that characterise the Family Court of Australia and other courts dealing with similar issues. These key features (such as specialist jurisdiction, court annexed mediation), are then critically and objectively evaluated to ascertain their suitability for, and relevance in resolving PRA disputes. In conclusion, the chapter considers a range of options for reform.

Background

9.3 The adequacy and appropriateness of current dispute resolution methods in relation to de facto property matters has most recently been considered by Legislative Council’s Standing Committee on Social Issues (“the Social Issues Committee”).⁴

9.4 In its inquiry into de facto Relationships legislation, the Social Issues Committee⁵ considered some of the technical and procedural aspects of the PRA. The Social Issues Committee was particularly concerned about the jurisdiction of the District Court and the need to provide for alternatives to litigation.

9.5 The relevant recommendations⁶ were:

That the Attorney General examine the District Court Act 1973 to ensure all powers necessary for the District Court to deal with matters brought under the Property (Relationships) Act 1984 are available.

…

That the Attorney General fully explore the means by which adequate and appropriate alternatives to litigation could be made available under the Property Relationships Act 1984, with a view to making the necessary legislative amendments in due course.

9.6 The Lesbian and Gay Legal Rights Service in its Discussion Paper, The Bride Wore Pink also discussed these issues.⁸

CURRENT FRAMEWORK FOR RESOLVING DISPUTES UNDER THE PRA

9.7 A party to a domestic relationship may apply to a court for an order for the adjustment of property interests or for the granting of maintenance or both.⁹ The current framework for initiating such proceedings is set out in section 9 of the PRA, which provides that a person may apply to the Supreme Court or a Local Court for an order for relief. Proceedings instituted in the Local Court may be transferred to the District Court or the Supreme Court.¹⁰ The District Court also has jurisdiction under its own legislation to hear claims under the PRA.¹¹ The jurisdiction of each of these courts is set out below, followed by a list of issues for consideration.

Supreme Court

Jurisdiction

9.8 As stated above, PRA matters may either be initiated in the Supreme Court or transferred from the lower courts to the Supreme Court.¹² Typically, the types of PRA matters dealt with by the Supreme Court are those that exceed the jurisdictional limit of the lower courts.¹³ Matters that do not exceed the jurisdictional limit of the lower courts may be dealt with in the Supreme Court because of their public importance or complexity. Generally, no more than four new PRA matters are filed each month in the Supreme Court.¹⁴ These low figures are consistent with the amendment to the District Court Act 1973 (NSW) which gave the District Court jurisdiction in relation to PRA matters.¹⁵

Dispute resolution methods

9.9 PRA matters can be dealt with by adjudication, or by other dispute resolution mechanisms such as arbitration, mediation or early neutral evaluation. Each of these methods of dispute resolution is dealt with below.

9.10 Adjudication. Proceedings instituted in¹⁶ or transferred to¹⁷ the Supreme Court under the PRA are subject to the Supreme Court Rules, and are dealt with in the Equity Division of the Supreme Court.¹⁸ The Registrar usually deals with preliminary matters such as adjournments and can transfer proceedings to the general list or the Master’s list. Most applications to the Supreme Court under the PRA are decided by the Master.¹⁹ The powers of the Master include all the powers of the court.²⁰

9.11 The main advantage of bringing proceedings in the Supreme Court is that it has unlimited equitable jurisdiction. Also, there is no maximum limit on the amount that can be subject to a claim. On the other hand, a contested hearing “can take a long time, be confined to the issues raised in proceedings and be very expensive”.²¹

9.12 An action under the PRA is commenced by statement of claim²² and proceeds to a hearing on pleadings.²³ Any party may require the other party to produce relevant documents for inspection.²⁴ The court may also make an order for discovery of documents that are relevant to facts in issue.²⁵ After the close of pleadings, the court can set a date for a hearing. An appeal lies directly to the Court of Appeal.²⁶

9.13 It currently takes about three months for matters to be heard by a Master. For contested matters, it can take about six months.²⁷ In total, a matter is said to take anything between 12 to 18 months from filing to judgment.

9.14 Costs rules. The Supreme Court has a discretionary power to award costs.²⁸ The ordinary rule is that costs follow the event.²⁹ The court also has the power to impose cost penalties on parties in proceedings under the PRA.³⁰ If a plaintiff commences proceedings in the Supreme Court and the court makes an order for property adjustment or maintenance under $40,000, the plaintiff will not be entitled to costs unless the court otherwise orders. Furthermore, where the court does make an order for the payment of the plaintiff’s costs on a party and party or indemnity basis, the cost of briefing more than one counsel for the plaintiff will not be allowed. There are some concerns about whether the court should have the power to make costs orders in PRA matters.³¹

9.15 Arbitration. Arbitration is a dispute resolution process somewhat similar to adjudication. It is an adversarial process, which relies on a third party decision maker, the arbitrator (rather than a judge). Although the rules of evidence are more relaxed and the process is less formal than in court, the arbitrator hears the evidence and makes a binding order based on the law, unless the parties have agreed otherwise. Arbitration can be court ordered or entered into by agreement between the parties.³²

9.16 Court annexed arbitration. A system of court annexed arbitration in Supreme Court civil proceedings came into operation in NSW on 1 January 1990.³³ The scheme allowed the Supreme Court to make an order to refer proceedings relating to a claim for the recovery of damages or other moneys to arbitration. Arbitrators are appointed by the Chief Justice³⁴ and must attempt to bring the parties to an action to a settlement acceptable to all of them³⁵ according to equity, good conscience and the substantial merits of the case without regard for technicalities or legal forms.³⁶

9.17 Recent developments: arbitration in equity proceedings. More recently, the Supreme Court Act 1970 (NSW) and Rules were amended to expand the range of matters that may be referred to arbitration.³⁷ The amendment now permits the court to refer proceedings in the Equity Division to arbitration where the proceedings are ancillary to a claim for the recovery of damages or other moneys and the value of the relief sought is not likely to exceed $750,000.³⁸ Referrals can be made on the court’s own motion or by application and are conducted pursuant to the Arbitration (Civil Actions) Act 1983 (NSW).

9.18 Mediation and neutral evaluation. Since 1994, the Supreme Court has encouraged settlement of disputes by means other than the traditional adversarial court system by introducing “mediation and neutral evaluation”.³⁹ These forms of alternative dispute resolution (known as ADR) are available for the majority of civil cases. According to the Supreme Court, the main benefits of using ADR include an early resolution of the dispute, less cost to the parties involved and greater flexibility in resolving the dispute. ADR is also considered beneficial to those disputes that eventually proceed to court as the process helps identify the relevant issues and thus reduces the court hearing time and consequent costs.⁴⁰

9.19 “Mediation” is defined in the Supreme Court Act 1970 (NSW) as:

a structured negotiation process in which the mediator, as a neutral and independent party, assists the parties to a dispute to achieve their own resolution of the dispute.⁴¹

9.20 “Neutral Evaluation” is defined in the Supreme Court Act 1970 (NSW) as:

a process of evaluation of a dispute in which the evaluator seeks to identify and reduce the issues of fact and law that are in dispute. The evaluator’s role includes assessing the relative strengths and weaknesses of each party’s case and offering an opinion as to the likely outcome of the proceedings, including any likely findings or the award of damages.⁴⁴

9.22 There are no records of the number of court ordered mediations in the Supreme Court. However, it appears that even before court ordered mediations were introduced, court annexed voluntary mediations were frequently used. In 1999, out of a total of 131 court annexed mediations conducted in the equity division, 110 matters were settled either at mediation or prior to the hearing which meant an overall settlement rate of 84%.⁴⁸ Although mediation is not confined to matters under the Family Provision Act 1982 (NSW) and the PRA, they appear to be the most popular type of proceeding for mediation.⁴⁹

9.23 The parties usually pay for costs of mediation and neutral evaluation in equal proportions, including the costs payable to the mediator or evaluator, unless the court makes an order as to the payment of costs.⁵⁰

9.24 Appointment of mediators and neutral evaluators. There are currently six Registrars who are trained in mediation techniques.⁵¹ The initial training is provided by the national organisation Lawyers Engaged in Alternative Dispute Resolution (LEADR).⁵²

9.25 In addition, the Chief Justice has compiled a list of mediators and evaluators to be in effect until 31 December 2003.⁵³ When compiling the list the Chief Justice can obtain recommendations from a committee of judges and officers. Those wishing to apply may be members of the Bar Association, the Law Society or other professional associations or bodies, who can endorse their members’ application.⁵⁴ Applicants must provide information regarding their mediation or evaluation experience, accreditation and training.

District Court

Jurisdiction

9.26 The District Court derives its power to hear claims under the PRA from the District Court Act 1973 (NSW).⁵⁵ Section 134 of the District Court Act provides:

134(1) The Court shall have the same jurisdiction as the Supreme Court, and may exercise all of the powers and authority of the Supreme Court, in proceedings for:

(g) any application under the Property (Relationships) Act 1984.

9.28 Generally, the District Court handles civil cases where the amount claimed is $750,000 or less.⁵⁷ However, in relation to applications under the PRA, the court is limited to making orders for financial adjustment not exceeding $250,000.⁵⁸ This in effect limits the District Court’s jurisdiction in relation to matters transferred from the Supreme Court.⁵⁹ There appears to be no good reason why the jurisdiction in relation to PRA matters should be significantly less than the general jurisdiction of the District Court.

9.29 Apart from the above limitation, the District Court’s general jurisdiction in equity proceedings is similar to that of the Supreme Court.⁶⁰ The District Court also has the power to grant ancillary equitable relief by way of injunctions (interlocutory or otherwise), which the Supreme Court might have granted if the action was heard in the Supreme Court, in relation to matters under section 44.⁶¹

Dispute resolution methods

9.30 As in the Supreme Court, the District Court can deal with disputes by adjudication, or by other alternative methods such as arbitration, mediation or neutral evaluation.

9.31 Adjudication. All matters in the District Court are listed for a directions hearing before a Judge approximately six weeks after the commencement of the proceedings. Lists are conducted on a fortnightly basis. Country matters are conducted using telephone conferencing facilities.⁶² There is a particular list judge assigned to issuing directions in matters under the PRA. The list judge makes directions as to matters such as the lodgement of affidavits and evidentiary material required. This process gives the parties a clearer understanding of the issues and the feasibility of proceeding to a hearing.⁶³ When the list judge is satisfied that the parties have complied with all directions, and the matter is ready for hearing, the matter is transferred to the civil list judge who then sets a date for hearing. Unlike at the directions hearing stage, there is no particular judge assigned to hearing PRA matters – hearings are allocated to Judges exercising civil jurisdiction. This system, which can, of course, be changed by the Chief Judge, gives no real opportunity for specialisation.

9.32 Proceedings before the District Court under the PRA are conducted according to rules of the Supreme Court.⁶⁴ The rules deal with various matters⁶⁵ including how proceedings shall be commenced.⁶⁶ The District Court Act 1973 (NSW) further provides that all documents must be in the form specified in Schedule F of the Supreme Court Rules with the necessary modifications.⁶⁷ All other procedural matters are dealt with according to the provisions of the District Court Rules.⁶⁸

9.33 In 2000 the Sydney District Court dealt with 23 PRA matters. The median delay from commencement of proceedings to finalisation was 11.6 months.⁶⁹

9.34 Arbitration. The Arbitration (Civil Actions) Act 1983 (NSW) introduced a scheme of court annexed arbitration into the District Court.⁷⁰ However, applications under the PRA cannot be referred to arbitration as all matters in the equity jurisdiction of the court are excluded from the operation of the Arbitration (Civil Actions) Act 1983 (NSW).⁷¹

9.35 Mediation and neutral evaluation. Part 3A of the District Court Act 1973 (NSW) empowers the court to refer matters to mediation and neutral evaluation⁷² if the parties to the proceedings agree.⁷³ While the court does encourage the use of mediation and neutral evaluation, the court cannot compel parties to attend.⁷⁴ Additionally, the District Court does not have any court annexed mediation facilities. The current practice is to refer parties to outside mediators. It is unclear how many PRA matters were referred to either mediation or neutral evaluation.

9.36 The District Court has also conducted a Mediation Pilot Program for long or complex matters. The court required the parties and their legal representatives to complete a questionnaire on the mediation process to assist the court to refine and improve it.⁷⁵

Local Court

Jurisdiction

9.37 As stated above, section 9 of the PRA provides that a person may apply to the Local Court for an order or relief under the Act. The jurisdictional limit in the general division of the Local Court is $40,000.⁷⁶ Matters are transferred to the District Court or the Supreme Court where the value exceeds the Local Court’s jurisdictional limit, unless parties consent to the matter being heard in the Local Court.⁷⁷ The Local Court may also transfer matters to the superior courts of its own motion even if the parties are willing to have the matters heard in the Local Court.⁷⁸ In Sydney, PRA matters are dealt with in the St James Centre Local Court.⁷⁹ Since this court deals with family law matters, it has developed some degree of specialisation in the area.⁸⁰ Although there are no supporting statistics, the Registrar at the St James Centre Local Court is of the view that the vast majority of PRA matters dealt with in the Local Court are resolved by consent orders.⁸¹

Dispute resolution methods

9.38 As in the other courts, the Local Court can deal with disputes by adjudication or other alternative methods.

9.39 Adjudication. The procedure for instituting PRA proceedings in the Local Court is set out in the Property Relationships Regulation 2000 (“the PRR”).⁸² The PRR deals with the making of applications for financial adjustment under Part 3 of the PRA, service of applications, hearing of applications, privacy for the parties to such proceedings and payment of maintenance. It also deals with the enforcement of orders for periodic maintenance. Where it does not specify the practice and procedure to be followed, the Local Court may give directions as necessary.⁸³

9.40 There are no specific provisions relating to costs orders in the PRA or the PRR. Generally, costs orders will only be made in particular circumstances, on the basis that PRA matters are more akin to family law matters than those that arise in the civil claims jurisdiction of the Local Court. However, given that there are no specific provisions in relation to costs orders, this area warrants further consideration.

9.41 Arbitration, mediation and neutral evaluation. PRA proceedings commenced in accordance with the provisions of the PRR, cannot be referred to arbitration, mediation or neutral evaluation as set out in the Local Courts (Civil Claims) Act 1970 (NSW).⁸⁴ The Magistrate is empowered to give directions with respect to practice and procedure.⁸⁵ Using this power, the Magistrate at the St James Centre Local Court sometimes refers PRA matters to the Registrar to conduct a conciliation conference akin to an Order 24 conference.⁸⁶ Generally, however, most PRA matters are referred to Community Justice Centres for mediation.⁸⁷

THE FEDERAL EXPERIENCE

The Constitution and family law

9.42 The Constitution empowers the Commonwealth Parliament to legislate in relation to marriage, divorce and matrimonial causes⁸⁸ and incidental matters such as parental rights and property of parties to a marriage.⁸⁹ The Family Law Act 1975 (Cth) (“the FLA”) deals with these matters.⁹⁰ Jurisdiction under the FLA is exercised by the Family Court of Australia (“the Family Court”), the Family Court of Western Australia, the Supreme Court of the Northern Territory, courts of summary jurisdiction and the Federal Magistrates Court (“the FMC”).

The impact of a constitutional challenge: end to cross-vesting power

9.43 In addition to its jurisdiction under the FLA, the Family Court had, until 1999, jurisdiction to hear matters that were connected to proceedings in the Family Court, which would otherwise not come within its jurisdiction. The most notable example of this in the area of family law was the ability to hear disputes between de facto couples concerning both children and property concurrently, where they would otherwise be dealt with separately by the Family and State Courts. This was made possible by the enactment of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) and similar complementary legislation that was enacted by all the states in 1987.⁹¹ The legislation established a scheme which “cross-vested” the civil jurisdiction of superior courts. This meant that each court could transfer proceedings or exercise the jurisdiction of another when considered necessary or appropriate.

9.44 The Explanatory Memorandum to the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) stated that:

The reasons for the proposed scheme are that litigants have occasionally experienced inconvenience and have been put to unnecessary expense as a result of:

(a) uncertainties as to the jurisdictional limits of Federal, State and Territory Courts, particularly in the areas of trade practices and Family Law, and

(b) the lack of power in these Courts to ensure that proceedings which are instituted in different Courts, but which ought to be tried together, are tried in one Court.⁹²

9.45 However, the High Court in Wakim, Re; Ex parte Mc Nally⁹⁴ held the cross-vesting laws to be unconstitutional, and therefore invalid, as they purport to give the federal courts jurisdiction to exercise state jurisdiction. Consequently, the States can no longer vest State jurisdiction in federal courts nor can the Commonwealth consent to the vesting of State jurisdiction in federal courts.

9.46 The rejection of cross-vesting has had little impact on the workload of the Family Court, as there were few cross-vested matters.⁹⁵ The consequences are however quite serious for unmarried couples with combined disputes over children and property. Matters that were previously cross-vested must now be the subject of separate proceedings in a State and federal court, resulting in additional costs and delays.⁹⁶

The relevance of the Federal experience

9.47 Chief Justice Nicholson of the Family Court has commented that:

The nature of family law sets it apart from other areas of law. It is a unique and critically important jurisdiction and the one which most directly impacts on what the Family Law Act describes as the natural and fundamental group unit of society – the family – and particularly on children who are often living in particularly vulnerable circumstances. … In contrast with most civil litigation, there is often a significant ongoing relationship between the parties to family law proceedings after the litigation has concluded, and there is considerable potential for further or extended litigation. … This means that the process and outcome of any litigation must be such as to permit them to have a sensible ongoing relationship. … It is also an area of law where people, who will have no other significant contact with the legal system, may become embroiled in a legal dispute and possibly litigation.⁹⁷

The Family Court of Australia

Jurisdiction

9.48 The Family Court was established under Part IV of the FLA as a “superior court of record”.⁹⁸ It has jurisdiction to resolve or determine disputes under the FLA,⁹⁹ in conjunction with the Marriage Act 1961 (Cth)¹⁰⁰ and the child support legislation.¹⁰¹ The Family Court is funded to provide a range of services including dispute resolution services and judicial determination of litigated matters.¹⁰²

Procedural Issues

9.49 Parties initiate proceedings in the Family Court by filing an application in accordance with forms¹⁰³ which simplify and standardise procedures.¹⁰⁴ The particular form that is needed depends on what kind of relief the applicant is seeking.¹⁰⁵ Some forms must be served with an affidavit.¹⁰⁶ The Registrar sets a date for the hearing of the application, which is generally 21-42 days after the application is filed.¹⁰⁷

9.50 In some cases the respondent will be required to file a response to the application.¹⁰⁸ The respondent who opposes an application for divorce or a nullity of marriage must file a response to the application within 28 days¹⁰⁹ in accordance with a prescribed form.¹¹⁰ The response must be served on the applicant as soon as practicable after filing.¹¹¹

9.51 When proceedings relate to financial matters, both applicant and respondent must file a financial statement with their application or response.¹¹² In addition, personal tax returns, tax assessments, superannuation fund account statements and financial statements of any company, trust or partnership must be served on each party.¹¹³ The documents must be served within 14 days after the directions hearing.¹¹⁴ The parties are expected to agree to mutual and informal discovery and inspection of documents that relate to any matter in question in the proceedings.¹¹⁵ After the date of the hearing is set, the parties may seek discovery of relevant documents.¹¹⁶ The Family Court’s refusal to require disclosure from the outset of proceedings has been criticised on the grounds that it impedes and delays fair property settlement. Lack of disclosure also impacts on conciliation and mediation, where parties need to be fully apprised of the relevant information in order to negotiate effectively.

9.52 The Full Court of the Family Court hears appeals from the Family Court either by way of a re-hearing (which involves a review of the evidence only) or as a hearing de novo (which is a complete re-hearing).¹¹⁷ An appeal to the High Court is only possible by special leave of the High Court or upon a certificate from the Full Court of the Family Court that it concerns an important question of law or public interest.¹¹⁸

9.53 Weaknesses identified in the current system of differential case management were addressed in the Family Court’s Future Directions Report¹¹⁹ and a new system was proposed. Parties currently pass through the following stages: filing, information session, directions hearing, conciliation and/or counselling, pre-hearing conference, a compliance check and finally the trial.

9.54 Under the new system, child and property proceedings are commenced with a Case Assessment conference, which takes longer than the current Directions Hearing. The case assessment is conducted by a Deputy Registrar or a counsellor, with the involvement of the parties and their legal representatives. The parties are encouraged to settle all or some of the issues in dispute by agreement. Orders for preparation for trial are made at the Conciliation Conference and parties are issued with a trial notice which sets out when evidence needs to be filed, the date of the Pre Trial Conference, the Case Summary, and the proposed date for trial. The parties prepare and file the evidence for trial, including affidavits and Family Reports before the Pre-Trial Conference. At the Pre-Trial Conference, at which the date of

trial is set, trial plans are prepared, parties review all material including the case summary and are provided with a final chance for settlement. Trial dates will not be allocated until all evidence has been filed and served, all interlocutory steps have been completed and preparations are for trial are complete. The new system involves fewer and different activities and attempts to facilitate early resolution of disputes and streamline procedures for going to trial.

Key features

9.55 The most notable features of the Family Court in its approach to dispute resolution are its:

• specialist jurisdiction;
• court annexed primary dispute resolution facilities; and
• costs rule (whereby each party pays their own costs).

… an attempt to create … a new kind of legal institution. It was a recognition that matrimonial disputes and their settlement required a different kind of approach: one which recognised the relevance of a range of services besides those customarily available to litigants in law cases. This involves attention to the special needs of children and to the possibilities of conciliation in helping those involved in marital agreements to reach agreements as to how their affairs should be ordered in the aftermath of divorce.¹²⁰

9.58 Judges and court staff undertake training programs to ensure that methods and procedures in the court continue to be relevant. Thus, the judges are not only carefully chosen for their expertise, but their expertise is intended to increase by working in a specialist jurisdiction and participating in the court’s judicial education programs. This is intended to help develop collegiate expertise within the judiciary and to establish an administration that has a relationship centred ethos.

9.59 Court annexed primary dispute resolution facilities. The Family Court’s counselling and mediation method is known as “primary dispute resolution” (known as PDR).¹²² PDR is a significant distinguishing feature of the Family Court, and gives the impression of the court being a “helping” court. Voluntary and court ordered counselling and conciliation conferences have been provided since 1975 and voluntary mediation services since 1992.

9.60 The term PDR was first introduced into the FLA in 1995¹²³ as an umbrella term to cover the processes of relationship and reconciliation counselling, mediation, conciliation counselling, conciliation and arbitration.¹²⁴ The Family Court has recently renamed its primary dispute resolution services with the generic term “mediation services”, although the term PDR is retained in the legislation.¹²⁵ Mediation services will be used in this paper, except where reference is made to the legislation.

9.61 One of the principal tenets of the Family Court is that litigation should be a last resort and that the court has a duty to assist parties to resolve their own disputes wherever possible. To this end, the court’s mediation methods are co-located with its adjudicative functions. According to the Chief Justice of the Family Court, the court’s case management process is so closely integrated with its mediation facilities that matters do not simply proceed through mediation first and if that fails, proceed to litigation. Rather, there is frequent movement between the mediation and litigation pathways, at all stages of the process.¹²⁶ This enables the parties to use a range of services and methods to resolve disputes.

9.62 Part III of the FLA¹²⁷ deals with PDR and has been described as “one of the most comprehensive legislated alternative dispute resolution schemes in the world”.¹²⁸ The object of Part III is:

(a) to encourage people to use primary dispute resolution mechanisms (such as counselling, mediation, arbitration or other means of conciliation or reconciliation) to resolve matters in which a Court order might otherwise be made under this Act, provided the mechanisms are appropriate in the circumstances and proper procedures are followed; and

(b) to ensure that people have access to counselling:


(i) to improve relationships covered by this Act; and
(ii) to help them adjust to Court orders under this Act.¹²⁹

9.64 Similarly, in the FLA, PDR methods are defined to mean, “procedures and services for the resolution of disputes out of court”, including counselling, mediation and arbitration.¹³¹ However, the processes themselves are not clearly defined in the Act. According to one view¹³² the significant distinguishing features of conciliation and conciliation counselling that set them apart from mediation are respectively, their evaluative and directive nature and the fact that clients can be ordered to attend.¹³³ The Family Court may refer parties to mediation with their consent or make other orders to facilitate the effective conduct of the mediation.¹³⁴ It may also attempt to compel parties to attend mediation by adjourning the legal proceedings. Although conciliation is a consensual process, attendance at a conciliation conference is mandatory.¹³⁵ The same applies in relation to pre-hearing conferences.¹³⁶ In relation to arbitration, recent amendments now require that the parties consent to a referral to arbitration;¹³⁷ in the past referral to arbitration for proceedings under Part VIII was mandatory.¹³⁸

9.65 Officers of the court and community organisations offer mediation services.¹³⁹ They are funded by the Commonwealth government.¹⁴⁰ The Family Law Regulations provide that an approved court mediator must be a person considered by the Chief Justice to be “suitable by reason of the person’s training and experience”.¹⁴¹ The Regulations detail the qualifications, training and experience required for community and private mediators as well as the ongoing training required.¹⁴²

9.66 In 1999/2000, the Family Court extended its mediation services by making further appointments and enhancing training processes. It used internal benchmarking to improve productivity and the quality of services provided.¹⁴³ The Family Court reported that about 80% of applications for final orders filed were resolved due to its provision of mediation services.¹⁴⁴

9.67 The Commonwealth Attorney General’s Department has examined the efficacy of access to mediation services.¹⁴⁵ The Discussion Paper suggested that a new administrative structure be established which would provide counselling and mediation services in the community setting rather than on court premises.

9.68 The issues raised by the paper were highlighted in Next Steps, in which the Government stated its aim to reduce the role of litigation in family disputes, and to expand the role of the community sector in primary dispute resolution.¹⁴⁶ Key issues identified were improving access,¹⁴⁷ building the capacity of community-based providers¹⁴⁸ and ensuring financial accountability and quality of service.¹⁴⁹

9.69 Costs rule. In the Family Court, costs can be privately funded by the parties or publicly funded through legal aid. Costs are not tax deductible. The general rule is that each party to the proceedings must bear their own costs.¹⁵⁰ This is unlike the costs rules in the Supreme Court and District Court where costs generally follow the event and costs orders are routinely made. Under the FLA, the Family Court may make an order as to costs only if there are justifying circumstances such as the financial circumstances of each party or the conduct of the parties.¹⁵¹

The Federal Magistrate’s Court

Jurisdiction

9.70 The Federal Magistrates Court (“the FMC”) was established by the Federal Magistrates Act 1999 (Cth) (“the FMA”) to provide people with “user friendly, affordable options for resolving their disputes”.¹⁵² It is a court of original jurisdiction, exercising concurrent jurisdiction with the Family Court and the Federal Court. However, contested property matters over the value of $300,000 are dealt with in the Family Court.¹⁵³ Introducing the Federal Magistrates Bill, the Attorney General noted that:

Many of [the matters before Commonwealth Courts] are not complex and do not need to be dealt with by superior Court judges. Federal and Family Court judges are increasingly tied up dealing with matters that could be dealt with more efficiently at a lower level.¹⁵⁴

Procedural issues

9.72 The FMA emphasises the provision of user-friendly procedures, which promote the use of primary dispute resolution processes that are likely to assist people to resolve disputes away from the courts.¹⁵⁸

9.73 To achieve this, the FMC aims to operate without undue formality and to use streamlined procedures to ensure that proceedings are not protracted.¹⁵⁹ The FMA provides that interrogatories and discovery are not allowed unless the court declares them appropriate.¹⁶⁰ Proceedings are instituted by way of application without the need for pleadings.¹⁶¹ The court may give directions about the length of documents to be filed¹⁶² as well as limiting the time of oral argument in proceedings¹⁶³ and the length of written submissions.¹⁶⁴

9.74 The court is constituted by a Federal Magistrate,¹⁶⁵ and is empowered to make orders, such as interlocutory orders, and issue writs, as it thinks appropriate.¹⁶⁶ The FMA can make binding declarations of right.¹⁶⁷ Appeals from the FMC lie to the Full Court of the Family Court.¹⁶⁸

PDR services

9.75 Primary dispute resolution services in the FMC include counselling, mediation, arbitration, neutral evaluation, case appraisal and conciliation.¹⁶⁹ The FMC may advise the parties about the primary dispute resolution processes that can be used.¹⁷⁰ It can adjourn proceedings to enable the parties to undertake any of these processes.¹⁷¹ The FMC may order proceedings to conciliation or mediation¹⁷² without consent, and may also order a matter to arbitration, though only if the parties consent.¹⁷³ Notably, the court’s powers with respect to mediation and arbitration under the FMA do not apply to family law and child support proceedings. Relevant powers in relation to these matters are dealt with in Part III of the FLA.¹⁷⁴ If a matter has been referred to a primary dispute resolution process, the court can still determine any question of law that arises from the proceedings; this determination will be binding on the parties.¹⁷⁵ If the parties reach agreement on a matter in dispute, they can apply for the FMC to make an order in the terms of the agreement.

Costs

9.76 The FMC has jurisdiction to order costs in general litigation. However, costs in family law and child support matters are governed by the FLA, which provides that each party generally bears its own costs. The court may make orders as to costs if it considers it to be just.¹⁷⁶

OTHER AUSTRALIAN JURISDICTIONS

Australian Capital Territory

9.77 In the ACT, applications under the Domestic Relationships Act 1994 (ACT) (“the DRA”) can be made in the Supreme Court¹⁷⁷ or, if the amount in dispute is less than $50,000, in the Magistrate’s Court.¹⁷⁸ Parties may agree to have the Magistrates Court hear a matter despite the limit.¹⁷⁹

9.78 Recent research reveals that the Magistrates Court is the favoured forum even where the value exceeds the jurisdictional limit.¹⁸⁰ The majority of cases involving property divisions are resolved by consent. Between 1994 and 1999, only 1% of matters in the Magistrates Court and 9% in the Supreme Court were resolved in a contested manner. Of the matters resolved by consent, many files in the Magistrates Court represented an agreement that was not in dispute. There appeared to be no significant delays in the finalisation of matters, with the average time from filing to resolution being about 22 days in the Magistrates Court and 146 days in the Supreme Court. Although the DRA gives the court the power to refer a matter to mediation, this was not done in any of the 203 files examined in the Magistrates Court and only in 6 of the 34 files examined in the Supreme Court.¹⁸¹

9.79 Overall, the research indicates that there was a relatively low use of the DRA by same sex couples, non-cohabiting couples and non-couples.¹⁸² Some of the reasons suggested for this low usage include a lack of knowledge about the broad scope of the DRA and a reluctance by lesbians and gay men to use the formal legal system.

Queensland

9.80 In 1999, Queensland enacted the Property Law (Amendment) Act 1999 (Qld) which introduced a property division mechanism on the breakdown of a “de facto relationship”. It covers same sex and opposite sex partners. As in NSW, the Queensland Supreme Court, District Court and Magistrates Courts have jurisdiction in relation to de facto relationships matters. The District Court’s monetary limit is $250,000¹⁸³ and the Magistrates Court’s limit is $50,000¹⁸⁴ . The legislation makes it clear that it is the value of the interest claimed, not the value of the property itself, which is relevant. Both the District Court and Magistrates Court may make an order or declaration concerning an interest in property where the value of the interest exceeds the court’s monetary limit if an appropriate document has been filed under the court’s consent jurisdiction.¹⁸⁵

9.81 When maintenance is the only relief sought, an application must be made to the Magistrates Court even if the amount of maintenance sought is more than the monetary limit of the Magistrates Court.¹⁸⁶ The consent of the parties is not necessary for the Magistrates Court to make such an order.¹⁸⁷ Only the Supreme Court or District Courts have the power to make declarations about the existence or non-existence of a de facto relationship. However, the Magistrates Court may make a finding of fact on the evidence that a de facto relationship exists. In addition to the range of powers vested in each of the courts, the Supreme Court, District and Magistrates Courts are also given a number of powers similar to the Family Court by FLA.¹⁸⁸ Pending proceedings may be transferred to another court having jurisdiction in relation to de facto matters if it is considered more appropriate to be dealt with in the other court.¹⁸⁹

Northern Territory

9.82 In the NT, section 4 of the De Facto Relationships Act 1991 (NT) confers jurisdiction on the Supreme Court and the Local Court to hear matters under its provisions. The jurisdictional limit in the Local Court is $40,000.¹⁹⁰ Proceedings that exceed this limit are transferred to the Supreme Court unless the parties consent to the matter being heard in the Local Court.¹⁹¹ The Local Court may of its own motion transfer to the Supreme Court even if the parties are willing that the proceedings be determined by the Local Court.¹⁹² There is also a general power to transfer proceedings between courts where it is in the interests of justice to do so.¹⁹³

9.83 Both the Supreme Court and the Local Court may declare the existence of a de facto relationship, which has the effect of a judgment of a court.¹⁹⁴ Courts are empowered to make orders adjusting the interests in property between the parties¹⁹⁵ and orders for maintenance.¹⁹⁶

South Australia

9.84 The De Facto Relationships Act 1996 (SA) facilitates the resolution of property disputes arising on the termination of de facto relationships. Section 9 of the De Facto Relationships Act states that applications can be made to the District Court or the Supreme Court. If the value of the dispute is less than $60,000, it can be heard in the Magistrates Court. Under this Act, the court has power to make orders for the division of the property between de facto partners.¹⁹⁷ The court also has power to vary or set aside cohabitation agreements established under the Act at its own initiative or on the application of one of the de facto partners.¹⁹⁸

Victoria

9.85 The Property Law Act 1958 (Vic) was recently amended by the Statute Law Amendment (Relationships) Act 2001 (Vic) to recognise the rights and obligations of partners in domestic relationships irrespective of the gender of each partner.¹⁹⁹ Section 279 of the Property Law Act 1958 grants jurisdiction to the Supreme Court and also the County Court if the value of the dispute is within its jurisdictional limit of $200,000. Under this Act the court is empowered to adjust the property interests as existing between the parties.²⁰⁰ The court may declare the title or rights that a domestic partner has in respect of the property; it can make orders to give effect to the declaration, including orders about possession.²⁰¹ There is a provision for a person to be made a party to the proceedings on the application of the person or if it appears to the court that the person may be affected by an order under Division 2 (Orders for Adjustment of Property Interests).²⁰²

Western Australia

9.86 Legislation is currently before the WA Parliament to cover heterosexual and same sex de facto relationships.²⁰³ Given that WA has its own Family Court²⁰⁴ exercising both federal and State jurisdiction, it is likely that matters under the proposed de facto relationships legislation will also be determined by that court.

OVERSEAS EXPERIENCE

9.87 In the UK, there is no legislation regarding de facto relationships and partners must assert their property division rights through the general law. Division of property is governed by the principles of trust and property law rather than family law and is declaratory as opposed to adjustive.²⁰⁵

9.88 In Canada, property division comes within the jurisdiction of the Provinces, which means that legislation regarding de facto relationships varies according to jurisdiction. Under the Family Maintenance Act (Manitoba) cohabitants incur the same mutual obligation to contribute to each other’s support as spouses.²⁰⁶ However the law does not extend to making orders for property adjustment in de facto relationships; the division of proceeds of sale is governed according to general law principles.²⁰⁷ The province of Alberta²⁰⁸ still maintains a clear distinction between marriage and a common-law relationship.²⁰⁹ This distinction was challenged in Rossu v Taylor.²¹⁰ It was held that section 15 of the Domestic Relations Act, which limited the right to spousal support to married couples, infringed section 15(1) of the Canadian Charter of Rights and Freedoms which prohibits discrimination on the basis of “marital status”. In Ontario, by contrast, there are few remaining distinctions between marriage and de facto relationships. The major differences between married spouses and opposite sex cohabitants is the exclusion of cohabitants from Parts I and II of the Family Law Act, which deal with the division of assets and the matrimonial home.²¹¹ Under section 3 of the Family Law Act the court may appoint a mediator to facilitate agreement between the parties on any matter the court specifies. The parties pay the mediators fees and the court specifies the proportion each party pays.²¹² Property is divided according to principles of unjust enrichment; seeking remedy based on unjust enrichment has been identified as being costly and time consuming.²¹³

9.89 In New Zealand, the Matrimonial Property Act 1976 was recently amended to become the Property (Relationships) Act 1976 by the Property (Relationships) Amendment Act 2001. This Act extended the property division regime in the principal Act so it now applies to the division of the property of couples who have lived in a de facto relationship.²¹⁴ The Family Court now has jurisdiction over de facto relationships including same sex couples.²¹⁵ Mediation is encouraged. Either party to a proceeding in the Family Court or a Family Court judge can ask the Registrar to arrange a mediation conference to be convened.²¹⁶ The parties are allowed to have a barrister or solicitor advise them during the mediation²¹⁷ which will be chaired by a Judge of the Family Court.²¹⁸ Mediation conferences are used to identify the matters in issue between the parties, with the aim of obtaining agreement between the parties on the resolution of those matters.²¹⁹ By consent the Chairman of the mediation conference may make orders regarding separation orders, the custody of any child of the parties, maintenance, and the possession or disposition of property.²²⁰ If a person fails to attend a mediation conference, a District Court Judge may, on the request of a counsellor or Registrar, issue a summons requiring that person to attend mediation.²²¹

GENERAL ISSUES FOR DISCUSSION

9.90 The discussion thus far has focussed on the way disputes to do with marriage and de facto relationships are resolved in NSW, federally, in other jurisdictions around Australia and overseas. The extent of reform recommended would depend on whether the current dispute resolutions mechanisms are deficient in themselves and in comparison with approaches adopted in other jurisdictions.

9.91 The following analysis of the current framework raises a range of policy issues for discussion.

Supreme Court

9.92 The Supreme Court has placed great emphasis on the benefits of using mediation and neutral evaluation methods as an alternative to litigation. The ability to order mediation where the judge deems it appropriate is an important first step. It is also necessary, however, that the value of mediation is recognised by the parties themselves and that there are adequate numbers of well trained mediators to meet the demand. There is also the issue of whether the training provided ought to be tailored to dealing with “relationship” disputes.

9.93 Where matters do proceed to court, the question to be resolved is whether the Supreme Court is the appropriate forum for dispute resolution of PRA matters.

Issues for consideration

1. How effective are the mediation and neutral evaluation sessions in resolving PRA disputes?

2. Do the mediators require specialised training to deal with property disputes arising out of a “domestic relationship”?

3. What are the practical advantages and disadvantages of going to the Supreme Court in relation to PRA matters? Is it appropriate that the Supreme Court have jurisdiction in relation to PRA matters?

4. Should costs follow the event in PRA matters or should the Supreme Court mirror the Family Court approach where each party bears their own costs, unless there is an exceptional reason justifying the court to make a costs order?

District Court

9.94 While the District Court does encourage the use of alternative methods of dispute resolution, there appears little evidence of its use. The result is that most matters proceed to trial.

Issues for consideration

1. Should the District Court have the power to compel mediation and neutral evaluation?

2. Should the District Court make provision for Court annexed mediation facilities?

3. Should the District Court have a specialist division that deals with PRA matters?

4. What is the rationale for limiting claims in relation to PRA matters to $250,000? Does the limitation refer to the amount sought to be re-adjusted or to the total value of the assets?

5. Should the District Court have unlimited jurisdiction in PRA matters as is the case with claims for damages arising out of motor vehicle accidents? If so, will there be a continued need for the Supreme Court to have jurisdiction in PRA matters?

6. Alternatively, should the District Court’s jurisdictional limit be removed where matters have been transferred from the Supreme Court?

7. In PRA matters should the District Court mirror the Supreme Court’s costs rules or should it mirror the Family Court’s approach?

Local Court

9.95 Since most cases are dealt with speedily and the process is uncomplicated, this jurisdiction would appear to attract the highest number of applications under the PRA. However, there is very limited scope for using primary dispute resolution mechanisms.

Issues for consideration

1. Should the Local Court be empowered through legislation to have access to arbitration and mediation facilities in relation to PRA matters?

2. Should such facilities be court annexed?

3. Should the Local Court have the power to compel mediation and neutral evaluation?

4. Should the PRA be amended to adopt the FLA approach to costs?

5. Should the jurisdictional limit be increased?

9.96 The above indicates that each court within the current framework has its own peculiar problems that may be addressed specifically. However, the broader policy question of whether or not the current framework ought to be substituted with a different approach will depend on whether PRA disputes by their very nature call for a different approach. In assessing the need for change, the best option will be one that delivers fair, accessible, timely and affordable justice.

EVALUATION OF KEY FEATURES OF THE FAMILY COURT

9.97 Contrasted against the issues raised by the current framework are the main features of the Family Court: specialist jurisdiction; court annexed mediation services focus; simpler procedure; party-party costs rules. Given that the PRA deals with similar issues to those dealt with in the Family Court, it is worth critically and objectively evaluating these features by considering their relevance for resolving PRA matters and whether incorporating these features will ensure the delivery of more accessible, cost efficient, speedy justice.

Specialist versus generalist jurisdiction

Advantages and disadvantages

9.98 The prime advantages of specialisation lie in expertise and uniformity. Judges are assigned according to their specific education, training, and experience in that particular field. Judges who are trained and specialise in a particular area are better able to entertain, research and implement new ideas.²²² Specialisation will ideally produce a bench of judges better able to process cases efficiently and judiciously because of the expertise gained from dealing with the same issues.²²³ This results in speedier decision-making and less cost.²²⁴

9.99 Conversely, courts with a general jurisdiction have a larger pool from which they can select judges. Generalist decision makers may be better able to incorporate insights gained in cases involving more diverse topics, especially in cases involving complex property or commercial issues.²²⁵

9.100 There is also concern about whether the impartial role of the decision maker is jeopardised by bringing too much specialised non-legal knowledge into the courtroom. The litigation process is founded on the parties bringing their evidence to court for neutral evaluation. Where an understanding of an individual’s circumstances is necessary, the ordinary testimonial procedure is appropriate. Otherwise, the judge’s neutrality is undermined.²²⁶

9.101 Specialisation may increase uniformity in decision making by reducing the number of courts and judges dealing with particular issues, leaving less scope for errant decisions.²²⁷ Although there is a danger that certain participants will receive consistently unfavourable outcomes, the public policy virtues of consistency of decision making outweigh fragmented inconsistency and any forum shopping that results.²²⁸ Relatively consistent outcomes are also desirable because they encourage settlement.

9.102 Specialist courts, such as Drug Courts and Mental Health Courts, are often erected on the basis of a therapeutic approach to resolution. Therapeutic jurisprudence sees the law as a social and economic force, with the ability to produce both therapeutic and anti-therapeutic results for individuals.²²⁹ Central to this is an acceptance of the importance of alternative models of dispute resolution.

9.103 Courts with a therapeutic jurisprudential basis are in a unique position to undertake a holistic approach to both the issues at hand and the needs of the person before the court, including any treatment that may be appropriate.²³⁰ Specialist courts often provide legal and non-legal services to litigants,²³¹ as the issues to be determined are not purely legal or purely societal. In this way specialist courts can integrate the societal protections provided by the law and the remedial interventions provided by social services and mental health agencies.²³² Both mental health and drug courts operating in the US have made a positive impact on recidivism rates for offenders participating in treatment programs.²³³

9.104 Proceedings of Drug Courts and Mental Health Courts are very different from disputes over property. However, the experience of these specialist courts is still relevant because counselling and alternative dispute resolution play a much stronger role in relationship disputes than in purely commercial disputes. Specialist courts encourage the use of alternative mechanisms to resolve disputes prior to litigation. This emphasis minimises the adversarial nature of the proceedings, which is appropriate given the proceedings are often emotionally charged and are likely to involve complex social problems.²³⁴ Mediation offers a model of cooperative decision-making that, where effective, better facilitates on-going family relations than the adversarial system, which may inflame family problems.²³⁵

9.105 The advantages put forward for specialist family courts are numerous. The complexity of relationships involved in family disputes demands judicial expertise. If each family is dealt with by a single judge, that judge will be in a better position to understand the context and dynamics of the family’s behaviour.²³⁶ The services of mental health professionals, which may be otherwise unavailable, can help emotionally impaired and dysfunctional families. Self-determination and alternative forms of dispute resolution are encouraged in a setting where the external decision maker is identified and reasonably predictable.

9.106 On the other hand, some see that family courts represent a trade off between individual-centred justice according to law and family-centred, judicially directed service interventions. The moral, cultural and religious biases of individual judges will have particular impact on judicial impartiality within family courts. Proceedings are likely to be less formal, with less emphasis on procedure, evidentiary rules, finite jurisdiction, case separation and appellate review. The checks on judicial discretion are fewer as individual judges may impose their particular biases on litigants. Specialist courts have been criticised on the grounds that specialist knowledge compromises judicial neutrality and there is a greater potential for individual bias of decision makers to go unchecked.²³⁷ This is compounded by the fact that the family law system is not value neutral. It protects the interests of children and family unity, and tends to privilege the status of being married over not being married. Historical values of established religions still provide the basis for legal definitions of family and eligibility for marriage.²³⁸

Suitability for PRA matters to be dealt with in a specialist system

9.107 PRA disputes over property arise out of the breakdown of a personal relationship. Although the FLA also covers issues relating to children, which the PRA does not, it is the focus on “relationships” that calls for its specialist treatment. “Family”, however defined, is the “natural and fundamental group unit in society”.²³⁹ Issues that may justify the need for a specialist jurisdiction include the following:

• the dynamics of relationship breakdown in both heterosexual and gay and lesbian relationships;
• the nature and disposition of property (including “human capital”) and the division of work in and out of the home in both heterosexual and gay and lesbian relationships;
• the prevalence, dynamics and effects of abuse, including physical, emotional, sexual and economic abuse on both adults and children – in heterosexual and gay and lesbian relationships;
• the potential impact of violence and abuse on property;
• the nature of gay and lesbian relationships;
• social attitudes and prevalent misconceptions about gay and lesbian relationships;
• the impact of homophobia on gay and lesbian relationships, particularly in relation to property arrangements.

9.109 In practical terms, having relationship matters heard in a generalist jurisdiction can be like appearing in an “alien culture”. The vast majority of matters in the Supreme Court Master’s Equity Division list (in which property relationship matters are heard) are corporations law matters. In 1999, there were 2242 corporations law matters and 55 property relationships matters.²⁴⁰ Clearly there are far fewer property relationship cases than other matters listed for hearing. Whilst the Masters no doubt exercise great skill in dealing with all matters before them, they inevitably have less experience in dealing with property relationship matters than they will with the other matters before them. For the parties in property relationship proceedings, the anxiety of being in court (often for the first time) can be exacerbated by being in a jurisdiction that deals principally with very different matters. The reason that these matters are considered different, even though the immediate subject matter is property, is because the property dispute is inextricably linked to a close personal relationship that in most cases has ended, often leaving a great deal of pain. The property dispute therefore has an additional aspect that must be considered with sensitivity.

9.110 The Family Court presents a stark contrast. All parties present on a given day have similar problems and are dealt with by judges who have experience in family law. Consequently, these judges may be seen, possibly rightly, as more sensitive to the emotional and other intricacies that flow from close personal relationships, and that need to be considered when making orders.

9.111 It is pertinent that the Chief Justice of the Family Court has recently called for wider powers to include hearing disputes between de facto and same sex couples within the Family Court’s jurisdiction so as to become a court hearing all relationship type matters.²⁴¹ The Attorney General responded that the Commonwealth has no constitutional power to implement uniformity relating to de facto property disputes.²⁴²

9.112 It is also noteworthy that in Western Australia,²⁴³ the State Family Court is being considered as an appropriate jurisdiction to hear de facto matters. This is recognition of the need for de facto relationship matters to be considered in a specialist family jurisdiction.

9.113 While there are many reasons why a specialist jurisdiction might be better equipped to deal with PRA matters, there are two possible counter arguments.

9.114 First, since PRA cases are about property, the relationship aspect of the disputes should figure not much more strongly than in other property or contractual disputes between parties who have some personal or professional relationship. The judge can develop an understanding of the circumstances in the same way as he or she does in other property disputes. However, decisions involving children are highly subjective and present difficult emotionally laden questions. Family relationships are significantly different from other contractual and business relationships.

9.115 Secondly, the comparatively small number of PRA disputes that are heard in the courts may suggest that setting up a specialist system is unjustified. A specialist system could be more viable if it included not only the PRA matters but also the Family Provision Act 1982 (NSW) matters, which would increase the total number. Further, if the recommendations made in this Discussion Paper are implemented, the number of matters is likely to increase.

Court annexed mediation services

9.116 Both research and anecdotal evidence point to the fact that judicially imposed solutions have many disadvantages. These include the increased polarisation of parties as the possibility of litigation increases, the expense of proceedings, their intimidating character and the rigidity of the possible outcomes. Whether mediation is used as part of the litigation process and offers a true alternative to litigation or not, it is widely recognised as an increasingly useful tool that has the capacity to provide a just and equitable remedy to disputants.²⁴⁴ It is a commonly held belief supported by empirical studies that mediated and conciliated settlements are more flexible, less costly and lead to more satisfaction with the process, particularly in the area of family law.²⁴⁵ Clearly, mediation has become a popular alternative to litigation. It provides a service that is informal and consensual and therefore more accessible.²⁴⁶

9.117 The success of the Family Court is compelling evidence of the benefits of mediation services. Many clients who avoid court proceedings have said the reason for opting for conciliation counselling and mediation is to avoid litigation and its attendant costs.²⁴⁷ The Declaration of Principles on Court Annexed Mediation adopted by the Council of Chief Justices of Australia and New Zealand re-iterated the importance of mediation as part of the adjudicative process.²⁴⁸

9.118 Relationship disputes that fall outside the heterosexual family law context have more reason to prefer mediation to litigation. Commenting on the use of mediation to resolve intra-lesbian disputes, one writer has commented that:

Homophobia has created an inhospitable environment in the formal justice system for lesbians and gay men. Both groups have of necessity found or created other methods of resolving disputes. Whilst many lesbians and gay men have negotiated satisfactory resolutions to their disputes there are also, no doubt, others who have been forced to accept inequitable or unjust settlements because accepting less than justice was preferable to using the formal justice system. … The recent development and expansion of mediation as a method of dispute resolution has led to an interest in its capacity to provide an acceptable and appealing method of dispute resolution for the lesbian and gay community”.²⁴⁹

9.120 However, there are arguments that have been used to resist the wider use of court annexed mediation, where court officers conduct the mediation. The main arguments relate to the constitutional validity of the involvement of court officers in court annexed mediation and the perception of the lack of independence of the judiciary as a result of court annexed mediation. A related question is whether courts should have the power to mandate mediation and indeed whether mediation ought to be mandatory.

Constitutional validity and other concerns regarding court annexed mediation

9.121 Some relatively recent High Court decisions²⁵¹ which have extended and reinforced the doctrine of separation of powers under the Constitution have brought into question whether court annexed mediation offends this doctrine. This relates to judges and court officers involvement in mediation. In relation to a judge’s involvement, one commentator’s view is that his or her conduct of mediations may diminish public confidence in the integrity of the judiciary.²⁵² Given that most mediations are conducted by court officers, and that mediation has assumed a prominent role in dispute resolution processes, it is a matter of concern that this question has been raised. The issue draws attention to the possibility of unnecessary communication between mediator and trial judge, which can cause a loss confidence in the integrity of the court,²⁵³ and the limited avenues for review where the mediation is unsatisfactory.²⁵⁴

9.122 Another possible conflict arises because the confidentiality obligations of a court mediator may be balanced against the court officer’s obligation to law and order. For instance, a mediator who becomes aware of a serious non-violent offence ought keep it confidential. This would present a dilemma if the mediator is a court officer, particularly if he or she is a judge.²⁵⁵

9.123 There is also the concern about whether court annexed mediation affects the public perception of the independence of the judiciary. Long before the High Court’s pronouncements about whether court annexed mediation offends the doctrine of separation of powers, Sir Laurence Street, the former Chief Justice of NSW and now a leading mediator, sounded this warning:

A Court that makes available a judge or Registrar to conduct a true mediation is forsaking a fundamental precept upon which public confidence in the integrity and impartiality of the Court system is based. Private access to a representative of a Court by one party, in which the dispute is discussed and views are expressed in the absence of the other party, is a repudiation of basic principles of fairness and absence of hidden influence that the community rightly expects and demands that the Courts observe.

… The involvement of a custodian of power as mediator imports the real risk of a party feeling a sense of coercion and hence disenchantment with the mediated outcome that can reflect back adversely on the Court.

… The warning that I venture to give … is against the use by a Court of a procedure that is in its very substance antithetical to the maintenance of public confidence.²⁵⁶

9.125 Another criticism of court annexed mediation is that the benefits of mediation can be “distorted by its proximity to the court”.²⁵⁷ The parties may feel constrained to agree to suggestions made by virtue of the status of the mediator being a court officer. This concern may however be alleviated by the growing number of disputants using court annexed mediation which is evidence of the public confidence in such processes. The success of the Family Court’s focus on mediation through the provision of court annexed services and trained mediators is evidenced by the level of satisfaction of clients whose disputes have been resolved without proceeding to litigation.²⁵⁸ It is also worth noting that the Declaration of Principles on Court Annexed Mediation adopted by the Council of Chief Justices of Australia and New Zealand recommends that mediators should “normally” be court officers, like Registrars, but does not contemplate circumstances in which it would be appropriate for a judge to mediate.²⁵⁹

9.126 Irrespective of the above concerns, one further independent issue in relation to court annexed mediation is whether mediation ought to be conducted outside the courts. If court annexed mediation continues to be advocated, it may be regarded as a part of litigation precluding the possibility of change.²⁶⁰ There is also a view that the onus of providing ADR services to the public should fall on the executive and the legislature rather than the courts.

In this context, one writer has said:

Whilst ordering that parties attend Court annexed or Court ordered mediation could be seen as an exercise of judicial power in the course of the administration of justice, the objective of decreasing the public’s resort to the Courts and encouraging parties to deal with their own disputes has strong overtones of social engineering as well as cost saving. The creation of environments for parties to resolve disputes in this manner is therefore perhaps properly one for parties charged with implementing such policies – the executive.

… It is submitted that in the current climate of demand for ADR procedures, the onus should be cast upon the executive to provide facilities and regulate the use of ADR. This would additionally reduce the burden on the Court system by not requiring Courts to oversee disputants’ utilisation of ADR procedures, and leave the Courts sufficiently detached from ADR procedures to enable them to review, free from adverse perceptions, any assertions of inappropriate conduct.²⁶¹

9.128 As ADR becomes increasingly entrenched as a court annexed service, it would probably require the High Court to make an adverse ruling on court annexed mediation to prompt any change. Until or unless there is a change in the social and legal culture that dispenses with the need for mediation, it is unlikely that court annexed mediation will be removed. It allows for the court to have control over the quality of mediation by providing appropriate and consistent training while also ensuring that the mediation service is consistent with the needs of the jurisdiction, the dispute and the case management objectives.

Mandatory mediation

9.129 There is considerable debate surrounding the issue of mandatory mediation. The main argument against it is that it is a contradiction in terms.²⁶² Philosophically, the imposition of mandatory mediation is a retrograde step in the establishment of an ADR culture.²⁶³ It is also likely to lead to increased rather than reduced cost and delay²⁶⁴ and remove the “willingness” element, which would undermine the effectiveness of settlements.²⁶⁵ It has also been suggested that mandatory dispute resolution disadvantages poorer litigants in that it can place an additional financial burden on litigants who may have in any event settled before the final hearing.²⁶⁶

9.130 Where mediation is mandatory,²⁶⁷ the legislation has either identified a particular type of mediation process to be mandatory because of the issues involved²⁶⁸ or the legislation empowers the court to order mediation if it considers the circumstances appropriate.²⁶⁹ Although the NSW Parliament has stressed the economic efficiency of mandatory mediation in the Supreme Court, it is not always cost effective.²⁷⁰ Indeed cost effectiveness alone ought not to be the primary reason for mandating ADR. Instead, mandatory mediation should only be imposed if it is more likely to serve the interest of parties, the justice system and the public than would voluntary attendance.²⁷¹ One compelling factor in favour of mandatory court annexed mediation is that even if settlement is not achieved, the opportunity to define and possibly reduce the issues to be litigated may be beneficial to the parties and the justice system.

Confidentiality

9.131 The other serious limitation of PDR methods is in the context of the public/ private divide. A notable characteristic of mediation is that it is private and confidential in contrast to the public nature of the administration of justice by courts. Clearly, the “public” administration of justice serves to reflect important public values, especially in the context of criminal matters, but also in civil litigation. Public conduct of litigation is an important form of accountability for the legal system and judges, in particular.

9.132 However, the notions of what and who is “right and wrong” which are often of importance in many other cases are of less significance in relationship type cases. Often, there is a need for a continuing relationship particularly where children are involved, where privacy is especially important and other personal circumstances may well outweigh the factors favouring public proceedings. To that extent, PDR as part of the court’s adjudicative process would appear to be well suited to serve the needs of many relationship disputes.

The need for a greater focus on court annexed PDR services in PRA matters

9.133 It is clear that an increased focus on PDR services would be advantageous in dealing with many PRA matters. However, it is important to consider whether in the PRA context such services ought to be court annexed and whether some or all of them ought to be mandatory. While we do have the benefit of the experience of the Family Court in this regard, it may be prudent to go back to first principles and consider the objectives of court annexed mediation and mandatory PDR in the context of PRA matters.

9.134 In a recent paper on quality in court and tribunal connected mediation, Professor Hilary Astor argued that:

The objectives of Court connected mediation for any Court or tribunal are likely to be strongly influenced by the way the Court or tribunal perceives its role ….

The objectives of a Court connected mediation scheme will also be strongly influenced by the nature of the work done by the Court or tribunal. If only certain types of cases are to be referred to mediation, the objectives will of course relate to the characteristics of that subset of cases. Different case characteristics, such as the percentage of unrepresented litigants, frequent disputes involving vulnerable third parties, the likelihood of severe power imbalances between disputants and other factors will influence the objectives and thus the characteristics of the mediation scheme. …

The objectives determined by the Court or tribunal will influence the characteristics of mediation or conciliation itself, including the role of the mediator and the style of mediation that is used … for example in disputes involving families a style which maximises the chances of preserving an ongoing relationship between the parties may be the most desirable. However, if the prioritised objective of mediation is to produce the maximum number of settlements, then a more aggressive and directive role for the mediator may be envisaged.²⁷²

Simpler practice and procedure

9.136 A comparison of the practice and procedure in the Supreme and District Courts with the procedure in the Family Court indicates that the latter is more user friendly with its easily accessible court forms and less complicated procedural rules. The Family Court has simplified its procedures over a period of time. However, the use of forms has sometimes caused difficulties. Although some forms are relatively straightforward, there are a large number of forms; identifying the correct form to use can be difficult for parties and non-specialist lawyers.²⁷³

The need for simpler procedures for PRA matters

9.137 Relationship disputes affect many people who may never otherwise go to court. A significant proportion of these people are self-represented.²⁷⁴ According to a recent research report, litigants in person in the Family Court are more likely to have limited formal education and less likely to be able to afford legal representation.²⁷⁵

9.138 Despite the fact that the Family Court operates on a “modified” adversarial system, it was thought necessary that research be commissioned to identify the needs of litigants in person so they can be better assisted. If this is the case in a “helping” court other courts with complex procedural rules could usefully consider simplifying rules and procedures when dealing with clients similar to those who appear before the Family Court. While there is a significant focus on children in the Family Court, unless the property in dispute under the PRA is worth a significant sum (which leads to the assumption that the clients may be financially well off and can afford legal fees), it would seem unfair that PRA clients are denied a simpler user friendly system. Even where the value of the property is significant, there appears no reason why a simpler procedure would be detrimental. It may be easier to tailor and simplify procedural rules to suit a specialist jurisdiction.

Costs rules

9.139 There is a clear distinction between the FLA approach to costs and the approach adopted in general litigation. The approach adopted in the Supreme Court and the District Court indicates that PRA matters are treated just like any other matter before the court in that costs follow the event. However, as explained above, PRA matters are more akin to FLA matters and hence, perhaps, ought to be treated similarly. Although there is no legislative expectation for so doing, the Local Court at St James Centre adopts this approach to costs. It may be appropriate that the costs rules in relation to PRA matters mirror the FLA approach described above.

9.140 Since the FLA rule is advantageous to the more prosperous litigant, another alternative may be a rule that costs should prima facie come out of the joint estate.

OPTIONS FOR INCORPORATING KEY FEATURES

Option 1: Reference of power

9.141 Given the nature of the disputes that arise under the PRA, the most appropriate forum to hear such disputes is the Family Court because of the attendant advantages inherent in a specialist jurisdiction that places emphasis on PDR. The recently established FMC lends itself to being used as the lower court with summary jurisdiction, less complex rules than the Family Court and a much larger jurisdictional limit than the NSW Local Courts.²⁷⁶ However, given the constitutional issues that may arise, this may not be a feasible option.

Option 2: Establish a specialist division within the District Court

9.142 Given that establishing a specialist state family/relationships court may be unfeasible, it may be worth considering establishing a specialist division within the existing District Court.

9.143 Currently the most significant advantage of the Supreme Court hearing PRA cases is that it has no jurisdictional limit. This is however at the cost of a highly complex procedure which is often very expensive. On the other hand, it is necessary that the Supreme Court has jurisdiction to hear property matters that exceed the jurisdictional limit of the District Court. If the jurisdictional limit is the issue, an option may be to make the jurisdictional limit of the District Court in relation to PRA matters unlimited, just as it is the case in relation to motor vehicle matters. It will also be necessary to amend the District Court’s jurisdiction in equity proceedings such that it has the same jurisdiction as the Supreme Court in relation to PRA matters even though matters are no longer transferred from the Supreme Court which under this option will not have jurisdiction in respect of PRA matters.

9.144 In addition it may be necessary to increase the jurisdictional limit of the Local Court in relation to PRA matters. The current jurisdictional limit in the Federal Magistrate’s Court is $300,000, which allows for many more cases to be dealt with by that court.

9.145 Removing or lifting the jurisdictional limit will allow parties to avoid the complex procedure associated with the litigating in the Supreme Court. However, given that the District Court currently mirrors the Supreme Court procedure in PRA matters, this will leave other problems unresolved, only concentrated in one jurisdiction. Moreover, it may be cumbersome to simplify the procedure for PRA matters while still dealing with such matters among others in the general division.

9.146 The better option may be to establish a specialist family/relationships division within the District Court. This appears to be how the Local Court in St James Centre operates. Admittedly this will be harder to implement in country courts. However, it would make sense to set up specialist divisions in the District and Local Courts in the Metropolitan areas to operate as State equivalents of the Family Court and FMC.

9.147 Setting up a specialist division would mean that judges who have experience in family law may be assigned to hear such matters as was the legislative intention in relation to the selection of Family Court judges.

9.148 Although court annexed mediation services can be available to litigants whether or not there is a specialist division of the court that deals with PRA matters, it may be easier to deal with issues such as choice and training of mediators if such a specialist division exists. As stated above, objectives, characteristics and the eventual effectiveness of the PDR scheme will be much better framed and achieved if it is done within a specialist division.

Option 3: Maintain a modified version of the status quo

9.149 Maintaining a modified version of the status quo is the Commission’s third option. This would mean that the current jurisdictional divisions would continue with the Supreme Court dealing with matters that are beyond the jurisdictional limit of the District Court. However, the District Court limit of $250,000 may need to be increased to $750,000 and Local Court limits may also need to be increased. This would mean that the vast majority of matters could be dealt with in the lower courts leaving only the very high value property disputes within the Supreme Court’s jurisdiction. The cost of going to the Supreme Court may not be as much of a problem for litigants in that league.

9.150 With regard to PDR, there ought to be facilities for court annexed counselling and mediation and legislative recognition of the importance of such a focus. This would require that the relevant legislation be amended to empower judges to make orders for PDR. In addition it would require that suitably qualified and trained staff are made available to conduct mediation and counselling services within the court. Ideally, this would mean having family law accredited specialists conduct mediations and arbitrations. It will also be necessary to allocate resources for ongoing, regular training of all court personnel involved in dealing with property relationship matters.

ISSUE 31

Which proposal do you favour concerning the most appropriate jurisdiction to hear disputes under the PRA? Why or why not?

1. See Chapter 2 at para 2.11 “Principles guiding the Commission”.

2. See page x.

3. As required by the terms of reference: see Chapter 1 at para 1.1.

4. NSW Legislative Council Standing Committee on Social Issues, Domestic Relationships: Issues for Reform (Report 20, Parliamentary Paper 127, 1999) (“Social Issues Committee Report”).

5. See Chapter 1 at para 1.10 and 1.13.

6. Social Issues Committee Report Recommendation 16 at 70 and Recommendation 19 at 74.

7. Social Issues Committee Report Recommendation 26 at 93.

8. Gay and Lesbian Rights Lobby, The Bride Wore Pink: Legal Recognition of Our Relationships (Discussion Paper, 2nd ed, Sydney, 1994). In the Discussion Paper, the Gay and Lesbian Rights Lobby recommended inter alia that the NSW State Government be called upon to allocate money and resources to the training of the judiciary and other decision makers who will be responsible for making determinations; allocate funds to an appropriate agency (such as the Law Reform Commission) to consider the question of relationships generally, including the need to ensure that all people with disputes which are based on rights and obligations arising from relationships have access to an inexpensive and accessible forum for the resolution of these disputes, and to that extent, extending cross-vesting arrangements to enable same-sex partners to access the Family Court in all circumstances.

9. PRA s 14; see also Chapters 6 and 8.

10. PRA s 12.

11. District Court Act 1973 (Cth) s 134.

12. PRA s 12. The court is also empowered to transfer proceedings to another court if it considers that it is in the interests of justice to do so: PRA s 11(2).

13. This is due to the rationale for the hierarchy of courts as defined by their respective jurisdictional limits. In 1997, the jurisdiction of the District Court was increased to $750,000 pursuant to the District Court Amendment Act 1997 (NSW). This is the reason attributed for the decrease of 17% of cases commenced in the common law division of the Supreme Court in 1997. Following the enactment of the amendment, matters were listed for consideration for their suitability for transfer to the District Court and 64% were transferred to the District Court: NSW Supreme Court, Annual Review 1997 at 9-10. A similar trend was evident in 1998: NSW Supreme Court, Annual Review 1998 at 14, 17.

14. Refer telephone conversation with Registrar Berecry of the Equity division of the Supreme Court; this is consistent with the figure of 55 new substantive PRA matters initiated in 1999 as reported in the NSW Supreme Court, Annual Review 1999 at 33.

15. The District Court Act 1973 (NSW) was amended by the District Court Amendment Act 1997 (NSW) and the Courts Legislation Further Amendment Act 1997 (NSW). See note 13 above. See also para 9.26 to 9.36 for discussion of District Court jurisdiction.

16. PRA s 9.

17. PRA s 12(1).

18. Supreme Court Rules 1970 (NSW) Pt 77 Div 19 r 74.

19. NSW Supreme Court, Annual Review 1999 at 28.

20. Unless otherwise specified in the Schedule to the Rules. Supreme Court Rules 1970 (NSW) Pt 60 r 1A and Sch D.

21. NSW Supreme Court, “Alternative Dispute Resolution in the Supreme Court” (as at 25 July 2001) «http://lawlink.nsw.gov.au/sc/sc.nsf/ pages/mednevalguide». Also available at the Supreme Court Registry.

22. Supreme Court Rules 1970 (NSW) Pt 77 Div 19 r 76A.

23. The pleadings in an action are:

(a) the statement of claim which is the document in which the plaintiff sets out his or her claim for relief, the facts in which he or she relies in support of that claim and any necessary particulars of that claim. Costs need not be specifically claimed.

(b) the defence, which is the document in which the defendant answers the plaintiff’s statement of claim. The defendant may, in certain circumstances add to the defence a pleading by way of cross claim where he or she claims some relief against the plaintiff.

(c) the reply, which is the document in which the plaintiff deals with matters raised by the defendant in his or her defence or cross claim.

25. Pt 23 r 3.

26. Pt 60 r 10, r 17.

27. NSW Supreme Court, Annual Review 1999 at 37.

28. Supreme Court Act 1970 (NSW) s 76.

29. Supreme Court Rules 1970 (NSW) Pt 52A r 11.

30. Supreme Court Rules 1970 (NSW) Pt 52A r 34.

31. These concerns are discussed at para 9.140.

32. See H Astor and C Chinkin, Dispute Resolution in Australia (Butterworths, Sydney, 1992).

33. The Courts Legislation (Procedure) Amendment Act 1989 (NSW) amended the Arbitration (Civil Actions) Act 1983 (NSW) with respect to court annexed arbitration in the Supreme Court and inserted s 76B in the Supreme Court Act 1970 (NSW). The scheme is akin to the one that has been in operation in civil proceedings in the District and Local Courts since 1983. In addition, with the introduction of the Commercial Arbitration Act 1984 (NSW), the court has had a general discretion to a refer matters to referee under Pt 72 of the Supreme Court Rules 1970 (NSW). However, funds made available for court annexed arbitration could not be used under these provisions.

34. Arbitration (Civil Actions) Act 1983 (NSW) s 5. The Chief Justice makes the appointment based on nominations received from the Bar Association and the Law Society.

35. s 9.

36. s 10.

37. Supreme Court Amendment (Referral of Proceedings) Act 2000 (NSW) amended s 76B of the Supreme Court Act 1970 (NSW); Rule 72B of the Supreme Court Rules 1970 (NSW) amended by Gazette 152 of 24 November 2000 at 11931.

38. Supreme Court Act 1970 (NSW) s 76B(1) and s 76B(3)(d) read with r 72B(1), Supreme Court Rules 1970 (NSW).

39. Pt 7B which deals with “Mediation and Neutral Evaluation” was inserted by the Courts Legislation (Mediation and Evaluation) Amendment Act 1994 (NSW).

40. NSW Supreme Court, “Alternative Dispute Resolution in the Supreme Court” (as at 25 July 2001) «http://lawlink.nsw.gov.au/sc/ sc.nsf/pages/mednevalguide». Also available at the Supreme Court Registry.

41. Supreme Court Act 1970 (NSW) s 110I(1).

42. NSW Supreme Court, “Alternative Dispute Resolution in the Supreme Court” (as at 25 July 2001) «http://lawlink.nsw.gov.au/sc/ sc.nsf/pages/mednevalguide». Also available at the Supreme Court Registry.

43. Supreme Court Act 1970 (NSW) s 110N.

44. s 110I(2).

45. s 110K (as amended by the Supreme Court Amendment (Referral of Proceedings) Act 2000 (NSW)).

46. NSW Supreme Court, Practice Note (No 118(2), 8 February 2001).

47. NSW Supreme Court, Practice Note (No 118(3), 8 February 2001).

48. NSW Supreme Court, Annual Review 1999 at 36. The majority of these mediations were claims under the Family Provision Act 1982 (NSW); the remainder included matters under the PRA but there are no records on exactly how many of the settled matters were PRA matters.

49. NSW Supreme Court, Annual Review 1998 at 26. In comparison, neutral evaluation is very rarely used. According to Registrar Berecry there have been only 2 requests for neutral evaluation over the past 4 years. Information supplied by Registrar Berecry (13 June 2001).

50. Supreme Court Act 1970 (NSW) s 110M.

51. According to registry sources, it is intended that all Registrars will progressively undertake training in mediation.

52. LEADR has a program designed to train accredit mediators at various levels of qualifications and experience.

53. Supreme Court Act 1970 (NSW) s 110O – available at NSW Supreme Court Website «http://www.lawlink.nsw.gov.au/sc/», Practice Note (No 102, 31 August 1998). The list is subject to annual review: Supreme Court Act 1970 (NSW) s 110O(6).

54. NSW Supreme Court, Practice Note (No 102, 31 August 1998).

55. The District Court Act 1973 (NSW) was amended by the District Court Amendment Act 1997 (NSW) and the Courts Legislation Further Amendment Act 1997 (NSW).

56. The District Court Act 1973 (NSW) s 145(1).

57. s 44 (1)(a)(ii).

58. s 134(3) read with s 134(1)(g). See also NSW District Court, Practice Note (No 46, 30 January 1998), which states that “matters involving an amount not exceeding $250,000 may be commenced in the District Court.” It is unclear whether this amount refers to the amount sought to be adjusted or the total value of the assets.

59. s 134(3) of the District Court Act 1973 (NSW) does not allow the District Court unlimited jurisdiction in relation to matters transferred from the Supreme Court under s 44(1)(e) if they are applications under the PRA heard in the equity division. See J Boland, “De Facto Claims in the District Court” paper presented for the Continuing Legal Education Centre (Sydney, 27 August 1999) at 4.

60. s 134, s 137. However, the Butterworths commentary on District Court Procedure states at para 134.1, that s 134 is rarely used in practice, mainly because of the small monetary limits on the jurisdiction.

61. See s 46.

62. Practice Note (No 46, 30 January 1998).

63. Prior to 1996 (ie before PRA matters were dealt with in the District Court), the District Court held pre-trial conferences that were supervised by court Registrars. The aim of the conference was to settle the claim or at least define and narrow the issues with the help of the Registrar who was considered the third party. Claims that did not settle were assigned to arbitration or trial.

64. District Court Rules 1973 (NSW) Pt 51D r 1.

65. Rules re costs penalties for commencing in the wrong jurisdiction Pt 52 r 24A and orders for non-application of the rule relating to costs Pt 52A r 34.

66. Pt 77 Div 19 states that proceedings shall be commenced by statement of claim and includes information that should be included in the statement of claim.

67. District Court Rules 1973 (NSW) Pt 51D r 4, r 5.

68. Pt 15 deals with Admissions, Pt 19A deals with Offers of Compromise, Pt 22 deals with Discovery, Pt 29 deals with Subpoenas.

69. NSW Attorney General’s Department, Annual Report 2000-2001 at 165.

70. District Court Act 1973 (NSW) s 63A.

71. s 63A(1).

72. See discussion of mediation and neutral evaluation at para 9.18-9.25 (in relation to the Supreme Court).

73. District Court Act 1973 (NSW) s 162(1).

74. Unlike the Supreme Court which has recently been empowered to do so. See para 9.21.

75. NSW District Court, Mediation Pilot Program (10 April 2001) «http://lawlink.nsw.gov.au/practice_notes/nswdc_pc.nsf/WebAnnounce».

76. Local Courts (Civil Claims) Act 1970 s 12.

77. PRA s 12(1).

78. PRA s 12(3).

79. This court is commonly referred to as the Local Court (Family Matters), but in April 2001, the court was renamed St James Children’s Court. It now deals with care work arising out of the Children and Young persons (Care and Protection) Act 1998 (NSW) as well as cases arising under the Family Law Act 1975 (Cth), the Child Support (Registration and Collection) Act, the Child Support (Assessment) Act, and the PRA: Local Court of NSW, Annual Review 2000 at 18.

80. The Magistrate and the Registrar of this court serve as a resource for other Magistrates who may consult them on matters concerning family law and child support: Local Court of NSW, Annual Review 2000 at 19.

81. Information supplied by Registrar Jim Martin, St James Centre Local Court (1 July 2001). For the period January to June 2001, 32 new PRA matters were instituted in the St James Centre Local Court, of which 27 were dealt with by consent (mainly by consent orders, some by conciliation conference) and 5 finalised at a hearing.

82. The Property Relationships Regulation 2000 (NSW) replaces the De Facto Relationships Regulation 1994 without any changes in substance.

83. Property Relationships Regulation 2000 (NSW) cl 15.

84. Although the Local Court is empowered to refer matters to arbitration, mediation and neutral evaluation, those provisions only apply to proceedings commenced under the Local Courts (Civil Claims) Act 1970.

85. Property Relationships Regulation 2000 (NSW) cl 15.

86. A conference held under Order 24 of the Family Law Rules (Cth) is called a conciliation conference and is conducted by a legally trained Registrar. The Registrar holds the conference with the parties and their legal representatives to resolve disputes in property matters.

87. Community Justice Centres are established under the Community Justice Centres Act 1983 (NSW). They provide confidential, impartial, accessible and voluntary mediation services to the community. The CJC currently has 508 accredited mediators. The mediators are appointed by the Attorney General on the advice of the CJC Director and are selected from the community after a rigorous and competitive recruitment program. They undergo intensive training, ongoing supervision and update training. The CJCs do not keep a break down of mediated PRA settlements. However, family disputes accounted for 25%of the CJC’s work. Of this, 25% are disputes between separating or separated spouses. 3139 of matters handled by the CJCs were referred by the Local Court: Community Justice Centres of NSW, Annual Report 2000-2001 at 15, 16.

88. Constitution (Cth) s 51(xxi), s 51(xxii).

89. The restrictions imposed by s 51(xxi) and s 51(xxii) of the Constitution initially limited the original jurisdiction of the Family Court in children’s matters to children of a marriage. However, in the late 1980’s the Family Court’s jurisdiction over children was considerably increased when all States (except Western Australia) referred their powers over ex-nuptial children to the Commonwealth. There is now no legal distinction between nuptial and ex-nuptial children in this regard which means that the Family Court can deal with parenting order disputes between unmarried parents. The references of power were effected by the Family Court of Australia (Additional Jurisdiction and Exercise of Powers) Act 1988 (Cth).

90. The FLA came into operation on 5 January 1976 and repealed the Matrimonial Causes Act 1959 (Cth).

91. Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW); Jurisdiction of Courts (Cross-vesting) Act 1987 (Qld); Jurisdiction of Courts (Cross-vesting) Act 1987 (SA); Jurisdiction of Courts (Cross-vesting) Act 1987 (Tas); Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic); Jurisdiction of Courts (Cross-vesting) Act 1987 (WA); Jurisdiction of Courts (Cross-vesting) Act 1987 (ACT); Jurisdiction of Courts (Cross-vesting) Act 1987 (NT).

92. Explanatory Memorandum to the Jurisdiction of Courts (Cross-vesting) Bill 1986 (Cth) at 2, 3.

93. A Nicholson and M Harrison, “Family Law and the Family Court of Australia: experiences of the previous 25 years” (2000) 24(3) Melbourne University Law Review 756 at 766.

94. Wakim, Re; Ex parte Mc Nally (1999) 198 CLR 511.

95. Nicholson and Harrison at 767.

96. Matters relating to children are heard in the Family Court and property matters in the NSW courts.

97. Family Court of Australia, Annual Report 1998-1999 at 22.

98. FLA s 21(2). Accordingly, it is equivalent in status to the Federal Court of Australia and the Supreme Courts of the States and Territories.

99. FLA s 31(1)(a).

100. FLA s 31(1)(b).

101. Child Support (Registration and Collection) Act 1988 (Cth) and the Child Support (Assessment) Act 1989 (Cth). Both these Acts confer original and appellate jurisdiction on the Family Court.

102. Family Court of Australia, Annual Report 1999-2000 at 14.

103. Family Law Rules (Cth) O 7 r 2, O 8 r 7. Forms are available on the Family Court’s website at «www.familycourt.gov.au».

104. ALRC, Managing Justice (Report 89, 2000) at para 8.69.

105. Application for decree of nullity (Form 2), application for dissolution of marriage (Form 4), application for declaration of validity (Form 6), application for maintenance (Form 12), application for consent orders (Form 12A), application for interim or procedural orders O 8 r 3 (Form 8), application for rescission of a Decree Nisi O 7 r 12 (Form 8), approval of a s 87 FLA deed O 14 r 9 (Form 8), application for leave to intervene in proceedings O 15 r 3 (Form 8), application for leave to serve a subpoena in New Zealand O 28 r 14 (Form 8), application for the variation or revocation of a parenting plan, where the other parties do not consent O 26 Ar 17 (Form 8), if an order is sought and no other form of application is provided in the Rules O 8 r 4 (Form 8).

106. Family Law Rules (Cth) O 8 r 7.

107. O 7 r 7, O 8 r 9, O 8 r 10.

108. Response to initial application (Form 3), response to application for maintenance (Form 12B), response to application for divorce/nullity (Form 13), response objecting to jurisdiction (Form 14).

109. Family Law Rules (Cth) O 7 r 10.

110. O 7 r 8.

111. O 7 r 8.

112. O 17 r 1.

113. O 17 r 4.

114. O 17 r 4(2).

115. O 20 r 1.

116. O 20 r 2.

117. FLA s 94.

118. FLA s 95.

119. Family Court of Australia, Future Directions Committee Report (July 2000).

120. Commonwealth, Report of Joint Select Committee, Family Law in Australia (Vol 1, 1980) at 121.

121. FLA s 22(2).

122. All court primary dispute resolution services have been called “mediation” services since 1 January 2000.

123. Family Law Reform Act 1995 (Cth).

124. Pt III of the FLA deals with PDR.

125. Family Court of Australia, Future Directions Committee Report (July 2000) at 16.

126. A Nicholson and M Harrison, “Family Law and the Family Court of Australia: experiences of the previous 25 years” (2000) 24(3) Melbourne University Law Review 756 and A Nicholson, “Keynote Address” presented at National Association of Community Legal Centres Conference (Sydney, 8 September 1999).

127. Part III of the FLA must be read together with the Family Law Rules and Family Law Regulations. Part V of the Family Law Regulations deals with PDR. Order 24 of the Family Law Rules describes conciliation conferences held with legally qualified Registrars who meet with the parties and their representatives to resolve disputes in property matters and O 25A r 10 describes how mediation conferences must be conducted.

128. Australian Family Law and Practice, Vol 2 [58-100], CCH Australia Ltd.

129. FLA s 14.

130. Family Court of Australia, Family Court Website «www.familycourt.gov.au/html/terms.html» (as at 18 December 2001).

131. FLA s 14E.

132. Dr C Brown, Diversity in primary dispute resolution services: What are the choices for clients (Family Court of Australia, 1996-1997).

133. s 16A: the Family Court is empowered to direct parties to attend counselling if it is in the interests of the parties or their children to do so. Failure to do so does not however constitute contempt of court. In s 16B the Family Court may advise parties to attend counselling and can make the direction mandatory by adjourning the proceedings and declining to resume until the parties have complied.

134. FLA s 19BA(2).

135. Family Law Rules (Cth) O 24.

136. O 24A.

137. FLA s 19D(2).

138. Proceedings under Part VIII of the FLA covers property, spousal maintenance and maintenance agreements.

139. Counsellors and Mediators in the Family Court are appointed as officers of the court under s 38N of the FLA. As such, they are accountable to the Directors of Court and ultimately to the Chief Justice of the Family Court.

140. The Commonwealth currently provides funding for the Family Court’s voluntary and court ordered mediation services and those community organisations that provide many of the same or related non-judicial family services to the community.

141. Family Law Regulations 1984 (Cth) reg 59.

142. reg 60, reg 61.

143. Family Court of Australia, Annual Report 1999/2000 at 20.

144. Family Court of Australia, Annual Report 1999/2000 at 30.

145. Commonwealth, Attorney General’s Department, The Delivery of Primary Dispute Resolution Services in Family Law (August 1997). The Discussion Paper sought views on how the Government can improve access to mediation services. Some of the issues raised in the context of assessing the effectiveness or otherwise of court annexed mediation included the following: whether more people may be encouraged to avoid litigation altogether if one of the largest sources of voluntary PDR was not situated within the court; how the expertise in court processes of the current court counsellors and mediators could be utilised in a new structure and developed in the community sector; whether geographic access to services could be improved by increasing the use of services that are not court connected; how the status of the court might impact upon the effectiveness of counselling and mediation processes and what challenges might be presented by increased private sector involvement in the future.

146. Commonwealth, Attorney General’s Department, The Delivery of Primary Dispute Resolution Services in Family Law: Next Steps (July 1998).

147. Improving access requires an examination of the need for primary dispute resolution in a range of geographical locations and the current provision of services by the community, the Family Court and the private sector. Such inquiry is essential to ensure equitable resource allocation and the provision of services where they are most needed. Although access to dispute resolution services will be improved by use of services in community locations, courts still need to provide some services on their premises. For example, urgent counselling should be provided at the court. It is not necessary that in-house services be exclusively provided by the court; primary dispute resolution services may be contracted out, yet be conducted on court premises.

148. Building the capacity of community-based providers by recognising that for community providers to take an enhanced role in dispute resolution, it is essential that they acquire and sustain the type of expertise, skills and knowledge currently held by Family Court staff. It was noted that the focus of the community sector is on family relationship support services; emphasis needs to be switched to dispute resolution on either court premises or in community location. Next Steps envisages the establishment of a “new and separately identifiable service type” to be supported by case management models and training directed at family law dispute resolution services. While community providers need to be sensitive to the security needs of their staff and clients, it must be recognised that a high level of security may impact on the accessibility of community services. Community services need to be adequately funded so that they can provide appropriate training and security while facing rising administrative costs that are associated with tendering for contracts. Understanding within the community of the alternatives to court provided services needs to be developed via the adoption of a community awareness strategy, and the education of the profession.

149. Ensuring financial accountability by requesting the Family Court to introduce separate accounting of its budget used for primary dispute resolution services. Financial accountability for community-based organisations is already provided through their reporting obligations under the Family Relationship Services Program. As for ensuring the quality of services, the Family Relationships Services Program has a comprehensive quality strategy, FAMQIS, in place to ensure the quality of services provided. It is a mandatory framework covering services provided in the community, which is capable of expansion to include new services and service types, with the potential for application in the private sector.

150. FLA s 117(1).

151. FLA s 117(2A).

152. Australia, Parliamentary Debates (Hansard) House of Representatives, 24 June 1999, the Hon D Williams, Attorney General, Second Reading Speech at 7365.

153. FLA s 45A (1).

154. Australia, Parliamentary Debates (Hansard) House of Representatives, 24 June 1999, the Hon D Williams, Attorney General, Second Reading Speech at 7365.

155. The main areas of family law in which the Federal Magistrates Service exercises jurisdiction are summarised in the Commonwealth Attorney General’s Department Fact Sheet: Jurisdiction of the Federal Magistrates Service (31 January 2000).

156. FMA s 39.

157. FLA s 33B(1).

158. FMA s 4.

159. s 42.

160. s 45.

161. s 50.

162. s 51.

163. s 55.

164. s 56.

165. s 11(1).

166. s 15.

167. s 16.

168. FLA Pt X.

169. FMA s 21.

170. s 23(1).

171. s 23(2).

172. s 26, s 34.

173. s 35.

174. See para 9.62 for discussion.

175. FMA s 27(1), s 27(4).

176. FLA s 117.

177. DRA s 10.

178. Magistrates Court (Civil Jurisdiction) Act 1982 (ACT) s 5.

179. s 10(2).

180. J Millbank, “Domestic Rifts: Who is using the Domestic Relationships Act 1994 (ACT)” (2000) 14 Australian Family Law Journal 163 at 183.The research identified and examined court files for cases filed in the Magistrates Court and Supreme Court of the ACT for the period November 1994 to May 1999. Of the files examined where a value was apparent in the property divided (116 files), 43% were over the jurisdictional limit: at 166.

181. Millbank at 168.

182. According to Millbank at 169-170, of the 237 files, there were five matters involving a same sex couple in the Magistrates Court and none in the Supreme Court, one matter in the Magistrates Court involved a non-cohabiting couple who were heterosexual and one matter in the Supreme Court involved a non-couple (ie a heterosexual couple and a friend who had purchased property together).

183. District Court Act 1967 (Qld) s 68(2).

184. Magistrate’s Court Act 1921 (Qld) s 4(a).

185. District Court Act 1967 (Qld) s 72 and Magistrate’s Court Act 1921 (Qld) s 4A.

186. Property Law Act 1974 (Qld) s 307(2), s 307(3).

187. s 354(4).

188. For instance, third parties can intervene with leave of court (s 336(2)) and the parties bear their own costs subject to the court’s discretion to make orders (s 341(1), s 341(2)) of the Property Law Act 1974 (Qld).

189. Property Law Act 1974 (Qld) s 331.

190. De Facto Relationships Act 1991 (NT) s 5(1).

191. s 6(1).

192. s 6(2).

193. s 7.

194. s 10(3).

195. s 13.

196. s 26.

197. s 10.

198. s 8.

199. The amendments have changed the appropriate terminology; de facto relationships are now termed domestic relationships. A domestic relationship is defined as the relationship between two people who, although not married to each other, are living or have lived together as a couple on a genuine domestic basis (irrespective of gender).

200. Property Law Act 1958 (Vic) s 278.

201. s 278.

202. s 296(2).

203. The Family Court Amendment Bill 2001 (WA) provides for the recognition of de facto spouses in opposite and same sex relationships and provides them with the same property rights as married couples.

204. The Family Court of WA is established under the Family Court Act 1997 (WA) Pt 11 Div 1. It is invested with federal jurisdiction by virtue of s 41 and s 69 of the FLA.

205. England, Law Society of England Family Law Committee, Cohabitation: Proposals for Reform of the Law (London, 1999) at 1, 8.

206. Family Maintenance Act (Manitoba) s 4(3).

207. England, Law Society of England Family Law Committee, Cohabitation: Proposals for Reform of the Law (London, 1999) at 18.

208. Domestic Relations Act (Alberta) s 1(2)(b) “common law relationship” means a relationship between 2 people of the opposite sex who although not legally married to each other (i) continuously cohabited in a marriage-like relationship for at least 3 years, or (ii) if there is a child of the relationship by birth or adoption, cohabited in a marriage-like relationship of some permanence.

209. Prof W Holland, “Intimate Relationships in the New Millennium: The Assumption of Marriage and Cohabitation”, paper presented at the conference Domestic Partnerships (Kingston, Queen’s University, 21-23 October 1999).

210. Rossu v Taylor (1998) 39 RFL (4th) 242 Alberta CA.

211. Family Law Act 1986 (Ontario).

212. s 3(7).

213. Prof W Holland, “Intimate Relationships in the New Millennium: The Assumption of Marriage and Cohabitation”, paper presented at the conference Domestic Partnerships, (Kingston, Queen’s University, 21-23 October 1999).

214. Property (Relationships) Amendment Act 2001 (NZ) s 3.

215. Property (Relationships) Act 1976 s 2A, s 23; Family Courts Act 1980 (NZ) s 11(1A).

216. Family Proceedings Act 1980 (NZ) s 13.

217. s 14(1).

218. s 14(3).

219. s 14(2).

220. s 15.

221. s 17.

222. Justice D M Steinberg, “Developing a Unified Family Court in Ontario” (1999) 37(4) Family and Conciliation Courts Review 454 at 455.

223. L Kondo, “Therapeutic Jurisprudence: Issues, Analysis and Applications” (2000) 24 Seattle University Law Review 373 at 404.

224. Justice D M Steinberg, “Developing a Unified Family Court in Ontario” (1999) 37(4) Family and Conciliation Courts Review 454 at 456.

225. E Chemerinsky, “Decision Makers: In Defence of Courts” (1997) 71 American Bankruptcy Law Journal 109 at 115.

226. E Barker Brandt, “The Challenge to Rural States of Procedural Reform in High Conflict Custody Cases” (2000) 22 University of Arkansas at Little Rock Law Review 357 at 368.

227. Chemerinsky at 115.

228. J Folberg, “Family Courts: Assessing the Trade-Offs” (1999) 37(4) Family and Conciliation Courts Review 448 at 451.

229. Kondo at 382.

230. Kondo at 430.

231. Family Courts provide counselling to participants. Mental health and drug courts offer medical treatments to offenders.

232. W J O’ Neil and B C Schneider, “Recommendations of the Committee to Study Family Issues in the Arizona Superior Court” 37(2) Family and Conciliation Courts Review 179 at 187.

233. Kondo at 435.

234. Such as family law proceedings. W J O’Neil and B C Schneider, “Recommendations of the Committee to Study Family Issues in the Arizona Superior Court” 37(2) Family and Conciliation Courts Review 179 at 187.

235. Barker Brandt at 358, 367.

236. Folberg at 450.

237. Folberg at 449, 451.

238. Folberg at 451.

239. FLA s 43(b).

240. NSW Supreme Court, Annual Report 1999 at 33.

241. “Family Court calls for wider powers” (editorial) The Age (18 January 2001) at 4.

242. The Age (18 January 2001) at 4.

243. See above at para 9.87 for current proposal.

244. H Astor, “Mediation of Intra-Lesbian Disputes” (1996) 20(4) Melbourne University Law Review 953.

245. Research has shown that decisions reached mutually between the parties, with the assistance of the court’s PDR services and community based services tend to be highly rated by clients and appear to be durable and workable: L Maloney, T Fisher, A Love and S Ferguson, Managing Differences: Federally Funded Family Mediation in Sydney: Outcomes, Costs and Client Satisfaction (AGPS, 1996); Family Court of Australia, Evaluation of the Family Court Mediation Service (Research Report 12, 1994); Family Court of Australia, Client Attitudes to the Counselling Service of the Family Court of Australia. (Research Report 15, 1996).

246. For further discussion of the advantages of mediation see H Astor and M Chinkin, Dispute Resolution in Australia (Butterworths, Sydney, 1992) and in relation to mediation as a tool in resolving intra-lesbian disputes see H Astor, “Mediation of Intra-Lesbian Disputes” (1996) 20(4) Melbourne University Law Review 953.

247. Family Court of Australia, Evaluation of the Family Court Mediation Service (Research Report 12, 1994).

248. Referred to in J J Spigelman, “Supreme Court: mediation and the court” (2001) 39(2) Law Society Journal 63 at 63. Two of the points listed in the Declaration were that mediation is an integral part of the court’s adjudicative processes and the “shadow of the court” promotes resolution; and the success of mediation cannot be measured merely by savings in money and time. The opportunity of achieving participant satisfaction, early resolution and just outcomes are relevant and important reasons for referring matters to mediation.

249. H Astor, “Mediation of Intra Lesbian Disputes” (1996) 20(4) Melbourne University Law Review 953 at 953-954.

250. See para 9.21.

251. Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1 and Kable v Director of Public Prosecutions (1996) 189 CLR 51.

252. P Tucker, “Judges as mediators: a chapter 3 prohibition” (2000) 11 Australasian Dispute Resolution Journal 84 referring to the principles enunciated in Grollo v Palmer (1995) 184 CLR 348 at 365.

253. Ruffles v Chilman (1997) 17 WAR 1. In this case, the trial judge ordered mediation after the plaintiff’s evidence had been heard. The deputy Registrar conducted the mediation and in the course of the mediation said that he had spoken to the trial judge and that it was his belief that the judge had taken an adverse view of the plaintiff’s evidence. The mediation was unsuccessful and at the resumption of the trial an application made by the plaintiff to the trial judge to disqualify himself was refused. See also D Spencer, “Communication between mediator and judge leads to finding of bias” (1997) 8 Australasian Dispute Resolution Journal 308.

254. Commonwealth Bank v Gain (1997) 42 NSWLR 252.

255. Tucker at 93.

256. Address to the 75th Anniversary Conference of the Chartered Institute of Arbitrators, 4 October 1990, London; reproduced at (1992) 66 ALJ 194. For a contrary perspective from Chief Judge M Pearlman see (1993) 67 ALJ 941.

257. H Astor, Quality in Court connected mediation programs: an issues paper (The Australian Institute of Judicial Administration, Melbourne, 2001) at 9.

258. Family Court of Australia, Evaluation of the Family Court Mediation Service (Research Report 12, 1994).

259. Referred to in J J Spigelman, “Supreme Court: mediation and the court” (2001) 39(2) Law Society Journal 63.

260. H Astor, Quality in Court connected mediation programs: an issues paper (The Australian Institute of Judicial Administration, Melbourne, 2001) at 11.

261. Tucker at 96.

262. R Ingleby, “Court Sponsored Mediation: the case against mandatory participation” (1993) 56 Melbourne University Law Review 441; H Astor and C Chinkin, Dispute Resolution in Australia (Butterworths, Sydney, 1992) at 41.

263. D Spencer, “Mandatory Mediation and Neutral Evaluation: A Reality in NSW” (2000) 11 Australasian Dispute Resolution Journal 237 at 251.

264. T F M Naughton QC, “Mediation and the Land and Environment Court of NSW” (1992) 9 Environmental Planning Law Journal 219.

265. J David, “Designing a dispute resolution system” (1994) 1 Commercial Dispute Resolution Journal 26 at 32-33.

266. M Dawson, “Non-consensual Alternative Dispute Resolution: Pros and cons” (1993) 4 Australasian Dispute Resolution Journal 5 at 8.

267. See discussion at para 9.18 (mediation in the Supreme Court) and para 9.59 (PDR in the Family Court).

268. For example Order 24 conferences under the Family Law Rules. See para 9.41.

269. As is the case in the Supreme Court. It must be noted that the Supreme Court Act 1970 (NSW) provides no guidance on what it should “consider” to order mandatory mediation.

270. H Astor and C Chinkin, Dispute Resolution in Australia (Butterworths, Sydney, 1992) at 41.

271. David at 32-33 (quoting the National Standards for Court Connected Mediation Programs of the US Institute of Judicial Administration).

272. H Astor, Quality in Court connected mediation programs: an issues paper (The Australian Institute of Judicial Administration, Melbourne, 2001) at 4.

273. ALRC, Managing Justice (Report 89, 2000) at para 8.93.

274. The Family Court indicates that 37% of clients are self represented, the Family Court of Australia, “Self-Represented Litigants Project” (as at 18 December 2001) «www.familycourt.gov.au/litigants/».

275. J Dewar, B Smith and C Banks, Litigants in Person in the Family Court of Australia (Research Report 20, Family Court of Australia, 2000).