Family Law Pathways Bundaberg Presentation
Speaking at 7:30 a.m. on a Thursday about Practice Direction 2 of 2017 might appear like a disaster waiting to happen particularly during a regional trial week and with a Federal Circuit Judge and State Magistrate in attendance along with several senior family lawyers and a selection of local family law stakeholders. Particularly when my usual crutch – the PowerPoint – was not available.
Of biggest concern was how to capture the audience’s attention for 45 minutes with enough interesting material. Thankfully, with the valuable input from Judge Cassidy and the relaxing “heckling” from some of my “colleagues” useful information was exchanged.
As promised to the audience, my PowerPoint can be found here noted up with useful input from the Judge and other notes made in preparation. The presentation was to pick up on and advance similar presentations given to the Far North Coast Family Law Practitioners Association and the Sunshine Coast District Law Association in February and March of this year facilitated by Judge Coates and Judge Spelleken respectively.
It’s Time To Develop Best Practice
Since the original presentations, the ambit of considerations a family law practitioner needs to consider has widened but also narrowed. Particularly in representing and appearing on behalf of a client at a first return of an interim hearing not only do we need to be cognisant of PD 2 of 2017 – the 10 page rule – but also (in Brisbane) of the Brisbane Case Management Initiative, and recent observations upon practitioner conduct in cases such as Matenson (Both of which I wrote about online – read here), never has the spotlight been so squarely upon practitioner conduct.
And these are just the Courts responses to family law practitioners advocacy for their clients.
Start Future Proofing Your Family Law Advocacy
In Dissecting the Merger BillI I wrote about the proposed consolidation of the Family Court and Federal Circuit Court of Australia looking at the relevant parts to the proposed Bill.
All proceedings before the proposed new FCFCA are subject to case management with the “overarching purpose of case management” being the facilitation of the just resolution of disputes according to law as “quickly, inexpensively and efficiently as possible” with parties and lawyers to cooperate with the FCFCA and among themselves” to assist in achieving the purpose (sect. 6).
“Overarching purpose” for Division 1 Courts is set out in sect. 48(1) whilst for Division 2 Courts is set out in sect. 157(1).
Sections 48 and 157 contain mirror provisions with familiar motherhood statements of requiring determinations to be according to law, quick, inexpensive, efficient and in a proportionate manner.
Importantly, sections 49 and 158 cast an obligation upon parties and by extension their lawyers to conduct proceedings “(including negotiations for settlement of the dispute…) in a way that is consistent with the overarching purposes” with failure to comply with these obligations a relevant costs issue.
Central to these provisions are the “family law practice and procedure provisions” (or in the case of Div 2 Courts the “civil practice and procedure provisions”).
But what are the family law practice and procedure provisions? In short, we do not yet know. Sect. 44(4) and sect. 157(4) provide that the family law practice and procedure provisions are set out in (a) the Rules of Court and (b) any other provision made by or under the Act.
These “overarching principles” show a legislative intention to place an onus on the profession to be a protective gatekeeper with best practice being to only file proceedings where negotiation and dispute resolution attempts have been exhausted (or inappropriate) and only the most pressing issues are litigated. With this in mind, it is worthwhile having a read of the Queensland Bar Association’s Submission to the ALRC Review of the Family Law System and note the suggestion that representative bodies are becoming exasperated with baseless and/or spurious threats of “indemnity costs” if a party does not accept a certain proposal.