Court establishes the Family Law

Court establishes the Family Law Property Arbitration List

JUDGE JOE HARMAN, FEDERAL CIRCUIT COURT OF AUSTRALIA, AND MATTHEW SHEPHERD, ACCREDITED FAMILY LAW SPECIALIST

The Family Court of Australia and the

Federal Circuit Court of Australia have established a new specialist National Arbitration List. The list will be managed by dedicated National Arbitration Judges being Justice Wilson in the Family Court, Judge Harman in the Federal Circuit Court and Justice Strickland being the coordinating Appeals Judge for Arbitration Appeals.

All matters referred to arbitration will be placed in the National Arbitration List. Any application for interim orders sought to facilitate the Arbitration by arbitrators or parties will be dealt with by the relevant National Arbitration Judge electronically. Applications for registration of arbitral awards issued by Arbitrators will be dealt with by the same National Arbitration Judge. Similarly, applications for review of an Arbitral Award will be conducted by the relevant National Arbitration Judge.

Chief Justice Alstergren said “The Courts have long supported the use of alternative dispute resolution as a quicker and more affordable option for litigants to resolve their disputes, rather than continuing to trial. The introduction of the Arbitration List will ensure consistency and timeliness and the determination of such applications will be given considered priority. While arbitration has traditionally and commonly been used in commercial litigation, our Courts are very keen to support the wider use of arbitration in family law for property matters.”

UPTAKE OF FAMILY LAW PROPERTY ARBITRATION

Each author has undertaken separate research since the 2016 arbitration amendments to the Family Law Act and Regulations.

An anonymous survey of arbitrators

conducted by Matthew Shepherd identified that at February, 2019: a. No less than 107 arbitrations had been completed by 62 different arbitrators. Responses were not received from all arbitrators. b. There were court proceedings underway in 80 of the 107 cases and none in the remaining 27. The survey did not identify whether proceedings were in the Family Court or the Federal

Circuit Court. c. In 78 cases, the arbitrator issued an arbitral award, and the remaining 29 cases were settled during the arbitration process. d. 26 cases were heard “off the papers” without any formal hearing; 22 involved a short hearing (one day or less) for submissions but no oral evidence or cross-examination; and 50 involved oral evidence, crossexamination and submissions. e. 65% involved a hearing of one day or less. A few involved hearings of two or three days, with one going into a fifth day. The average hearing length was 1.4 days. f. Arbitral awards were issued by the arbitrators within seven days or less of the hearing in 32% of cases, between eight to fourteen days in 44%, and between fifteen and twenty-eight days in 24% g. Time taken from the commencement of the 107 arbitrations (defined as the signing of the agreement to arbitrate) to the issue of the award was more variable. 28% of cases took four weeks or less, 26% took between four and eight weeks, 23% took between two and three months, 16% took between three to four months and a few took over four months.

At 31 January, 2020, as best as can be ascertained, not less than 141 cases had been referred to arbitration by the Judges of the Federal Circuit Court.

ARBITRATION – A FLEXIBLE DISPUTE RESOLUTION OPTION

Arbitration is private and confidential. It occurs away from court and closed to the public. Arbitral awards are not published.

Arbitration happens as quickly as the diaries of clients, lawyers and the arbitrator allow. It is not delayed by overburdened court lists. Time from the commencement of the arbitration process to issue of the arbitral award is significantly less than the waiting time for final hearings in court.

Parties can fix a date for an arbitral hearing and know it will proceed on that day. They avoid the risk of a Court hearing being deferred due to the listing of other matters – especially parenting matters which are likely to be given priority by the Court.

Arbitration hearings can be flexibly designed including: • “Off the papers” without a hearing. • Short hearing for submissions. • Full hearing with cross-examination which might be limited to agreed issues and duration.

Parties can agree on some matters and seek an arbitral award in respect of discrete issues. For example, parties might be able to agree on the balance sheet and whom should retain the home but be unable to agree on a percentage division and whether the superannuation should be split or not.

The flexibility and speed of arbitration can result in lower costs for clients. Costs of updating pleadings or valuations due to court delays and adjournments are avoided.

CGT AND STAMP DUTY

In South Australia, the Stamp Duties Act is being amended and is expected to come into effect later in the year. The amended Act will provide for a stamp duty exemption on transfers of property between married and de facto couples pursuant to arbitration awards. In the meantime, transitional arrangements are in place whereby the property transfers that are lodged pursuant to arbitration awards will be exempted by Revenue SA. Any issues arising with Revenue SA should be notified to the Treasurer who has given a personal assurance to Australian Institute of Family Law Arbitrators and Mediators he will resolve them.

Capital gains tax roll-over relief applies to “something done under an award made in an arbitration referred to in s13H”. 1

STARTING AN ARBITRATION

Arbitration can be conducted with or without court proceedings being underway. Both parties must consent. Parties choose the Arbitrator from the list on the AIFLAM website, or AIFLAM can be asked to appoint the arbitrator.

If proceedings have been commenced, parties enter into consent orders referring the matter to arbitration which will then be placed in the National Arbitration List for assistance if needed. The order for arbitration is provided to the agreed Arbitrator who will conduct an Arbitration Planning Meeting to clarify the arbitration model to be used, documents to be relied on, arbitrator’s fees, dates etc. These matters comprise the “arbitration agreement” (which should, ideally, be in writing, and which define the arbitrator’s powers and the manner in which those powers will be discharged. AIFLAM provides a useful precedent or template arbitration agreement. If proceedings have not been commenced, parties simply enter into an Arbitration Participation Agreement and the arbitration proceeds as agreed between the parties and the arbitrator.

At the conclusion of the arbitration the Arbitrator will issue the Arbitral Award and their reason on the agreed date. Either party may then proceed to register the Arbitral Award. Both authors have previously written at length on the ability to seek review of Arbitral Awards. 2 In short, review can only be sought on questions of law, or lack of procedural fairness or bias. One of the attractions of Arbitration (compared to negotiations or mediation) is therefore the certainty and finality of an outcome.

DISCUSSING DISPUTE RESOLUTION OPTIONS WITH CLIENTS

Approximately 95% of family law cases commenced are settled through some dispute resolution process other than a final defended hearing. The question is not “will this matter settle?” but “when and how will it settle?”

From a judicial perspective, the matters which should be before the Court are those which involve a public interest. Whilst the community has a general interest in the care and wellbeing of children, the financial affairs of individuals are not generally matters in which there is a public interest. 3 Public interest might arise from allegations such as fraud, criminal conduct or impact upon the rights of third parties. All other financial proceedings issues are well suited to arbitration.

Family lawyers have obligations to discuss dispute resolution with clients. 4 They are obliged to advise clients about arbitration both before commencing proceedings and as an alternative to judicial determination of the proceedings once commenced. On the basis of frequent court room disclosure by legal practitioners that “I don’t have instructions with respect to arbitration”, this would appear to be a duty that is poorly complied with.

Merely providing a list of process choices does not assist clients in making the best choice for themselves.

Lawyers should avoid beginning the process selection discussion with what they personally perceive the advantages to be which may have no relevance to the parties’ experience of the dispute. If lawyers are too directive, clients might feel obliged to go along with what they perceive the lawyer’s preferences to be but without real motivation reducing subsequent engagement in the process.

A better approach to process selection is to ask the individual client about how they are experiencing the dispute, and the dispute resolution processes tried unsuccessfully to date. Clients will respond with a litany of complaints. Each of those complaints contain an aspiration for a better process. Through ‘double listening’ these negative complaints can be flipped by the lawyer to make clearer to the client their positive aspirations. For example, a. “Its been so slow” can be reframed by the lawyer to “So you would like a process that will be quick and resolve the dispute now?” b. “She doesn’t listen to what I think … I don’t know what she really thinks” can be reframed “Would you like a process by which we all get to sit in the same

room and she listens to what we say, and you hear what she and her lawyer have to say?” “I don’t know how much this all going to cost and how I am going to pay” becomes “Would you like to hear about other processes where the two of you can decide the steps involved and therefore the cost?” “I hate those court appearances, all that sitting around, not knowing how much time to take off work and all those people sitting in court rooms waiting their turn’ can become ‘Would you like to discuss some other confidential processes that happens privately at times agreed by us?” “How do I know what judge I will get, how do I know if they will get it right?” becomes “So would you like to have a say in the choice of the decision maker, and know that they their decisionmaking is guided by the established legal principles of fairness and equity?”

The client’s affirmative answers to these questions give the lawyer permission to explain the range of processes in a way that will resonate with the client. The inquiry into the client’s experience of the dispute should start from the first consultation and continue. It should not be commenced at court whilst waiting for the client’s matter to be called in a busy list.

At the end of a well-run arbitration, the parties on receiving the award should not just have saved time and money compared to litigating at court. The clients should also feel heard and respected. Parties whose needs for procedural fairness and psychological recognition are met, will have a high level of satisfaction even if their substantive needs are not met as much as they may have liked. Research “shows that parties are more likely be satisfied with the outcome of a dispute resolution procedure and be more likely to view the overall experience as just, if it was generated by a fair procedure.” 5 B

Endnotes 1 S126.6(e) ITAA 2 Including LSJ December 2018 and LSJ June 2019 3 See Fulham Football Club (1987) Ltd v Richards and another [2012] Ch 333 4 See, Family Law Act 1975 (Cth) ss 12A, B & E;

Practice Direction 1 of 2020 applicable in both the FCC and Family Court; Family Law Council and Family Law Section of the Law Council of Australia, Best Practice Guidelines for lawyers doing family law work (October 2010) Part 2. 5 Jill Howieson, ‘Family law: the lawyer–client relationship, procedural justice and the dispute resolution process,’ (2007) 10(2) ADR Bulletin Article 6 <http://epublications.bond.edu.au/cgi/ viewcontent.cgi?article=1422&context=adr>.

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Should the court allow the media to publish visual evidence?

MITCH MOTT, COURT REPORTER, THE ADVERTISER

The age-old adage goes that a picture tells a thousand words.

Other than being extensively worn out, the saying has changed in the era of modern media to a picture draws a thousand clicks, a thousand video views or a half dozen new subscribers to an online outlet.

But as the media has become increasingly visual, both in terms of television news and online articles, court reporting has struggled to keep up.

Some of the most complicated, but also important cases are difficult to portray in a visually impressive way and a dearth of imagery has been the death knell to many a story.

The question then becomes, and to return to the tortured phrase, can a picture illustrate what a thousand words of earnest court reporting cannot?

Can a picture of a decrepit and faulty rifle at the heart of a lengthy trial into the negligent shooting of a young man illustrate why prosecutors continued with a difficult to prove manslaughter charge?

Can dashcam footage of a young man running over a police officer at a random breath test show an audience why a court is considering an immediate term of imprisonment, rather than a suspended sentence?

The final, and perhaps most debatable question, is should the courts change their own practices when it comes to releasing photos and videos in the knowledge that the media landscape has also changed?

There is already case law which acknowledges that the release of documents to the media is a pillar of open and informed justice.

In September 2003 Justice John Perry ruled that denial of access to the proceedings of a court “promote illinformed and damaging speculation”.

The court identified a nexus between journalists having access to as much information which could be released in good conscience and the accuracy of the resulting article.

Proposed code to redress imbalance between news outlets and internet giants

The Law Council of Australia has made a submission in response to the concepts paper. Submissions are due by 5 June.

ACCC Chair Rod Sims said. “Our digital platforms inquiry highlighted the acute need to address the imbalance in bargaining position between news media and particular digital platforms, and that is what the code will do.”

The ACCC is due to present a draft mandatory code to address bargaining imbalances between Australian news outlets and Google and Facebook by the end of July.

A concepts paper released by the ACCC in May sets out a range of issues for which the ACCC is seeking feedback and information, including what should be included in the draft bargaining code, how particular issues should be addressed, and how the code should operate.

The links between open justice and accuracy are self-explanatory, but can open justice be linked with the size of an audience?

Is open justice best achieved when the workings of the court go before as many members of the community as possible?

This is a larger issue than a single column and it would be self-serving for any journalist to say that the courts should always allow the release of photos and videos within hours of them being tendered.

However, the larger issue of reader or viewership and open justice is one that is only now coming to the fore as traditional media grapples with less personnel on the ground and in the courts and a soaring demand for content. B

The Government has asked that a draft mandatory code be released for public consultation before the end of July 2020, with a final code to be settled soon

The ACCC’s digital platforms inquiry examined the impact digital search engines, social media platforms and other digital content aggregation platforms have on competition in media and advertising services markets. B