Holistic litigation The court as an instrument of change Presented by Judge Joe Harman of the Federal Circuit Court of Australia to the FRSA Conference Adelaide 5 November 2014

 I acknowledge:  that we meet on the lands of the Kaurna nation and that these are and always will be Aboriginal lands  the great injustices that have been and continue to be inflicted upon Aboriginal peoples throughout the world including through the passage and enforcement of laws that were and are unjust, barbaric and genocidal and through the continued taking and degradation of land and environment and suppression of language and culture  I speak with the permission of my head of jurisdiction but views expressed in my paper are mine and not those of my Court

 “Disputes are not things: They are social constructs”  “...what happens at earlier stages determines both the quantity and the caseload of formal and informal legal institutions”  “Disputes take various shapes, follow particular dispute processing paths, and lead to new forms of understanding” William Felstiner, Richard Abel and Austin Sarat, ‘The Emergence and Transformation of Disputes: Naming, Blaming, Claiming’ ( ) 15(3-4) Law & Society Review, 631, 631. Introduction & Context

 Until the later part of the C20th, “dispute resolution” remained embedded within litigious Court processes  These processes are increasingly seen as cumbersome, expensive and time consuming  This model of dispute resolution was developed to deal with transactional disputes and was increasingly exposed as inadequate for dealing dynamic relational disputes “Traditionally dispute resolution processes have had system- maintenance functions: in broad terms they maintain the societal status quo through their functions of compensating, punishing, distributing and restoring” - Laurence Boulle Dispute Resolution Services

 The problem = litigious processes inadequate when it comes to relational disputes  How to preserve, or minimise damage to, ongoing relationships?  The rise of ideas of universal & collective rights  New approaches recognising  the interests of persons not involved in the litigation or the “dispute” (although perhaps the subject matter of it); and  preservation of relationships by which those rights and interests might be addressed were needed. Development

 Disputes determined by reference to considerations, including primary or paramount considerations, not directly referable or personal to disputants are poorly served by adversarial processes that “compensate” or “punish”  Traditional, adversarial model of judicial determination increasingly seen as poorly suited to disputes where the subject matter of the dispute was a child’s interests and those interests, whilst subjectively presented, were objectively determined Changing Philosophy

 Family Counselling educates, changes behaviour and empowers individuals to be instruments of change  Mediation facilitates resolution  Courts exercise a coercive power and determine disputes Complementary rather than alternate

 S.60I – Family Dispute Resolution (FDR) as a pre condition to litigation (subject to exemptions)  S.60I(9) – FDR “whenever appropriate”  S.65F – Parties must attend Family Counselling before final hearing PLUS  S.13C – The power to compel Obligations upon Courts

About Disputes? MajorityMinor/FactualHigh SomeLegalModerate FewFundamental Philosophical Small Number of litigantsIssuesSettlement Prospects

Resolution and Control Influence Counselling/ Education Concern Control Mediation Court

The Court as the hub Court FDR Counselling Information Investigations Courses/Programs Evidence

Now System Thinking Court FDR Counselling Information Investigations Courses/Programs Evidence

“Traditional litigation is a mistake that must be corrected... For some disputes trials will be the only means, but for many claims trials by adversarial contest must in time go the way of the ancient trial by battle and blood. Our system is too costly, too painful, too destructive, too inefficient for really civilized people” - US Supreme Court Chief Justice Warren E Burger (retired) The role of Courts

 Courts are part of and a particular type of dispute resolution  FDR is neither a speed hump or one off. It is a tool to use when and as often as appropriate  Einstein was right:  Insanity: doing the same thing over and over again and expecting different results  We cannot solve our problems with the same thinking we used when we created them SO The role of Courts

 Hearing cases is the Court’s ultimate role  But, facilitating resolution is also the Court’s role  To be resolved:  attitudes must change and things must be learnt  Information must be known and exchanged  dialogue must occur  Time must be allowed The Court as holistic

 Triage – what is this case about, taking the time to find out  Family Counselling (ss.13C and 65F)  Courses and Programs (s.13C)  Modelled behaviour – litigation principles s.69ZN  Rules of evidence (stick to what is relevant)  Issues based and outcome focused – not looking for solutions to problems that do not exist Changing Attitudes & Learning

 Evidence obtained from third parties (s.69ZW and subpoena)  Reports (ss.11F and 62G and Part 15)  Disclosure and mandated provision of information (Part 14 and 24)  Material filed by parties and witnesses  Independent Children’s Lawyers Information must be known and exchanged

 Lawyer assisted negotiation  Conciliation Conferences  Court ordered FDR  Family Counselling Services  Presenting evidence and cross examination Dialogue must occur

 Timely use of appropriate services  Timeliness: “hearing a matter in the time and in using the time necessary to do justice”  Some matters need fast; some need slow  FDR not appropriate “now” v “ever”  No intervention is a one off-use as often as appropriate  Examples of the selection and interaction of different forms of dispute resolution Timeliness

Litigation

 The “entry point” or the destination  Appropriate or inappropriate  What is needed at the time or for an issue but rarely the only or best option  Used as a threat or as inducement  A triage tool for what a family needs (and ordering families to those services) or a determination of disputes Litigation can be....

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