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Is justice delayed, justice denied? The Family Court trials case management

By Paul Murphy and Lisbeth Pike - posted Monday, 14 April 2003


Over the past decade, there has been growing concern that the Family Court in Australia has not been achieving optimum outcomes for separating parents and their children. Many of the processes within the court system are adversarial and are therefore not conducive to encouraging cooperative post-separation parenting. This is especially relevant where there have been allegations and/or incidents of domestic violence, child sexual abuse, or child abuse.

One approach to addressing some of the issues inherent in the current system was the Magellan project conducted in the Melbourne and Dandenong Registries of the Family Court of Australia in the late 1990s. Magellan was 'judge-led' and, although it included a multi-disciplinary approach, it essentially fast tracked cases involving allegations of child abuse. The project seemed to achieve significant results in terms of time saved, agreed outcomes (Consent Orders), and reduced stress on litigants (and, vicariously, on their children).The Magellan project evaluation report suggested that a case-management approach could produce a number of other outcomes which significantly affect the way the various Family Court processes might be managed.

In early 2001, the Chief Judge of the Family Court of Western Australia approved a pilot project to assess the efficacy of a comprehensive individualised case management approach to expediting cases where there had been allegations of domestic violence, child sexual abuse, child abuse, or where there was evidence of significant risk factors. The Columbus Pilot project was implemented in July 2001 and formally launched at a symposium in November of that year.

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An interdisciplinary research team from the Department of Social Work and Social Policy at The University of Western Australia and the School of Psychology at Edith Cowan University was made available to conduct the evaluation of the pilot project.

The team presented its First Interim Report in July 2002 and this article reflects some of the early findings in Stage I of the evaluation as well as outlines the next two Stages in the project.

The evaluation methodology sought to replicate relevant aspects of the Magellan project thereby providing for some degree of comparative analysis. The team also developed a mapping framework so that each of the cases could be displayed and compared against the Columbus Design in terms of process, staff time-intensity, and an imputed cost of Court staff. This costing mechanism enabled a comparison of relative costs between:

  • the Columbus Pilot cases;
  • a Control Group (cases with similar characteristics to those in the Pilot but which for one reason or another did not meet the selection criteria);
  • a Comparison Group (cases which were excluded on the basis of their time in the system);
  • and the Columbus Design.

A total of 25 cases was mapped in this first stage of the evaluation and it is accepted that this is a very small sample. However, the primary aim in Stage I was to explore the efficacy of the methodology and to assess its potential as an evaluation approach. It is also possible to extend the costing mechanism to include factors such as Legal Aid assistance (both individual representation and Child Representatives), and the costs of legal representation.

Columbus was conceived as an early intervention strategy in which clients would be: identified, have risk issues confirmed, be referred for inclusion, be assessed and allocated to the Pilot (or Control Group), then individually case managed through a series of conferences. The conferences are jointly chaired by a Registrar and a Counsellor until either a stable, safe contact regime is established or the matter is referred back into the formal Court process (usually for a Pre-Hearing Conference, and possible Trial). There is currently no specified number of conferences available to a couple, although pressure on resources may require some restrictions to be considered in the future.

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The Columbus design envisaged an initial short court appearance where some indication of violence or abuse alerted the Magistrate. The matter was then referred to the Family Court Counselling Service (FCCS), where the couple were separately interviewed to assess the situation and levels of risk. Depending on the Counsellor's recommendations, the Magistrate then formally referred the case for assessment by the FCCS's Manager. Once a case was included in the Pilot, a Columbus Conference was then scheduled as soon as possible. Cases which, for various reasons, could not be assigned to the Pilot were placed in the Control Group.

The design cost of this process to the end of the first two-hour Columbus conference is estimated as approximately $1085. The design cost of each successive conference is about $900. The average imputed cost of the 14 Columbus cases in this study was $2,544 compared with the design cost of $2,813. The average imputed cost of the 11 Control Group cases was $1,330. However, half of this group had not achieved stable or acceptable outcomes and were continuing with further, and increasingly more expensive, Court Events (hence the need for the longitudinal data in Stage II).

It must be remembered that the clients assigned to this study are some of the most difficult and complex cases that commonly require up to five days if they proceed to Trial. The imputed cost of court staff is approximately $3,000 for each trial day (not including preparation time). Thus the apparent initial high cost of the Columbus process may be justified purely in terms of cases that do not proceed to Trial.

The First Interim Report considered the data from a number of perspectives:

  • a comparison with the Magellan project outcomes;
  • the Columbus Pilot process and benchmark indicators;
  • the impact on Family Court staff; the impact on the wider Columbus Network; and
  • the impact on clients.

There was a significant difference in the types of parental relationships between the two populations (Western Australian and Victorian). For example, the parents in the Columbus sample tended to be younger, the lengths of relationships were shorter, and the ages of the children were younger than in the Magellan project. These differences may be a reflection of the small sample sizes in the Columbus Pilot and will be investigated further in Stage II.

The average time that a Columbus case took from identification to the first conference was two weeks - the benchmark of early intervention is being achieved. Eleven of the fourteen Columbus cases (78 per cent) had achieved a stable contact and residency regime within 25 weeks of first filing. Only six of the 11 Control Group cases (54 per cent) had achieved a similar outcome within the same timeframe. The Control Group averaged slightly fewer Court Events (5.6 compared with 6.1) but half of this group were scheduled for further hearings.

Longitudinal data (Stage II) may well establish that the Control Group will conform to the pattern exhibited in the Comparison Group where the average number of Court Events needed to attain a stable outcome was ten in each case (with an average imputed cost of about $3,000). This also suggests that the apparent initial high cost of the Columbus process may be more cost-effective in the long term.

Although the processes within Columbus are highly managed and monitored, informal feedback from Columbus clients suggests that, although they may not achieve the hoped-for outcomes, they at least feel as if they have been heard and had their views acknowledged. In contrast, the Control Group cases continue under their own momentum, and this creates its own pressure on all parties (and their children).

Supplementary outcomes of the Columbus Pilot have included the development of an unprecedented degree of interdisciplinary understanding, mutual acknowledgement, and collegial support between the Family Court's Judicial Officers and Counselling Staff. This is having its own impact on the culture of the Court. The Child Representatives are also becoming an integral element in the conferencing process as their role evolves to address the challenges of a 'team approach'. Finally, the involvement of non-government agencies as part of the evolving Columbus Network has led to new areas of understanding and collaboration. Various protocols are being developed which enable information sharing and referral mechanisms to be more transparent.

Among the recommendations of the First Interim Report was the need for both longitudinal comparative data on the two sample populations (Columbus and Control Group) and the inclusion of formal feedback from clients and, if possible, their children. Two distinct but interconnected studies have been developed (Columbus Stages II and III) to achieve the recommendation. Both studies have been funded and will be undertaken during 2003.

The Columbus process incorporates the principles of enabling and empowering parents to determine their own outcomes as they seek to establish their own unique post-separation parenting regime. On the evidence to date, Columbus appears to be achieving positive results for about three quarters of the families involved and, despite the apparent high cost, may prove to be a cost-effective use of court resources. Consideration is currently being given to expanding the Pilot to include cases involving allegations of significant substance abuse.

In this respect, the Family Court of Western Australia is playing a leading role in addressing critiques of the Family Court system while at the same time becoming an increasing influence on the promotion of social capital and therapeutic jurisprudence for its clients.

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This is an edited version of a paper presented at the Eighth Australian Institute of Family Studies Conference, Melbourne, 12-14 February 2003.



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About the Authors

Dr Paul Murphy is a Lecturer at the Social Work Department of the University of Western Australia and is involved in many projects including Mums & Dads Forever.

Dr Lisbeth Pike is Head of the School of Psychology at Edith Cowan University.

Other articles by these Authors

All articles by Paul Murphy
All articles by Lisbeth Pike
Related Links
Australian Institute of Family Studies
Edith Cowan University
University of Western Australia
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