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

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.

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.

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.