The embedding of the principles established in section 190 of the Federal Circuit and Family Court of Australia Act 2021 into the Family Law Act as section 95 on 6 May 2023 emphasises the crucial role of the overarching purpose and how it is applied in Family Law matters.
What is the Overarching Purpose
The Overarching Purpose, pursuant to the new s.95 of the Family Law Act 1975 (CTH) has seen an emphasis on the safety of parties and best interest of children imbedded into the section itself however the basis of the principle, being the quick, inexpensive and efficient administration of justice remains.
As practitioners we often look at the Overarching Purpose as it applies to individual matters, however, the Overarching Purpose encompasses the interplay of each of the matters within the system itself and the impact of non-compliance on the load and workflow of Court.
Judge Murdoch’s recent decision in Pasternak & Rossini [2024] FedCFamC2F 491 demonstrates the consideration the Court gives to the impact of parties’ non-compliance on the other users of the Family Law system.
Pasternak & Rossini is a parenting matter which had been ongoing since January 2021, related to a child who had spent the majority of their short life as the subject of ongoing Court proceedings. The matter was listed for Final Hearing before her Honour in March 2024.
The parties had been issued hearing direction in November 2023 which neither party had complied with and, on the first day of a 3-day Hearing, the parties made oral submissions for the matter to be adjourned and the parties provided with further time to comply with the Hearing Directions.
When considering the overarching principle, her Honour reflected on the position of the High Court in Aon Risk Services Australia Limited v Australian National University [2009] HCA 27, in particular that “The High Court emphasised that it is not sufficient to pursue just and equitable outcomes merely by reference to the interest of the parties to a particular proceeding. The effect that a procedural decision will have on other litigants and the public’s interest on the use of the Court resources must also be taken into account“.
Her Honour refused the adjournment and dismissed both the Initiating Application and Response to Initiating Application.
Other Applications of the Overarching Purpose
In 2021, shortly after the release of s.190, Chief Judge Alstergren applied the Overarching Purpose when considering an Application for Review with urgency by a mother for Orders made in September 2021.
In Nowell & Nowell [2021] FedCFamC2F 170 his Honour said “In keeping with these principles and the overarching purpose, the Court has a responsibility when allocating dates to make an assessment of priority as against other matters“. His Honour did not accept that the relief sought by the mother was any more urgent than “matters awaiting the Court’s attention in the normal course“.
In Engleby & Engleby [2023] FedCFamC2F 540, Judge Street refused several requests for adjournment by an Applicant during a 3-day hearing including a refusal pursuant to s.190, as it was at the time, on the basis that such an adjournment was not in “the best interest of the child and the interests of the administration of justice“.
The Final Word
The sentiment behind the overarching purpose is not new and the ratification of the principle and the obligation on practitioners and parties in law illustrates the importance of the purpose in the administration of justice.
This marks an opportune time to reflect on the previous comments of Justice Benjamin, in considering the conduct of the parties in Simic v Norton [2017] FamCA 1007 where he was critical of what he observed to be a culture of conduct that was destructive, commenting:
[1] I am not a Judge based in the Sydney Registry of the Family Court of Australia. However, I regularly hear cases filed in that Registry. I have become increasingly concerned about the high levels of costs charged by the legal profession in property and parenting proceedings and in previous judgement, I have expressed these concerns in that regard. Such comments have seemingly gone unheeded.
[2] In the Sydney Registry of the Family Court I have observed what seems to be a culture of bitter, adversarial and highly aggressive family law litigation. Whether this win at all costs, concede little or nothing, chase every rabbit down every hole and hang the consequences approach to family law litigation is a reflection of a Sydney-based culture by some or many litigants or whether it is an approach by some legal practitioners or a combination of both, I do not know.
[3] Whichever is the cause, the consequences of obscenely high legal costs are destructive of the emotional, social and financial wellbeing of the parties and their children. It must stop.
The introduction of s.95 of the FLA
The introduction of s.95 in the Family Law Act demonstrates the continued significance of the conduct of parties and practitioners in the ongoing running of Family Law matters. It further ratifies the importance of ensuring litigation, is in the best interest of children, and that an assessment of that includes ensuring efficient and cost-effective use of the family law system.
