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The continuing evolution of federal family Law

News

Cite as: (2009) 83(06) LIJ, p.16

The Federal Magistrates Court is to be dissolved, with the Family Court receiving most of its work.

By Jason Gregory

The legal profession has backed a federal government decision to merge the Federal Magistrates Court (FMC) into new, lower divisions of the Family and Federal Courts.

Under the proposal, the family law functions of the FMC will be absorbed into the Family Court while its general federal law functions will be absorbed into the Federal Court.

The LIV and Law Council of Australia (LCA) have consistently said the FMC and Family Court should be integrated into a single, coherent structure.

However, they were also critical that the 5 May announcement by federal Attorney-General Robert McClelland lacked much detail on the practical aspects of implementing the proposed restructure.

Mr McClelland said current arrangements that saw two courts doing first-instance family law work had led to confusion among those litigants forced to move between courts as their cases progressed.

He also said friction had arisen through the two courts sharing a common resource pool but with separate administrations and no legislative differentiation. These inefficiencies had impeded access to justice for the community.

“The reforms will effectively create a one-stop-shop in family and other federal law matters, ensuring an integrated and accessible system that focuses on dispute resolution,” he said.

Mr McClelland also said “all matters will be dealt with at the most appropriate level” but wanted the “faster, cheaper and less formal” methods of the FMC to become central to family law culture.

He said the government would “continue its consultations with all three courts in finalising the restructure process”.

This prompted a call from the LIV and LCA to be involved in the consultation process, with LIV Family Law Section chair and Moores Legal principal Stephen Winspear saying “we are better placed than the courts to represent the wishes and experiences of the litigants for whom the whole system is designed”.

The restructured courts will implement the recommendations of a government-instigated review of the efficiency and service delivery of the two courts by consultant and former head of the Family Law Council Des Semple.

Mr McClelland said under the proposed restructure the Family Court will become a single court with two tiers.

All matters will generally be heard in the second tier, where at least 36 of the 59 federal magistrates will be diverted, with appeals and other complex matters being redirected to the first tier, where existing Family Court judges will operate.

The Federal Court will also have two tiers.

Existing Federal Court judges will hear appeals and more complex work in the first tier and federal magistrates will hear shorter, less complex matters in the second tier.

The new-look courts are expected to begin operation on 1 January 2010.

Mr Winspear supported this scenario as it should “ensure the current simple FMC processes are maintained in the majority of cases”.

However, he also believed tensions could arise out of the decision to rename federal magistrates integrated into the Family Court judges while those diverted to the Federal Court would continue to be called magistrates.

Mr Winspear said the status and benefits of magistrates should be upgraded in the new system to be comparable to a County Court judge – “better reflecting the nature of the very demanding work they are performing”.

Mr Semple’s report, Future Governance Options for Federal Family Law Courts in Australia – Striking the right balance, and a consultation paper were released last November. The public consultation period ended on 6 February.

The report found the FMC had achieved its aim of successfully delivering clients a faster, cheaper, user-friendly path through the family law processes and this “service culture” must be preserved in a unified two-tier Family Court.

The report also found that while this service culture had been received positively by litigants and legal practitioners, it had created significant friction between the two courts. It said that while competition between courts could be a source of vitality and growth, tension over resources had distracted the Family Court and FMC from their core responsibilities.

Ongoing issues included administrative duplication, arguments over resources, judicial support and pay scales and confusion over jurisdiction.

In its submission during the public consultation period, the LIV recommended the Semple findings be adopted as soon as possible with the FMC’s less formal, streamlined and case-managed approach to become central to the new structure.

Mr Winspear expected more than 90 per cent of first-instance matters, up from the current 80 per cent, would be dealt with in the general division.

“It is important in our view that all applications have an initial hearing or mention before a general division judge. It has been too easy in the past for people to claim complexity which in practice does not eventuate and to issue proceedings needlessly in the Family Court,” he said.

The LIV believes the proposed general division should handle general parenting disputes and property matters, divorce and nullity applications and child support and de facto matters.

The first tier should handle all appeals, property matters involving a third party, parenting matters involving welfare authorities, international adoption matters, applications for medical procedures such as sterilisation, and complex questions of law.

It believes the Chief Justice of the Family Court should be directly responsible for both divisions.

LCA president John Corcoran said the current arrangements were “unacceptable” and that rationalisation and integration of the two courts was long overdue.

“Any new system must be based on providing the services which those using the family law courts really need, and delivering these services in the most effective way. The LCA looks forward to further consultation with the government and the courts,” he said.

The FMC was the chief judicial reform of the Howard government, and was created as a lower stand-alone court in 1999 to ease the Family Court’s workload.

Since 1999 the number of federal magistrates has grown from 12 to 59 and the FMC has become the largest federal court, both in terms of number of judicial officers and filings.

During the same time, the Family Court has reduced in size and Mr Semple expected only two-thirds of the current 35 judges would be needed in the future for trials and appeals.

Many submissions to the review lauded the FMC’s work but recommended some or all of the following measures be included: a combined registry, a single set of rules and forms, uniform and consistent procedures, a focus on specialist knowledge when making judicial appointments and a transparent, non-judicial administration.

Other proposals included simpler and limited rules of evidence and procedure and using resources at an earlier stage to resolve disputes quickly.

The heads of the jurisdictions involved varied in their response to the Semple review.

In her submission, Family Court Chief Justice Diana Bryant was supportive of change but called for a “truly joint administration” controlling one court with two separate divisions, “with the Chief Justice at its apex”.

Chief Justice Bryant also raised several potential issues for government, including how jurisdiction would be conferred on the new court and how the two divisions should be differentiated.

Much criticism of the current system’s failings was levelled at government for creating a framework but leaving it to the courts to interpret and implement.

The FMC was originally given limited jurisdiction but that has been extended to include migration, admiralty, copyright, privacy, national security and workplace relations.

It is proposed these matters be heard in the Federal Court.

Federal Court Chief Justice Michael Black said the FMC and the Federal Court had a good working relationship that could be destabilised due to amalgamation and believed the FMC should have remained a separate court with administrative support provided by the Federal Court.

“The Federal Court’s high reputation as a superior trial and appellant court is closely linked with its reputation as a collegial and harmonious group of judges,” he said.

He also said only seven judicial officers were needed for general law matters but Mr Semple had planned for 23 magistrates to be accommodated in the Federal Court.

Chief Magistrate John Pascoe, in his submission, called for the new Family Court to be funded according to “relevant workload” and warned tampering with the FMC culture could blunt its effectiveness.

According to Mr Pascoe, federal magistrates valued their ability, through a docket system, to case-manage matters from filing, to list matters for hearing as soon as the parties were ready, to make events-based costs orders and to resolve cases without trial.

Last financial year, the FMC disposed of more than 85 per cent of applications within six months and more than 95 per cent within a year.

The FMC and Family Court had a combined annual budget of $180 million.

The restructure is projected to save almost $8 million over four years; however, only $1.5 million will be reinvested to help family law litigants resolve disputes outside court with the remainder to go into Consolidated Revenue.

The report and submissions are available at http://www.ag.gov.au under “Consultations Reforms Reviews”, “A Better Framework for Federal Courts”.

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