The Court's performance
Portfolio Budget Statements Outcome and Program
The Family Court of Australia and the Federal Circuit Court of Australia FMA Act agencies were merged into a single FMA Act agency from 1 July 2013, known as the Family Court and Federal Circuit Court. On 1 July 2014 FMA Act agencies became non-corporate Commonwealth entities under the Public Governance, Performance and Accountability Act 2013.
The outcome and program framework of the Family Court and Federal Circuit Court sets out the agency's commitments to the Government. Each year, details of the framework are outlined in the Portfolio Budget Statements, along with relevant performance information. Government outcomes are the intended results, impacts or consequences of actions by the Government on the Australian community. Agencies deliver programs that are government actions taken to deliver the stated outcomes. Agencies are required to identify the programs that contribute to government outcomes over the Budget and forward years.
The outcome of the Family Court and Federal Circuit Court is described below.
Provide access to justice for litigants in family and federal law matters within the jurisdiction of the courts through the provision of judicial and support services.
The Family Court and Federal Circuit Court has a single program under which all services are provided:
Family Court and Federal Circuit Court
The program objectives for the Family Court and Federal Circuit Court are managed via three separate components:
- Family Court of Australia
- The objective of the Family Court of Australia is to support Australian families involved in complex family disputes by deciding matters according to the law, promptly, courteously and effectively. This involves:
- providing decisions in complex family disputes for separating Australian couples and families through the determination of matters, and
- providing national coverage as the appellate court in family law matters.
- The objective of the Family Court of Australia is to support Australian families involved in complex family disputes by deciding matters according to the law, promptly, courteously and effectively. This involves:
- Federal Circuit Court of Australia
- The objective of the Federal Circuit Court of Australia is to provide a simple and accessible alternative to litigation in the Family Court and Federal Court.
- Where practical, parties are encouraged to resolve their disputes through dispute resolution and negotiation methods.
- Family Court and Federal Circuit Court Administration
- The objective of the Family Court and Federal Circuit Court Administration is to assist the courts to achieve their stated purpose by:
- Maintaining an environment that enables judicial officers to make determinations
- Providing effective and efficient registry services
- Effectively and efficiently managing resources
- Providing effective information and communication technologies.
- The objective of the Family Court and Federal Circuit Court Administration is to assist the courts to achieve their stated purpose by:
Deliverables and key performance indicators
The deliverables and key performance indicators associated with each component encompass core service standards for judicial services and client services (that is, the family law registries, where people attend in person, and the National Enquiry Centre, the first point of contact for telephone and email enquiries).
Although a single entity for the purposes of the Public Governance, Performance and Accountability Act 2013, the Federal Circuit Court of Australia remains a separate Chapter III Court under the Australian Constitution and the deliverables and key performance indicators applicable (KPIs) to the Court as identified in the 2014–15 Portfolio Budget Statements are shown in Table 3.1. The deliverables and KPIs for the Family Court and Federal Circuit Court Administration are also set out in Table 3.2.
Table 3.1: Deliverables and key performance indicators, 2014–15 Portfolio Budget Statements
|Number of cases litigated and divorce cases processed||In 2014–15, the Court litigated 95,341 cases.|
|Key Performance Indicators*||Performance|
|Time goal: the time taken from filing to disposition of final order applications is less than 12 months in 90 per cent of cases||In 2014–15, 73 per cent of all final order applications (family law) were completed within 12 months.|
|Time goal: the time taken from filing to disposition in all applications other than applications for final orders is less than six months||In 2014–15, 95 per cent of all applications (family law and general federal law) were completed within six months|
|Performance goal: 70 per cent of matters are resolved before trial||In 2014–15, 71 per cent of matters filed were resolved without the need for judicial determination.|
Historic performance against key performance indicators
The Court has three KPIs against which it is reporting in 2014–15. These KPIs have changed from previous years with the time taken to disposition in final order applications moving from six months to 12 months and the performance goal of resolving 60 per cent of matters before trial increasing from 60 per cent to 70 per cent.
The Court achieved two of the three KPIs.
Eighty seven per cent of all final order applications in family law filed in 2014–15 were filed in the Federal Circuit Court (excluding Western Australia). The Court aims to complete 90 per cent of all final order applications (family law) filed within 12 months and fell short of this KPI in 2014–15, achieving 73 per cent. During 2014–15 a number judges left the Court and have not been replaced. This has impacted on the Courts capacity to meet this KPI.
The Court has continued to develop and maintain strategies to achieve this KPI including:
- the development of a national relief roster whereby judges of the Court allocate one week annually to assist in locations when judges are ill or in locations requiring assistance
- the continued development of operational reports to enable the Court to better understand its workload
- attention to ensuring the accuracy of data entry to ensure that the true position of the Court is reflected in statistical and operational reports
- the ongoing review of the Court's oldest active cases with a view to ensuring an understanding of any reasons for delay and developing strategies for managing older cases, and
- case management judges work together on improving the performance of the Court on a national and regional basis.
During 2014–15, the Court met the performance goals of:
- the time taken from filing to disposition in all applications other than applications for final orders is less than six months, and
- 70 per cent of matters resolved before trial.
Family Court and Federal Circuit Court administration
Table 3.2: Deliverables and Key Performance Indicators
|Telephone enquiries served target 270,800||330,178 telephone enquiries served|
|Counter enquiries served target 150,000||255,101 counter enquiries served|
|Email enquiries responded to target 50,000||111,388 emails responded to|
|Key Performance Indicators||Performance|
|National Enquiry Centre telephone enquiries answered within 90 seconds for 80 per cent of calls||34 per cent of telephone enquiries were answered within 90 seconds|
|Counter enquiries served within 20 minutes in 75 per cent of matters||91 per cent of counter enquiries were served within 20 minutes|
|Email enquiries responded to within two working days in 80 per cent of matters||100 per cent of all email enquiries were responded to with two working days|
|Application lodged processed within two working days in 75 per cent of matters||97 per cent of all applications lodged were processed within two working days|
Table 3.3: Family law and general federal law applications filed 2014–15
|Family law||Total||% of total|
|Total family law||86,380||91|
|General federal law||Total||% of total|
|Total general federal law||8961||9|
Figure 3.1: Family law and general federal law applications filed 2014–15
The Court uses a docket case management process designed to deal with applications in a flexible and timely way. The docket case management process has the following principles:
- matters are randomly allocated to a judge who generally manages the matter from commencement to disposition, this includes making orders about the way in which the matter should be managed or prepared for hearing, and
- matters in areas of law requiring expertise in a particular area of jurisdiction are allocated to a judge who is a member of the relevant specialist panel.
The docket case management system provides the following benefits:
- consistency of approach throughout the matter's history
- the judge's familiarity with the matter results in more efficient management of the matter
- fewer formal directions and a reduction in the number of court appearances
- timely identification of matters suitable for dispute resolution, and
- allows issues to be identified quickly and promotes earlier settlement of matters.
Figure 3.2: Case management approach diagram
Specialist panel arrangements
The Court has specialist panels in areas of general federal law and child support which ensure that matters of a specialist legal nature are allocated to judges with expertise in that particular area of the Court's jurisdiction. Specialist panel members meet regularly with user groups and judicial colleagues from other courts to respond to issues of practice and procedure in these specialist jurisdictions.
The following panels support the work of the Court:
- Commercial (including consumer, intellectual property and bankruptcy)
- Migration and administrative law
- Human rights
- Industrial law
- National security
- Admiralty law, and
- Child support.
The panel arrangements equip the Court with the ability to effectively utilise judicial resources in specialist areas of family and general federal law. They are an essential element of continuing judicial education within the Court.
Report on work in family law
The landscape of family law in Australia changed dramatically with the establishment in 2000 of the Federal Magistrates Court (now the Federal Circuit Court). Initially established to deal with the more simple and straightforward work, the Court now shares almost complete jurisdiction with the Family Court and undertakes 87 per cent of all the family law workload (excluding Western Australia family law matters).
Family law is the largest workload area of the Court and in percentage terms represented 91 per cent of all applications filed which compares to 90 per cent in 2013–14. As highlighted in the information below, it is of concern that disposition rates have declined resulting in unavoidable delays in the allocation of hearing dates. This is as a consequence of current limitations on judicial resources and the overall increase in workload, particularly the migration workload.
Family law applications can be categorised as one of four types as set out in Table 3.4. The table also describes the application types as a percentage of the family law applications filed.
In light of the fact that most family law proceedings are dealt with in the Federal Circuit Court it would be desirable for the Court to have corporations jurisdiction in respect of civil matters arising in family law proceedings to avoid the need to rely on the general transfer powers. In addition, as the Court deals with most divorce applications, the conferral of jurisdiction in respect of nullity and declaration of validity of marriages would seem appropriate.
Table 3.4: Family law applications filed by type, 2014–15
|Final Orders applications||17,685||21|
Figure 3.3: Family law applications filed by type, 2014–15
Final orders applications are filed when litigants seek to obtain final parenting and/or financial orders. Applications in a Case (Interim) seek interim or procedural orders pending the determination of final orders.
Figure 3.4: Final orders applications 2010–11 to 2014–15
Figure 3.5: Interim orders applications 2010–11 to 2014–15
The family law workload (excluding divorce) can be broken into three main categories. In 2014–15, 54 per cent of family law applications related specifically to matters concerning children, a further 11 per cent involved both children and property and 34 per cent involved discrete property applications.
Figure 3.6: Issues sought in final orders applications, 2014–15
Increasing reporting of risks
Prioritising the safety of children is, and must continue to be, the focus of all those working in both the child protection and family law systems. The prevalence of allegations of risk in parenting proceedings is of particular concern as parenting applications comprise the most significant component of the family law workload of the Court. While the Family Court has the specialised Magellan case management system to deal with complex child abuse cases, similar resources are not available to implement this in the Federal Circuit Court. From 12 January 2015, the Court commenced a national roll out of the Notice of Risk as a requirement for filing with all parenting applications. As highlighted in previous Annual Reports, the Notice of Risk was originally piloted in South Australia from February 2013. It represents a departure from the previously prescribed Form 4 as it is required to be filed with all parenting applications rather than only in those instances where allegations attract the statutory notification requirement.
In addition to implementing the Notice of Risk nationally, the Court has been an active participant in efforts to improve the interface between the child welfare and family law systems by way of local liaisons. As highlighted in the submission made by the Court to the Family Law Council term of reference on Families with Complex Needs, the different legal environments and thresholds, present considerable obstacles for those seeking to navigate these systems. The location of a child protection practitioner at both the Melbourne and Dandenong registries of the Court represents a useful model to address these intersectional divides and is the subject of an evaluation by the Australian Institute of Family Studies. The Court extends its appreciation to the Victorian Department of Health and Human Services for making these resources available.
Another useful development is the pilot by the NSW Department of Families and Community Services to provide in certain circumstances, access to Personal Histories by way of their information exchange provisions. The pilot has the potential for a reduction in the number of subpoenas and more targeted section 69ZW orders. During the year the Department extended the pilot with a view to evaluating the viability of the provision of this information to the Court more widely.
While there is scope for a greater level of information sharing and collaboration to address the jurisdictional gaps, these local initiatives are welcomed.
The impact of family violence on children is well recognised and the Court supports the national focus with all governments agreeing to work together to tackle the issue. As part of the courts Family Violence Strategy, there are best practice principles which have been developed to provide practical guidance to judicial officers in dealing with matters where family violence is alleged. Further details on the Family Violence Best Practice Principles can be found at www.federalcircuitcourt.gov.au
In the Melbourne and Brisbane registries the Court is piloting a structured Family Violence Screening Tool for family consultants to use in their section 11 F Family Law Act assessments. Before considering any national application of the tool, further analysis is required.
Engagement with the Australian Institute of Family Studies
During the year, the Court participated in various research proposals undertaken by the Australian Institute of Family Studies including the evaluation of the co-located Child Protection Practitioner positions at the courts. The Court will await the outcome of the evaluation but considers the pilot a very effective approach to better deal with the jurisdictional divides and to facilitate information sharing.
In view of the significant role played by legal aid commissions, representatives from the Court attend regular National Legal Aid (NLA) Family Law Working Group meetings. In addition, NLA host national stakeholder meetings in relation to Independent Children's Lawyers. This meeting is attended by representatives of the courts, the Law Council of Australia and Legal Aid Commissions. The aim of these meetings is to consider how legal aid commissions can work with the courts and other stakeholders to enhance competence.
Australian Law Reform Commission (ALRC) – Report 124
The ALRC Report 124 on Equality, Capacity and Disability in Commonwealth Laws was released in November 2014. This inquiry raised issues of some relevance to the Court. As the Court deals with most federal civil trial work (both in family law and general federal law) not infrequently litigants appearing before the Court have some disability which impacts on their ability to fully participate. In a submission made by the Court particular reference was made to the difficulties when no litigation guardian is available. Further information on the report can be found at www.alrc.gov.au
By virtue of Practice Direction No 6 of 2003 issued by the Family Court, almost all divorce applications are filed in the Federal Circuit Court. Further information about this Practice Direction can be found at www.familycourt.gov.au under Rules & Legislation > Practice Directions > 2003.
In view of the nature of the workload, registrars with delegated powers deal with most applications. The assistance of registrars in respect of this head of jurisdiction is appreciated. Those matters which proceed before a judge are generally confined to contested divorce proceedings and any applications for review, which are few in number.
Section 39(1A) of the Family Law Act establishes the Court's jurisdiction in relation to matrimonial causes. Although the Court has jurisdiction to hear and determine applications for divorce, it has no jurisdiction to hear proceedings for a decree of nullity of marriage, or for declarations as to the validity of a marriage, validity of a divorce, or validity of the annulment of a marriage. Such jurisdiction lies exclusively with the Family Court. As highlighted in previous Annual Reports, the Federal Circuit Court considers it would be desirable for such jurisdiction to be shared with the Family Court as most divorce applications proceed before the Federal Circuit Court.
Certain judges have personal powers under section 12 of the Marriage Act 1961, which provides that a person under the age of 18 but who has attained the age of 16 may apply to an eligible judge for an order authorising him or her to marry a person of marriageable age.
Following passage of the Crimes Legislation Amendment (Slavery, Slavery-Like Conditions and People Trafficking) Act 2013 amendments were made to the Commonwealth Criminal Code Act 1995 to include offences regarding forced marriage.
Fees in relation to divorce are set out in the Family Law (Fees) Regulation 2012. Included in the Federal Courts Legislation Amendment (Fees) Regulation 2015 was an amendment to the Family Law (Fees) Regulation 2012 to increase the full divorce fee in the Federal Circuit Court from $845 to $1,195 from 1 July 2015. However this and the other amendments to increase family law fees, was disallowed by the Senate on 25 June 2015.
eFiling of divorce applications was introduced in September 2009 and this mode of filing has steadily increased. Currently there is an average of 170 divorce applications eFiled per week. eFiling of divorce applications is done via the Commonwealth Courts Portal. Further information on eFiling and the Commonwealth Courts Portal, is available from the Court's website at www.federalcircuitcourt.gov.au
The technical work to facilitate more automated electronic processing of applications (eDivorce processing) is nearing completion and will allow for much more automated communications process to facilitate much of the administrative processing currently undertaken by staff.
As many divorce applications are filed by litigants without legal assistance, much information is available from the Courts website to facilitate an understanding of the process and the legal and rule requirements. In addition, many enquiries in respect of divorce are dealt with by the staff at the National Enquiry Centre who provides useful information to litigants. See the How do I? pages at www.federalcircuitcourt.gov.au
Although few divorce proceedings are contested, the jurisdiction is one that sometimes raises issues in respect of the appropriate forum. Tedja & Sony  FamCAFC 13 was an appeal from the Federal Circuit Court in which the divorce order was sought to be challenged on the basis that Indonesia was the appropriate forum for the matter to be determined. On appeal, the decision of the Federal Circuit Court, that Australia was not a clearly inappropriate place in which to have the matter heard and determined, was upheld.
Figure 3.7: Divorce applications 2010–11 to 2014–15
The Court has limited first instance child support jurisdiction. As noted by Riethmuller FM (as he then was) in Bagala & Bagala  FMCAfam 953 at –:
20. Section 4 (2) (C) of the Act seeks to have child support matters settled without recourse to the Courts, thus avoiding needless expense for the parties and using court resources that might otherwise be utilised. There have been tow sets of significant amendments to the scheme, each further advancing the object of providing an inexpensive administrative system for review of child support assessments. The first was the introduction of the departure process under Part 6A of the Act, allowing for administrative departures from child support assessments. The second change was providing for objection rights following part 6A decisions, and the third significant change provided for review by the SSAT. All of these changes were driven by considerations of access to justice, and the reality that the costs of legal proceedings are almost invariably greater than the amount of money in dispute in child support cases, placing great hardship of applicants and undue pressure on respondents to settle to avoid the disproportionate costs of litigation. Thus, a well developed administrative system has been developed.
21. The objects and purpose of the Child Support Scheme are to provide an informal, inexpensive and timely avenue of review for disputing parties.
While the child support system is essentially an administrative based scheme, those child support matters that proceed before a court are largely dealt with by the Federal Circuit Court. Because of this, the Court has established a specialist child support panel to deal with the review caseload. For further information about these panels see About us > Specialist Panels in General Federal Law at www.federalcircuitcourt.gov.au
The Court exercises some judicial review child support jurisdiction which, prior to 1 July 2015, came to the Court via review of certain decisions of the SSAT. Such appeals lie only on a question of law and are not a merits review of the decision.
During 2014 there were 27 appeals from the SSAT filed in the Court, which is a decrease from 42 in the previous year.
From 1 July 2015, the SSAT (and some other Commonwealth Tribunals) amalgamated into a single AAT tribunal. Since that date judicial review of decisions of the amalgamated AAT in child support first review matters are conferred on the Federal Circuit Court and the Federal Court. It is expected most child support first review matters will be heard by the Federal Circuit Court. To streamline the judicial review pathways of child support, appeals from the Federal Circuit Court are from that date to be heard by the Federal Court rather than as previously, the Family Court. In addition, the Federal Court may transfer any AAT child support judicial review proceeding to the Federal Circuit Court (except in respect of a decision from a presidential member).
The child support judicial review decisions of the Court are made available via AustLii at www.austlii.edu.au
A small number of appeals are filed in the Court in respect of departure prohibition orders.
In some localities the Court has set up some specific lists to deal with applications for enforcement of arrears of child support.
During the year Judge Scarlett made a number of presentations to members of the profession on the Court's child support jurisdiction, including a presentation entitled 'Why the law of Child Support is not boring'.
Report on work in general federal law
The largest component of the Court's judicial review workload is by way of challenges to statutory appeal rights under the Migration Act. Appeals from the AAT and matters which proceed by way of an Administrative Decisions (Judicial Review) Act 1977 application, are small in number with 85 applications filed in 2014–15.
In respect of AAT appeals other than 'child support first review' decisions, the jurisdiction is limited to matters remitted from the Federal Court and excluding those appeals from decisions of the AAT constituted by a presidential member. As of 1 July 2015 the Tribunals Amalgamation Act 2015 merged the SSAT and the MRT and RRT into the AAT. The new Tribunal retains the existing Divisional structure but with a number of new divisions. In the past, child support appeals from the SSAT on a question of law have largely all come to the Federal Circuit Court although it was jurisdiction which, prior to the merger, was shared with the Family Court. However following the commencement of the Tribunals Amalgamation Act 2015, this jurisdiction is concurrent with the Federal Court and an appeal from the Federal Circuit Court will go to the Federal Court rather than the Family Court.
As indicated in previous Annual Reports, the Court considers there is scope for expanding the jurisdiction of the Court to encompass some review rights under s.39B of the Judiciary Act 1903. Two Full Court decisions of the Federal Court were delivered during the year and considered the scope of the Federal Circuit Court's more limited administrative law jurisdiction in view of the fact that the Federal Court alone has direct jurisdiction under s.44 of the AAT Act: see Cremona v Administrative Appeals Tribunal  FCAFC 72 at . See also Minister for Health v Nicholl Holdings Pty Ltd  FCAFC 73.
The types of administrative law proceedings that come before the Court are illustrated by the following case:
In Legal Training Australia Pty Ltd v Office of the Migration Agents Registration Authority  FCCA 126, the Court considered an application for extension of time under the Administrative Decisions (Judicial Review) Act 1977. In the substantive proceedings the applicant alleged that the respondent erred in law by considering the wrong question, by basing its decision on an unlawful policy and by misdirecting itself in law. The applicant provided training for migration agents. The respondent refused approval for the applicant's proposed two-day migration conference on the basis that the proposed conference did not meet the requirements of reg.9G(1)(a) of the Migration Agents Regulations 1998 ("Regulations").
Table 3.5: General federal law applications filed by type, 2014–15
|Application||Filed||% of total|
The Court's admiralty jurisdiction is confined to in personam claims. However the Court can exercise in rem jurisdiction upon remittal from the Federal Court and state supreme courts. Admiralty applications comprise a very small component of the general federal law workload with only nine applications filed in the reporting period.
As highlighted in previous Annual Reports, enforcement of foreign judgments often depends upon general principles of comity/reciprocity. Not being a superior court, this could present difficulties for enforcement of Federal Circuit Court judgments in foreign jurisdictions.
The Court has issued a Notice to Practitioners entitled 'Conduct of Admiralty and Maritime Work in the Federal Circuit Court of Australia' and has a specialist panel to deal with the admiralty jurisdiction. For further information see Specialist Panels in About Us > Specialist Panels in General Federal Law at www.federalcircuitcourt.gov.au
In a recent decision of Mitsui OSK Lines (Thailand) Co Ltd v Jack Fair Pty Ltd  FCCA 558 the Court noted that the conferral of civil jurisdiction on the Court in respect of a 'maritime claim' was not limited by quantum and extends to the conferral to the full ambit of 'maritime claims wherever arising in respect of the oceans of the world'.
In this particular case the Court found the scope of the jurisdiction extended to a claim arising out of an agreement that relates to the carriage of goods and includes a cause of action raised in respect of misleading and deceptive conduct as alleged by the plaintiff in this case. In addition, the jurisdiction was found to include a claim by the carrier as bailee for conversion against the defendant and, also, a claim of alleged breach of an implied agreement by the carrier against the defendant of a Brandt v Liverpool, Brazil and River Steam Navigation Co Ltd  All ER Rep 656;  1 KB 575; (1923) 29 Com Cas 57 nature.
Bankruptcy filings continue to represent a substantial component of the general federal law workload of the Court but have been trending downwards, see Figure 3.8. Although this jurisdiction is shared with the Federal Court most personal insolvency proceedings are dealt with in the Federal Circuit Court.
The Court has jurisdiction (subject to limits) under the Personal Property Securities Act 2009 in respect of parties wishing to enforce their rights under a secured agreement.
Registrars with delegate powers undertake a substantive amount of the bankruptcy workload. The Court appreciates the significant role that registrars play in the bankruptcy jurisdiction. Panel judges deal with those matters which go on review from registrars or are otherwise not within the scope of the delegated powers of registrars.
In view of the shared bankruptcy jurisdiction, the Federal Circuit Court and the Federal Court have harmonised bankruptcy rules and forms. Representatives from the Australian Financial Security Authority (AFSA) have regular liaison meetings with representatives from the Courts.
It is the view of the Court that a number of matters under the Corporations Act 2001 are of a routine nature and its jurisdiction should not be confined to personal insolvency and the administration of the financial affairs of an insolvent natural person. In a submission to the Senate Economics Reference Committee into insolvency in the Australian construction industry, the Law Council recommended that corporations law jurisdiction in corporate insolvency matters be conferred on the Court. For further information see www.aph.gov.au
The Federal Courts Legislation Amendment (Fees) Regulation 2015 came into effect on 1 July 2015 and included amendments to exclude 'public authorities' from having to pay fees applicable to a 'corporation' and removed the 'publicly listed company' fee category. However this amendment did not apply to bankruptcy matters which continued to attract the higher fees.
A large proportion of those who seek legal advice from the organisations funded by the Attorney-General's Department in general federal law proceedings, are in respect of bankruptcy matters.
A financial counselling pilot in operation in the Melbourne registry of the Federal Circuit Court since September 2014 has been the subject of an evaluation by Melbourne Law School. The pilot was a collaborative project with funding from the courts and a grant from Victoria Law Foundation and indirect support from the Australian Research Council. The steering committee comprised representatives from the courts, the Financial and Consumer Rights Council, Consumer Action Law Centre and researchers from the Melbourne Law School.
Figure 3.8: Bankruptcy applications 2010–11 to 2014–15
The consumer jurisdiction is not extensive in light of current statutory limitations. This would seem to detract from litigants bringing proceedings with only a small number of applications filed under this jurisdiction in the Court. To address this it would seem useful to confer jurisdiction in relation to financial services and in relation to less complex corporate insolvency matters under the Corporations Act 2001. In addition there is a statutory limit of $750,000 on the amount of damages that the Court can award. Not infrequently additional claims come before the Court by way of the associated jurisdiction powers.
For example in Postorino v Encryption Technologies Corporation Pty Ltd & Ors  FCCA 1634, jurisdictional issue arose in the context of an application claiming misleading or deceptive conduct in relation to the purchase of shares in the respondent company. There was some consideration by the Court as to whether the Federal Circuit Court had implicit or accrued jurisdiction and whether any federal claim was "colourable" or bound to fail.
Issues have arisen in respect of the Court's associated or accrued jurisdiction in light of the decision in Ogawa v Federal Magistrate Phipps  FCA 361. The decision means litigants may be required to abandon part of their pleading or, alternatively, seek to have their matter transferred to the Federal Court, if an aspect of the dispute is founded in a provision which is outside the statutory jurisdictional limits. Accordingly the Federal Circuit Court considers it desirable to confer coextensive jurisdiction with the Federal Court and remove the monetary limit.
The human rights workload is a small component of the overall general federal law workload. In respect of claims in the context of discrimination in employment, some litigants seek to pursue these by way of relief in the context of industrial law action.
This area of law is however an ever evolving area of jurisprudence. For example, in the matter of Wood v Lee-Joe  FCCA 309 and Wood v Lee-Joe (No.3)  FCCA 354, the Court considered the question of the applicant's standing to bring the application on behalf of another by her carer. At the final hearing the Court held the person on whose behalf the application was filed was not a person who needed a litigation guardian. The substantive application was also dismissed in view of the fact that the applicant was found not to have standing to bring the proceedings.
In Coombe v Bonney & Anor  FCCA 916 the Court had to consider time limits in the context of proceedings which were commenced approximately 3.5 years after incidents complained. The Court addressed the matters to be considered in granting a permanent stay.
In Mulligan v Virgin Australia Airlines Pty Ltd  FCCA 157 the application claimed alleged disability discrimination based on circumstances surrounding travel on the respondent's aircraft with a dog called Willow. Willow was not an assistance dog trained and identified by an approved organisation within the requirements of Civil Aviation Regulations. In dismissing the application the Court found that the relevant instrument was intended to be exhaustive.
During the year the Australian Human Rights Commission announced an inquiry to consider barriers preventing older people and people with disability from getting jobs: Willing to Work: National Inquiry into Employment Discrimination Against Older Australians and Australians with Disability.
The Federal Circuit Court shares industrial law jurisdiction with the Federal Court. However, the majority of applications for pecuniary penalties for contraventions of the Fair Work Act 2009 (the Fair Work Act) and claims of adverse action filed in the federal arena come before the Federal Circuit Court, see Figure 3.9. In addition the increase in conferral of civil penalty jurisdiction on the Court poses challenges with this jurisdiction representing an increasing component of the general federal law caseload and having consequential impact on the ability of the Court to deal with its overall workload.
The types of matters which came before the Court during the year include cases such as Fair Work Ombudsman v Crocmedia Pty Ltd  FCCA 140 which involved penalty proceedings for alleged underpayment of workers who had commenced working after seeking work experience in the media industry whilst studying at university. Decisions of the Court such as Fair Work Ombudsman v D'Adamo Nominees Pty Ltd (No.4)  FCCA 1178 consider issues such as whether federal laws exclude state laws and whether an employment relationship existed.
The implications for submissions on agreed penalties in civil penalty proceedings following the High Court decision in Barbaro v The Queen; Zirilli v The Queen  HCA 2, and the Full Court Federal Court decision in Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union  FCAFC 59 remains unclear and is expected to impact the conduct of penalty proceedings in the Federal Circuit Court. The High Court has granted special leave for a challenge of the Full Federal Court decision and its decision, when delivered, is hoped to provide some clarification.
Decisions of the Federal Circuit Court in the context of adverse action cases that have considered important aspects of the Fair Work Act including in Dahler v Australian Capital Territory & Anor (No.2)  FCCA 845 where in the context of a claim alleging adverse action had been taken against an employee for a prohibited reason the Court considered whether "carer's responsibilities" included professional paid responsibilities.
The Court is also regularly called on to construe key provisions of the Fair Work Act. In NSW Nurses and Midwives' Association v Anglican Care  FCCA 2580, the Federal Circuit Court made declarations that an employee was entitled to accrue annual leave while she was absent from work and in receipt of workers compensation and that her employer had contravened s.44(1) of the Fair Work Act 2009 (Cth) ("FW Act") by failing to pay her for that untaken accrued annual leave. This interpretation of a key provision of the Fair Work Act was recently upheld on appeal by the Full Court of the Federal Court.
The Court also has a small claims jurisdiction if the compensation is not more than $20,000 and the compensation is for an entitlement mentioned in subsection 548(1A) of the Fair Work Act. Discrete small claims lists are conducted in Melbourne, Sydney and Brisbane. The assistance of staff from the Office of the Fair Work Ombudsman, has aided the conduct of these lists.
During the year the High Court unanimously allowed an appeal from a decision of the Full Court of the Federal Court and held that a term of mutual trust and confidence should not be implied by law in employment contracts: Commonwealth Bank of Australia v Barker  HCA 32
Figure 3.9: Industrial applications filed 2010–11 to 2014–15
While this represents a small component of the general federal law work of the Court, it is considered useful for litigants to have access to a court which can deal with alleged infringements of intellectual property proportionate to the matter in dispute. The scope of this jurisdiction was originally confined to copyright but since 15 April 2013, the Court has also exercised trade mark and design jurisdiction.
The Court does not have jurisdiction in respect of patent infringements however, as from 25 August 2015, will have jurisdiction to hear matters in respect of infringements under the Plant Breeder's Rights Act 1994 : see Schedule 3 Intellectual Property Law Amendment Act 2015.
Some of the types of matters which came before the Court included International Warehousing Distribution Pty Ltd & Anor v Trail  FCCA 1608. This was an interlocutory application for production by the respondent to an independent forensic specialist engaged by the application to inspect the respondent's MacBook computer, iPad, iPhone and email account. The statement of claim pleaded a variety of confidential information and literary works and pleaded that these were used and accessed by the respondent during his employment.
Often such proceedings include claims under other heads of jurisdiction. For example, in Vertical Leisure Limited & Anor v Skyrunner Pty Ltd & Anor  FCCA 2033, the applicants sought relief for infringement of trademark, copyright, misleading or deceptive conduct in trade or commerce and for passing off. The applicants sold in Australia poles used for pole dancing known by the name X-Pole. The respondents were found to have persistently and flagrantly sold inferior copies of the applicants' products, damaging their reputation by passing off the inferior copies as the applicants' products, placing consumers at risk of injury through misleading and deceptive conduct and flagrantly and persistently breaching the copyright and trademarks of the applicants. In this case, the Court noted that the damages contemplated by s.115(4) of the Copyright Act and s.126(4) of the Trade Marks Act are of a punitive kind. Financial gain is unnecessary. And that this was a case where it was appropriate that a substantial award of additional damages be made to "mark the Court's recognition of the opprobrium attached to the defendants conduct". An award of $300,000 was made by way of additional damages.
The largest component of the Court's judicial review workload is by way of challenges to statutory appeal rights under the Migration Act. This specialist branch of administrative law often illustrates the tension between legislative measures to constrain migration litigation and the Constitutional protection of judicial review of Commonwealth decisions. It is not therefore surprising that decisions are often the subject of High Court consideration.
As highlighted in the Figure 3.10 the migration workload is continuing to increase with the result that hearing dates are extending out. Compounding this is the potential workload implications of the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 the substantive provisions of which took effect on 18 April 2015. The 'asylum legacy caseload' referred to in this Act comprises those who arrived unauthorised by boat between August 2012 and December 2013 and have not been transferred to offshore processing centres. While merits review is excluded for certain applicants there is a limited review process for others. In particular, a new 'fast track process' has been established for reviewing refused applications for protection visa to be conducted by a newly established Immigration Assessment Authority (IAA). All fast track applicants will continue to have access to judicial review. The limited judicial resources to deal with the increasing migration workload are likely to result in delays in respect of those matters that proceed to the Court for judicial review.
In addition to workload impacts, the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 made some substantive changes to the Migration Act including the removal of most references to the Refugee Convention with a statutory framework which codifies the meaning of refugee.
Representatives from the Court met during the year with departmental officers to discuss issues pertaining to workload and jurisdictional changes.
From 1 July 2015, the, MRT, RRT (SSAT and AAT) were amalgamated into a single AAT tribunal which from that date comprise six divisions including a Migration and Refugee Division. Where a fast track applicant is refused the grant of a protection visa, the person will not have access to review before the AAT but before the new review body the IAA.
Other legislation of some jurisprudential significance to this judicial review caseload was the Migration Amendment (Protection and Other Measures) Act 2015 which commenced on 18 April 2015.
Part 44 of the Federal Circuit Court Rules 2001 set out specific rules for migration proceedings. These are intended to follow the procedure of the High Court in dealing with applications for constitutional writs. There is provision in Part 44 for a show cause hearing and the Court has power to dismiss at an early stage if not satisfied that the application raises an arguable case. The scope of the Court's summary dismissal powers to dispose of applications at the first court date was the subject of a successful challenge before the Full Court in SZWBH v Minister for Immigration and Border Protection  FCAFC 88 and Shrestha v Migration Review Tribunal and Minister for Immigration and Border Protection  FCAFC 87, (original judgment  FCCA 256). In both cases the Full Court of the Federal Court found that the primary judge erred in finding the application had no reasonable prospects of success in circumstances where the appellant had not been afforded an opportunity to file the evidence in support of the application. The Court also made some observations about the proper application of the Rules and forms.
The Court has a specialist administrative and migration law panel and has been assisted in the management of the migration workload by registrars making directions at the first court event. In Victoria, VLA has provided duty lawyers to facilitate the provision of advice and assistance to self-represented litigants at the first court date. As mentioned in previous Annual Reports, the Court is grateful for this assistance and for the considerable pro bono contribution of the profession which is facilitated through organisations such as Justice Connect and others.
During the year a number of High Court decisions were delivered including:
Plaintiff S4–2014 v Minister for Immigration and Border Protection  HCA 34, in which the High Court unanimously held invalid the grant by the Minister of a temporary safe haven visa which had the effect of precluding the plaintiff making a valid application for a protection visa where the plaintiff's detention had been prolonged.
Minister for Immigration and Border Protection v SZSCA  HCA 45 in which the High Court, by majority, held that the RRT failed to properly address whether an applicant for a protection visa had a well-founded fear of persecution. The Tribunal's decision had been quashed by the Federal Circuit Court and an appeal was dismissed by a majority of a Full Court of the Federal Court.
CPCF v Minister for Immigration and Border Protection  HCA 1 by majority the High Court held that a claim for damages for false imprisonment arising out of the plaintiff's detention at sea on a Commonwealth vessel should be dismissed.
Plaintiff S297–2013 v Minister for Immigration and Border Protection  HCA 3 the High Court unanimously held that the decision made by the Minister to refuse the plaintiff a protection visa was not made according to law. The Court found that the Act stated exhaustively what visa consequences attached to being an unauthorised maritime arrival and the Minister could not refuse a visa only because the applicant was an unauthorised maritime arrival.
Minister for Immigration and Border Protection v WZAPN; WZARV v Minister for Immigration and Border Protection & Anor  HCA 22 was a unanimous decision in which the High Court allowed an appeal from the Federal Court and held that the likelihood of a period of temporary detention of a person for a reason mentioned in the Refugees Convention is not, of itself, a threat to liberty within the meaning of s.91R (2) (a) of the Act. A significant number of applications had been filed in the Court seeking to rely on WZAPN. Many have been adjourned pending the High Court decision.
Figure 3.10: Migration applications filed 2010–11 to 2014–15
The Court is committed to acknowledging complaints and managing responses in a timely and effective manner. The Court's complaints and feedback policy and judicial complaints procedure is available on the Court's website www.federalcircuitcourt.gov.au
During 2014–15 a total of 196 complaints were received which is slightly higher than the previous year (188). Complaints are categorised as below:
- Overdue judgments – 57
- Conduct of judge or registrar – 51
- Dispute resolution and mediation – 41
- Legal process – 11
- Conduct – registries – 11
- Judicial decision – 5
- Conduct – Legal representative – 4
- Delays – existing proceedings – 4
- Conduct – chambers – 3
- Divorce – 3
- Pending proceedings – 1
- Provision of transcript – 1
- Fee – 1
- Perjury – 1
- Publication of judgment – 1
- Enforcement of orders – 1
The number of complaints is relatively small and although it is of concern that the largest number of complaints remains in relation to outstanding decisions, the number of these complaints is lower than in previous years. The Court has a protocol which sets a benchmark of three months and matters that are outside this benchmark are actively monitored by the Chief Judge's chambers.
Judicial Complaints Policy
The Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012 and the Courts Legislation Amendment (Judicial Complaints) Act 2012 commenced on 12 April 2013.
The Judicial Complaints Act amended the Federal Circuit Court of Australia Act 1999, Family Law Act 1975, the Federal Court of Australia Act 1976, and the Freedom of Information Act 1982 to:
- provide a statutory basis for the Chief Justice of the Federal Court, the Chief Justice of the Family Court and the Chief Judge of the Federal Circuit Court to deal with complaints about judicial officers
- provide protection from civil proceedings that could arise from a complaints handling process for a Chief Justice or the Chief Judge as well as participants assisting them in the complaints handling process, and
- exclude from the operation of the Freedom of Information Act 1982 documents arising in the context of consideration and handling of a complaint about a judicial officer.
The Parliamentary Commissions Act provides a standard mechanism for parliamentary consideration of removal of a judge from office under of the Australian Constitution paragraph 72(ii). Details of the Judicial Complaint Procedure of the Court are found on the website under Contact Us > Feedback and Complaints at www.federalcircuitcourt.gov.au
The publication of the Court's decisions is considered to fulfil an important public interest. However in light of the significant trial workload, a number of decisions are delivered orally and are not able to be settled in a written format. Those that are publicly available can be accessed from the AustLii website at www.austlii.edu.au
In addition, members of the public can subscribe via the Court's website, to receive regular updates of decisions posted on AustLii. For the latest judgments see www.federalcircuitcourt.gov.au
Following the name change of the Court, FCCA has been used as the new medium neutral citation for all decisions. Previously general federal law decisions had a citation of FMCA while family law had an FMCAfam citation.
During the year a total of 3444 written judgments were provided by the Court. This compares with 2923 during the previous year. A breakdown by jurisdictional category is as follows:
- Admin – 17
- Admiralty – 2
- Bankruptcy – 148
- Child support (incl. SSAT) – 47
- Consumer law – 11
- Family law – 1595
- Human rights – 17
- Industrial law – 166
- Intellectual Property (includes Copyright & Trademarks) – 7
- Migration – 1390
- Practice and procedure – 44
Of the 1595 family law judgments, 658 were anonymised in accordance with s.121 of the Family Law Act 1975 and distributed to AustLii and other external legal publishers.
The Court acknowledges the significant role played by AustLii in making these decisions available.
During the year, 103 decisions were published in law reports.
A representative from the Court attended the annual AIJA Public Information Officers' Conference on the implications of social change on the courts. A presentation was made on a range of issues including the processes adopted for anonymising judgments to comply with statutory requirements.
During the year the Court issued Practice Direction No 1 of 2015 – Citations of decisions of Australian Courts and Tribunals – AustLii. For further information see the Courts website www.federalcircuitcourt.gov.au under Rules and Legislations > Practice Directions.
This Practice Direction stipulates the requirements in respect of citations of judgments to the Court. Included in the list of versions of copies of cited judgments that can be provided to the Court is the new Signed by AustLii format copy of a judgment. Information on the new format for downloading decision in this format is available from the AustLII website at www.austlii.edu.au/austlii/announce/2015/1
The Court considers this a useful initiative as the provision of copies of decisions in this format is of assistance to those who do not have ready access to authorised law reports.
An appeal lies to the Family Court from the Federal Circuit Court exercising jurisdiction under the Family Law Act and with leave, the Child Support Acts. An appeal in relation to such matters is exercised by a Full Court unless the Chief Justice considers it appropriate for a single judge to exercise the jurisdiction. There was a 21 per cent increase in the number of appeals going to the Family Court from the Federal Circuit Court during the year as set out below.
Table 3.6: Notice of appeals filed, finalised and pending by jurisdiction, 2010–11 to 2014–15
|Family Court of Australia||166||161||152||151||173||15%|
|Federal Circuit Court||201||213||166||179||216||21%|
|Per cent from Family Court of Australia||45%||43%||48%||46%||44%||-2%|
|Per cent from Federal Circuit Court||55%||57%||52%||54%||56%||2%|
|Family Court of Australia||152||140||150||150||143||-5%|
|Federal Circuit Court||203||188||184||187||213||14%|
|Per cent from Family Court of Australia||43%||43%||45%||45%||40%||-5%|
|Per cent from Federal Circuit Court||57%||57%||55%||55%||60%||5%|
|Family Court of Australia||120||141||143||144||174||21%|
|Federal Circuit Court||113||138||120||112||115||3%|
|Per cent from Family Court of Australia||52%||51%||54%||56%||60%||4%|
|Per cent from Federal Circuit Court||48%||49%||46%||44%||40%||-4%|
General federal law
Appeals and appellate-related applications in respect of general federal law proceedings go to the Federal Court and are heard by a single judge unless it is considered appropriate for the appellate jurisdiction to be exercised by a Full Court. The majority of general federal law matters are in respect of migration proceedings and are heard and determined by single judges exercising the Federal Court's appellate jurisdiction. During the year, appeals and appellate-related applications from the Federal Circuit Court comprised 70 per cent of the appellate work of the Federal Court being 775 of the total of 1101. Of these appeals and appellate-related applications, 665 involved migration judgments of the Federal Circuit Court. The overall number of appeals and appellate-related applications filed in 2014–15 from the Federal Circuit Court (775) was considerably more than the number filed during 2013–14, (501) which is indicative of the increase in the Court's migration jurisdiction.
The Federal Circuit Court has grown to become Australia's principal federal trial court. The Federal Circuit Court's jurisdiction and less formal legislative mandate is such that a significant number of parties present as self-represented litigants. In family law the Court is assisted by legal aid duty lawyer schemes. To address the needs of such litigants in the general federal law jurisdiction a number of initiatives have been established.
General federal law
The general federal law dispute resolution provisions are contained in Part 4 of the Federal Circuit Court of Australia Act 1999. The Court operates a docket management system and referrals by judges are the most frequently used procedure in general federal law proceedings. Most mediation is undertaken by registrars of the Court however some matters are referred to external providers.
Not all matters are equally likely to be referred to mediation. In practice particular characteristics of some matters mean that referrals to mediation may occur infrequently if at all. Such matters include Migration applications.
The number of matters referred to mediation in 2014–15 has increased markedly from the 540 referrals in 2013–14 to 675 in 2014–15. The increase can be attributed to the increased filing of Industrial matters. Table 3.7 shows the number of matters referred to mediation for the past five financial years.
Table 3.7: Number of matters referred to mediation, 2010–11 to 2014–15
Table 3.8 shows the number of referrals to mediation by cause of action both as a number and as a percentage of filings. Overall 13 per cent of filings were referred to mediation. The causes of action most referred to mediations were Human Rights and Industrial with 49 per cent of matters referred and Consumer matters with 48 per cent.
Table 3.8: Filings and mediation referrals to a registrar as a percentage of filings 2014–15
|Filings||Referrals||Referrals as % of Filings|
The Court continues to engage a sessional registrar in both Sydney and Melbourne to assist with mediation in the growing Fair Work small claims jurisdiction.
Table 3.9 shows the outcome of mediations conducted in the reporting period. Not all matters mediated in the reporting period will have been filed or even referred to mediation in the reporting period. Matters that are referred to mediation at the end of the reporting period may be mediated in the following reporting period.
Table 3.9: Mediation Referral Outcomes 2014–15
|Not Held||Resolved||Part resolved||Not resolved|
|Human Rights and Equal Opportunities Commission||13||17||14|
In the reporting period, registrars conducted 409 mediations and partially or fully resolved 221 matters or 54 per cent of matters. This is slightly down on the 59 per cent of matters resolved in 2013–14.
Pro Bono Scheme – Federal Circuit Court Rules 2001 – Part 12
A court-based pro bono scheme is in operation similar to that which operates in the Federal Court. Part 12 of the Rules sets out rules in relation to the Court administered scheme. Referrals for pro bono have generally been confined to general federal law matters. With a significant proportion of migration related matters involving self-represented litigants, the Court has been able to facilitate assistance to litigants. Assistance is also provided in various states by way of organisations such as JusticeNet. The Court appreciates the generosity of those members of the profession who agree to give their valuable time voluntarily to assist in such referrals.
- only people who are already parties to proceedings will be referred under the scheme. The scheme does not cover people who are considering bringing proceedings
- a judge will decide whether a party is to be referred for legal assistance under the scheme
- judges will refer a party under the scheme only when such referral is appropriate in the interests of the administration of justice. In deciding whether to make a referral, judges will take into account factors such as the party's financial means, the ability to otherwise obtain legal assistance and the nature and complexity of the matter
- the judge will specify the scope of the referral when making it. For example, it may be to obtain advice, to draft a particular document or to appear at a particular hearing. There is no obligation for a barrister to act for a party once that particular task is completed
- if a judge refers a party to the scheme, a registrar will attempt to find a barrister prepared to act for the party, and will put the party in contact with the barrister. The registrar will provide copies of any relevant court documents to the barrister
- barristers are not obliged to accept referrals. If a barrister does accept a referral, then that barrister will not charge the party any professional fees. However, there may be other expenses which need to be incurred during the course of the proceeding, such as transcript, expert reports or photocopying. The barrister can ask the party to pay for these
- if the party assisted wins the case, the Court may decide that the barrister should be able to recover his or her professional fees for acting for the party, and may make an order to allow this, and
- a barrister may cease acting for a party if the party agrees, if a registrar gives the barrister leave to do so, or if the Bar's rules allow the barrister to cease to act. This would include circumstances such as where the barrister's advice is rejected or ignored, where the barrister has a conflict of interest or where the barrister has insufficient time to give proper attention to the matter.
Small claims lists – Melbourne, Brisbane and Sydney
The Fair Work Act 2009 makes provision for certain proceedings to be dealt with as small claims proceedings. An application may request that an application for compensation be dealt with under this Division if the compensation is not more than $20,000 and the compensation is for an entitlement mentioned in the Fair Work Act 2009. When dealing with a small claim application, the Court is not bound by the rules of evidence but may inform itself of any matter in any manner as it thinks fit.
A party to a small claims application may not be represented by a lawyer without the leave of the Court. Rules in relation to the conduct of proceedings in the Fair Work Division are found in Chapter 7 of the Federal Circuit Court Rules 2001.
The Court aims to minimise the number of events needed to dispose of such applications. Ideally the Court aims to finalise these matters on the first hearing date. In Melbourne, Sydney and Brisbane the Court has dedicated lists with panel judges assigned, with the aim of disposing of such matters on the first date. Staff from the Fair Work Ombudsman are available to provide assistance on an amicus basis.
The main aims are:
- ensuring that both parties attend court at the first hearing with all relevant material. This is facilitated by:
- having a notice with the listing that indicates the matter may be dealt with and determined on the first return date
- providing information to applicants that advises them of the type of material they may need to provide in support of their claim, and
- accepting documents such as Fair Work Ombudsman Inspector's Report as evidence of the applicant.
- having a registrar with some knowledge of the area available for mediation where the judges consider this to be helpful.
- keeping it simple – with an application form with instructions which guides the applicant through what they need to provide on a step by step basis, and a pro forma affidavit of service.
Litigants are provided with a fact sheet along with other resources to assist them in the process.
The Fair Work Ombudsman provides staff to assist at the lists on an amicus basis and various information material is available if additional claims are raised Registrars are available for mediation.
Migration Duty Lawyer Scheme – Melbourne
The Federal Circuit Court migration workload, particularly its hearing workload, has steadily increased since October 2001 when migration jurisdiction was conferred on the Court. Migration now represents the largest jurisdiction in the Court's general federal law defended hearing list, with most first instance judicial review applications being filed in the Federal Circuit Court.
Migration work presents additional demands on the Court and its administration that do not arise in other areas of the Court's jurisdiction. As many litigants in migration matters are self-represented, particularly those seeking review of protection visa decisions, there is a greater need for pro bono representation or other legal representation, particularly as legal aid is not available to protection visa applicants who are in migration detention. The Court has found it essential to set up a pro bono scheme (similar to that which operates in the Federal Court).
There is a Legal Aid duty lawyer scheme in respect of the Federal Circuit Court directions lists in Melbourne.
Skilled Victorian Legal Aid migration duty lawyers are present at the directions hearings and give legal advice, refer eligible clients for legal aid, and may earmark some matters for pro bono referral. The Court is very grateful for this service at it facilitates the conduct of the migration matters.
Pilot to assist self-represented litigants – Federal Circuit Court bankruptcy lists
In September 2014, the Federal Circuit Court in Melbourne began a pilot to provide direct financial counselling services to self-represented debtors in the Court's Bankruptcy Lists. This pilot was developed and implemented by the Court in collaboration with the Federal Court of Australia (FCA), the Consumer Action Law Centre (Consumer Action) and the Melbourne Law School (MLS) to assist vulnerable debtors and to promote the efficient operation of bankruptcy proceedings in the Court.
The pilot involves having on-site financial counselling available every Tuesday and Thursday morning, in conjunction with hearings in the Bankruptcy List. The location of the service at the Court makes it possible for Registrars to refer debtors for immediate financial counselling assistance, without the need for an adjournment. At the time of writing this report an evaluation of the pilot was being finalised. The evaluation indicates the project has been successful in meetings its objectives and the project partners are considering options for its continuance and further development.
Self-represented service – Attorney-General's Department funding to support self-represented litigants in federal law matters
On 25 July 2013, the then Attorney-General announced new funding of four million dollars over four years to support self-represented litigants in areas of general federal law. The funding allows the Queensland Public Interest Law Clearing House, Justice Connect, JusticeNet SA and Legal Aid Western Australia to provide greater access to the Federal Court and Federal Circuit Court in each state and territory.
This funding allows these services to provide basic legal information and advice to these people. The services includes a focus on early resolution and mediation of disputes and discourage or divert unnecessary legal action. The four organisations providing this service have a strong history of providing frontline legal assistance services and dedication to improving access to justice for disadvantaged Australians. The service is based on a successful pilot conducted by the Queensland Public Interest Law Clearing House in the Federal Court and former Federal Magistrates Court.
Access to the service for Australians in each state and territory is through the following providers:
- Queensland Public Interest Law Clearing House, Queensland
- Justice Connect: New South Wales, Victoria, Tasmania and the ACT
- JusticeNet SA: South Australia and the Northern Territory
- Legal Aid Western Australia, Western Australia
The self-representation service was piloted in the Queensland District Registry of the Federal Court in 2011 and 2012. It was conducted by the Queensland Public Interest Law Clearing House (QPILCH).
The service recommenced in Brisbane in January 2014. It is operated by a full time lawyer and full time paralegal. Volunteers are a vital component of the service and eight large law firms have committed their support to the service.
Similar self-representation services are being set up in New South Wales, Victoria, Western Australia and South Australia.
The family law dispute resolution provisions are found in the Family Law Act 1975. See in particular Parts II, III, IIIA and IIIB of the Act, which contain provisions dealing with family counselling, family dispute resolution and other processes that apply to the Court in relation to family law proceedings.
Child dispute services
Assessment services (court-based)
Preliminary assessment and advice to Court is provided by court-based family consultants.
Family reports are provided by family consultants employed by the Court, or private psychologists and social workers who are appointed by the Court under the Family Law Regulations to provide services on fee for service basis.
Preliminary assessment and advice (S11F FLA)
Section 11F FLA allows the Court to order parties to attend appointments with a family consultant. These appointments are non-privileged/reportable, and are intended to:
- identify risk factors, including risks associated with family violence, abuse, mental health and substance alcohol abuse
- identify the issues in dispute
- identify the potential for resolution/negotiation, and
- identify case management and referral options which may progress the matter.
While dispute resolution is not the main function of s11F events, the family consultant may be able to assist the parties to reach agreement, or make referrals to community-based services.
Two preliminary assessment services are then offered:
- Child Dispute Conference – this conference includes the family consultant and the parties. Parties are seen individually, in order to screen for family violence and risk and safety issues. Parties may also be seen jointly at the discretion of the family consultant and with the consent of the parties.
- Child Inclusive Conference – this conference includes the family consultant, the parties and children who are of an age to be interviewed. Parties are seen individually, in order to screen for family violence and risk and safety issues and to allow the family consultant to begin to get a sense of the children's parenting context. Children are always seen independently of parents.
At the conclusion of the conference, the family consultant is required to report the outcomes of the session to the Court via a family consultant Memorandum to Court. The purpose of the Memorandum is to advise the Court as to the current status of the dispute in relation to each issue and to make recommendations in relation to the process of the management of the case through the Court process in cases where the parties are unable to resolve their dispute.
Family reports (s62G FLA)
A family report is a written report prepared by a family consultant, all of whom are psychologists or social workers at a senior level. A family report can be ordered pursuant to s62G FLA to assist a judge to make a decision about the parenting arrangements that will best meet the needs of the children in parenting cases. Family reports may also assist parties to settle their matters pending final determination.
The process involves the report writer interviewing each of the parties and the children, and any other people significant in the lives of the children. The report writer will also observe interactions between the children and each of the parties. The report writer will then prepare a written report for the Court on matters including the issues in dispute, the past and current parenting arrangements, the parenting capacities of each of the parties, and the children's wishes and views, and any other matters specifically included in the order. Based on their assessment, they will make recommendations to the Court as to the parenting arrangements that are likely to be in the best interests of the children.
Wherever possible, family reports are prepared by family consultants employed by the Court. Where in-house resources are insufficient, the Court has funds to pay for family reports prepared by private psychologists and social workers who have been appointed as family consultants under Regulation 7 of Family Law Regulations to prepare family reports on a fee-for-service basis.
Such orders are made where the parties are unable to afford the cost of a private family assessment.
Table 3.10: Family reports ordered by state for 2010–11 to 2014–15
|Number of reports ordered||ACT||NSW||NT||QLD||SA||TAS||VIC||Total|
Australian Standards of Practice for Family Assessments and Reporting
On 11 February 2015 the Federal Circuit Court, Family Court and the Family Court of Western Australia, launched the Australian Standards of Practice for Family Assessments and Reporting, a publication developed by the three courts which aims to establish a nationally consistent approach when family assessments are undertaken and reports developed for the courts that deal with family law within Australia.
The publication outlines best practice and identifies a range of minimum standards that are expected by the courts in the development of family reports. The quality and consistency in the information provided to the judicial officer overseeing the case is critical in determining what is in the best interests of the child in each case.
This publication will not only assist those who develop the reports, but will provide transparency and assist lawyers and those involved in family law, to better understand what family assessments and reports entail and what can be expected from the process.
Chief Justice Bryant, Chief Judge Pascoe and Chief Judge Thackray have stated that, "It is imperative that judicial officers, and all of those involved in children's cases, are fully informed of the issues relevant to those families. This document will assist in ensuring that we have uniformity and consistency in the quality of information that is prepared for the courts."
For more information see the Australian Standards of Practice for Family Assessments and Reporting at www.federalcircuitcourt.gov.au
Ongoing professional development and training
All family consultants joining the Court participate in a mandatory formal clinical induction process which includes two x 30 minute lectures on family violence within their first six months in the role and a requirement to read a summary of six academic papers relating to family violence.
Following the substantial legislative amendments in the area of family violence to the Family Law Act in 2012, family consultants completed a full day of training to ensure that they were apprised of the legislative changes, and afforded an opportunity to reflect on the manner in which their clinical practice needed to adapt in line with these amendments.
Ongoing professional development in family violence in 2014–15 was delivered as series of three Family Violence Clinical Training Modules to all clinical staff and a monthly seminar series. The modules focused on the types of personal and professional biases that can impact on clinical practices, with a particular emphasis on balanced, robust and thorough examination/ reporting of family violence in written documents. The monthly seminar series involves an external expert presenting to staff on a topic relevant to their work. In relation to family violence, clinical staff were provided with regular updates on the empirical trends and practice methods relating to the assessment and treatment of family violence with topics including Men's Behaviour Change Programs – Do They Work and Should We Refer? (Professor Thea Brown); Forensic Examination of Violence in a Family Law Context (Dr Chris Lennings); and Post-Separation Arrangements in High Conflict Families (Professor Matthew Sanders).
With different registries seeing different presenting issues in litigants, registries are able to initiate additional and tailored professional development activities. For example, in Brisbane, Professor Cathy Humphries presented family violence, separated parents and fathering empirical insights and intervention challenges to local family consultants.
Resources – family consultants
A range of resources are maintained, updated and made available to family consultants to ensure they access the most up-to-date information and publications relating to family violence (and other topics). Resources include an extensive collection of chapters and academic papers organised by topic along with the Connections technology which hosts video records of seminars and conferences, as well as slides and cademic papers, and includes a recently included series four x 70 minute videos of a conference delivered by international expert, Dr Phillip Stahl, the first of which focussed on family violence.
Child Dispute Services (CDS) has identified several areas of need for family consultants, and have initiated strategic training packages to meet these needs. These include:
Family consultant training
Family Violence Modules
During the latter part of 2014, Child Dispute Services (CDS) staff at each registry around the country completed a series of three x 90 minute models on the topic of perceptions, core beliefs, and unbiased report writing. This was primarily in relation to the assessment of family violence. There were several delivery modes used for this initiative, including in-person delivery (by SFC-NPD), co-facilitation with a local senior family consultant, and direct delivery by the local senior. An evaluation of this program was also undertaken.
Dyadic Peer Consultation Training
There were three x two day training sessions delivered by an external consultant to introduce CDS clinicians to a model of peer consultation that they could use on an ongoing basis to reflect on their clinical work. These sessions occurred at Melbourne, Sydney, and Brisbane, and the ongoing peer consultation framework was implemented in September 2014.
Indigenous Cultural Competence Training
Two Indigenous Cultural Competence Training sessions were held in 2014 at Sydney and Townsville, facilitated by Aboriginal Forensic Psychologist Stephen Ralph. These were attended by a representative from each registry across the country to ensure that family assessments involving an Aboriginal parent could be completed by a clinician that had undertaken the cultural competence syllabus.
Emotional Availability Scales
In October 2014, 10 family consultants were selected to complete an eight day (online) training program on Emotional Availability Scales.
One hour seminars continued to run each month with the clinical group within CDS throughout 2014–15. Judges and family lawyers also attended these sessions on occasion. Speakers included a range of Australian and international experts, covering topics such as sex offender assessment, cross examination strategies, child maltreatment, psychopathology, post-separation services, children's language development, and attachment/family systems.
Clinical Induction Program
In the latter half of 2014, a comprehensive (redesigned) Clinical Induction Program was launched for all new family consultants joining the Court. This required new clinicians to become familiar with the research systems within the court(s), write a summary of several empirical articles on a given topic, and present to their peers at a monthly meeting.
Updates to the Core Knowledge Database
In late 2014, the Core Knowledge Database (an expansive repository of articles/chapters/papers) for CDS was upgraded to include a rating system for materials contained on the database. This allows users to easily see how other clinicians have rated the document, with longer term implications for better filtering documents and upgrading the materials contained on the database.
Senior Family Consultant (SFC) Needs Assessment
In early 2015 a comprehensive review of the SFC needs was undertaken. The resulting report outlined a series of future options to address the areas identified, which will ultimately inform the training packages offered in the latter half of 2015.
Clinical induction program
The clinical induction program is designed to ensure that all new staff who join CDS have undertaken some induction in core knowledge areas that are relevant to the family consultant role. The induction model requires new clinicians to source and review scholarly research on various topics, familiarise themselves with the internal library system and research tools, create summary sheets relating to chosen areas, and attend monthly meetings during their probation period where their colleagues present on core knowledge subjects.
Review of existing tools
A central initiative in 2014–15 was to trial a pre-family assessment questionnaire designed to collect information from every party about family violence. This questionnaire data will augment the family violence screening already undertaken by family consultants at the assessment conferences and aims to provide deeper and more accurate data about risk ahead of the family assessment. An evaluation of this pilot later in 2015, will determine whether this approach ought to be established in the child dispute service.
Family law financial
In financial matters the Court:
- offers privileged conciliation conferences conducted by registrars of the Court
- offers privileged mediation in appropriate matters via the administered appropriation, and
- refers appropriate matters to privately funded mediation.
In 2014–15, registrars held 4253 privileged conciliation conferences and settled approximately 39 per cent of these matters.
The Federal Circuit Court receives an administered appropriation to source dispute resolution services such as counselling, mediation and conciliation from community-based organisations. The Court is seeking to enhance the services provided to litigants and allow for greater flexibility in the provision of those services by utilising the fund to allow providers:
- to undertake property mediation where the external provider will be located within the same location as the litigants and in a position to offer more timely interventions, and
- to provide counselling and mediation services to litigants locally in appropriate circumstances.
The major focus of the administered fund is to provide mediation services to litigants in property matters particularly in rural and regional areas of Australia in support of its circuit work. These services are currently provided by Relationships Australia (Victoria).
During the 2014–15 period, there was a change to the method of delivering services by Relationships Australia. Pursuant to the new arrangements, mediation services in property matters are provided by Family Dispute Resolution practitioners with experience as legal practitioners in family law property matters and are conducted face-to-face other than in exceptional circumstances.
The use of the administered fund continues to grow as services are extended to more regional locations throughout the country. This reduces the need for registrars to travel from registry locations which impacts on the delays and services in the principal registries. It allows regional litigants to access mediation services in a timely fashion rather than waiting for registrar circuits.
In 2014–15 over 230 matters have been referred to mediation through the administered fund. Over 65 per cent of these matters where the referral has been completed have either settled or partially settled.
The use of the administered fund is an innovative way of providing access to justice to litigants, particularly those in rural and regional Australia where services are limited.
The Federal Circuit Court is committed to providing services to the rural and regional areas of Australia. Judges of the Court currently sit in rural and regional locations to assist in meeting this commitment. These sittings are known as circuits.
In 2014–15 the Court sat in 31 rural and regional locations as part of its extensive circuit program. Details of the circuit locations are included at Appendix J.
When on circuit the Court sits in leased premises and state and territory court facilities. Reliance on state facilities attracts a number of challenges for the Court including limited availability of courtrooms, limited hours of access, access to technology and resources such as telephone and video-link facilities, and security arrangements. The Court is aware of these challenges, not only for litigants and legal practitioners, but also staff, and continues to look for opportunities to improve facilities and resources and, therefore, the efficiency and value of circuits.
Judges of the Court travelled to circuit locations on 165 occasions throughout 2014–15. The length of these circuits varied from single days to whole weeks depending on the demands of the circuit and the distance to parent registries. It is estimated that the work undertaken in the rural and regional locations equates to approximately 20 per cent of the Courts family law workload. The Court is working towards capturing better data in respect to the work undertaken on circuit.
In addition to attending circuit locations, judges of the Court conduct some procedural and urgent hearings by video link and telephone link in between circuits. The technology provides litigants with greater access to the Court and assists in maximising the value of time spent at the circuit locations. eFiling provides litigants and legal practitioner's greater access to the Court by enabling them to file documents from rural and regional locations as opposed to attending registry locations or using standard post.
The Court continues to look at ways to improve the efficiency of circuits and access to justice for litigants and legal practitioners. The Court meets with and consults with legal practitioners representing the Family Law Council Regional Committee to discuss various issues in relation to circuits and the Court.
Establishing new circuits
In light of the ever increasing pressure being placed on the Court's resources, it is important that circuits are efficient and effective. In recognition of those pressures, the Court has adopted a policy to assist in determining the merits of any proposed new circuit. The policy will assist the Court in ensuring that the cost of any new circuit is justified and can be met from within existing budget allocations.
In addition to the cost, the Court will take into account a range of factors when considering a request to establish a new circuit. These factors include but are not limited to the workloads in a particular area, proximity to the principal location and the availability of suitable premises noting the Court's reliance on being able to access state and territory facilities.
The Court has a structure comprising of a National Coordinator of Case Management and case management judges who oversee the work of the Court. This group meets quarterly to consider practical workload issues with each case management judge representing a location or a regional and the coordinator providing a national overview.
Any request to establish a new circuit will be considered in the first instance by the case management judges and the coordinator who will make a recommendation to the Chief Judge. The Chief Judge will ultimately decide whether a request to request to establish a new circuit is approved.
Registry and National Enquiry Centre services
Registry services are provided to people who wish to file an application or are considering filing an application in the Family Court of Australia or the Federal Circuit Court of Australia.
Registry services include:
- provision of effective support to the Family Court of Australia and the Federal Circuit Court of Australia
- family law telephone and referral services, and
- family law document processing.
These services are complemented by the services of the National Enquiry Centre (NEC) to which all 1300 telephone calls, enquiry emails and live chats are received in the first instance, as well as follow up enquiries from parties or lawyers about their Family Court or Federal Circuit Court files.
2014–15 National Enquiry Centre summary of performance
During 2014–15, family law registries and the NEC provided a high level of service to clients and other users of the courts and to the judiciary of both courts. The NEC responded to increased demand in emails and calls relating to Commonwealth Courts Portal support.
The client services' Portfolio Budget Statement (PBS) deliverables for counter enquiries and email were met as well as the deliverable for the number of telephone calls taken. Three of the four key performance indicators (KPI) were also met. The fourth KPI, with a target of 80 per cent of telephone calls to the NEC being answered in 90 seconds, was not met. The NEC continues to try to improve this area by streamlining process and introducing new initiatives. The KPI for complaints as a percentage of total applications was met this year.
More detailed reporting of the results follows.
Table 3.11 summarises the performance of the various client services functions of the Court against PBS key performance indicators and deliverables. Please note the data in this table relates to services provided for both the Family Court and the Federal Circuit Court by the family law registries and the NEC.
Table 3.11: Summary of performance—client services
|Key performance indicators and deliverables||2013–2014 target||2013–2014 result||2014–2015 target||2014–2015 result||2014–2015 result|
|Telephone enquiries served*||238,400||356,004||270,800||330,178||Yes|
|Counter enquiries served*||187,400||255,792||150,000||225,101||Yes|
|Email enquiries responded to**||83,600||113,163||50,000||111,388||Yes|
|75% of all counter enquiries are served within 20 minutes||75%||92%||75%||91%||Yes|
|75% of applications lodged are processed within two working days||75%||98%||75%||97%||Yes|
|80% of calls answered within 90 seconds||80%||28%||80%||34%||No|
|80% of emails answered within two working days||80%||100%||80%||100%||Yes|
1% of total applications received
* This figure is calls answered, not calls received at the PABX.
**NEC figures only. This figure covers emails sent in response to emails received by the courts, and emails sent by the courts as part of responding to telephone calls.
***This figure includes complaints about the administration of the Court and judicial services complaints, for which detailed information is reported elsewhere in this Part.
Note: the Court has separated its reporting for KPIs and deliverables for greater transparency in its reporting for judicial services and client services. See also Table 3.1 for additional Portfolio Budget Statements reporting.
- The NEC did not meet the KPI for the percentage of calls answered within 90 seconds, but met all other performance targets. The NEC achieved a service level of 34 per cent which is up compared to 28 per cent last year.
- Callers waited an average of five minutes and 17 seconds for their call to be answered, compared to five minutes and 21 seconds in 2013–14.
- The average time of a call was four minutes and 22 seconds, compared to four minutes and 12 seconds in 2013–14.
- The NEC received a total of 330,178 calls (compared 356,004 in 2013–14). Of these calls, 201,268 were queued to talk to a staff member.
- There was an eight per cent decrease overall in calls received to the NEC compared with 2013–14. Factors contributing to this include: better service at the first point of contact by emailed information; there being no requirement to call back; better structured information on the website; increased use of the Portal; and the introduction of Live Chat.
- 20,430 calls were received for Portal support. The average time for a Portal call is significantly more, as technical support is required. The average time of a Portal call is six minutes and 5 seconds.
- 6579 calls abandoned while queued. This is a decrease of 356 from 2013–14. The decrease in calls abandoned in the queue can be attributed to a flow on effect from fewer phone calls which contributed to reduced wait times.
- 1608 calls were transferred to a family law registry by the NEC. NEC staff are aware of the importance of completing the transaction at the first point of contact, and only transfer calls if absolutely necessary.
- 30,108 emails were sent in response to an email enquiry.
- 74,842 emails were sent in response to a telephone enquiry, compared with 65,274 in 2013–14.
- 11,951 proof of divorce requests were processed. This is a five per cent increase from 2013–14.
- 82,446 divorce orders were printed and posted to clients.
- 171 calls were received by the After Hours Service, of which 14 were referred to a registrar. Of these 13 orders were made by a judge.
- 46,459 live chats or an average of 187 per day have been received since its launch in May 2014.
Table 3.12: National Enquiry Centre, 2010–11 to 2014–15
|Performance Indicators and internal targets||2010–11||2011–12||2012–13||2013–14||2014–15|
|80% of calls answered within 90 seconds||32%||45%||21%||28%||34%|
|Less than 5% of calls abandoned when queued||20%||8%||5%||3%||3%|
|Less than 10% of calls transferred to a registry||2%||1%||1%||1%||1%|
|80% of emails answered within 2 days||98%||100%||100%||100%||100%|
Detailed report on performance
Family law registries
There are 19 family law registries. These are in every state and territory (except Western Australia). Family law registries provide registry services to both the Family Court and the Federal Circuit Court.
The key functions of the registries are to:
- provide information and advice about court procedures, services and forms, external options and referrals to community organisations that enable clients to take informed and appropriate action
- ensure that available information is provided in an accurate and timely fashion to support the best outcome through file management and quality assurance—from the initiation of proceedings, to hearing and to archiving
- make the best use of court time by facilitating an orderly secure flow of clients, files and exhibits
- enhance community confidence and respect by responding to clients' needs and assisting with making the Court experience a more positive one
- progress cases by providing administrative services in accordance with court processes and to manage external relationships to assist with the resolution of cases
- schedule and prioritise matters for hearing and intervention to achieve the earliest resolution or determination
- monitor and control the flow of cases, and
- assist in the evaluation of caseloads by reporting on trends and exceptions to facilitate improvements in processes and allocation of resources.
Staff working on the counters in family law registries handle general enquiries, lodge documents relating to proceedings, provide copies of documents and/or orders and facilitate the viewing of court files and subpoenas. Client service staff provided an efficient and effective service when dealing with litigants in person and the legal profession face-to-face at registry counters across Australia.
It is estimated that the registries dealt with 255,101 counter enquiries in 2014–15 from clients or other people seeking information face-to-face. This compared to 255,792 counter enquiries in 2013–14.
In 2014–15, an estimated 91 per cent of clients were served within 20 minutes, against a target of 75 per cent, compared to 92 per cent in 2013–14.
Family law registries receive and process applications lodged at registry counters and in the mail. The service target of 75 per cent being processed within two working days of receipt was significantly exceeded (97 per cent of applications were processed within that timeframe).
Service Charter and Service Commitments
The aim of the Family Court and the Federal Circuit Court is to give clients and other users of the courts the best services they possibly can. What the courts mean by this is set out in the joint Service Charter and Service Commitments documents.
The Court also has a Portfolio Budget Statement Key Performance Indicator specifically about complaints. This, along with the Service Charter, is a central part of the Court's service monitoring and response mechanism.
The Service Charter outlines the service level standards clients can expect from staff of the courts and how clients and other users of court services may make suggestions or complaints about services, policy, practice or procedures. An aspect of the Charter, in terms of community expectations of the courts, is that it makes clear what court staff cannot do. This is important because frequently clients or prospective clients have expectations that the courts cannot meet.
The context is that for many clients, the family courts are the only courts they will ever have anything to do with—so the processes, procedures and legal environment are completely unfamiliar and this unfamiliarity occurs at what may be one of the most stressful times of their lives because of the breakdown of family relationships. The courts appreciate this, however, must work impartially and professionally: thus the information about what people can expect but also what staff cannot do. For example, staff cannot give legal advice or tell people what words to use in their court papers or what to say in court; they cannot tell someone whether or not they should bring their case to court. Staff cannot recommend a certain lawyer to act on a client's behalf or interpret, change or enforce orders made by a judge or other judicial officer.
The Service Charter and Service Commitments documents (which summarises information about what clients of the courts can expect from client services staff, what the staff cannot do, clients rights and responsibilities and how clients can help the courts to help them) are available on www.federalcircuitcourt.gov.au
Registry services (general federal law)
The Federal Court of Australia provides registry services for the Federal Circuit Court in relation to its non-family law matters. The Principal registry of the Federal Court is located in Sydney and there is a district registry in each capital city. The district registries receive applications and related documents on behalf of the Court. They also assist judges of the Court, practitioners and litigants.