Highlights

104.5% highest clearance rate in 15 years

30 circuit locations around Australia

8180 applications finalised in general federal law

45,190 divorce applications filed

181,160 counter enquiries

272,040 telephone calls to the NEC

91,704 live chats

75% matters resolved before trial

144,975 minutes watched
39,369 views on YouTube

The Year in review

From Chief Judge William Alstergren

Image of Chief Judge William Alstergren

This past year has been one of unprecedented change for the Federal Circuit Court of Australia (FCC). When I was appointed as the Chief Judge on 13 October 2017, I replaced the Honourable Chief Justice John Pascoe AC CVO, who had presided over the Court as Chief Judge for more than 14 years. The Court also lost its Chair of the National Case Management Committee, Justice Michael Baumann, in December. Justice Baumann was one of the Court’s original judges, serving for more than 17 years. Both leaders, during their tenure, saw remarkable changes to the jurisdiction, resources and the sheer volume of the business of the Court. They also saw many challenges. The Chief Justice and Justice Baumann were, deservingly, elevated to the Family Court of Australia (FCoA) and I thank them on behalf of the Court for their outstanding service both to the Court and to the people of Australia.

The year also saw the elevation of another of its original and greatly respected judges, Judge John Coker, to the District Court of Queensland and the retirement of the highly regarded and experienced judge, Judge Robyn Sexton, in Sydney. The Court received several new appointments during the year, including Judges Patrizia Mercuri and Caroline Kirton in Melbourne, Judges Jane Costigan and Terry Betts in Newcastle, Judges Julia Baird and Bruce Smith in Sydney, Judge Gregory Egan in Brisbane and Judge Christopher Kendall in Perth. All have already made a great contribution to the Court. Also this year, Judge Steven Middleton was transferred from the Newcastle registry to Townsville.

I was grateful for the new appointments by the former and the current Commonwealth Attorneys-General, to assist the Court.

Court performance 2017–18

Despite challenges, the judges and staff of the Court have had an outstanding year in reducing the backlog of cases and, for the first time in over 15 years, the Court’s clearance rate is above 100 per cent – meaning it is clearing more cases than are being filed. The clearance rate grew from approximately 95 per cent in September 2017 to 102 per cent by December 2017 and 103 per cent by March 2018, and the Court finished the financial year with a clearance rate of 104.5 per cent.

With approximately 95,000 filings each year, the Court has been able to dispose of all incoming filings as well as thousands of cases that were part of the backlog, some of which had been in the system for many years.

Figure 1.1: Clearance rates, FCC family law

Bar chart showing clearance rates in FCC family law

This is a significant achievement and I commend our judges, our staff and the profession for the part they have played.

Unfortunately, it is a different picture in the Court’s migration jurisdiction, but it is heading in the right direction. In 2016–17, the clearance rate for migration cases was sitting at 62 per cent and at the end of 2017–18, it had climbed to 70 per cent. This area of the Court’s workload is likely to continue to present challenges to the Court and will be an ongoing area of review.

The need for change

In the first weeks as Chief Judge, I visited and met with judges and staff in nearly all of the Court’s registries nationally. What became obvious from these consultations was that change was desperately needed to relieve the workloads of the judges and to reduce delays for litigants before our Court.

The existing docket system with 350–600 matters allocated to each judge is, quite simply, unsustainable. During these visits, I witnessed incredibly diligent and committed members of the Court each sitting extended hours and sitting during their leave and judgment writing days. I was staggered by the work ethic, integrity and professionalism of the judges and staff of the Court. Each remain a great example to the entire profession.

However, things must change. We have to be smarter with the judicial resources and we must ensure that we can reduce delays, the backlog of cases and the burden upon the Court. This includes introducing better case management systems for existing and new cases, reducing the size of dockets and increasing the role of registrars, especially in alternative dispute resolution.

Initiatives that led to a reduction in the backlog of cases in 2017–18

Callovers for long-term family law cases

The FCC conducted a series of callovers in Adelaide, Brisbane, Melbourne and Sydney, which involved hundreds of cases being listed over a week or two, depending on the location. The objective of the callovers was to provide parties with the opportunity to resolve their matter (if appropriate) through the assistance of a range of alternative dispute resolution options.

Of the 1658 matters called over in the four locations, a total of 822 matters settled, representing a settlement rate of 50 per cent. Nearly 70 per cent of matters called over in Melbourne settled.

The benefit of clearing such a large number of cases, some of which had been in the system for years, is that hundreds of court hearing dates have now been released, allowing earlier trial dates for matters that are not suitable for mediation or arbitration. This has a real impact on Australian families, particularly when they are facing distress and huge legal costs.

Much of the success of the callovers can be attributed to the dedicated family law practitioners who have been involved. I also pay a special tribute to my sister and brother judges and to registry services for their support of this initiative, despite the increased burden it created for chambers, court staff and the registries.

Review of the Court’s docket system and the introduction of new case management practices

A new case management pilot commenced in the Brisbane registry in June 2018, whereby three judges are dedicated solely to dealing with matters at their first event, essentially ‘triaging’ the cases, ordering alternative dispute resolution and mediation before they are allocated a trial. The practice allows the Court to identify the most difficult cases, or the cases in which children are most at risk, and to allocate those cases to the most experienced judges. The remaining judges are allocated to trial work. Despite being in its early stages, judges are positive about the pilot which has been extended from its original six months to continue until 30 June 2019. Although a quantitative evaluation of the pilot will be necessary to measure success, the early indicators are positive, as trial dates have been brought forward from 2019 to late 2018.

Simplified case management for cases in the FCC and FCoA and a unified approach to family law

A Registrars Working Group consisting of former registrars of the Court, who are now judges, was established during the year to assess the best way to utilise registrars from a case management perspective. Looking towards the future, the proposal for a streamlined approach across the FCoA and the FCC forms part of a proposed new system of case management whereby litigants will submit one application for either court. This will allow individual cases to be assessed at the time of filing and allocated the most suitable case management pathway according to its specific needs. Allowing cases to follow a consistent pathway from the commencement of proceedings will go a long way to delivering a simplified family law process and certainty to litigants, the profession and registries. It will also lead to a much better use of court resources.

Cooperation between the three federal courts – working towards a better system for all

Since the introduction of the Courts Administration Legislation Amendment Act 2016 (Cth), the Federal Court of Australia (FCA), the FCoA and the FCC have been more closely aligned, working collaboratively to deliver cost-savings and improvements to litigants. One example is the development of the Digital Court File which involves the transition of court files from paper-based to completely digital. This complements other existing digital processes such as the Electronic Court File in the general federal law jurisdiction, eDivorce and the Commonwealth Courts Portal.

A new practice direction for interim family law proceedings

This practice direction, among other things, sets a new ‘10 page limit’ and a ‘48-hour time limit’ for filing of affidavits in interim family law proceedings. It took effect on 1 January 2018. There are also new practice notes being prepared for migration by Judge J Smith and Intellectual Property Law by Judge Baird which will be launched later in 2018.

Exploring alternative resolution methods

The Court is looking at ways to utilise judicial mediations and arbitrations in property matters. With the assistance of private mediations, and only for appropriate cases, judicial mediation may provide another alternative to resolve cases. It is not intended to be a substitute for private mediation conducted by appropriately qualified mediators, but it may be an option for some appropriate matters.

Initiatives to improve judicial welfare and engagement with court operations

To encourage more involvement of the Court’s judges in the management and future direction of the Court, an integrated judicial management framework was implemented nationally across the different practice areas. The National Practice Area Committee is a high-level policy advisory group consisting of specialist judges in each of the Court’s practice areas. This new advisory committee provides support to the head of jurisdiction and has contributed to the Court’s improved case management performance.

The Judicial Wellbeing Committee was established under the leadership of Judge Altobelli to actively promote and protect judicial officers’ health and wellbeing. In addition, a revised induction and mentoring program was established for new judges, harnessing the Court’s most experienced judicial officers and linking them with newly appointed judges to provide guidance and support.

Other projects

In the coming year, I will be reviewing all of the Court’s accommodation and facilities to prepare a list of priorities. I am hoping that the ongoing accommodation issues we are facing in Rockhampton will be solved in the near future. I am very grateful to Jamie Crew for his work finding Judge Demack new chambers and for his help developing the Perth registry into a multi-judge facility. I am also hoping to find a way to get all of the Sydney judges to be housed in one location. I thank Simon Kelso for his efforts on this project.

The Court will continue to develop its data collection and analysis. I am very grateful to Steve Agnew for his help and guidance in this regard.

There will also be a need for greater liaison with both the FCoA and FCA. I thank Louise Anderson, Warwick Soden, Sia Lagos and our Chief Executive Officer and Principal Registrar, Dr Stewart Fenwick, for their assistance and guidance in the nine months since my appointment.

I remain extremely grateful to the judges and staff of the Court for their ongoing support and hard work. I am also particularly grateful to Adele Byrne and the members of the National Practice Area Committee and the Case Management Judges Committee for all their efforts this year.

Statistics at a glance

Table 1.1: Filings and finalisations in family law and general federal law

Family law

Filings

Finalisations

2017–18

2016–17

2017–18

2016–17

Final orders

17,241

17,791

17,978

17,239

Interim orders

21,701

22,050

21,281

21,182

Divorce applications

45,190

43,846

46,051

42,630

Other

1604

1790

1705

1799

Total family law

85,745

85,477

87,015

82,850

General federal law

Filings

Finalisations

2017–18

2016–17

2017–18

2016–17

Bankruptcy

3072

3277

2941

3392

Migration

5314

4978

3786

3175

Administrative

57

37

48

71

Admiralty

10

9

7

9

Consumer

122

119

127

132

Intellectual property

36

35

24

41

Human rights

60

58

57

71

Industrial

1300

1190

1190

1026

Total general federal law

9971

9703

8180

7917

Note: The Court continually conducts data quality activities on its electronic case data. This is done to ensure that our case management system, as best as it can, reflects the information that is contained on the paper-based file. Due to the complex nature of the data captured and the changing circumstances of the case, it is not unusual for data entries to be updated and refreshed. As a result of the activities in the past few years, the Court has decided to entirely refresh the historical data for the previous four years. This means that figures published in this report for historical years may not always be the same as those published in previous annual reports. Any changes in figures should be relatively insignificant.

Developments during 2017–18

Federal courts structural reform

Significant structural change to the courts was announced by the Government on 30 May 2018 which, subject to passage of legislation, will have a substantial impact on the Federal Circuit Court of Australia (FCC), the Family Court of Australia (FCoA) and the Federal Court of Australia (FCA). The proposed reform includes the amalgamation of the FCoA and FCC into a single new ‘Federal Circuit and Family Court of Australia’ and the establishment of a new Family Law Appeal Division in the FCA.

Brisbane case management initiative

The FCC is conducting a pilot of a new way of managing cases in its Brisbane registry.

The pilot, which runs from 4 June until 31 December 2018, will limit case management to a discrete number of judges who will have responsibility for managing applications as they progress towards resolution. The remaining judges will focus on hearing and determining matters that are listed for final hearing.

It is anticipated that concentrating case management of matters to a limited number of judges will have the following benefits:

  • greater consistency by consolidating the management of cases to a limited number of judges
  • reduced timelines by identifying matters that can be settled earlier in the life of the case
  • improved outcomes by using additional forms of alternative dispute resolution
  • improved efficiency by ensuring resources such as family consultants are used consistently and effectively
  • reduced impact to litigants by lessening the time at court, and the number of visits to court
  • better information for stakeholders, and
  • reduced impact of the introduction of digital changes in family law.

Newcastle financial applications pilot

The financial applications pilot will apply to new matters commenced by way of an initiating application where financial orders only are sought. The pilot will not apply to any applications involving parenting, child support or other non-financial matters.

All applications will continue to be allocated a docket judge; however, applications will be listed for a first return date in court before a registrar. The nature and purpose of the first return date will not change.

Parties and their legal representatives will be expected to assist the registrar in identifying the issues and considering the most appropriate case management pathway, including preparation of the matter for a conciliation conference, private mediation or other dispute resolution intervention.

Any urgent interim issues that cannot be resolved will be referred to the docket judge for consideration. This may not occur on the same day as the first return date.

Financial applications will be case managed by the registrar, in consultation with the docket judge, until the conclusion of the conciliation conference, private mediation or other dispute resolution intervention. If the matter does not resolve by agreement and continues past that stage, the registrar will refer the matter to the docket judge for further consideration.

The objectives of the pilot are to:

  • create capacity for judges to hear the first return date of family law parenting matters in a more timely manner
  • create capacity for judges to spend more time addressing parenting matters at the first return date, including addressing any interim issues and discharging the Court’s obligations under s 67ZBB of the Family Law Act, and
  • utilise the capacity of registrars to assist judges in addressing matters of filing of financial documents and discovery and disclosure issues.

Melbourne registrar contravention list

The underlying objective of the list in Melbourne is to better triage applications at the front end; that is, to help parties towards the appropriate course in the best interests of the children; to make directions in cases where a contravention application does proceed (and where it is suitable to include mediation); and list the case before a judge where enforcement of original orders is necessary and appropriate.

Digital court orders

As part of the FCC and FCoA’s commitment to the Government’s digital continuity policy, the courts have changed the way court orders are accessed. The move to completely digital court orders was rolled out in two stages and is now complete:

  1. From 1 July 2017, the courts stopped posting hard copies of sealed orders by mail to legal representatives. All court orders (except consent and appeal) are now signed and sealed electronically and available to download from the Commonwealth Courts Portal (the Portal) – www.comcourts.gov.au
  2. From 1 January 2018 this was extended to all self-represented and other parties, meaning that all court orders can now only be downloaded from the Portal.

These changes provide for faster and more secure delivery of court orders. Other benefits include:

  • instant access to complete court files and court orders online anytime via www.comcourts.gov.au
  • safe and secure delivery of orders, and
  • no cost to litigants for copies of sealed orders as they are permanently available to download from the Portal.

Same-sex marriage and divorce

The Marriage Amendment (Definition and Religious Freedoms) Act 2017 commenced on 9 December 2017. This Act amended the Marriage Act 1961. From that date, same-sex married couples (including those who married overseas prior to the commencement of the reforms) are treated the same as other married couples, and are able to divorce under Australian law if they meet the requirements for divorce under the Family Law Act 1975.

These amendments, and the legislative changes that flowed from the amendments, necessitated updating of the court’s electronic filing system. Electronic filing of applications for divorce by same-sex couples was not able to be immediately accommodated, and as an interim measure, such applicants were able to file in a paper format.

At 30 June 2018, the FCC had 61 applications for divorce lodged by same-sex couples.

Aboriginal and Torres Strait Islander access to justice

Photo of Judge Willis AM, Josephine Akee AM (former court Indigenous officer) and Dennis Remedio, Indigenous liaison officer

Judge Willis AM, Josephine Akee AM (former court Indigenous officer) and Dennis Remedio, Indigenous liaison officer.

The Aboriginal and Torres Strait Islander Access to Justice Committee has continued its engagement with the Indigenous community to further the ideals of showing respect, building relationships and providing opportunities.

Committee member, Judge Myers AM, has returned from his work as a Commissioner of the Australian Law Reform Commission, having produced his report into the incarceration rates of Indigenous Australians.

In the Sydney registry, a pilot of introducing a dedicated Indigenous family law list was started by now retired Judge Sexton, and is now under the stewardship of Judge Boyle.

Judge Charlotte Kelly in Adelaide has also started a similar pilot for an Indigenous family law list. Depending on the sustainability and resourcing available, this concept will be reviewed and explored for trial in other registries.

Photo of Dr Stacey McGuiness and Dennis Remedio

Dr Stacey McGuiness and Dennis Remedio

The celebration of significant cultural and historical events such as National Reconciliation Week are now firmly fixed in the Court calendar. Successful events were held in Cairns, Darwin, Hobart, Melbourne, Parramatta and Sydney.

  • In Hobart, Judge Baker held an event to mark the occasion.
  • In Cairns, Aboriginal and Torres Strait Islander law students were invited to meet Indigenous and other lawyers, to make connections and given encouragement to complete their studies.
  • In Melbourne, Judge Wilson, Judge Small AM and Judge Stewart hosted a well-attended event in Melbourne and continue to build relationships with the Aboriginal and Torres Strait Islander community in regional Victoria.
  • In Sydney, Judge Kemp and Judge Boyle hosted a successful event at Mudgin-Gal community centre in Redfern.

To celebrate NAIDOC week, Dennis Remedio, the Court’s Aboriginal and Torres Strait Islander liaison officer, and Dr Stacey McGuiness set up a stall in Cairns and launched a court brochure promoting parenting and other orders possible under the Family Law Act for kin carers, including grandparents.

Judges on the committee have been involved in discussions with the Australian Law Reform Commission’s review into family law, headed by Professor Rhodes, specifically in relation to Indigenous access to justice.

Judge Coates has continued to engage the Lismore community in discussions explaining the pathway to our court so it is known among the broader Indigenous community.

Special mention must be made of the enormous contribution of Judge Sexton who served on the Aboriginal and Torres Strait Islander Access to Justice Committee since 2012 until her retirement in late 2017. Her Honour showed great compassion and energy in her work in improving access to justice for Indigenous litigants in the FCC and will be sorely missed by the Court.

In June 2018, Judge Willis, who has chaired the Aboriginal and Torres Strait Islander Access to Justice/Reconciliation Action Plan Committee since 2012, was recognised in the Queen’s Birthday Honours by being made a Member of the Order of Australia (AM) for her services to the judiciary including Indigenous access to justice issues. This award is a proud reflection of judges who support the Court’s ongoing work with Aboriginal and Torres Strait Islander communities around Australia.

Photo of Leah Cameron, Donnella Mills, Judge Josephine Willis AM and Mandy Shircore at the National Reconciliation Week morning tea in Cairns.

Leah Cameron, Donnella Mills, Judge Josephine Willis AM and Mandy Shircore at the National Reconciliation Week morning tea in Cairns.

Court initiatives

Access and inclusion

The Court continues to develop and implement plans under its access and inclusion framework. The framework aims to ensure all clients, particularly vulnerable and disadvantaged clients, receive the assistance they need to access the Court.

The framework acknowledges that justice begins well before a litigant has their first court event, and that a client’s capacity to participate in court processes is significantly influenced by the quality of information and the level of administrative support they receive.

Linking to the International Framework for Court Excellence, the access and inclusion framework also takes a broader view across the shared infrastructure needed to support the delivery of accessible services (e.g. information technology, training and performance development) as well as identifying the links, approaches, synergies and principles that affect justice as a whole.

The Court recognises that people do not neatly fit into a single target client group; hence, the Court has tried to adopt a flexible model of service delivery that allows staff to tailor services to the individual’s need.

Twitter

In October 2016, the FCC joined an expanding number of Australian courts that have embraced the use of social media and announced the official commencement of its Twitter account.

With many litigants representing themselves at various stages of their case, the Court has a wide range of fact sheets to assist self-represented litigants. Links to that information are tweeted, as well as:

  • judgments, reports and publications
  • legislative news – changes to rules, practice directions, forms or fee updates
  • Portal news, and
  • media releases and statements.

Since the launch, the Court has:

  • gained 607 new followers, bringing the total number of followers to 1167
  • sent 202 tweets, made up of 25 plain text tweets, 142 page links and 35 photo links – an average of almost four tweets per week
  • been re-tweeted 219 times, and
  • received 273 mentions.

The Court’s Twitter address is www.twitter.com/FedCctCourtAU.

YouTube

The FCC’s YouTube channel has been operating since October 2013. A range of videos are available to help litigants prepare for and understand court processes.

There are six videos on the channel; combined, 144,975 minutes were watched and there were 39,369 views.

The top three videos were: How to apply for divorce: serving divorce papers; eFiling your family law matter in the Portal; and the Court Tour.

The Court’s YouTube channel is at www.youtube.com/user/federalcircuitcourt.

Online proof of divorce

An online proof of divorce request process was introduced in March 2015 to streamline the process for people wanting to obtain a copy of their divorce order from the courts. The process involves a person completing an online interactive form and submitting payment online by credit card. The Court then provides an original copy of the divorce.

The process has been very successful and to date 63,009 requests have been made since the online interactive form was introduced.

Live chat

Live chat was launched on the courts’ websites in April 2014. Live chat is a cost-effective and easily manageable channel of communication, with staff able to manage up to four conversations at once. It also provides a convenient way for clients to access the courts and engage with client service officers.

  • There have been 314,522 live chats since its launch.
  • The National Enquiry Centre (NEC) is now averaging 362 live chats per day.
  • Portal support and applying for a divorce are the most popular live chat topics.

Community relationships and consultation

Liaison with the Law Council of Australia

During the year, the FCC and the Law Council of Australia Liaison Committee met once.

This committee comprises the Chief Judge and other representatives from the Court, and representatives from the Law Council of Australia. The committee considers issues pertaining to the general federal law jurisdiction of the Court, such as:

  • judicial resourcing and funding
  • workload trends
  • jurisdiction and court rules
  • case management including panels and circuits
  • transfers between courts
  • self-represented litigants, and
  • issues surrounding fees.

Liaison with the Family Law Section Regional Committee

In addition to meeting regularly with the Family Law Section, the Court continued its liaison with the Family Law Section Regional Committee. The purpose of the meetings is to discuss a range of activities, with a particular focus on the Court’s circuit program to rural and regional Australia.

The Family Law Section Regional Committee is made up of representatives from around Australia. Meetings were conducted via telephone link, with practitioners well represented. Discussions covered a range of matters including the practices associated with attendance at court (by telephone) by litigants and practitioners in remote locations.

Registry engagement

Ongoing engagement with local community-based organisations, community forums, law societies, family law pathway networks, volunteer networks and other government agencies, including many at the state level, was again a priority of registries in 2017–18.

Regular consultation also provides registries with feedback about users’ experiences of registry services and the courts. This leads to service improvements and ensures that the Court is better placed to assist litigants.

For more information about registry activities, see page 127.

Changes expected in 2018–19

Federal courts’ structural reform

The proposed amalgamation of the FCoA and FCC into a single new ‘Federal Circuit and Family Court of Australia’ and the establishment of a new Family Law Appeal Division in the FCA is designed to achieve a faster resolution of family law disputes. It will be accompanied by a move to a streamlined entry for all federal family law matters, as well as a common case management approach and a harmonised set of rules, procedures and practices for the new court. Additional funding has been provided to assist the courts in the development of rules, procedures, practices and the case management approach.

Improvements to digital services

In line with the Government’s Digital Transformation Agenda, the Court will continue to identify opportunities to expand the use of online services to integrate court user needs, improve access and reduce cost. Enhancements to eFiling are on target for release in September 2018. Additionally, the first phase of the delivery of a Digital Court File for family law is on target for rollout in October 2018.

Australian Law Reform Commission review

The Australian Law Reform Commission (ALRC) is currently conducting a wide-ranging review into the family law system. The final report of the ALRC, due in March 2019, is likely to recommend significant reforms of relevance to the family law courts.