Report on court performance

The stated outcome of the Federal Circuit Court of Australia (FCC) is:

Apply and uphold the rule of law for litigants in the Federal Circuit Court of Australia through more informal and streamlined resolution of family law and general federal law matters according to law, through the encouragement of appropriate dispute resolution processes and through the effective management of the administrative affairs of the Court.

The Court has the following targets under performance measures of timely completion of cases and timely registry services:

Timely completion of cases

  • 90 per cent of final orders applications disposed of within 12 months
  • 90 per cent of all other applications disposed of within six months, and
  • 70 per cent of matters resolved prior to trial.

Timely registry services

  • 75 per cent of counter enquiries served within 20 minutes
  • 80 per cent of National Enquiry Centre (NEC) telephone enquiries answered within 90 seconds
  • 80 per cent of email enquiries responded to within two working days, and
  • 75 per cent of applications lodged processed within two working days.

Snapshot of performance

Timely completion of cases

Target

Result 2017–18

Target status

90 per cent of final orders applications disposed of within 12 months

62 per cent of final orders applications were disposed of within 12 months

Target not met

90 per cent of all other applications disposed of within six months

91 per cent of all other applications were disposed of within six months

Target met

70 per cent of matters resolved prior to trial

75 per cent of matters were resolved prior to trial

Target met

Timely registry services

Target

Result 2017–18

Target status

75 per cent of counter enquiries served within 20 minutes

93 per cent of counter enquiries were served within 20 minutes

Target met

80 per cent of NEC telephone enquiries answered within 90 seconds

18 per cent of NEC telephone enquiries were answered within 90 seconds

Target not met

80 per cent of email enquiries responded to within two working days

100 per cent of email enquiries were responded to within two working days

Target met

75 per cent of applications lodged processed within two working days

98 per cent of applications lodged were processed within two working days

Target met

Workload in 2017–18

Table 3.1: Family law and general federal law applications filed, 2017–18

Family law

Total

% of total

Final orders

17,241

18%

Interim orders

21,710

23%

Divorce orders

45,190

47%

Other applications

1604

2%

Total family law

85,745

90%

General federal law

Total

% of total

Bankruptcy

3072

3%

Migration

5314

5%

Other

1584

2%

Total general federal law

9971

10%

Grand total

95,716

100%

Figure 3.1: Family law and general federal law applications filed, 2017–18

Pie chart showing percentage of family law and general federal law applications filed in 2017–18. Data from the tables above

Figure 3.2: Case management approach (docket system)

Flowchart showing the case management approach (docket system)

Case management

The FCC 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.

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 FCC.

Report on work in family law

Family law constitutes the largest proportion of the overall workload of the Court, representing 89 per cent of all family law work filed at the federal level. This compares with 87 per cent during 2016–17.

Table 3.2: Family law applications filed by type, 2017–18

Application

Filed

%

Final orders applications

17,241

20%

Interim applications

21,710

25%

Divorce applications

45,190

53%

Other applications

1604

2%

Total

85,745

100%

Due to rounding, percentages may not always appear to add up to 100%.

Figure 3.3: Family law applications filed by type, 2017–18

Pie chart representing the percentage figures in table 3.2

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, 2013–14 to 2017–18

Bar chart showing Final orders applications and numbers of filed, finalised and pending from 2013–14 to 2017–18

Figure 3.5: Interim orders applications, 2013–14 to 2017–18

The family law workload (excluding divorce) can be broken into three main categories. In 2017–18, 51 per cent of family law applications related specifically to matters concerning children, a further 13 per cent involved both children and property, and 35 per cent involved discrete property applications.

Figure 3.6: Issues sought in final orders applications, 2017–18

Pie chart showing a visual representation of the above content of issues sought in final orders applications for 2017–18

On 30 May 2018, the Attorney-General announced the Government’s intention to bring forward legislation for structural changes to the federal courts, and announced proposals for a new Federal Circuit and Family Court of Australia to be established from 1 January 2019 through the amalgamation of the FCC and the Family Court of Australia (FCoA). The proposal also includes a new Family Law Appeal Division in the Federal Court of Australia (FCA) to hear all appeals in family law matters from the Federal Circuit and Family Court of Australia (and some appeals from the Family Court of Western Australia).

In announcing the proposals it was noted that:

‘the reforms will help Australian families resolve their disputes faster by improving the efficiency of the family law system, reducing the backlog of matters before the family law courts, and driving faster, cheaper and more consistent dispute resolution’ (www.ag.gov.au/LegalSystem/Courts/Pages/Structural-reform-of-the-federal-courts.aspx).

The FCC is conscious that it must explore ways of deploying its present resources to maximise the opportunity for cases to be resolved in a timely way. The pending number of final orders applications in the Court has grown in the past five years; the percentage of pending cases over 12 months old has increased; and the median time for trial has increased to 15.2 months. The Court is considering a range of options to manage its workload and these options focus on facilitating earlier resolution of matters and the timely disposition of those matters for which a trial is required.

The Chief Judge has been reviewing the existing case management practices in an attempt to address existing delays. A series of callovers of matters in the larger registries has been established, with the aim of referring suitable matters to private mediation, family therapy interventions, arbitration and parenting matters that must be listed for trial, exploring the possibility of privately funded family reports.

The aim of the callovers is to assist the parties to resolve their disputes and enable better management of the Court’s workload by reducing the number of matters in each judge’s docket. This has allowed the matters that must be case managed and heard to finality to be dealt with sooner. The assistance and cooperation of members of the profession has been vital to the success of these callovers.

Efforts have been made to ensure interim hearings are conducted as an abridged process, with affidavit material succinctly setting out the relevant facts to be relied upon. To this end, a practice notice was issued restricting affidavit material in support of an interim application not to exceed 10 pages or contain more than five annexures.

The practice notice is one means the Court is exploring to bring home the message to parties and practitioners that failure to comply with directions will result in loss of hearing priority, or adjournment of a hearing with costs orders (www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/rules-and-legislation/practice-directions/2017/022017).

In addition, the Court has a series of pilots in various localities to utilise registrar resources. The aim of such pilots is to explore ways in which the judges can be assisted in their docket management to facilitate earlier outcomes for litigants.

From 4 June 2018, the Court commenced a trial of a new way of managing cases in its Brisbane registry. The pilot limits case management to a discrete number of judges who have responsibility for managing applications as they progress towards resolution. The remaining judges focus on hearing and determining matters that are listed for final hearing.

As highlighted in previous annual reports, the parenting matters that proceed to the Court often involve complex issues such as family violence, substance abuse, mental ill health and safety concerns for parties and/or their children. The judicial docket system adopted by the Court facilitates the early identification and triaging of cases, but is reliant upon adequate judicial resources and enhanced collaboration and information sharing between the family law system and other relevant support services.

In light of the high prevalence of allegations of risk, the Court requires all parties to parenting applications to file a Notice of Risk. In 2017–18, 45 per cent of all parenting applications filed were referred to the child protection authorities when allegations of risk were identified as attracting the mandatory notification requirement under the Family Law Act. Although the Notice of Risk is the prescribed form for these risks it also acts as a general risk identification tool.

As part of the 2017–18 Budget, the Government announced a number of initiatives to improve the family law systemʼs response to family violence. These initiatives are welcomed and included $10.7 million for the courts to employ additional family consultants, who play a significant role in providing assessments and reports in parenting proceedings.

The funding of Family Advocacy and Support Services through the legal aid commissions has been another welcome initiative. These services involve the provision of lawyers and support workers to assist people affected by family violence on their first court date (similar to the family law duty lawyer service) and people with urgent family law issues. As part of these services, a lawyer may be able to give information and legal advice, and help prepare standard court documents and representation (in limited circumstances). Support workers may assist litigants with the preparation of a safety plan and referrals to support services and completion of legal aid applications.

The Attorney-Generalʼs Department also funded the National Judicial College of Australia to develop and deliver training for judicial officers, to increase their awareness and understanding of family violence. This training commenced in 2017 and continues to be rolled out nationally in 2018. The training builds on the National Domestic and Family Violence Bench Book.

In addition, a number of legislative amendments have been introduced in response to the significant prevalence of risk (particularly family violence) in the context of family law proceedings.

On 28 June 2018 the Family Law Amendment (Family Violence and Cross-examination of Parties) Bill 2018 was introduced into the House of Representatives. The Bill will, if passed, ban perpetrators of family violence from directly cross-examining their victims in family law proceedings. These amendments are intended to apply equally to parenting and property proceedings (www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=r6152).

The report of the Australian Institute of Family Studies on direct cross-examination in family law matters was also released and found that direct cross-examination in final hearings where there are allegations of family violence and one or both parties are self-represented occurred in around 173 matters over two years between 2015 and 2017, which suggests that direct cross-examination of victims of family violence occurs rarely in family law proceedings (www.aifs.gov.au/publications/direct-cross-examination-family-law-matters).

The Family Law Amendment (Family Violence and Other Measures) Bill 2017 was introduced to respond to family violence and the intersection between the federal family law and state and territory family violence and child protection systems. The Bill implements recommendations of the Family Law Councilʼs 2015 and 2016 reports on Families with Complex Needs and the Intersection of the Family Law and Child Protection Systems, and of other expert reports.

Funding of $12.7 million was announced over four years, from 2017–18, to establish parenting management hearings as an alternative to traditional court hearings as a means of resolving family law disputes between self-represented litigants. On 6 December 2017, the Family Law Amendment (Parenting Management Hearings) Bill 2017 was introduced into the Senate.

The Australian Law Reform Commission (ALRC) was asked to review the family law system, commencing from 1 October 2017. The terms of reference for this inquiry ask the ALRC to consider reform to the family law system. This includes considering how to encourage the resolution of family disputes as quickly and affordably as possible, and in a way that is the least harmful, and most protective, of the safety and wellbeing of all involved, particularly children. It also involves considering whether reform is needed to the substantive law governing decisions about parenting and property disputes.

A Council of Attorneys-General Family Violence Working Group of senior justice officials was formed in May 2017 to develop measures to improve the interaction between the family law, child protection and family violence systems. The family violence working group is co-led by the Commonwealth and Victoria, and is chaired by the Commonwealth Attorney-Generalʼs Department. The working group has seven terms of reference which include examining the following issues: information sharing, risk identification and assessment, improving family violence competency, legislative and other protections for vulnerable witnesses, expanding the jurisdiction of state and territory magistrates to utilise family law to help keep families safe and criminalising personal protection injunctions made under the Family Law Act 1975. Representatives from the courts have participated in a number of these initiatives.

A useful model of collaboration between the family courts and the child protection sector is the one that operates in the Melbourne and Dandenong family law registries, where a child protection worker from the Victorian Department of Health and Human Services is engaged where families in parenting proceedings have been involved with the child protection system. The significant commitment of the department to this initiative is appreciated and could usefully be emulated in other states.

During the year, the High Court delivered a judgment in respect of binding financial agreements in Thorne v Kennedy [2017] HCA 49. In this decision, the High Court unanimously allowed an appeal from the Full Court of the FCoA and held that two substantially identical financial agreements – a pre-nuptial agreement and a post-nuptial agreement – made under Pt VIIIA of the Family Law Act 1975 (Cth) should be set aside.

The High Court allowed the appeal on the basis that the agreements should be set aside for unconscionable conduct and that the reasons of the primary judge of the FCC were not inadequate. A majority of the Court also held that the agreements should be set aside for undue influence. The majority considered that although the primary judge described her reasons for setting aside the agreements as being based upon ‘duress’, the better characterisation of her findings was that the agreements were set aside for undue influence. The primary judgeʼs conclusion of undue influence was open on the evidence and it was unnecessary to decide whether the agreements could also have been set aside for duress.

Divorce

The FCC deals with all divorce applications filed (other than in Western Australia) and the work is largely undertaken by registrars. Contested divorce matters proceed to a judge for determination. Many applications are made by litigants without legal assistance and information in the form of online guides assist litigants through the procedural requirements. In addition, in some localities, staff from the Court Network are available to assist litigants as it is appreciated that for many litigants a court appearance can be stressful and unfamiliar.

During the year, 45,190 divorce applications were filed in the Court. This compares with 43,846 in 2016–17.

Figure 3.7: Divorce applications, 2013–14 to 2017–18

Bar chart showing number of filed, finalised and pending divorce applications for the period 2013-14 to 2017-18

A significant number of calls to the NEC relate to divorce proceedings, in particular providing information to assist eFiling on the Commonwealth Courts Portal (the Portal) and directing litigants to the website to complete the divorce checklist at How do I apply for a divorce? (www.federalcircuitcourt.gov.au/howdoi-divorce).

The dynamic interactive checklist was created to assist litigants when applying for a divorce so there is less chance of errors in applications. The NEC also provides general divorce support in relation to applying, service and information about court events, as well as administrative support for Portal users and assisting litigants and lawyers when they register and eFile applications for divorce.

The Court has also developed a fully electronic divorce file which permits the management of divorce applications in electronic format from filing to disposition. These initiatives meet a range of objectives including aligning with Federal Government strategies for digital administration and records management, and offering litigants and the legal profession streamlined services. Until the FCC transitions to a complete electronic environment, it is still accepting hard copy applications from litigants, lawyers and others which are being converted to a digital record.

In 2017–18 approximately 72 per cent of all divorce applications were eFiled, with this percentage expected to grow as enhancements are made to the process. Litigants and practitioners are being encouraged to eFile divorce applications in view of the benefit to litigants. One such benefit is the ability to select from a list of available hearing dates. There are also administrative benefits for registries not only in the reduction of hard copy files and accompanying storage, but also greater flexibility in the management of the divorce workload.

Brochures have been developed to assist those who may not be able to eFile their applications to seek assistance through a community legal centre. Public access computers are available in all registries and have been equipped with access to the Portal so that litigants can upload documents at registry locations. In addition, the website information has been revised to better assist litigants applying for a divorce. New features include interactive steps to assist applicants to better understand the legal requirements.

Even if paper applications are received, registry staff scan and upload the documents on the case management system. This ensures Portal access to all the documents on the divorce file (whether filed electronically or manually at the registry). Since 1 January 2018, divorce orders are no longer posted. NEC staff register and link clients to their file on the Portal via phone, live chat or email (registerme@comcourts.gov.au).

The Marriage Amendment (Definition and Religious Freedoms) Act 2017 commenced on 9 December 2017. This Act amended the Marriage Act 1961 to redefine marriage as ʻthe union of 2 people to the exclusion of all others, voluntarily entered into for lifeʼ. Since 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. Work is underway to ensure those couples are able to eFile for divorce.

Child support

The Court exercises some limited first instance and appellate child support jurisdiction. The child support review framework has proceeded from a court-based process to one that is now predominantly administrative.

Following the merger of the Social Security Appeals Tribunal, the Administrative Appeals Tribunal (AAT) now hears appeals from most decisions of the Child Support Registrar. Appeals to the courts are accordingly limited to appeals on a question of law from decisions of the AAT.

While the Court shares this review jurisdiction with the FCA, most appeals proceed before the FCC and are few in number. This is reflected in the number of child support appeals for the year, which was 25 – three more than were filed in the previous year.

A significant proportion of the enforcement workload of the Court is in relation to applications for enforcement of child support arrears. To facilitate this, discrete child support enforcement lists have been set up in the larger registries as an effective means of dealing with this workload.

Report on work in general federal law

Table 3.3: General federal law applications filed by type, 2017–18

General federal law

Total

% of total

Administrative law

57

0.57%

Admiralty law

10

0.10%

Bankruptcy

3072

30.81%

Intellectual property

36

0.36%

Human rights

60

0.60%

Industrial

1300

13.04%

Migration

5314

53.29%

Consumer law

122

1.22%

Total

9971

100%

Due to rounding, percentages may not always appear to add up to 100%.

Administrative

The Court has original jurisdiction under the Administrative Decisions (Judicial Review) Act 1977 (the ADJR Act).

The Court’s AAT review jurisdiction is generally confined to matters remitted from the FCA and excludes those appeals from decisions of the AAT constituted by a presidential member. However, in respect of judicial review of migration and child support first review, the jurisdiction of the Court is not subject to remittal.

As noted 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.

Excluding those judicial review applications filed in respect of migration, the number of administrative review matters that proceed before the Court are few in number (57 in 2017–18).

An example of an administrative law decision that came before the Court this year was in DX v Commonwealth of Australia & Ors [2018] FCCA 922, where the Court had to consider an application for judicial review under the ADJR Act and, in particular, decide whether a determination made by the Board of Australian Criminal Intelligence Commission was invalid and whether summons issued by the examiner were invalid (www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCCA/2018/922.html).

Admiralty

Although the number of applications in person filed under this head of jurisdiction is small (10 in 2017–18), it is an important jurisdiction conferred under s 76 (iii) of the Constitution. The admiralty and maritime jurisdiction conferred on this Court is a dispute subject matter that requires an appreciation and understanding of the United Nations Law of the Sea Conventions and the domestic legislation giving effect to maritime-related international treaties and conventions.

The work is undertaken by a discrete panel of judges who are required to maintain appropriate breadth of knowledge in admiralty and maritime law (www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/rules-and-legislation/information-notices/admiralty-law/admiralty notice).

The jurisdiction of this Court is governed by the Admiralty Act 1988. Section 9 of that Act confers in personam jurisdiction on this Court for matters falling within the meaning of a maritime claim as defined in s 4. While confined to in personam disputes, the Court can also hear in rem matters referred to it by the FCA which is not limited by quantum. As proceedings commenced in personam in the Court can be transferred to the FCA, the FCC is a convenient forum for preserving time limitations in disputes concerning carriage of goods, charter parties, collisions, general average and salvage. The jurisdiction in personam is not limited by quantum.

The Act applies to all ships irrespective of domicile or residence of owners and to all maritime claims wherever arising. The admiralty rules set out standard procedures supplemented by the Rules of Court, and the Admiralty Rules 1988 (Rule 6).

In previous annual reports, the issues of enforcement of foreign judgments has been highlighted as an issue of concern to the Court, as much depends upon general principles of reciprocity. Not being a superior court, the ability of the Court to transfer where issues of enforcement arise is a useful power.

Bankruptcy

The Court shares personal insolvency jurisdiction with the FCA, most of which proceed in the FCC. The Court does not have any jurisdiction in respect of corporate insolvency.

The Senate Economics Reference Committee, in its report into Insolvency in the Australian Construction industry, included a recommendation that the Government give serious consideration to extending the jurisdiction of the Court to include corporate insolvency (www.aph.gov.au/Parliamentary_Business/Committees/Senate/Economics/Insolvency_construction/Report).

A significant proportion of bankruptcy matters are case managed and determined by registrars. This includes:

  • creditors’ petitions
  • applications to set aside bankruptcy notices, and
  • examinations pursuant to s 81 of the Bankruptcy Act.

The Court appreciates the significant work undertaken by registrars who exercise extensive delegations in respect of the bankruptcy jurisdiction.

Figure 3.8: Bankruptcy applications, 2013–14 to 2017–18

Bar chart showing number of filed and finalised bankruptcy applications for the period 2013-14 to 2017-18

 

The Court received 3072 bankruptcy applications in 2017–18, and finalised 2941. This represents a decrease in bankruptcy filings of six per cent, compared with 3280 filings in 2016–17.

In light of the shared personal bankruptcy jurisdiction, the FCA and the FCC have adopted harmonised bankruptcy rules:

  • Federal Circuit Court (Bankruptcy) Rules 2016, and
  • Federal Court (Bankruptcy) Rules 2016.

During the year, the Government introduced proposed changes to personal insolvency laws by way of the Bankruptcy Amendment (Enterprise Incentives) Bill 2017. This Bill seeks to amend the Bankruptcy Act 1966 by reducing the default period, and other time periods associated with bankruptcy, from three years to one year. The key change proposed is to reduce the default period of bankruptcy from three years to one year. Liability for income contributions would continue to be payable as now, generally for a three-year period.

Other amendments have been proposed by way of the Bankruptcy Amendment (Debt Agreement Reform) Bill 2018 to amend the Bankruptcy Act 1966 to effect a comprehensive reform of Australia’s debt agreement system.

Key proposed changes in the Bill include:

  • a three-year maximum term for debt agreement proposals
  • doubling the asset eligibility threshold
  • restricting payment obligations by debtors based on income level, and
  • changes to the conditions of registration for registered debt agreement administrators, including allowing the Minister to impose industry-wide conditions.

Representatives from the courts meet regularly with officers from the Australian Financial Security Authority on current issues and trends in relation to personal insolvency law and procedures.

A significant number of litigants who appear before the registrars in the bankruptcy lists are self-represented. From late 2014, the Victorian registry of the Court has been involved in a financial counselling pilot for self-represented debtors in the bankruptcy lists. This pilot is a useful collaborative project involving the registrars of the FCC, officers of the FCA, the Consumer Action Law Centre and the Melbourne Law School.

The aim of the service is to assist vulnerable debtors and to facilitate the efficient operation of bankruptcy proceedings in the Court. The pilot was the subject of an evaluation by researchers from Melbourne University as part of their Personal Insolvency Project. This evaluation concluded that the service provided valuable assistance to debtors while also improving the efficiency of the bankruptcy list (further information on this evaluation and the ongoing work of the project can be found at www.law.unimelb.edu.au/centres/cclsr/research/major-research-projects/personal-insolvency-project).

Some of the types of matters that came before the Court for determination during the year under this head of jurisdiction included the following:

  • In Wright & Anor v Rabot [2017] FCCA 2663, the respondent argued that the petitioning creditors application for a sequestration order should be deferred until judgment is handed down in the respondent’s case, which was pending before the County Court of Victoria for damages for defamation. The Court, having regard to the proximity of the trial before the County Court, considered it imperative that a decision be made, noting that it would be noxious to the administration of justice that judges of two different courts deal with the same or similar issues concurrently (www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCCA/2017/2663.html).
  • In Turner as Trustee of the Bankrupt Estate of Wallace v Wallace [2017] FCCA 3044, the Court considered whether certain transactions were intended to defeat potential creditors and were void transactions. The Court had to also consider possible resulting and constructive trusts and any equitable interests between the husband and wife. Declarations were made that the bankrupt’s legal interest in the properties were not subject to any equitable interest in favour of the respondent and that the transfers to her were void (www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCCA/2017/3044.html).
  • In ACM Group Ltd v Achram [2017] FCCA 2558 (2017) 15 ABC(NS) 438, the Court considered an application ex-parte for orders under s 50(1) of the Bankruptcy Act 1966 for an order to permit the trustee to take control of the debtor’s property where the bankruptcy notice was issued but not served. The question for the Court was whether because of s 50(1A) of the Act, it is a precondition to the making of an order under s 50(1) of the Act that the debtor has failed to comply with the requirements of a bankruptcy notice and whether the debtor failed to comply with the requirements of the bankruptcy notice by not paying the amount demanded in the bankruptcy notice even though the bankruptcy notice was not served (www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCCA/2017/2558.html).

Consumer

The consumer law jurisdiction of the Court is confined and there is a monetary limit on the grant of injunctive relief and damages up to $750,000. The number of filings under this head of jurisdiction is accordingly small (122 in 2017–18).

Consumer law now has a national framework following the commencement, on 1 January 2011, of the Australian Consumer Law (ACL). This cooperative framework is administered and enforced jointly by the Australian Competition and Consumer Commission and the state and territory consumer protection agencies. A review of the ACL commenced in 2016 and concluded in March 2017.

This year the regulatory framework surrounding consumer protection, in the context of the banking insurance and financial services sectors, has been the subject of some oversight.

On 29 November 2016, the Senate referred an inquiry into the regulatory framework for the protection of consumers, including small businesses, in the banking, insurance and financial services sector (including managed investment schemes) to the Senate Economics References Committee for inquiry and report.

Additionally, the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry was established on 14 December 2017. The Commissioner, the Honourable Kenneth Madison Hayne AC QC, is authorised to submit an interim report no later than 30 September 2018, and will provide a final report by 1 February 2019.

Some of the types of disputes that came before the Court under this head of jurisdiction are illustrated in the following cases:

  • Renouf v RAC Finance Ltd (No.2) [2018] FCCA 182 related to an application to re-open a credit contract as being unjust. The Court had to consider whether the contract had come to an end and whether there was a statutory basis for the issue of an injunction to prevent the operation of an order of the Magistrates Court of Western Australia. The Court concluded that the Originating Application was out of time for the purposes of s 80(1) of the National Credit Code (NC Code), and therefore the application to re-open the credit contract under s 76 of the NC Code could not be brought and that there was no basis on which to issue an injunction against the Magistrates Court in relation to the Summary Judgment Order.
  • In Volkswagen Financial Services Australia Pty Ltd v Mandalavi & Anor [2018] FCCA 752, the Court considered a mortgagee’s action to obtain possession of a mortgaged chattel, with consideration as to whether orders should be made against third parties who had not been joined in the proceeding. There was consideration as to whether the Court could order the police to assist a mortgagee to take possession of a mortgaged chattel and make orders requiring a person to supply information as to the whereabouts of a mortgaged chattel, being in essence mandatory injunctions. The Court made a declaration that the applicant was the owner of the legal title to the vehicle, but declined to make further declaratory relief that was not considered to be of any utility at the time of the proceedings.

Human rights

The Australian Human Rights Commission has statutory responsibilities under the following laws to investigate and conciliate complaints of alleged discrimination:

  • Australian Human Rights Commission Act 1986
  • Age Discrimination Act 2004
  • Disability Discrimination Act 1992
  • Racial Discrimination Act 1975, and
  • Sex Discrimination Act 1984.

The Australian Human Rights Commission Act 1986, formerly the Human Rights and Equal Opportunity Commission Act 1986, establishes the statutory framework for making complaints of unlawful discrimination.

Once a complaint of unlawful discrimination is terminated, a person affected may make an application to the FCA or FCC alleging unlawful discrimination by one or more respondents to the terminated complaint.

The number of matters that proceed to the Court is relatively small. In 2017–18 there were 60 applications filed under this head of jurisdiction.

There is generally an overlap of Commonwealth and state/territory laws that prohibit the same type of discrimination. For example, the Fair Work Act 2009 also deals with discrimination, harassment and bullying, in the context of the workplace.

Figure 3.9: Human rights applications filed and finalised 2013–14 to 2017–18

Bar chart showing the number of filed and finalised human rights applications over the periods 2013-14 to 2017-18

On 22 November 2017, the Prime Minister announced the appointment of an expert panel to examine whether Australian law adequately protects the human right to freedom of religion. On 18 May 2018, the panel delivered its report to the Prime Minister.

The following are some of the types of matters that came before the Court under this head of jurisdiction during the year.

  • Before the Court in Reid & Anor v Marilandy Pty Ltd [2017] FCCA 2403; (2017) 325 FLR 235 was an application for the approval of a settlement agreement commenced by the first and second applicants on behalf of their minor son who suffered from a brain condition. The Court in granting approval of the Settlement Deed applied rule 7.11 of the Federal Court Rules 2011.
  • Kitoko v University of Technology Sydney [2018] FCCA 699 involved alleged breaches of the Racial Discrimination Act 1975 and the Disability Discrimination Act 1992 in the context of the discontinuance of the applicant’s Ph.D. candidature.
  • In Casey v Rebel Sport Ltd & Anor [2017] FCCA 1470, the Court considered alleged breaches of the Sex Discrimination Act 1984 by the applicant’s former employer and an employee of the company at the relevant time. The Court found that there was no arguable case raised by the application.

Industrial

Since the conferral of industrial law jurisdiction on the Court, the workload under this head of jurisdiction has grown. The Court has jurisdiction to deal with a broad range of matters under the Fair Work Act 2009 (Cth) (the FW Act) and the last year has seen a further increase in the number of applications for penalties and compensation as a result of alleged breaches of the FW Act.

Legislative developments have included amendments to the Fair Work (Registered Organisations) Act 2009 by way of the Fair Work (Registered Organisations) Amendment Act 2016, which included the conferral of jurisdiction on the FCC to impose civil remedies against persons taking action against whistle blowers by way of reprisal action (as defined).

There were also amendments to the FW Act by the Fair Work Amendment (Protecting Vulnerable Workers) Act 2017, which introduced a higher scale of penalties (up to 10 times the current amount) for a new category of ‘serious contraventions’ of prescribed workplace laws and:

  • prohibited employers from unreasonably requiring ‘cash-back’ arrangements
  • strengthened the evidence gathering powers of the Fair Work Ombudsman to ensure that the exploitation of vulnerable workers can be properly investigated, and
  • introduced stronger provisions to make franchisors and holding companies responsible for breaches of the FW Act in certain circumstances where they are culpable for the breaches.

During the reporting year, there have also been a number of significant decisions.

In Regional Express Holdings Limited v Australian Federation of Air Pilots [2017] HCA 55, the High Court held that an industrial association registered under the Fair Work (Registered Organisations) Act 2009 (Cth) is entitled to represent the industrial interests of a person, within the meaning of s 540(6)(b)(ii) of the FW Act, where that person is eligible for membership of the industrial association pursuant to its eligibility rules but is not a member of the industrial association.

In doing so, the High Court dismissed an appeal from a decision of the Full Court of the FCA, which had, in turn, dismissed an appeal from a decision of an FCC judge at first instance, refusing to summarily dismiss proceedings brought alleging contravention of various civil remedy provisions of the FW Act and for pecuniary penalty orders holding that, because the persons to whom the letter had been sent were eligible for membership of the respondent, the respondent was entitled to represent their industrial interests.

Other first instance decisions of note included the decision in Kumar v Consulate General of India, Sydney [2018] FCCA 7, where the question of the application of a modern award under the FW Act to a foreign government employee was considered.

The Court continues to deal with an increasing number of applications alleging adverse action under the FW Act (see Dipa v Michael Hill Jeweller (Australia) Pty Ltd [2018] FCCA 233).

There were also decisions dealing with applications that a respondent be punished for contempt pursuant to rule 19.02 of the Federal Circuit Court Rules 2001 (Cth) because the respondent failed to comply with injunctive orders of the Court (see Toll Transport Pty Ltd & Ord v Erikson (No. 2) [2018] FCCA 308) as well as many hundreds of decisions dealing with applications for the imposition of penalties for underpayment of wages and contraventions of the FW Act or applicable industrial instruments (see Fair Work Ombudsman v Yenida Pty Ltd & Anor [2017] FCCA 2299 and Fair Work Ombudsman v Yenida Pty Ltd & Anor [2018] FCCA 1342).

Finally, the Court’s small claims jurisdiction continues to provide a ready means by which employees can, through the less formal process in s 548, secure orders for payments of their lawful entitlements under the FW Act.

Figure 3.10: Industrial applications filed and finalised, 2013–14 to 2017–18

Bar chart showing the number of filed and finalised Industrial applications for the periods 2013–14 to 2017–18

Intellectual property

The intellectual property (IP) jurisdiction of the Court has been incrementally expanded and now comprises proceedings arising under copyright, design and trade marks. In its associated jurisdiction, the Court’s jurisdiction includes any proceeding for the tort of passing off or any analogous claim for false or misleading conduct under the Australian Consumer Law. With the exception of patents and circuits layouts, the Court’s jurisdiction is largely concurrent with that of the FCA.

Although recent legislative change has increased the IP jurisdiction of the Court, historically the IP jurisdiction of the Court has been under-utilised. The Court is well placed to hear and determine IP disputes, especially straightforward and less complex cases (one to three day hearings), in a cost-effective and streamlined way. The Court can offer a simple, accessible and less expensive alternative to IP litigation, particularly attractive to individual rights-holders and small and medium enterprises.

Establishing an effective framework for enforcement of IP rights was the subject of consideration by the Productivity Commission inquiry into intellectual property arrangements in Australia. Recommendation 19.2 highlighted the FCC as a possible forum for enforcement where IP rights are being infringed or are threatened. Included in Recommendation 19.2 of the report released by the Productivity Commission was the extension of this jurisdiction to ‘…hear all IP matters…’ which would include patent disputes. This recommendation went on to state: ‘The Federal Circuit Court should be adequately resourced to ensure that any increase in its workload arising from these reforms does not result in longer resolution times’ (www.communications.gov.au/departmental-news/release-productivity-commissions-intellectual-property-report).

From 30 June 2017, the FCC commenced a pilot in its Melbourne registry to streamline the management of IP matters (Melbourne IP Pilot), the arrangements for which are set out in a practice direction (www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/gfl/intellectual-property/pd/).

There was extensive consultation undertaken with stakeholders prior to the commencement of the pilot and settlement of the practice direction. This feedback highlighted the need for dealing with such cases in a timely and cost-efficient manner, recognising that most applications will be interlocutory. From 1 July 2018, it is proposed to extend the Melbourne IP Pilot to Sydney and the other capital city localities to better promote the Court as a forum for IP litigation.

The Court is currently considering arrangements for the national allocation and listing of IP matters. It is expected that when an IP matter is filed, there will be triaging so that those matters which require early interlocutory orders will be listed expeditiously.  

The Court will also consider initiatives, including electronic case management, as a means of improving convenience to the parties and their legal practitioners by obviating the need for, and costs attendant upon, in-person case management. The practice direction would be used to guide the conduct of IP proceedings.

Figure 3.11: Intellectual property applications filed and finalised, 2013–14 to 2017–18

Bar chart showing the number of filed and finalised intellectual property applications for the periods 2013-14 to 2017-18

Following is an example of the types of IP proceedings that have proceeded before the Court during the year.

  • In Carshare Australia Pty Ltd v Singh [2018] FCCA 1446, the applicant sought a declaration that the respondent had infringed the applicant’s trade mark, had engaged in misleading and deceptive conduct, and had passed off his services as connected to that of the applicant. The alleged infringements arose from the use by the respondent of the name Go Get Cabs, and a composite mark comprising the name Go Get Cabs (www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCCA/2018/1446.html).
  • In Briner v The Happy Herb Company & Ors [2017] FCCA 1854, the Court heard an application for declaratory and injunctive relief as well as damages and costs for the infringement of copyright in a photograph taken of camomile flowers uploaded onto the respondent’s website, which was taken down following notification by the applicant of the asserted breach of copyright (www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCCA/2017/1854.html).

Migration

As reported in previous annual reports, the Court has expected a significant upward trend in the migration workload as a result of increasing numbers of reviews by the Independent Assessment Authority of the ‘asylum legacy caseload’, which comprises asylum seekers who arrived unauthorised by boat between August 2012 and December 2013 and were not transferred to an offshore processing centre.

As is apparent in Figure 3.12, there has been a significant increase (7 per cent) in the migration workload during the reporting period. Migration represents the largest jurisdiction in the Court’s general federal law defended hearing list.

Figure 3.12: Migration applications filed and finalised, 2013–14 to 2017–18

Bar chart showing the number of filed and finalised migration applications for the periods 2013-14 to 2017-18

The increase is placing pressure on judicial resources. The early identification of matters that may have implications for a wider cohort, particularly those relating to the ‘fast track caseload’, could assist the Court. Efforts are being made for the early identification of such matters. Matters where litigants are in detention are similarly identified.

Although the Court is able to utilise the assistance of registrars at the direction stage, the nature of the jurisdiction is such that most applications require the allocation of judicial hearing and writing time. The Court is mindful of the impact delays may have on matters proceeding expeditiously where there are substantive issues of law to be resolved.

During the year, the Court continued the consultation with stakeholders to explore ways in which to facilitate the timely disposition of the migration workload. The feedback highlighted the need for provision of adequate judicial and other resources as being essential to the timely resolution of the migration caseload. In addition, there was seen to be a need for greater consistency in listing practices with suggestions for streamlining procedures and standardising directions and orders.

To this end, Judge Smith was appointed National Case Coordinator for migration and has convened user group meetings in the larger registries to settle a practice notice with the aim of consistency in case management and processes aimed at better identifying issues at an early date.

Migration law can be seen as a specialist area of administrative law that is often the subject of constitutional challenge. The jurisdiction exercised by the Court is judicial review based on statutory interpretation and case law.

During the year, the following High Court decisions of relevance to the migration jurisdiction were delivered:

  • Minister for Immigration and Border Protection & Anor v SZSSJ & Anor and Minister for Immigration and Border Protection & Ors v SZTZI [2016] HCA 29. In a unanimous decision allowing two appeals, the High Court held that asylum seekers are owed procedural fairness in the processing of their applications and that the FCC can hear a challenge to an officer’s preparatory act, such as holding an inquiry to inform the Minister prior to the Minister making a substantive decision.
  • Minister for Immigration and Border Protection v Kumar & Ors [2017] HCA 11. The High Court, by majority, held that the FCA erred in holding that s 36(2) of the Acts Interpretation Act 1901 operated to allow an application for a Subclass 572 visa to be assessed as if it had been made before the expiry of a Subclass 485 visa.
  • Also of significance is the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2016] FCAFC 183. The Full Federal Court discussed the tension between s 359A and s 375A of the Migration Act and approved the approach taken in MZAFZ v Minister for Immigration and Border Protection [2016] FCA 1081. It overruled the finding in Davis v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 686 that the Tribunal does not ordinarily need to disclose a certificate to an applicant. The High Court refused special leave in this case. A significant number of cases in the FCC were adjourned pending the outcome of the special leave application. Finding court resources to address these cases in a timely manner will be a challenge.

Appeals

Family law appeals

An appeal lies to the FCoA from the FCC 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 10 per cent increase in the number of appeals going to the FCoA from the FCC during the year (see Table 3.4).

Table 3.4: Notice of appeals filed, finalised and pending by jurisdiction, 2013–14 to 2017–18

Filed

2013–14

2014–15

2015–16

2016–17

2017–18

% change from 2016–17
to 2017–18

Family Court of Australia

141

153

161

145

189

30%

Federal Circuit Court of Australia

189

236

210

199

201

1%

Appeals filed

330

389

371

344

390

13%

Per cent from the Family Court of Australia

43%

39%

43%

42%

48%

15%

Per cent from the Federal Circuit Court of Australia

57%

61%

57%

58%

52%

–11%

Finalised

2013–14

2014–15

2015–16

2016–17

2017–18

% change from 2016–17
to 2017–18

Family Court of Australia

141

124

157

161

184

14%

Federal Circuit Court of Australia

196

232

197

216

186

–14%

Appeals finalised

337

356

354

377

370

–2%

Per cent from the Family Court of Australia

42%

35%

44%

43%

50%

16%

Per cent from the Federal Circuit Court of Australia

58%

65%

56%

57%

50%

–12%

Pending

2013–14

2014–15

2015–16

2016–17

2017–18

% change from 2016–17
to 2017–18

Family Court of Australia

137

166

139

107

110

3%

Federal Circuit Court of Australia

119

123

131

101

110

9%

Appeals pending

256

289

270

208

220

6%

Per cent from the Family Court of Australia

54%

57%

51%

51%

50%

–1%

Per cent from the Federal Circuit Court of Australia

46%

43%

49%

49%

50%

1%

General federal law appeals

The majority of appeals and appellate-related applications in respect of general federal law proceedings are heard and determined by single judges of the FCA exercising the Court’s appellate jurisdiction.

Of the 1262 appeals and related actions filed in the FCA in 2017–18, 1022 were from decisions of the FCC, accounting for approximately 80 per cent of the overall appeals and related actions filed.

Figure 3.13: Source of appeals and related actions filed in the FCA, 2013–14 to 2017–18

Bar chart showing source of appeals and related actions filed in the Federal Court, Federal Circuit Court and other

This compares with a total of 836 appeals and appellate-related applications from the Court as reported in the 2016–17 annual report, an increase of over 20 per cent.

The vast majority of these appeals concern decisions made under the Migration Act 1958, with 973 appeals filed from migration judgments of the Court in 2017–18 compared with 746 in 2016–17.

The increasing proportion of migration-related appellate proceedings is reflective of the general upward trend of the migration workload, with a large proportion of these matters proceeding to a defended hearing.

Dispute resolution

The FCC has grown to become Australia’s principal federal trial court. The FCC’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.

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 increased from 620 in 2016–17 to 706 in 2017–18.

Table 3.5: Number of matters referred to mediation, 2014–15 to 2017–18

2014–15

2015–16

2016–17

2017–18

Referrals

664

583

620

706

Table 3.6 shows the number of referrals to mediation by cause of action both as a number and as a percentage of filings. Overall, 7 per cent of filings were referred to mediation. As a percentage of matters, the cause of action most referred to mediation was human rights at 67 per cent of matters referred, and industrial matters at 46 per cent referred.

Table 3.6: Filings and mediation referrals to a registrar as a percentage of filings, 2017–18

Filings

Referrals

Referrals as % of filings

Administrative

57

2

4%

Admiralty

10

2

20%

Bankruptcy

3072

34

1%

Consumer

122

21

17%

Human rights

58

39

67%

Industrial

1300

595

46%

Intellectual property

36

13

36%

Migration

5314

0

0%

All filings

9971

706

7%

Due to rounding, percentages may not always appear to add up to 100%.

The Court continues to engage a sessional registrar in Sydney and Melbourne to assist with mediation in the growing industrial small claims workload.

Table 3.7 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 3.7: Mediation referral outcomes, 2017–18

Finalised – not resolved

Finalised – resolved

Finalised – resolved in part

Total

Admiralty and maritime

1

1

0

2

Bankruptcy

6

21

2

29

Consumer protection

9

13

0

22

Fair work

204

252

8

464

Human rights

14

17

0

31

Industrial

2

1

0

3

Intellectual property

4

8

0

12

Migration

0

1

0

1

Total

240

314

10

564

In the reporting period, registrars conducted 564 mediations and partially or fully resolved 324 matters or 57 per cent of matters.

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 2017–18, registrars held 2503 privileged conciliation conferences and settled approximately 36 per cent of these matters.

Administered fund

The FCC 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 in support of its circuit work. These services are currently provided by Relationships Australia (Victoria).

The use of the administered fund continues to grow as services are extended to more regional locations. 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.

Initiatives in general federal law

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 FCA. 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.

Small claims lists – Brisbane, Melbourne 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 Brisbane, Melbourne and Sydney 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
  • 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, and
  • keeping it simple – an application form with instructions which guides the applicant 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 other material is available if additional claims are raised. Registrars are also available for mediation.

Migration duty lawyer scheme – Melbourne

The FCC 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 FCC.

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 FCA).

There is a legal aid duty lawyer scheme in respect of the FCC directions lists in Melbourne.

Skilled Victoria 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 grateful for this service as it facilitates the conduct of the migration matters.

Pro bono migration scheme – Brisbane

The FCC in Brisbane, in conjunction with HopgoodGanim Lawyers and the Bar Association of Queensland, has established a pro bono scheme to assist self-represented litigants in migration proceedings. Initial legal assistance is provided as well as referrals to a panel of barristers to undertake the legal work, including research, legal advice and court appearances.

Pilot to assist self-represented litigants – bankruptcy lists – Melbourne

In September 2014, the FCC 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 FCA, the Consumer Action Law Centre and the Melbourne Law School 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. An evaluation of the pilot indicated the project has been successful in meeting its objectives and the project has been extended and further consideration will be given to options for its continuance and any further expansion.

Child Dispute Services

Child Dispute Services (CDS) provides expert and independent forensic, social science advice and evidence to judicial officers to assist them in making decisions in regards to disputes about children. To achieve this, family consultants conduct preliminary family assessments at the interim stage of a matter, provided to the Court in the form of a memorandum, or comprehensive family assessments for a final hearing, provided to the Court in the form of a family report. CDS makes information available about the different types of assessments it undertakes through fact sheets on the courts’ websites.

The 2017–18 year was a busy one for the CDS team. In May 2017, the Federal Government announced additional funding for CDS which allowed for 13 new family consultant positions across the country. A national recruitment drive was undertaken which involved a rigorous selection process. The increase in family consultant numbers has significantly enhanced CDS’s capacity to provide services to judicial officers.

While CDS only engages professionals that are highly experienced in working with children and families, there is no doubt that the role of a family consultant is a unique one and it is important that new staff quickly acquire an understanding of working with families within the Court context.

In order to best support these recently recruited family consultants, and for future new recruits, CDS has updated its induction program and developed a suite of eLearning modules designed to provide accessible and nationally consistent induction information. These modules supplement the comprehensive training and support that new staff receive at their local registries.

Following the 2017 launch of a detailed set of guidelines for screening and assessing family violence, CDS consulted with a range of Australian and international experts and revised its standardised family violence screening questions. The routine use of screening questions within clinical interviews is considered best practice in the identification of family violence and facilitates appropriate risk assessment and safety planning.

Continuous professional development is critical for family consultants to be able to maintain and build their knowledge, expertise and competence. In addition to individual family consultants attending a raft of external training programs, the ongoing CDS professional seminar series provided training on the following topics across the year:

  • infant attachment development
  • contact resistance
  • interviewing children
  • possible impacts on children of living in an ice household
  • stalking
  • cognition and memory in children
  • children’s contact centres
  • cross examination, and
  • risks to children from parent pornography use.

In addition to the work undertaken by way of family assessments, CDS continues to participate in sharing its knowledge and collaborating with other service providers within the family law and broader service sectors.

Examples of this include presentations given by CDS staff in forums such as:

  • family law pathways network events
  • law society events
  • child protection forums
  • independent children’s lawyer training, and
  • court visits by international delegations.

Circuit program

The FCC is committed to providing services to 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 2017–18 the Court sat in 30 rural and regional locations as part of its extensive circuit program. Details of the circuit locations are included at page 38.

When on circuit, the Court sits in leased premises and state and territory court facilities. Reliance on state facilities poses a number of challenges for the Court, including availability of courtrooms, 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 thereby, the efficiency and value of circuits.

Judges of the Court travelled to circuit locations on 149 occasions throughout 2017–18. 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 Court’s family law workload. The Court is working towards capturing better data in respect of 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 practitioners with 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 and consults with legal practitioners representing the Family Law Council Regional Committee to discuss various issues in relation to circuits and the Court.

Complaints

The Court is committed to acknowledging complaints as soon as practicable and managing responses in an effective and timely manner. The Court’s complaint policy and judicial complaints procedure is available on the website (www.federalcircuitcourt.gov.au).

During 2017–18, 253 complaints were received, which is higher than the previous year (208).

Table 3.8 provides a breakdown of these complaints by category.

Table 3.8: FCC complaints by category, 2017–18

Complaint topic

Number of complaints received

Overdue judgment

66

Child dispute services

60

Conduct – judge

32

Legal process

20

Family registry

19

Judicial decision

10

Divorce

8

Delays in proceedings

7

Conduct – registrar

6

Conduct of proceedings

5

Conduct – chambers

4

Electronic filing

2

Fees

2

Private family report

2

Court facilities

2

Gender bias

2

Conduct – legal practitioner

1

Enforcement

1

NEC

1

Administrative error

1

Provision of orders

1

Not court related

1

The number of complaints is relatively small and it is of concern that the largest number of complaints are in relation to outstanding decisions.

The Court has a protocol that sets a benchmark of three months, and matters that are outside this benchmark are actively monitored by the Chief Judgeʼs 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, the 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 FCA, the Chief Justice of the FCoA and the Chief Judge of the FCC 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 (www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/contact-us/feedback-complaints/judicial-complaints).

Judgments

In 2017–18, 3466 judgments were settled into written format, an increase from the 3188 published in 2016–17. This is the largest number of judgments published in a single year since the Court began.

Table 3.9 provides a breakdown by jurisdictional category.

Table 3.9: FCC judgments by jurisdictional category, 2017–18

Jurisdictional category

Number published

Administrative

4

Admiralty

2

Bankruptcy

86

Child support (includes AAT)

28

Consumer law

6

Family law

1473

Human rights

14

Industrial law

159

Intellectual property (includes copyright and trade marks)

9

Migration

1661

Practice and procedure

24

The Court’s commitment to supporting open access to justice is reflected in its efforts towards publishing as many of its judgments as practical. Publication of judgments is also seen as an important way to serve the public interest and adequately reflect the work of the Court.

To maintain and improve this administrative function, the judgments team disseminates the Court’s decisions as widely as possible and in a timely manner. All judgments that are suitable for external distribution are published to AustLII (the primary free-access resource for Australian legal information). Members of the public can subscribe via the Court’s website to receive regular updates of decisions posted on AustLII.

Copies of unreported judgments are also distributed to commercial legal publishers for inclusion in case citation databases (including LexisNexis, Westlaw AU, CCH and Jade BarNet). In 2017–18, 109 decisions of the Court were published in commercial law report series, including the Federal Law Reports, Family Law Reports, Australian Industrial Law Reports and Australian Bankruptcy Cases.

The Court also publishes a link to the AustLII version of the judgment on its own website (the latest judgments are at www.federalcircuitcourt.gov.au).

A significant number of the Court’s decisions are delivered ex-tempore at the conclusion of the hearing or soon after. Not all of these judgments are settled into written reasons due to the additional time required for this task.

Efforts are made to increase the number of family law decisions externally published on AustLII and commercial databases, however s 121 of the Family Law Act 1975 imposes an additional requirement on the Court in regard to these judgments. This section stipulates that published decisions of family law matters must not reveal, among other details, the identity of parties, children or associated persons to the proceedings. The judgments office devotes a significant amount of time sanitising family law and child support decisions so that they are suitable to be published.

In 2017–18, approximately 580 family law decisions were published externally.

Analysis of performance – registry services

Family law registries

There are 18 family law registries in every state and territory (except Western Australia). Family law registries are managed by the FCC but provide services to both the FCoA and the FCC. The FCC has run and managed the family law registries since 1 July 2016.

The key functions of the registries are to:

  • provide information and advice about court procedures, services and forms, as well as referral options to community organisations that enable clients to take informed and appropriate action
  • ensure that available information is accurate and provided in a timely fashion to support the best outcome for clients
  • encourage and promote the filing of documents and management of cases online through the Portal
  • enhance community confidence and respect by responding to clients’ needs and assisting with making the court experience a more positive one
  • monitor and control the flow of cases through file management and quality assurance
  • schedule and prioritise matters for court events to achieve the earliest resolution or determination
  • manage external relationships to assist with the resolution of cases, and
  • assist in the evaluation of caseloads by reporting on trends and exceptions to facilitate improvements in processes and allocation of resources.

Counter enquiries

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. Registry service staff provide an efficient and effective service when dealing with litigants in person and the legal profession face-to-face at registry counters across Australia.

In 2017–18, the registries dealt with around 181,160 counter enquiries from clients or other people seeking information face-to-face. This compares to 199,696 counter enquiries in 2016–17.

The decrease in the number of people visiting court registries may be attributed to the removal of cheques as a payment option for fees, the successful implementation of electronic sign, seal and upload of orders onto the Portal, increased use of eFiling, and continuing improvements to website information.

In 2017–18, an estimated 93 per cent of clients were served within 20 minutes, against a target of 75 per cent. This is consistent with service times in 2016–17.

Document processing

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 (98 per cent of applications were processed within that timeframe).

National Enquiry Centre

The NEC continued to provide family law telephone, email and live chat support services to the FCoA and FCC in 2017–18.

The NEC’s responsibilities include:

  • first telephone contact to the courts via the 1300 number
  • first email contact to the courts via enquiries@familylawcourts.gov.au and support@comcourts.gov.au
  • first contact to the courts via live chat
  • a large proportion of telephone and email contacts from existing parties, lawyers and other court stakeholders
  • support for users of the Portal including the Family Court of Western Australia and the FCA
  • after hours service
  • printing of divorce orders
  • printing of event-based fee statements
  • processing of proof of divorce requests, and
  • Twitter notifications of procedural and registry information.

Enquiries are received via three public channels: telephone via the 1300 number; emails; and live chat. The NEC’s focus is to provide parties and stakeholders with appropriate information as efficiently and simply as possible through these channels.

Callers to the 1300 number are provided with general background and support information in a welcome message before being placed in a queue for the next available operator. Emails and live chats are monitored by staff trained in responding to written requests. With the growth of Portal registrations, Portal support was a major factor contributing to the work of the NEC in 2017–18.

The NEC regularly refers parties to various stakeholders including 1800 Respect, Family Relationships Advice Line (FRAL), legal aid, government agencies and community legal centres. The NEC maintains a close relationship with FRAL and legal aid centres and regularly consults with them.

The NEC continued its commitment to support staff in their work and encourages a collaborative workplace by:

  • providing ongoing coaching and training
  • enhancing wellbeing by providing ergonomic training assessment to all staff
  • providing peer support and mentoring
  • ensuring information and knowledge management systems are up-to-date, and
  • holding regular meetings with staff to provide a two-way process of information flow.

Summary of NEC performance

  • The NEC received a total of 272,040 calls (down from 288,276 in 2016–17).
  • The NEC did not meet the key performance indicator (KPI) for the percentage of calls answered within 90 seconds. The NEC achieved a service level of 18 per cent, down from 20 per cent in 2016–17.
  • Callers waited an average of 10 minutes and 51 seconds for their call to be answered (compared to eight minutes and 56 seconds in 2016–17).
  • The average length of a call was five minutes and 45 seconds (compared to five minutes and 14 seconds in 2016–17).
  • Of the calls received by the NEC, 36,636 calls were for Portal support – an increase of 6456 calls from 2016–17.
  • 78 calls were transferred to a family law registry. NEC staff are aware of the importance of completing transactions at the first point of contact and only transfer calls when absolutely necessary.
  • 151 calls were received to the after hours service.
  • 40 per cent of calls were abandoned while queued (this number is now calculated differently and reflects a call abandoned immediately after queuing).
  • 91,704 live chats were received in 2017–18, an average of 362 per day.
  • 11,880 proof of divorce requests were processed.
  • 60,120 emails were sent in response to a telephone enquiry.
Table 3.10: National Enquiry Centre performance, 2013–14 to 2017–18

KPIs and internal targets

2013–14

2014–15

2015–16

2016–17

2017–18

80% of calls answered within 90 seconds

28%

34%

24%

20%

18%

Less than 10% of calls transferred to a registry*

1%

1%

1%

1%

1%

80% of emails answered within two days

100%

100%

100%

100%

100%

*Internal NEC target.The work of the Court in 2017–18