The Court's performance

Outcome and program

The Court's outcome and program framework sets out its commitments to the Government. Each year, details of the framework are outlined in the Portfolio Budget Statements, along with relevant performance information. Government outcomes are the intended results, impacts or consequences of actions by the Government on the Australian community.

Agencies deliver programs, which are the Government actions taken to deliver the stated outcomes. Agencies are required to identify the programs that contribute to government outcomes over the Budget and forward years.

Outcome

The Federal Magistrates Court's outcome is:

OUTCOME 1

To provide the Australian community with a simple and accessible forum for the resolution of less complex disputes within the jurisdiction of the Federal Magistrates Court of Australia.

Program

The Court has a single program under which all services are provided:

PROGRAM 1.1

Provision of a Federal Magistrates Court

The Federal Magistrates Court's program objective is to provide a simple and accessible alternative to litigation in the Family Court and the Federal Court. Where practical, parties are encouraged to resolve their disputes through dispute resolution and negotiation methods.

Summary of performance

Table 3.1 summarises the Court's results in delivering services against the key performance indicators (KPIs) and deliverables, published in the 2011-12 Portfolio Budget Statements.

Table 3.1 Deliverables and key performance indicators, 2011-12 Portfolio Budget Statements

Deliverables

Performance

Number of cases litigated and divorce cases processed

In 2011-12, the Court litigated 92,542 cases.

KPIs*

Performance

Time goal: the time taken from filing to disposition is less than six months in 90 per cent of cases.

In 2011-12, 83 per cent of all applications (family law and general federal law) were completed within six months and 95 per cent were completed within 12 months.

In family law, 84 per cent of applications were completed within six months and 95 per cent were completed within 12 months.

98 per cent of divorces were completed within six months and 100 per cent were completed within 12 months.

In general federal law, 78 per cent of applications were completed within six months and 94 per cent were completed within 12 months.

Performance goal: less than one per cent of cases litigated or divorces processed are subject to complaint

In 2011-12, the number of complaints represented 0.16 per cent of cases.

Performance goal: 60 per cent of matters are resolved before trial

In 2011-12, 70.5 per cent of matters filed were resolved without the need for judicial determination.

*The wording of this measure differs slightly from the PBS to better reflect the intent of the measure

Historic performance against KPIs

The Court has three KPI's against which it is reporting in 2011-12. The Court also reported on the same KPIs for the periods 2009-10 and 2010-11. In each of these periods, including 2011-12, the Court achieved two of the three KPIs.

The Court aims to complete 90 per cent of all applications filed within six months and was short of achieving this target in 2011-12, achieving 83 per cent. The Court has continued developing strategies to achieve this key performance indicator in the future including:

  • the continued development of operational reports that enable the Court to better understand its workload
  • focusing on the accuracy of data entry to ensure that reports truly reflect the position of the Court
  • the ongoing review of the Court's oldest active cases with a view to ensuring an understanding of the reasons for delay and deciding how older cases may be dealt with more quickly, and
  • Case Management Federal Magistrates collectively work on improving the performance of the Court on a national and regional basis.

During 2011-12, the Court continued to meet the two performance goals of:

  • Less than one per cent of matters litigated being subject of a complaint, and
  • 60 per cent of matters resolved before trial.

Developments since the end of the financial year

There have been no specific developments since June 2012 that require reporting here.

Workload

Figure 3.1 Family law and general federal law applications filed 2011-12

Family law

Total

% of total

Final orders

17,415

19

Interim orders

20,332

22

Divorce

46,031

50

Other

1771

2

Total family law

85,549

93

General federal law

   

Bankruptcy

4590

5

Migration

1464

1

Other

939

1

Total general federal law

6993

7

Grand total

92,542

100%

Pie chart showing Migration 1%, Bankruptcy 5%, Other (family) 2%, Divorce 50%, Final Orders 19%, Interim orders 22% and Other (General federal) 1%

Case management

The Court uses a docket case management process designed to deal with applications in a flexible and timely way. The docket case management process has the following principles:

  • matters are randomly allocated to a federal magistrate 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 federal magistrate 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 federal magistrate'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
  • it allows issues to be identified quickly and promotes earlier settlement of matters.

Figure 3.2 Case management approach

Flowchart showing Case Management Approach (Docket System)

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 a federal magistrate 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, copyright and bankruptcy)
  • Migration and administrative law
  • Human rights
  • Industrial law
  • National security
  • Admiralty law
  • Child support.

The panel arrangements equip the Court with the ability to effectively utilise judicial resources in specialist areas of family and general federal law. They are an essential element of continuing judicial education within the Court.

Report on work in family law

The family law workload of the Court in 2011-12 represented 93 per cent of all applications filed with the Court, remaining at the same levels as in 2010-11. The Court currently deals with 85 per cent of all federal family law matters filed (excluding Western Australian family law matters). This compares to 86 per cent in 2010-11 and 82 per cent in 2009-10.

During the year, the Government announced that the proposed merger of the Federal Magistrates Court and Family Court would not proceed. The Attorney-General has indicated that she will be considering, in consultation with the courts, more clearly defined and articulated roles in relation to the apportionment of shared work and jurisdiction. The family law jurisdiction of the Federal Magistrates Court is almost as extensive as the Family Court.

Figure 3.3 Family law applications filed by type, 2011-12

Application

Filed

%

Final Orders applications

17,415

21

Interim applications

20,332

23

Divorce applications

46,031

54

Other applications

1771

2

Total

85,549

100

Figure 3.3 (continued) Family law applications filed by type, 2011-12

Figure 3.3 Family law applications fi led by type, 2011–12

Figure 3.4 Issues sought in Final Order applications, 2011-12

Figure 3.4 Issues sought in Final Order applications, 2011–12

The family law workload (excluding divorce) can be broken into three categories. During 2011-12, 54 per cent of family law applications related specifically to matters concerning children; a further 11 per cent involved both children and property and 35 per cent involved discrete property applications.

A discrete aspect of property applications is the defacto property jurisdiction which has continued to increase, with 1042 applications having been filed in the Court during the reporting year compared with 810 during 2010-11.

Figure 3.5 De facto property only orders sought, 2007-08 to 2011-12

Figure 3.5 De facto property only orders sought, 2007–08 to 2011–12

Figure 3.6 Final order applications, 2007-08 to 2011-12

Figure 3.6 Final order applications, 2007–08 to 2011–12

Figure 3.7 Interim order applications, 2007-08 to 2011-12

Figure 3.7 Interim order applications, 2007–08 to 2011–12

Legislative amendments in family law

The Family Law Amendment (Validation of Certain Orders and Other Measures) Act 2012 retrospectively validated de facto property and maintenance orders made by the Court and the Family Court. A proclamation should have been made in early 2009 to enable the courts to validly make these orders.

The family violence provisions of the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 commenced on 7 June 2012. The aim of these legislative provisions is to give greater legislative emphasis to family violence in the context of parenting disputes. The amendments include, amongst others, an expanded definition of family violence and child abuse and new provisions which requires the courts, when determining what is in a child's best interests, to give greater weight to the primary consideration that protects the child from harm in cases if there is inconsistency in applying the considerations.

On 22 July 2012, the National Justice Chief Executive Officers' Group approved a project plan for the development of national initiatives to improve collaboration between the federal family courts and child welfare authorities to better protect children. The Federal Magistrates Court is very supportive of this initiative and representatives attended various national stakeholder meetings to further identify barriers and improve the interface between the systems. Most parenting applications are commenced in the Federal Magistrates Court and various reports have highlighted the prevalence of family violence and child abuse allegations raised in parenting proceedings. It is important that the Court has access to information of any child welfare involvement at an early date. Representatives from court have set up local links with the state and territory child welfare agencies to better facilitate information exchange.

Divorce

Other than in Western Australia where divorce is undertaken by the Family Court of Western Australia, almost all divorce applications filed in Australia proceed in the Federal Magistrates Court. Uncontested divorce applications are heard by registrars (both sessional and in-house) with delegated powers. The Court appreciates the role that registrars play in efficiently dealing with the high volume of divorce applications.

A total of 46,031 divorce applications were filed with the Court in 2011-12. This was an increase on the 44,964 applications filed in 2010-11 but lower than the 47,174 applications filed in 2009-10.

Subsection 55(5) of the Family Law Act was replaced with a new provision which expressly provides that a review of a registrar's decision falls within the definition of appeal with the effect that an application for review will stay the operation of a divorce order which has been pronounced but not yet come into effect: see Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 Act No. 189, 2011, Sch 2 Pt 1 Item 9.

The jurisdiction is one which attracts a significant number of self-represented litigants. Information is available which sets out the process and aims to assist litigants by way of a step-by-step kit. Many divorce enquiries are directed to the NEC which sends out more than 1000 kits by post and email every month. The NEC explains the requirements for filing, service and court attendance to callers. The role of the NEC in assisting with queries in respect to divorce is acknowledged and appreciated.

On 26 September 2009, the courts implemented the capacity for litigants to file divorce applications electronically via the CCP. The process for lodging applications was part of the evolution of electronic filing and built on the courts' capacity to file supplementary documents electronically. The development of the eFiling process has been staged over several years, with divorce applications being the first application type available for electronic filing. This provides an additional option for litigants, particularly those in rural and regional areas who may not be able to attend in person at a registry.

The trend towards eFiling applications has continued to increase, with 9493 applications filed in 2011-12 via the CCP as opposed to 6765 in 2010-11. On average, 663 divorce applications were eFiled per month in 2011-12. There are clear benefits to litigants in being able to eFile their application, including the ability to lodge an application without having to physically attend a registry.

All divorce orders are generated electronically and in an enhanced quality with improvements having been made to the appearance of the order. Registered users of the CCP are able to download a copy of their divorce order from the CCP upon it becoming final.

The Court does not have jurisdiction in relation to Applications for Declarations of Validity of a Marriage or Annulment. The conferral of this jurisdiction is seen as desirable to complement the divorce workload of the Court.

Figure 3.8 Divorce applications, 2007-08 to 2011-12

Figure 3.8 Divorce applications, 2007–08 to 2011–12

Child support

As noted in previous annual reports, there are differing pathways by which child support matters come before the Court and differing layers of review and remedies depending upon the pathway. There would appear to be scope for greater consistency in child support review processes.

Since 1 January 2007, the Social Security Appeals Tribunal (SSAT) is the forum for external review for most decisions of the Child Support Agency (now known as the Child Support Program). The Court has limited first instance child support jurisdiction, but hears appeals from the SSAT. An appeal lies only on a question of law and is not a merits review of the SSAT decision. The Court has established a panel of federal magistrates to hear such appeals. The convenor of the panel, Federal Magistrate Halligan, addressed members of the profession during the year on Child Support Remedies as part of a continuing education program.

A limited number of child support matters come to the Court in respect of a Departure Prohibition Order for which there are no internal objection processes but provision for appeal to the Federal Magistrates Court or the Federal Court.

During 2011-12, there were 29 appeals from the SSAT filed. This compares with 48 appeals filed during 2010-11.

The obligation on the SSAT to provide documents to the Court is a narrower obligation than the obligation imposed on the Administrative Appeals Tribunal (AAT) which is required to send all documents that were before the Tribunal, rather than just those documents that are relevant to the appeal. While there are not infrequent difficulties in establishing the basis of an appeal from the notice filed, the Court is mindful that a significant number of litigants who appear before the Court in relation to child support appeals are not represented. Consistent with the legislative mandate, federal magistrates have sought to adopt processes and procedures which facilitate access to the Court and have set up arrangements with the SSAT for the provision of documents. A prescribed brochure is required to be served on a respondent which sets out information to assist litigants.

A few child support matters come before the Court by way of the Court's other administrative law remedies.

A significant component of the enforcement work of the Court is in respect of recovery proceedings for child support arrears.

During the year a representative from the Court attended the Child Support National Stakeholder Engagement Group meetings at which recent developments were discussed.

Included within amendments to the Rules which came into effect on 25 May 2012, was a new Part 2 of Schedule 1 (costs) being specific fixed costs for child support appeals and enforcement proceedings: Federal Magistrates Court Amendment Rules 2012 (No 1).

Report on work in general federal law

Filings in general federal law continue to represent seven per cent of all filings in the Court.

A total of 6693 matters were filed in the Court's general federal law jurisdiction in 2011-12, with 6787 matters finalised within the reporting period. Of the finalised matters, 5301 (78 per cent) were completed within six months. A total of 6388 matters, (94 per cent) were completed within 12 months.

Figure 3.9 General federal law applications filed by type, 2011-12

Application

Filed

%

Bankruptcy

4590

65.64

Migration

1464

20.94

Administrative law

15

0.21

Admiralty law

7

0.10

Consumer law

56

0.80

Intellectual property

44

0.63

Human rights

81

1.16

Industrial

736

10.52

Total

6993

100

Figure 3.9(continued) General federal law applications filed by type, 2011-12

Figure 3.9 General federal law applications filed by type, 2011–12

Administrative

The number of applications for judicial review filed in the Court by way of the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) are very small. A total of 15 applications were filed in 2011-12. Most judicial review matters come to the Court by way of a challenge to statutory appeal rights under the Migration Act which fall outside the ambit of the ADJR Act statutory review mechanisms.

In relation to appeals on questions of law from the AAT, the jurisdiction of the Court is limited to matters remitted from the Federal Court and precludes appeals from decisions of the AAT constituted by a presidential member.

In a consultation paper released by the Administrative Review Council, the future direction of judicial review was examined and, in particular, questions were raised as to:

  • the need for statutory review mechanisms, both general and specific, in light of the fact that constitutional judicial review is entrenched and cannot be excluded by legislation
  • the ambit and provisions of a general statutory review scheme, if such a scheme is to be effective, and
  • the general principles that should to apply to any statutory review scheme, and guidance as to whether and when specific statutory review mechanisms are appropriate.

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 and revisit the restriction on the need for remittal of AAT appeals in respect of appeals such as those relating to child support.

Admiralty

There were seven admiralty law applications commenced in the Court during 2011-12. The jurisdiction is confined to actions in personam maritime claims or claims for damage to a ship. There is, however, provision for remittal of in rem proceedings from the Federal Court or Supreme Court.

The conduct of admiralty law proceedings is confined to panel federal magistrates. The Court has issued a notice to practitioners entitled Conduct of Admiralty and Maritime Work in the Federal Magistrates Court of Australia which is available from the Court's website at www.fmc.gov.au

The notice to practitioners clarifies that the use of Federal Court forms constitutes sufficient compliance with the admiralty proceedings form requirements in the Federal Magistrates Court Rules. Additionally, the Federal Magistrates Court has arranged for all of its general federal law forms to be available from its website in unprotected format to enable practitioners to make changes to the Federal Magistrates Court General Federal Law Application to comply with any requirements under the Admiralty Rules.

The jurisdiction can raise issues of private international law. Treaties impacting on recognition and enforcement of judgments have been entered into prior to the establishment of the Court. Though a court of record, the Court is not a superior court and its judgments may not be automatically enforced in foreign jurisdictions. In view of the international nature of admiralty law, any incapacity in respect of the recognition or enforcement of the Court's judgments is an impediment.

Bankruptcy

While the Court has concurrent jurisdiction with the Federal Court under the Bankruptcy Act 1966, most applications under this head of jurisdiction are filed in the Federal Magistrates Court and dealt with by registrars with certain delegated powers. The Court appreciates the significant role that registrars play in the bankruptcy jurisdiction.

Bankruptcy applications continue to comprise a significant proportion of the general federal law work of the Court at 66 per cent. The filings in respect to bankruptcy matters have fallen since 2009-10 when 5402 applications were filed with the Court. In 2010-11 a total of 4843 applications were filed and 4590 in 2011-12.

Figure 3.10 Bankruptcy applications filed and finalised, 2007-08 to 2011-12

Figure 3.10 Bankruptcy applications fi led and fi nalised, 2007–08 to 2011–12

The types of bankruptcy matters being filed includes applications for sequestration orders in respect of acts of bankruptcy, annulment applications and discharges as well as matters arising from the administration of bankrupt estates. There are also personal powers under the Bankruptcy Act 1966 that eligible federal magistrates can exercise for the issue of a warrant for seizure of property connected with a bankruptcy.

In view of the shared bankruptcy jurisdiction, the Federal Magistrates Court and the Federal Court have harmonised bankruptcy rules and forms. In addition both courts participate in regular liaison meetings with representatives from Insolvency and Trustee Services Australia (ITSA) to discuss current issues and significant case law.

Amendments to the Federal Magistrates Court (Bankruptcy) Rules 2006 came into force on 1 January 2012 by way of the Federal Magistrates Court (Bankruptcy) Amendment Rules 2011 (No 1). These amendments were as a consequence of amendments made by the Bankruptcy Legislation Amendment Act 2010 and Bankruptcy Amendment Regulations 2010 (No 1); and to the Federal Court Rules 2011.

A practice notice was issued, Ex Parte Applications for Substituted Service in Bankruptcy Proceedings and Applications for Examination Summonses Under section 81 of the Bankruptcy Act 1966. This practice notice commenced on 6 February 2012 in conjunction with a practice notice issued by the Federal Court for hearing and deciding these matters using the Federal Court eCourt procedures.

The Personal Property Securities Register, administered by ITSA, commenced operation on 30 January 2012. The Federal Magistrates Court and a number of other Australian courts have jurisdiction (subject to limits) for parties wishing to enforce their rights under a secured agreement: see s.207 Personal Property Securities Act 2009. During the year, the Registrar of Personal Property Securities, Mr David Bergman, gave an address to Melbourne bankruptcy panel federal magistrates, outlining aspects of the new personal property securities regime.

The conferral of some corporations law jurisdiction, at least in respect of corporate insolvency, is seen as desirable to complement the significant personal bankruptcy jurisdiction exercised.

Consumer

During 2011-12 there were 56 consumer law applications filed as opposed to 89 in 2010-11.

The Court's consumer jurisdiction has a statutory limit of $750,000 on the amount of damages that the Court can award. This limitation may impact on the small volume of consumer law matters that are commenced in the Court.

Following the transfer of the regulation of credit to the Commonwealth, some of the bodies that previously dealt with such matters no longer have a formal regulatory function. A consumer credit user group meeting was convened in Melbourne to consider issues of accessibility to the Court of the jurisdiction. It was noted that there is currently no reduction in fees for the smaller credit claims and this was seen as a possible impediment to filing. In addition, dispute resolution processes are in place to provide internal and external dispute resolution with courts only being contemplated when these processes are unable to resolve the matter or where such processes are not considered appropriate.

Copyright

The intellectual property jurisdiction of the Court has been extended to include trade mark and design but not patents. The Intellectual Property Laws Amendment (Raising the Bar) Act 2012 will commence 15 April 2013 and includes amendments conferring jurisdiction under the Designs Act 2003 and the Trade Mark Act 1995. The Court will have jurisdiction to hear appeals against decisions, directions and orders of the registrar but will not be able to hear an appeal from another court.

The Court has specialist panels to deal with this head of jurisdiction.

The protection of copyright in a digital environment presents some challenges and has been the focus of recent decisions: Roadshow Films Pty Ltd & Ors v iiNET Limited [2012] HCA 16; SSSingtel Optus Pty Ltd v National Rugby League Investments Pty Ltd (No 2)[2012] FCA 34. On 30 March 2012, the Attorney-General's Department released draft terms of reference for the Australian Law Reform Commission to inquire into the operation of copyright exceptions in the digital environment. The Attorney-General noted that the draft terms of reference were reflective of the constantly evolving technology which tested the boundaries of copyright law.

During the year the Court considered action over alleged copyright infringement of moral rights in the integrity of authorship of a work. In Perez v Fernandez [2012] FMCA 2, the Court found such an infringement by the unauthorised mixing of a promotional recording into a song. The Court had earlier considered infringement of moral rights in Meskenas v ACP Publishing Ltd [2006] FMCA 1136.

The Federal Magistrates Court provides all material (unless otherwise noted and with the exception of the Coat of Arms) with Creative Commons Attribution-NoDerivs 3.0 Unspotted licensing. Material may be distributed, as long as it remains unchanged and the Court is credited as the creator. Australia is one of over 50 countries who has taken up the Creative Commons (CC) project. The use of CC licensing puts the Court among those government agencies embracing open licensing of public sector information.

Human rights

The human rights workload comprises a small but significant component of the overall general federal law workload of the Court. In 2011-12, a total of 81 applications were filed, as opposed to 94 in 2010-11.

Figure 3.11 Human rights applications filed and finalised 2007-08 to 2011-12

Figure 3.11 Human rights applications fi led and fi nalised 2007–08 to 2011–12

In the context of discrimination in the workplace, there are alternative remedies that can be pursued by way of Fair Work Act provisions. It is noted that proceedings under the Australian Human Rights Commission Act 1986 are subject to the genuine steps statementrequirement under the Civil Dispute Resolution Act 2011. This is so even though there is a requirement for conciliation as a condition precedent to applying to the Court and notwithstanding that parties raising these issues seeking remedies under the Fair Work Act 2009 are excluded from such an obligation.

The Human Rights (Parliamentary Scrutiny) Act 2011 passed on 25 November 2011 and commenced on 4 January 2012. The Act introduces a requirement for Statements of Compatibility to accompany all new Bills and disallowable legislative instruments and establishes a new Parliamentary Joint Committee on Human Rights. During the year, officers from the Court attended the launch of the Australian Public Service Human Rights Officers Network which aims to foster human rights awareness in the Commonwealth public sector.

The Government has indicated an intention to consolidate Commonwealth anti-discrimination laws into a single Act and launched a discussion paper with the aim of draft legislation being released for public consultation later in 2012: Consolidation of Commonwealth Anti-Discrimination Laws Discussion Paper. The discussion paper considers the current complaints and compliance framework with discussion around the Court process.

The Age Discrimination Act 2004 was amended in May 2011 to create an office for an Age Discrimination Commissioner within the Australian Human Rights Commission and on 30 July 2011, an Age Discrimination Commissioner was announced.

Legislation to establish a National Children's Commissioner within the Australian Human Rights Commission was introduced into Parliament on 23 May 2012. The Australian Human Rights Commission Amendment (National Children's Commissioner) Bill 2012 provides for the Children's Commissioner to take a broad advocacy role to promote public awareness of issues affecting children, conduct research and education programs, consult directly with children and representative organisations as well as monitor Commonwealth legislation, policies and programs that relate to children's rights, wellbeing and development.

Industrial

The industrial law jurisdiction of the Federal Magistrates Court is attracting an increasing proportion of the industrial law filings in the federal courts. In 2011-12, 736 applications were filed representing 10.52 per cent of the Court's general federal law workload. In 2010-11, there were 561 applications representing 8.47 per cent of the Court's workload. There continues to be a steady increase in the filings in the industrial jurisdiction of the Court.

Figure 3.12 Industrial law matters filed and finalised 2007-08 to 2011-12

Figure 3.12 Industrial law matters fi led and fi nalised 2007–08 to 2011–12

The jurisdiction is being expanded which may have workload impacts. The cumulative impact on judicial and registrar resources is an issue which will need to be monitored.

The Fair Work Amendment (Textile, Clothing and Footwear Industry) Act 2012 commenced 1 July 2012. Under this Act the Court can hear proceedings relating to the recovery of unpaid amounts from entities up the supply chain. This could impact on existing workload and the conduct of small claims and other matters in the Court's general industrial law jurisdiction.

The Road Safety Remuneration Act 2012 commenced 1 July 2012. This Act inter alia establishes a compliance regime and confers compliance powers and will be analogous to the enforcement jurisdiction conferred on the federal courts by the Fair Work Act 2009(the FW Act) and the Independent Contractors Act 2006.

The Work Health and Safety Act 2011 came into force on 1 January 2012. The Act gives the Federal Magistrates Court and the Federal Court a broad jurisdiction in any civil proceedings under the Act concurrent with state/territory courts. The Act makes provision for certain applications to be exercised in the Fair Work division of the Court.

From 1 June 2012, the Building and Construction Industry Improvement Act 2005 became known as the Fair Work (Building Industry) Act 2012. The Federal Magistrates Court no longer has jurisdiction in relation to matters arising under the Act.

In the area of the small claims jurisdiction under the Fair Work Act there has been a steady increase in filing particularly in the Melbourne and Sydney registries. The Court has established a pilot to deal with these matters in a summary way. Sessional registrar resources have been made available to facilitate settlement with contested matters going before a federal magistrate. Staff from the Fair Work Ombudsman have been available to provide assistance to litigants. The success of this model, which was first piloted in the Melbourne registry, is such that the Court has extended the model to the Sydney registry.

The Court's jurisdiction and less formal legislative mandate means that a significant number of parties present as self-represented litigants. It is pleasing that representatives from the Court have been involved in a project of LawAccess NSW in the preparation of resource material about general protections dismissal proceedings for self-represented litigants.

In 2012, a review of the Fair Work Act 2009 was established following a commitment made during passage of the Bill to review the operation of the legislation two years after it was fully implemented (that is, 1 January 2012). While the terms of reference did not extend to matters impacting on the Court process, some questions were formulated for those making submissions which touched on the institutional framework.

There is a degree of overlap with this area of jurisdiction and the human rights jurisdiction.

The scope of adverse action claims is the subject of a reserved High Court decision in Board of Bendigo Regional Institute of Technical and Further Education v Barclay and Anor with some clarification of what is an objective versus a subjective test.

Migration

The 2011-12 financial year has seen a significant increase in migration applications with 1464 applications filed. This included 419 applications offshore entry applicants. This reverses a downward trend from a peak in the filings in 2007-08. See table 3.13.

The migration workload within the total general federal law workload for the 2011-12 financial year comprised approximately 20.7 per cent of all matters as opposed to 14.5 per cent in 2010-11. Excluding bankruptcy filings (4641 matters) that are predominantly managed by registrars, migration filings represent approximately 60 per cent of the general federal law workload.

A total of 1175 matters were finalised in the reporting period. Of the matters finalised, 71 per cent of matters were finalised within six months and 98 per cent within 12 months. The average number of days taken to finalise the migration applications is 150.

As at 30 June 2012, the Court had 717 migration applications pending with 75 per cent of these matters being less than six months old and 95 per cent less than 12 months.

Figure 3.13 Migration matters filed and finalised 2007-08 to 2011-12

Figure 3.13 Migration matters fi led and fi nalised 2007–08 to 2011–12

Judicial review of migration decisions is generally confined to the Federal Magistrates Court with the role of the Federal Court being largely appellate. The Migration Act confers on the Court the same jurisdiction in relation to migration decisions as the High Court under the Constitution s 75(v) and the High Court has power to remit any migration matter commenced in its original jurisdiction that falls within the jurisdiction of the Court. The migration workload is increasing following the High Court decision in Plaintiff M61/2011E andPlaintiff M69 of 2010 v Commonwealth of Australia (2010) 243 CLR 319 which extended judicial review to offshore entry persons. During the year, two additional federal magistrates were appointed to cope with expected additional caseload. The Court expects increasing challenges in meeting its performance targets in light of the increasing caseload the tribunals are experiencing with backlogs and delays.

The Court seeks to actively manage the migration workload which is currently confined to panel members. However as the workload is expected to continue to increase, additional federal magistrates may be assigned if the need arises. Although not frequently used, there is provision in Part 44 of the Federal Magistrates Court Rules 2001 for a show cause hearing and the Court has power to dismiss at an early stage if not satisfied that the application raises an arguable case.

In the Melbourne registry the Court is assisted in the management of the migration workload by registrars who make directions at the first court event. Duty lawyers from Victorian Legal Aid are also in attendance to assist unrepresented applicants. The Court is grateful for this assistance and for the considerable pro bono contribution of the profession which is facilitated through organisations such as PILCH.

The hearing of offshore entry applicants who are in remote detention, presents significant challenges for the Court. These challenges were noted by Professor John McMillan AO in his Report to the Minister for Immigration and Citizenship which was released during the year. The provision of legal representation to such applicants greatly assists the courts with the effective resolution of such cases and this was noted in the report. Efforts have been made during the year to continue regular liaison between court administration and departmental officers with a view to managing this particular issue.

On 25 November, the Government announced a decision to process all offshore entry persons onshore while placing them in the community on bridging visas where possible. It also announced that a single review process would be established through the Refugee Review Tribunal with the process of reviews by the Independent Protection Assessment Officer ceasing once their current workload had been completed. This new review process commenced on 24 March 2012 being the same date as the commencement of complementary protection legislation: Migration Amendment (Complementary Protection) Act 2012. This legislation amended s 36 of the Migration Act to produce a statutory regime for assessing claims that may engage Australia's non-refoulement obligations under various human rights treaties other than the Refugee Convention. It is expected that the complementary protection legislation will impact on the complexity of the cases coming before the courts due to the new legislative texts introduced.

There have been a number of significant Federal Court and High Court decisions impacting on the migration jurisprudence.

In Plaintiff M70/2011 v Minister for Immigration; Plaintiff M106/2011 v Minister for Immigration (2011)280 ALR 18; {2011] HCA 32, the majority of the High Court found that the Minister's declaration of Malaysia as a ‘specified country' in the context of s 198A of theMigration Act, had been made beyond power. The legislative response to this decision by way of the Migration Legislation Amendment (Offshore Processing and Other Measures) Bill 2011 failed to gain legislative support.

In addition there are a number of High Court reserved migration decisions which have the potential to impact on the workload of the Court. This branch of administrative law is often illustrative of the tension between legislative measures to constrain migration litigation and rule of law principles.

Personal Powers

The following Acts confer non-judicial functions on federal magistrates who have consented and been approved to exercise issuing functions:

  • Australian Crime Commission Act 2002
  • Anti-Terrorism Act (No 2) 2005
  • Australian Security Intelligence Organisation Act 1979
  • Bankruptcy Act 1966
  • Criminal Code Act 1995
  • Extradition Act 1988
  • Inspector of Transport Security Act 2006
  • Law Enforcement Integrity Commissioner Act 2006
  • Mutual Assistance in Criminal Matters Act 1987
  • National Vocational Education and Training Regulator Act 2011
  • Product Stewardship Act 2011
  • Surveillance Devices Act 2004
  • Telecommunications (Interception and Access) Act 1979
  • Tertiary Education Quality and Standards Agency Act 2011, and the
  • Tobacco Plain Packaging Act 2011.

Delivery of judgments

Judgments

During 2011-12, a total of 2277 judgments of the Court were settled into a written format. This compares with 2313 during the previous year. While a significant number of the Court's decisions are delivered orally at the conclusion of a hearing or soon after, not all oral decisions are then settled in writing in view of the additional time that is required for this task. In addition, the need to anonymise family law decisions imposes an additional resource impost. However the Court is conscious of the important public interest in disseminating its decisions widely and in addition to ensuring most written decisions are available from the Australian Legal Information Institute's (AustLii) website, it also distributes to a wide range of external stakeholders. Members of the public can subscribe via the Court's website and receive regular updates of decisions when posted on www.fmc.gov.au. It is pleasing that during the year 143 judgments of the Court were published in law reports.

The legislative requirement of the Court to proceed without undue formality does not detract from the requirement for the provision of adequate reasons. However the judgment writing task is an onerous one in view of the significant sitting workload of federal magistrates. While many decisions are delivered orally at the conclusion of a final hearing, there are instances where decisions will necessarily involve more consideration and are reserved.

The Court has set a benchmark of three months for the delivery of reserved decisions. It is of regret that while 69 per cent of reserved decisions are delivered within the three month benchmark the Court has set, there are still a significant proportion delivered outside the benchmark and complaints in relation to reserved decisions comprise the largest category of overall complaints received. The Chief Federal Magistrate is seeking to actively monitor reserved decisions in view of this and is mindful of the need for federal magistrates to set aside adequate judgment writing time.

The role that AustLii in hosting the decisions of the Court is acknowledged, and in view of this the Court has continued to provide support with funding of $25,000 this financial year.

Table 3.2 Family law judgments available in written format in 2011-12

Jurisdiction

Number of judgments

Child support

70

Family law

1228

Total in family law

1292

Of the 1292 judgments relating to family law and child support, 562 were anonymised and published on the AustLii website.

Table 3.3 General federal law judgments available in written format in 2011-12

Jurisdiction

Number of judgments

Administrative law

11

Bankruptcy law

161

Consumer law (formerly trade practices)

15

Human rights

14

Industrial law

124

Migration

660

Total in general federal law

985

During 2011-12, 143 judgments of the Court were published in law reports. This figure is broken down into areas of jurisdiction as set out in Table 3.4 below.

Table 3.4 Judgments published in law reports by jurisdiction, 2011-12

Jurisdiction

Number of judgments published

Administrative law

2

Bankruptcy law

40

Consumer law (formerly trade practices)

3

Family law

18

Human rights

2

Industrial law

46

Migration

32

Total judgments published

143

Dispute resolution in family law

In family law matters, parties may be ordered to attend any or a combination of dispute resolution services. The aim is to assist parties to reach agreement, identify or limit issues in dispute and ultimately provide assistance to the Court in respect to case management and judicial decision making.

In parenting matters dispute resolution services include privileged dispute resolution, family counselling and/or parent education programs which are provided by external community-based organisations (see administered appropriation below).

In the past family consultants provided in-house privileged dispute resolution services however these are now provided in the community sector. The role of family consultants has changed and they now assist parties and the Court by providing various services pursuant to s11F of the Family Law Act 1975. These services include child dispute conferences and child inclusive conferences however the primary focus is no longer on resolution.

The purpose of s11F interventions is to:

  • provide expert advice which will assist and inform the Court in making interim orders, establishing the most appropriate case management path within the Court, and identifying and (where possible) facilitating appropriate community resources, and
  • assist parties to resolve their dispute when (and if) possible.

The process necessitates making an assessment which is, by definition, both preliminary and limited in scope, and includes a preliminary assessment in relation to risk for children and/or parties

In financial matters the Court:

  • offers privileged conciliation conferences conducted by registrars of the Court
  • offers privileged conciliation and/or mediation in appropriate property matters via the Administered Appropriation (see below), and
  • refers appropriate matters to private mediation.

In 2011-12, registrars held 5072 conciliation conferences and settled 1826 of these matters.

Administered appropriation

The Court receives an administered appropriation to source dispute resolution services such as counselling, mediation and conciliation from external organisations.

In 2001 the Federal Magistrates Court engaged various community-based organisations around Australia to provide dispute resolution services for litigants in family law. In 2006 the Family Law Act was amended and the contracts with providers became outdated and to some extent redundant. The language in the Family Law Act changed and the government cemented dispute resolution in the community sector with the implementation of Family Relationship Centres and a focus on dispute resolution pre-filing in children's matters.

As a result of the legislative changes and the expiration of contracts, the Court has recently completed a tender process and engaged external providers to deliver a range of services that are appropriate to the new environment. The providers offer services to the Court in over 200 locations throughout Australia.

A major focus of the administered fund is to provide services to litigants particularly in rural and regional areas of Australia in support of its circuit work. 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 changes in legislation and in the community sector have increased the Court's capacity to refer property applications to external dispute resolution. To date, the Court has been limited to the services of in-house registrars to conduct conciliation conferences in respect to property matters. The registrar resource is limited and:

  • this is causing a delay in litigants gaining access to conferences and has the potential to delay the resolution of matters in the Court
  • registrars roster visits to regional areas and may only attend a location three times a year and this limits the opportunities for litigants to access services. The provision of services by external providers via the administered appropriation allows for more timely interventions and an earlier resolution of matters, and
  • the cost of registrars travelling to circuit locations is becoming more expensive and may need to be reduced in light of the Court's current financial position.

The use of the administered fund to provide a new range of services is an innovative way of providing access to justice to litigants, particularly to those in rural and regional Australia where services are limited. The fund will provide an alternative to the conciliation conferences undertaken by registrars of the Court.

Family reports

A family report is a written report ordered by the Court under section 62G(2) of the Family Law Act 1975 to assist a federal magistrate in determining parenting disputes. It is an independent, professional assessment of a family, including the children. Family reports are prepared by internal family consultants and/or external family consultants appointed under regulation 7 of the Family Law Act 1975. In 2011-12 the number of reports ordered continued to decline.

Table 3.5 Family reports ordered by state in 2009-12

Number of reports ordered

ACT

NSW

NT

QLD

SA

TAS

VIC

Total

2009-10

212

1075

53

1069

488

84

1777

4758

2010-11

200

1124

98

953

478

94

1704

4651

2011-12

284

1013

94

876

505

95

1700

4567

Dispute resolution in general federal law

The general federal law dispute resolution provisions are contained in Part 4 of the Federal Magistrates Act 1999. The Court operates a docket management system and referrals by federal magistrates for mediation is the most frequently used procedure in general federal law proceedings. While referrals can be made externally, most mediation is undertaken by registrars.

In 2011-12, a total of 487 matters were referred to mediation, with 207 matters (or 43 per cent) resolving. A total of 128 matters were unresolved, with the remaining 17 matters being either partially resolved, a report given or an other outcome recorded.

Figure 3.14 Matters ordered to dispute resolution

Figure 3.14 Matters ordered to dispute resolution

Figure 3.15 Outcomes of matters ordered to dispute resolution

Figure 3.15 Outcomes of matters ordered to dispute resolution

The Civil Dispute Resolution Act 2011 commenced operation on 1 August 2011. The object of the Act is to ensure that people take genuine steps to resolve disputes before certain civil proceedings are instituted. Division 4.2 of the Federal Magistrates Court Rules 2001 sets out specific rules in relation to the genuine steps obligations. The Court can take into account the failure to take steps when exercising its existing case management directions and costs powers.

Family law proceedings are excluded from the genuine steps requirement as there are pre-filing legislative requirements which apply to parenting proceedings. The Attorney-General's Department is commissioning an evaluation of the Act, 12 months after operation, with data sought for the purposes of the evaluation.

A representative from the Court attended a forum in May hosted by the Attorney-General's Department to explore future directions in the area of alternative dispute resolution. The forum included representatives from across the portfolio.

The Australian Centre for Court and Justice System Innovation at Monash University issued a background discussion paper as part of its research into pre-action protocols and obligations that are used to encourage the resolution of disputes before commencing proceedings: Resolving Disputes without Courts—Measuring the Impact of Civil Pre-action Obligations, March 2012.

Improving access to the Court

Circuit program

The Court is committed to providing access to justice for every Australian regardless of geographic location and aims to do so in a timely and efficient manner. To this end, the Court conducts an extensive circuit program with visits to rural and regional locations across Australia. In 2011-12 the Court allocated approximately 145 weeks to the circuit program, enabling parties to have their matters heard locally alleviating the need to travel to major centres. The Federal Magistrates Court is the only federal court in Australia with a program of regular circuits.

In a speech to the Federal Magistrates Plenary in Brisbane on 26 April 2012 the Attorney-General the Honourable Nicola Roxon noted:

"I see the Federal Magistrate's Court as meeting a clear need in the community, and particularly for people living in regional areas. Your regular circuit work puts you at the front line - and often at the end of a very long docket - of difficult matters exacerbated by remoteness and lack of services. This regional access is of growing importance."

The Court recognises the need to ensure that circuit programs are run efficiently and within budgetary constraints. As a result, federal magistrates conduct some procedural and urgent hearings by video link and telelink in between visits to the rural or regional location. The use of this technology increases the efficiency of circuits ensuring that time spent at the various locations is fully utilised. The Court is continually considering how best to deliver services to rural and regional Australia.

The introduction of eFiling has further assisted litigants and practitioners located in rural and regional locations with the filing of applications and various documents. A growing uptake of eFiling has enhanced access to justice for rural and regional Australians by reducing costs to parties associated with travelling to registries in major centres and costs associated with postage. It is anticipated that eFiling will continue to grow as the Court continues to develop and improve the functionality.

During 2011-12, the Court sat in 33 rural and regional locations as part of the circuit program. Details of circuit locations are included at Appendix J.

Community relations

Local registry consultations

During 2011-12, the family law registries engaged at the local level with law societies, family law pathways networks, court user forums and community-based organisations concerned with family support and the family law system. This consultation ensured that registries received regular feedback about users' experiences of registry services and the courts, and were able to improve the service and approach to clients. It also ensures that the Court is well placed to make effective referrals to community-based services for clients who may require ongoing support.

Local pathways groups or networks are a key forum for engagement. Pathways is a family law interagency network, established in 2005 and funded by the Attorney-General's Department. It aims to facilitate a more integrated family law system, particularly for community-based agencies that deal with separated families, family dispute resolution and associated issues such as family violence. In some areas members include those involved with health and child protection.

In addition to general consultations, registries continued to engage with community-based organisations and other jurisdictions about best practice approaches to support those clients who are subject to, or fear violence from, their partner, former partner or other family members.

A significant innovation this year was the courts' user satisfaction survey, conducted at all major and medium sized registries. The survey process is consistent with one of the seven platforms for excellence in the international courts excellence framework. The feedback from the survey has informed registries about the areas in which the courts can perform more effectively and encouraged registries to keep on doing the things which court users say they do well. This data has also informed registries' discussions with stakeholders.

The registries also worked with universities, offering or participating in moot courts and other opportunities and information for students; and with the legal profession at the local level, including with continuing professional development. Whilst not consultation, as such, initiatives such as these are important in terms of relationship building and awareness building about the particular circumstances and needs of family law and people who need to use family law services.

Following is information about specific consultative activities undertaken by the Court's registries.

Registry-specific activities

ACT/NSW

Sydney
  • Sydney met quarterly with family law practitioners to communicate Family Law Court initiatives and seek feedback. The meetings were chaired by the Registry Manager and attended by the Case Management Federal Magistrate and Case Management Judge.
  • A Child Dispute Services representative attended monthly meetings of the Greater Sydney Families in Transition Group (Pathways).
  • Whilst not consultation, ongoing relationship building and awareness raising occurs in a number of other ways. For example, family consultants from the registry were regular guest speakers at the University of NSW, both for law students and Master of Psychology students. Topics included the role of the family consultants in the family court system, the various issues and problems that may present to the Courts (e.g. drug and alcohol use, family violence, attachment relationships, child protection issues, etc) and the potential impact of these on children and young people; parenting capacity and family functioning in general.
Parramatta
  • A senior family consultant attended the meetings of the Greater Sydney Family Law Pathways Network when meetings were held in Western Sydney.
  • The registry, including the Case Management Federal Magistrate and the Case Management Judge, met quarterly with the local family law practitioners.
Dubbo
  • The NSW Central West Family Law Pathways Network met every two months, video-linked between Dubbo and Bathurst. The network held two family law training events, one each for lawyers and family dispute resolution practitioners.
Wollongong
  • Staff attended the Illawarra Family Law Pathways meeting every two months.
  • Family consultants in Wollongong worked with the Illawarra Pathways, Southern Highlands Pathways, Shoalhaven Pathways and Shoalhaven Domestic Violence Network. Family consultants were on panels discussing family law and family violence issues.
Canberra
  • ACT Pathways met every six weeks to plan and develop strategies for seamless referrals for clients between the various family law service providers in the ACT. The group also undertook educative activities, seminars, about family law (children's issues), family violence and mental health issues.
  • The Canberra Registry Consultative Committee met twice during the year, facilitating two-way feedback between the Court and the legal profession on topics such as new legislation, new case management procedures and any local issues. Attendees included judicial officers and registry staff, and representatives of the legal profession, the bar association, Attorney-General's Family Law Section, ACT Human and Community Services and Legal Aid lawyers.
Newcastle
  • Court personnel attended the monthly Pathways meeting and also were involved in organising activities such as information days.
  • A Newcastle registrar attended the monthly Hunter Valley Family Law Practitioners Association meetings.

SA/NT

Adelaide

Throughout 2011-12 the Adelaide registry continued its collaborative involvement with stakeholder agencies. There was a strong focus on court training and developing partnerships with agencies delivering services to the Court's clients. Following is specific information about this work.

  • Training and support was provided to the Women's Information Service court support program and the Women's Legal Service volunteer program.
  • Regular meetings and discussions were held with the Family Law Practitioners branch on topics such as registry practices. There was on going relationship building between Family Law Courts administrative staff and staff of the prescribed welfare authority, Families SA, in relation to Magellan matters.
  • The Court continued its active involvement with the Child Support Program (formerly Child Support Agency) Community Stakeholders Group, Pathways and the Family Relationship Centres.
  • Information sessions were provided to family dispute resolution practitioners from Uniting Care Wesley, Centacare and Family Relationship Centres.
  • Throughout the year the registry worked with the University of Western Sydney on the ‘Fortress or Sanctuary' research program examining court security.
  • Training days were hosted for Aboriginal Justice Officers from the Courts Administration Authority South Australia.
  • Information sessions were provided to law students from the University of South Australia. Students also visited the registry as part of the University's family law training program.
  • ‘Family Law Court: Request for most recent orders relating to children of the parties' was developed with South Australian Police (SAPOL) to comply with the changes to the South Australian family violence legislation. The jointly-developed pro forma and protocol include information from the Court to assist SAPOL in seeking an ‘interim intervention order' in the state courts.

Further to the above, judicial officers, registrars and family consultants contributed to the following:

  • inaugural Adelaide Family Law Intensive, 2011: chairperson/commentator, on the topic of essentials of family law practice.
  • Law Society of South Australia, 2012: chair, continuing professional development seminar.
  • Relationships Australia, 2012: participant, training DVD for family dispute resolution practitioners mediating property disputes, and
  • Commonwealth Attorney-General's Department: working group member, South Australian pilot project in relation to improving the interface between the child protection systems and the family law system.
Darwin
  • The Registry Manager is a member of the steering committee of Family Pathways. This group met quarterly to discuss the objectives and outcomes of the Pathways network, and to progress the work of the network.
  • The Registry Manager attended quarterly meetings of the Family Relationships Centre (FRC) Consortium Group to discuss local issues and identify new programs to which clients can be referred.
  • Meetings chaired by the Federal Magistrate were held quarterly with family law practitioners. The meetings aim to streamline processes, seek new case management procedures and provide a forum for practitioners to provide feedback to the courts.
Alice Springs
  • The Alice Springs Family Pathways network is supported by the Darwin network and it met quarterly. The Federal Magistrate attended once during the year.
  • Two practitioner meetings were held by the Federal Magistrate while she was on circuit in Alice Springs.
Queensland
  • A key outcome of local consultations during 2011-12 has been the greatly increased the uptake of filing via the CCP throughout the region, evidenced by Brisbane registry being by far the busiest eFiling registry nationally (see Part 1 for details).
  • In support of this outcome, the Regional Registry Manager and Business Systems Development Officer held information sessions on the CCP in Brisbane, Coffs Harbour, Lismore, Townsville, Cairns and Mackay. Information sessions were also conducted for the Caxton Legal Centre for the recent delegation from the Bhutanese Court system, and for a meeting of non-government organisations in Brisbane. In addition, specialised training was provided to local practitioners and to other practitioners across the region via remote access.
  • Following is more specific detail, at registry level of other consultative activities for 2011-12.
Brisbane
  • Brisbane registry continued its regular meetings with various user groups including the family law practitioners, Legal Aid and Child Support Stakeholders Group.
  • The registry, in conjunction with Bond University, hosted a number of moot courts for law students and provided registrar assistance and provided guest speakers for Bond University.
  • Speakers were provided for external training sessions, including on special medical procedures for medical specialists, on consent orders for Legal Aid and on contravention applications for family law practitioners.
  • Federal magistrates and courts staff worked in conjunction with the Queensland University of Technology (QUT) to run moot courts for bar practice course participants and also provided opportunities for QUT law students as interns in Chambers at the courts.
  • Representatives from Child Dispute Services attended regular meetings with the Brisbane and Gold Coast Pathways Group and the registry also met with the Queensland Legal Aid Independent Children's Lawyers group.
  • The Registry and Judicial Services Managers attended liaison meetings with their counterparts in state and district courts administrations.
  • There was regular liaison with the local Pathways representatives at Coffs Harbour during Federal Magistrates Court circuit sitting weeks.
North Queensland (including Townsville, Cairns and Rockhampton)
  • The Townsville Registry Manager regularly attended meetings with the North Queensland Domestic Violence Resource Service, the Family Law Pathways Network, the Family Relationship Centre (Centacare), and Relationships Australia, as well as ad hoc meetings with the profession and various state government agencies, as required.
  • Federal magistrates in Townsville and Cairns participated in moot courts for law students from James Cook University.
  • Staff representatives met with the Family Law Practitioners Network, Family Relationship Centres and Domestic and Family Violence Support groups in Cairns and Rockhampton on an ad hoc basis.

VIC/TAS

Melbourne
  • A key focus was to enliven relationships with the Department of Human Services after a recent review of the protocol between the Department and the courts for child abuse cases. Particular attention was given to exchange of information, improved liaison with regional offices for case management and reporting, and improved understanding of each other's requirements in these complex cases. The Victorian registries also wanted to put in place mechanisms to achieve effective notification of child abuse cases to the Department in the context of the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth), commencing June 2012.
  • The Registry Manager and Coordinating Registrar attended Court Practice Committee meetings of the Family Law Section of the Law Institute Victoria, responding to queries about eFiling, resources, the role and function of the NEC, trends in filing and case management procedures. The Case Management Federal Magistrate also attended those meetings to ensure flow of information to lawyers on case management policy and procedure. Specific issues that arose included the impact of the Court's budget situation on case management and listings and also lawyers' experience of and feedback on the NEC.
  • The Registry Services Manager liaised regularly with Victorian Legal Aid to ensure support for their services at the Melbourne registry. This resulted in better support for eFiling procedures for legal aid and an additional room for seeing clients at the Melbourne courts.
  • The Registry Manager had regular contact with Victorian Court Network, sharing information on developments in the family law jurisdiction, ensuring that network volunteers are up to date and supported in their role assisting self-represented litigants.
  • Representing the Chief Executive Officer, the Registry Manager attended the Law Institute President's meetings. These are convened for Commonwealth and Victorian courts' CEOs for the exchange of information and advice on issues in courts administration in Victoria. Of particular interest in the discussions this year was security arrangements at metropolitan and regional courts, the impact of technology upon court processes and the evolution of alternative dispute resolution in the respective jurisdictions.
  • The Victorian Pathways Network has been invigorated and held several successful forums this financial year with assistance from the Melbourne registry and, in particular, the Registry Child Dispute Services Coordinator. The forums covered topics including child protection and post-separation parenting arrangements in cases where there is property and parenting issues in dispute.
  • Registry managers liaised with Family Relationship Centres (FRC) and attend FRC meetings on invitation. FRCs, in a collaborative initiative with the courts, also had a presence at some registries to provide referral and wait list information (such a service was in place at Dandenong during the year and was being planned for the Melbourne registry).
  • The Registry Manager periodically attended the Victorian Department of Justice Family Violence Stakeholder Forums where there is useful exchange about legislative and policy reform and also community-based initiatives. Of particular value was the discussion of how commonwealth and state policy, programs, laws and jurisdictions intersect and function together as a service to the community.
  • The Registry Manager engaged regularly with state courts and in particular with the Director of Regional Registrars who supports the Federal Magistrates Court regional service at state court houses. Specific issues that arose during the year were listing arrangements and security. These were resolved.
  • The Regional Coordinating Registrar attended Centacare giving a presentation on family law developments, which was well received.
Dandenong
  • The key focus for registry engagement in Dandenong continued to be the coordination of the Collaborative Dispute Resolution Group. This group met quarterly and comprised representatives from five Family Resource Centres in the catchment area, registry staff, the Victorian Pathways group and local community based organisations. The main focus of the group was to coordinate a ‘drop in' service at the registry three mornings each week. Experienced dispute resolution practitioners were available to provide information and direct referrals to local family relationship services to assist the federal magistrates, legal practitioners and self represented clients.
  • The Dandenong Registry Manager is a member of Family Relationship Centre Reference Groups including Berwick, Frankston and Chadston and was involved in supporting Ringwood.
Tasmania
  • The Court participated in the Hobart Family Relationship Centre reference group, Pathways South, North and North-West as well as the Hobart Pathways reference group, the Child Support Program Stakeholder Engagement Group, and the steering committee for the Coordinated Family Dispute Resolution pilot.
  • The biannual state-wide Family Law Courts' Family Violence Consultative Committee meeting, a forum for all public sector agencies concerned with improved responses to violence, including Tasmanian Police, Department Health and Human Services and Department of Justice, was convened.
  • The Legal Aid Commission and Family Law Practitioners Association supported the monthly Family Law Courts case management committee meetings in order to advance the management and passage of cases in the family law system.
Albury
  • Albury is represented on the Albury Wodonga Family Law Pathways Network, which met bi-monthly.
  • On duty list days the coordinator of the Pathways Network attended court and was available to provide information to lawyers and clients about services in Albury, Wagga Wagga, Griffith and Wangaratta areas, including for courses and waiting list times for Contact Changeover Centres, parenting orders programs, Community Health Services, Family Relationship Centres, parenting programs in the catchment area.
  • The Family Consultant attended local and regional meetings with other service providers.

Self-represented litigants

The Court's jurisdiction is such that a significant number of parties present as self-represented litigants, particularly in the areas of family law, child support, bankruptcy and migration.

The status of a litigant's legal representation may change during their case. For example, a litigant may commence proceedings without legal representation and then have legal representation at the final hearing. The Court's database captures details of self-represented litigants in respect of finalised applications for final orders in family law only. These details are reported at Table 3.6.

Table 3.6 Family law final applications by party representation, finalised in 2011-12

Party representation

Number of applications

Percentage

Both have legal representation

11,959

68.86

Neither have legal representation

1253

7.22

Only applicant has legal representation

3548

20.43

Only respondent has legal representation

606

3.49

Total

16,019

100.00

General federal law pro bono and duty lawyer scheme for self-represented litigants

A court-based pro bono scheme is in operation, similar to that which operates in the Federal Court. Part 12 of the Federal Magistrates Court Rules 2001 sets out rules in relation to the court-administered scheme which is similar to the scheme operating in the Federal Court. 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 through its pro bono and other legal assistance schemes. In Melbourne, Victoria Legal Aid has a Migration Duty Solicitor Scheme in operation. Assistance is also provided in various states by way of organisations such as PILCH. The Court appreciates the generosity of those members of the legal profession who agree to give their valuable time voluntarily to assist in such matters

Family law duty lawyer schemes

Self-represented litigants with family law matters before the Court are assisted by duty lawyer schemes operating in capital cities and regional areas. The Court partners with legal aid commissions and other organisations that make the services of legal practitioners available to assist litigants on the day of their matter being heard. Some examples of assistance provided include provision of legal advice, negotiating consent orders and, in urgent matters, the preparation of documents and representation.

Public information

Throughout 2011-12, the Court continued to produce a range of brochures and fact sheets encompassing all areas of its jurisdiction. The Court's website is the primary communication tool for providing information about the Court. Information available from the site includes details on court processes, forms, fees and charges, dispute resolution information, relevant legislation, publications, circuit details, daily court listings, the CCP, as well as contact details and corporate information. The website is regularly updated and provides a subscription service.

In addition to providing public information through the Court's website, information on family law is provided through the Family Law Courts website www.familylawcourts.gov.au. This website is shared with the Family Court and provides a centralised location for all information relating to the federal family law courts.

Registry and National Enquiry Centre services

Registry services are provided to people who wish to file an application or are considering filing an application at the Family Law Courts (comprising the Federal Magistrates Court and the Family Court).

Registry services include:

  • provision of effective support to the Family Law Courts
  • family law telephone and referral services, and
  • family law document processing.

Registry services are complimented by the services of the NEC. All first instance calls to the Courts 1300 number (1300 352 000) and emails to enquiries@familylawcourts.gov.au go to the NEC. The NEC also assists with follow up enquiries from litigants regarding their matters in the Federal Magistrates Court and the Family Court.

Summary of performance

Family law registries and the NEC provided a high level of service to litigants and other users of the Family Law Courts as well as to federal magistrates and judges throughout 2011-12. Staff responded to increased counter enquiries, emails and phone calls, and improved performance in meeting deliverables and key performance indicators (KPIs).

The NEC is required to report against the Portfolio Budget Statement (PBS) deliverables of the Family Court relating to counter, email and telephone enquiries. The NEC provides services to the Federal Magistrates Court as part of shared administrative arrangements. In 2011-12 the NEC achieved the targets as set out in the PBS deliverables. See Table 3.7.

The PBS also requires the NEC to meet four KPIs. Three of the four KPI were met while the fourth, a target of eighty per cent of telephone calls to the NEC being answered in ninety seconds, was not met. A significant improvement was made in the average times that callers waited on line for their calls to be taken, compared with 2010-11. A number of factors contributed to this, including the implementation of an Interactive Voice Responsive system that helps direct callers more effectively, including to other sources of information, and improved support for staff, which enables them to more quickly respond to callers.

The KPI for complaints as a percentage of total applications was met.

More detailed reporting of the results follows.

Table 3.7 summarises the performance of the various client services functions of the Court against PBS deliverables and KPIs. The data in this table relates to services provided for both the Federal Magistrates Court and the Family Court by the family law registries and the NEC, with the exception of the complaints KPI, which is Family Court specific.

Table 3.7 Summary of performance—client services

Key performance indicators and deliverables

Target/deliverable

10-11 
Target/result

11-12 
result

11-12 
target achieved

Deliverables

Counter enquiries

161,800 counter enquiries handled

159,500 / 150,156

187,665

Tick

Telephone enquiries served (NEC only)

253,800 telephone enquiries served

359,800 / 378,420

267,995

Tick

Email enquiries (NEC only)

53,900 email enquiries

53,200 / 50,052

83,700*

Tick

KPIs

11-12 
target achieved

Counter enquiries

75% of all counter enquiries are served within 20 minutes

75% / 97%

88%

Tick

Time taken to process applications lodged

75% of applications lodged are processed within two working days

75% / 96.5%

97.3%

Tick

NEC telephone calls answered

80% of calls answered within 90 seconds

80% / 32%

33%

Cross

Email response times (NEC only)

80% of emails answered within two days

80% / 98%

100%

Tick

Complaints

Complaints, 1% of total applications received

1% / 1.5%

.6%**

Tick

* This figure covers emails sent in response to emails received by the courts, also emails sent by the court as part of responding to telephone callers. See further information in the detailed reporting about the NEC which highlights the increasing use and value of emails, in part driven by the high usage of smart phones, which give people better access to emails.

** This figure includes complaints about the administration of the Court and judicial services complaints, for which detailed information is reported elsewhere in this Part.

Note: The Court has separated its reporting for KPIs and deliverables for greater transparency in its reporting for judicial services and client services. See also Table 3.1 for additional Portfolio Budget Statements reporting.

Detailed report on performance

Family law registries

There are 19 family law registries located in every state and territory (except Western Australia). Family law registries provide registry services to both the Federal Magistrates Court and the Family Court. The key functions of the registries are to:

  • provide information and advice about court procedures, services and forms, external options and referrals to community organisations that enable litigants to take informed and appropriate action
  • ensure that available information is provided in an accurate and timely fashion to support the best outcome through file management and quality assurance; from the initiation of proceedings, to hearing and to archiving
  • make the best use of court time by facilitating an orderly secure flow of litigants, files and exhibits
  • enhance community confidence and respect by responding to litigants' needs and assisting with making the court experience a more positive one
  • progress cases by providing administrative services in accordance with court processes and to manage external relationships to assist with the resolution of cases
  • schedule and prioritise matters for hearing and intervention to achieve the earliest resolution or determination
  • monitor and control the flow of cases, and
  • assist in the evaluation of caseloads by reporting on trends and exceptions to facilitate improvements in processes and allocation of resources.

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. Client service staff provided an efficient and effective service when dealing with litigants in person and the legal profession face-to-face at registry counters across Australia (except Western Australia).

During 2011-12, the family law registries continued to provide a high level of service and met noticeably increased volume of counter enquiries.

As detailed in Table 3.7, it is estimated that the registries dealt with 187,665 counter enquiries in 2011-12 from clients or other people seeking information face-to-face. This compared to 150,156 2010-11. In fact, the actual numbers would have exceeded this, as in a number of the smaller registries facilities are not available for counting of enquiries.

In 2011-12, an estimated 90 per cent of clients were served within 20 minutes, against a target of 75 per cent. This is down on the estimated figure for 2010-11.

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 (97.3 per cent of applications were processed within that timeframe, compared to 96.5 per cent in 2010-11).

National Enquiry Centre (NEC)

Telephone and email enquiry and referral services

The NEC provides a single point of entry for telephone and email enquiries from litigants and legal practitioners to the Federal Magistrates Court and the Family Court. The courts' 1300 telephone number ensures all calls automatically go to the NEC, as do emails using the address enquiries@familylawcourts.gov.au. The NEC also prints and posts all divorce orders made by the two courts; there were 85,532 in 2011-12.

In addition, it is also the first point of contact for:

  • the Family Law Courts after hours service, and
  • the Commonwealth Courts Portal (provide first level help-desk technical support) to the Family Law Courts, the Family Court of Western Australia and Federal Court of Australia.

In 2011-12, the NEC made significant performance improvements compared with 2010-11. A key factor was the introduction of an Interactive Voice Response (IVR) system in October 2011. It provides a second tier for helping to direct callers to the most effective and efficient service for their particular needs, being in addition to the initial recorded message.

If callers do not choose to go elsewhere for information at that initial stage, the IVR gives options for more specific direction of calls, including, for example, to divert callers to staff with particular skill sets. In addition to the IVR, the NEC embraced the courts' use of the Connections technology which improved the efficiency of staff with the electronic sharing of information and improved capability to email clients immediately with relevant information and links. There was an 82 per cent increase in the volume of emails sent in 2011-12 compared with 2010-11. This also reflects how the NEC's approaches to caller needs evolved during the year, particularly in response to the greatly increased use of emails and smart phones in the community.

These improvements not only had benefits for litigants, lawyers and others who contact the courts, but also there were consequential benefits for the costs of the NEC. For example, the reduced times people spent on hold, waiting to be answered resulted in significant reductions in the monthly telephone bills attributable to the 1300 number. Postage costs also benefited from the increased use of email.

These improvements mean that in 2011-12, the NEC met two of its three PBS deliverables (for telephone enquiries served and email responses made).

In summary, in 2011-12 the NEC:

  • had a total of 399,724 telephone calls, of which:
    • 292,002 remained online waiting to talk to a staff member and, of these, 267,995 or 92 per cent were actually served, compared with 245,052 or 61 per cent of those waiting to be served in 2010-11. Thus there was a nine per cent improvement in the percentage of calls actually served/answered between the two years and by individual staff members, a 35 per cent increase in the number of calls taken.
  • had abandonments as follows at the three possible stages:
    • 79,093 (20 per cent) were abandoned during the initial pre-recorded message stage. Whilst it is not possible to measure, it is anticipated many of these are ‘good' abandonments in that the callers are redirected to a better source of information for their needs as a result of the information they hear. The message provides detailed information about other ways in which clients can get information, forms etc such as via the CCP or the Family Law Courts website
    • 28,629 (seven per cent) were abandoned during the IVR, again it is likely many of these calls are ‘good' abandonments given the IVR provides callers with further options for assistance
    • 26,975 (6.7 per cent) were abandoned while the callers were in the queue waiting for their call to be answered. Whilst higher than the courts would like, it compares favourably with 2010-11 when 94,217 (24 per cent) were abandoned at this point.
  • transferred 5760 (one per cent) of calls to a family law registry, when the caller needed specific information unavailable to the NEC staff
  • sent 83,700 emails in response to either email enquiries or in following up telephone enquiries, compared with 45,853 in 2010-11, and
  • re-printed 6006 divorces on request, a 14 per cent increase on the 5177 in 2010-11.

The NEC did not achieve against the KPI for the time taken to answer calls. The target is for 80 per cent of calls to be answered in 90 seconds. In 2011-12, the NEC answered 88,931 calls within 90 seconds, taking an average of three minutes and 15 seconds for calls to be answered. This time was halved compared to 2010-11. Key factors in achieving this improvement included the IVR and the use of the Connections technology, which provides NEC staff with better access to the information needed to respond more quickly and also provides them with better capability for sending emails in response to telephone calls.

Key factors that contributed to the NEC's inability to meet the KPI include:

  • the growth in the total volume of calls
  • a significant increase in email demand inwards and outwards; in two years the number of emails sent by the NEC has more than tripled with 24,513 in 2009-10 to 83,700 in 2011-12, and
  • peaks in demand when the courts change processes.

Table 3.8 summarises the NEC's performance against internal benchmarks.

Table 3.8 National Enquiry Centre performance, 2008-09 to 2011-12

Performance indicators and internal targets

2008-09

2009-10

2010-11

2011-12

Less than 5% of calls abandoned when queued

2%

18%

24%

8%

Less than 10% of calls transferred to a registry

5%

4%

2%

1%

Commonwealth Courts Portal and eFiling

The Commonwealth Courts Portal (www.comcourts.gov.au), launched in July 2007, is an initiative of the Federal Magistrates Court, Family Court and the Federal Court. It provides free web-based access to information about cases that are before these courts as well as the Family Court of Western Australia.

After registering, lawyers and parties can keep track of their cases, identify documents that have been filed and view outcomes, orders made and future court dates. Users log on using a single user ID and access multiple jurisdictions from a single central web-based system.

The growth of CCP has been rapid over the five years since its introduction. For more information on the progress of the portal and efiling during 2011-12, see Part 1.

eLodgment

On 24 May 2010 the Federal Court released a new online electronic filing facility, eLodgment. This enables any member of the public to electronically lodge general federal law documents with the Federal Magistrates Court and the Federal Court.

eLodgment may be used to commence an action in either jurisdiction by enabling the lodgement of initiating documents and any supporting documents. Similarly, documents pertaining to existing matters may be lodged via eLodgment as long as the file number is known.

As the document(s) remain accessible via eLodgment, users can monitor the progress of their eLodgments as well as review the processed document(s) through their Lodgment History and in the CCP. They can access the sealed electronic versions of the documents should they require them to email or print out for service.

Service Charter

The Federal Magistrates Court and Family Court have a joint Service Charter and Service Commitments document.

The Service Charter outlines the service level standards clients can expect from staff of the courts and how clients and other users of court services may make suggestions or complaints about services, policy, practice or procedures.

The Service Commitments document highlights what clients of the courts can expect from client services staff, what the staff cannot do, clients rights and responsibilities and how clients can help the courts to help them.

Both documents are available on the Family Law Courts website www.familylawcourts.gov.au

Complaints

During 2011-12 the Court received 157 complaints, slightly higher than the number of complaints received during the previous year. Complaints are categorised as follows:

  • Conduct - Federal Magistrate or Registrar (42)
  • Dispute Resolution (32)
  • Judicial Decision (10)
  • Conduct - chambers (4)
  • Registry - family (4)
  • Proceedings - pending (2)
  • Divorce (2)
  • Enforcement of court orders (1)
  • Legal Process (1)
  • Perjury (1)
  • Conciliation Conference (1)
  • Delays - existing proceedings (3)
  • Overdue Judgments (54)

While the number of overall complaints is small, it is of concern that the largest category of complaints continues to be in respect of reserved decisions, that is, those decisions outside the three month benchmark that the Court has set for delivery. The Chief Federal Magistrate is seeking to actively monitor delays in delivery of reserved decisions and ensure that sufficient days out of court are assigned to enable federal magistrates to meet the three month benchmark set.

Where possible, parties are advised to put their complaints in writing and are able to email their complaint via customer.service@federalcircuitcourt.gov.au.

Copies of the Court's complaints policy and judicial complaints policy are available from the Court's website. Parties are also able to forward a complaint about a delay in the delivery of a judgment through the relevant state or territory law society or bar association.

If the complaint raises concerns about a judicial decision, the complainant is advised that the means of review is by way of the appeal process. Information on appeals, including the fact sheet Appealing a Federal Magistrate's Decision is available on the Court's website or on request from the NEC.

The Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Bill and the Courts Legislation Amendment (Judicial Complaints) Bill were introduced into Parliament on 14 March 2012 and referred to the House of Representatives Social Policy and Legal Affairs Committee and the Senate Committee on Legal and Constitutional Affairs for inquiry and report.

The first Bill makes provision for the establishment of a parliamentary commission following resolution by each House of Parliament to investigate specified allegations of misbehaviour or incapacity. The second, provides a statutory basis for heads of jurisdiction to deal with complaints and outlines measures that may be taken should the head of jurisdiction believe this to be reasonably necessary. The measures include temporarily restricting the judicial officer to non-sitting duties. There is also provision for the head to establish a Conduct Committee to investigate and handle complaints.