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 that 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 Circuit 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 Circuit Court of Australia.

Program

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

PROGRAM 1.1

Provision of a Federal Circuit Court

The Federal Circuit 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 2012–13 Portfolio Budget Statements.

Table 3.1: Deliverables and key performance indicators, 2012–13 Portfolio Budget Statements

Deliverables

Performance

Number of cases litigated and divorce cases processed

In 2012–13, the Court litigated 89,599 cases.

 

Key Performance Indicators*

Performance

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

In 2012–13, 83 per cent of all applications (family law and general federal law) were completed within six months and 94 per cent were completed within 12 months.

In family law, 83 per cent of applications were completed within six months and 94 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, 82 per cent of applications were completed within six months and 99 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 2012–13, the number of complaints represented 0.19 per cent of cases.

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

In 2012–13, 70 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 Key Performance Indicators

The Court has three KPIs against which it is reporting in 2012–13. These KPIs are the same for the reporting periods from 2009–10 through to 2011–12. In each of these periods the Court has achieved two of the three KPIs.

The Court aims to complete 90 per cent of all applications filed within six months and fell short of this KPI in 2012–13, achieving 83 per cent. The Court has continued to develop and maintain strategies to achieve this KPI including:

  • the continued development of operational reports to enable the Court to better understand its workload and focus on specific areas
  • attention to ensuring the accuracy of data entry to ensure that the true position of the Court is reflected in statistical and operational reports
  • the ongoing review of the Court’s oldest active cases with a view to ensuring an understanding of any reasons for delay and developing strategies for managing older cases, and
  • case management judges work together on improving the performance of the Court on a national and regional basis.

During 2012–13, the Court continued to meet the two performance goals of:

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

Workload

Table 3.2: Family law and general federal law applications filed 2012–13

Family law

Total

% of total

Final orders

17,364

20

Interim orders

20,242

23

Divorce

43,288

48

Other

1724

2

Total family law

82,618

93

General federal law

Total

% of total

Bankruptcy

3984

4

Migration

1981

2

Industrial

763

1

Other

253

0

Total general federal law

6981

7

Grand Total

89,599

100%

 

Table 3.2: Family law and general federal law applications filed 2012–13.

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 judge who generally manages the matter from commencement to disposition, this includes making orders about the way in which the matter should be managed or prepared for hearing, and
  • matters in areas of law requiring expertise in a particular area of jurisdiction are allocated to a judge who is a member of the relevant specialist panel.

The docket case management system provides the following benefits:

  • consistency of approach throughout the matter’s history
  • the judge’s familiarity with the matter results in more efficient management of the matter
  • fewer formal directions and a reduction in the number of court appearances
  • timely identification of matters suitable for dispute resolution, and
  • it allows issues to be identified quickly and promotes earlier settlement of matters.

A listing committee established by the Chief Judge reported to the judges at the plenary in April 2013 in respect to the listing of matters and other issues relevant to docket management. Further information on this committee can be found in Part 1.

Figure 3.1: Case Management Approach

Figure 3.1: Case Management Approach.

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 judges with expertise in that particular area of the Court’s jurisdiction. Specialist panel members meet regularly with user groups and judicial colleagues from other courts to respond to issues of practice and procedure in these specialist jurisdictions.

The following panels support the work of the Court:

  • Commercial (including consumer, intellectual property and bankruptcy)
  • Migration and administrative law
  • Human rights
  • Industrial law
  • National security
  • Admiralty law, and
  • Child support.

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

Report on work in family law

The family law workload in 2012–13 represented 93 per cent of all applications filed with the Court, the same as in 2011–12. The Court currently deals with 87 per cent of all federal family law matters filed (excluding Western Australia family law matters). This compares to 85 per cent in 2011–12.

Family law applications can be categorised as one of four types as set out in Table 3.3. The table also describes the application types as a percentage of the family law applications filed.

Table 3.3: Family law applications filed by type, 2012–13

Application

Filed

%

Final orders applications

17,364

21

Interim applications

20,242

23

Divorce applications

43,288

54

Other applications

1724

2

Total

82,618

100%

 

Table 3.3: Family law applications filed by type, 2012–13.

 

Final orders applications are filed when litigants seek to obtain final parenting and/or financial orders. Applications in a Case (Interim) seek interim or procedural orders pending the determination of final orders.

Figure 3.2: Final order applications 2008–09 to 2012–13

 

Figure 3.2: Final order applications 2008–09 to 2012–13.

Figure 3.3: Interim order applications 2008–09 to 2012–13

 

Figure 3.3: Interim order applications 2008–09 to 2012–13.

 

The family law workload (excluding divorce) can be broken into three main categories. In 2012–13, 54 per cent of family law applications related specifically to matters concerning children, a further 11 per cent involved both children and property and 34 per cent involved discrete property applications.

Figure 3.4: Issues sought in final order applications, 2012–2013

 

Figure 3.4: Issues sought in final order applications, 2012–2013.

Increasing reporting of risks

As expected, there has been a greater reporting of risks as a result of family violence amendments to the Family Law Act 1975 as introduced by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011. The under reporting of risks has been identified as an issue of real concern. The expanded definitions of ‘abuse’ and ‘family violence’ has resulted in a significant increase in filings of the Notice of Child Abuse, Family Violence, or Risk of Family Violence (Form 4) in the Court.

Figure 3.5: Notice of Child Abuse, Family Violence, or Risk of Family Violence filed

 

Figure 3.5: Notice of Child Abuse, Family Violence, or Risk of Family Violence filed.

 

In 2012–13 a total of 4206 Form 4s were filed with the Court, an increase of 167 per cent compared to 1573 filed in 2011–12. This percentage increase must be considered in the context of the Notice of Risk – South Australian Pilot. Excluding Adelaide, there has been a 110 per cent increase across all other locations.

Notice of Risk – South Australian Pilot

Consistent with the legislative amendments, the Court is seeking to better facilitate the early identification of risk in parenting matters when allegations are raised. The prevalence of allegations of risk in proceedings is of particular significance as most parenting applications are commenced in the Federal Circuit Court. Accordingly a new Notice of Risk has been developed by the Court to replace the currently prescribed Form 4 to better identify risks. This Notice of Risk is required to be filed in all matters involving children rather than the current requirement of filing a Form 4 only in instances where allegations are made which attract the statutory requirements. The requirement to file a notice in every case has seen a significant increase in the notifications of risk in Adelaide.

Before considering any national implementation, the Notice of Risk has been piloted in parenting proceedings filed in the Court in South Australia from 4 February 2013. Information about the Notice of Risk is available under the forms section on the Federal Circuit Court website www.federalcircuitcourt.gov.au

Liaison with welfare agencies

To better facilitate the early provision of information concerning any child welfare involvement the Court has established a committee of judges with the aim of enhancing local relationships with state and territory child welfare agencies. While mindful of the resource constrains of child protection agencies, the Court has been able to work in partnership with agencies to advance local initiatives. In the Melbourne and Dandenong registries judges have been actively involved in the establishment, evaluation and review of a co-location initiative with the Department of Human Services. A Child Protection Practice Leader is positioned at the Melbourne registry to support the Child Protection interface with the Family Law Courts registry which services both the Federal Circuit Court and the Family Court. The position works alongside registry staff and other court officers, and with child protection practitioners to guide the response to concerns for the safety and wellbeing of children in the context of family law proceedings. In Parramatta and Newcastle, a pilot has commenced with the Department of Family and Community Services to obtain a ‘Personal History’ document in certain proceedings. In South Australia, Judge Mead is part of a working group formed to facilitate the Court’s interface with Families South Australia to enhance the flow of information.

Relocation list – Melbourne

In March 2012, the Federal Circuit Court commenced a specialist relocation list in the Melbourne registry. As the list has been operating for 12 months, the Court has been consulting on its effectiveness and whether it should continue as a discrete list. The list was established to meet the needs of children who would be prejudiced if their carers are unable to expeditiously obtain a decision when seeking orders, permitting them to change the place of residence of children. Commonly there will be a need for an expeditious determination. See the Notice to Practitioners and Litigants on the Federal Circuit Court website www.federalcircuitcourt.gov.au under Practice Directions and Notices.

High Court decisions of significance

Stanford v Stanford [2012] HCA 52 considered the approach to property settlement applications in circumstances where the parties’ relationship was still in tact. In allowing the appeal, the High Court found it would not have been just and equitable to alter the property interest had the wife remained alive and it was not appropriate despite the wife’s death to make a property settlement order. The wider implications for the determination of property settlements will no doubt be the subject of further jurisprudence.

An application was brought to the High Court seeking prerogative relief on procedural fairness grounds and constitutional invalidity of s68L on the basis that the Family Court should have ordered in the particular circumstances independent representation for the children: RCB as litigation guardian of EKV, CEV, CIV and LRV v The Honourable Justice Colin James Forrest [2012] HCA 47. While the constitutional argument was not ultimately pressed, the High Court considered the procedural fairness challenge and dismissed the application noting that ‘The need for the Court to be sufficiently and fairly apprised of these matters can be, and in this case was, sufficiently met by the Court’s appointment of a family consultant’ (para[45]).

Divorce

Almost all applications for divorce are filed in the Federal Circuit Court however uncontested divorce applications are heard by registrars with delegated powers.

During the year, the Court ceased using sessional registrars to conduct the divorce workload. Sessional registrars have undertaken the role of hearing the Court’s uncontested divorce matters since 2001.

In a letter sent to the sessional registrars, the Chief Judge said it was disappointing that the Court’s financial position meant that it could no longer fund these positions. The Chief Judge also highlighted that the decision did not reflect negatively on the level of service that had been provided by the sessional registrars as they had managed exceptionally large lists professionally and with respect. To acknowledge the services of the these registrars, a number of small functions were held nationally. The divorce lists are now conducted by in-house registrars in addition to their existing workload.

Since eFiling of divorce applications commenced on 26 September 2009, 26,365 applications have been eFiled and is now averaging about 156 per week. In the Townsville registry the Court has piloted the development of an electronic file to facilitate the determination of applications where no attendance is required on the part of the applicant(s). The Court is considering an extension of the pilot to other localities.

Included in the 2013 fee increases announced by the Government, was an increase in the fee for divorce applications from $577 to $800. Although there was a general full fee exemption, this fee exemption does not apply to divorce applications where persons are eligible for a reduced fee of $265.

As highlighted in previous Annual Reports, the Court considers the conferral of jurisdiction in relation to Applications for Validity of a Marriage or Annulment to be desirable in view of the fact that most divorce applications are filed in the Court.

Figure 3.6: Divorce applications 2008–09 to 2012–13

 

Figure 3.6: Divorce applications 2008–09 to 2012–13.

 

Child support

The Court has limited first instance child support jurisdiction although a significant component of the enforcement work of the Court is in respect of recovery proceedings for child support arrears. In addition, most child support appeals from the Social Security Appeals Tribunal (SSAT) are filed in the Court. An appeal lies only on a question of law and is not a merits review of the SSAT decision. During 2012–13 there were 28 appeals from the SSAT filed, one more than was filed in the previous year. The Court has established a panel of judges to hear such appeals and these decisions are made available via Austlii, www.austlii.edu.au

In the context of the Court’s general federal law jurisdiction, a small number of appeals are filed in the Court in respect of departure prohibition orders. In addition some child support matters come before the Court by way of other administrative law redress provisions. 

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

Report on work in general federal law

General federal law filings represent seven per cent of the total filings in the Court. 

A total of 6981 matters were filed in the Court’s general federal law jurisdiction in 2012–13, with 6450 matters finalised within the reporting period. Of the finalised matters, 5306 (82 per cent) were completed within six months. A total of 6400 (99 per cent) were completed within 12 months.

Table 3.4: General federal law applications filed by type, 2012–13

Application

Filed

% of total

Bankruptcy

3984

57

Migration

1981

28.40

Administrative

22

0.30

Admiralty

16

0.20

Consumer

70

1.00

Copyright

40

0.60

Human rights

105

1.50

Industrial

763

11

Total

6981

100%

Administrative

The largest component of the Court’s judicial review workload is by way of challenges to statutory appeal rights under the Migration Act which fall outside the ambit of the Administrative Decisions (Judicial Review) Act 1977 (AD(JR) Act) statutory review mechanisms. More information on the migration workload is found in the Migration section later in this report.  

As highlighted in the statistical data, the number of (AD(JR) Act) applications is small (22). An example of the type of AD(JR) Act matters that come before the Court is Kumar v Merit Protection Commission & Anor [2013] FCCA 650 where the Court considered whether a decision under the Workplace Relations Act was ‘reviewable’ under the AD(JR) Act. In Pro Teeth Whitening (Aust) PTY LTD v Parliamentary Secretary to the Treasurer [2013] FCCA 188 the applicant sought to have a notice of recall issued under the Australian Consumer Law set aside as an administrative act capable of review under the AD(JR) Act.

The Court also has Administrative Appeals Tribunal (AAT) jurisdiction but this is limited to matters remitted from the Federal Court and precludes appeals from decisions of the AAT constituted by a presidential member. In addition the Court has jurisdiction in respect of child support appeals on a question of law from the Social Security Appeals Tribunal (SSAT) and in respect of child support departure prohibition order appeals.

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

Although confined to in personam admiralty claims the Court can exercise in rem jurisdiction upon remittal from the Federal Court and state supreme courts. A Practice Notice has been issued by the Court which sets out information on procedural and other requirements of practice in respect of this jurisdiction. See the Notice on the Federal Circuit Court website www.federalcircuitcourt.gov.au under Practice Directions and Notices.

In 2012–13 a total of 16 admiralty law applications were filed with the Court as opposed to seven matters in 2011–12.

The admiralty work is undertaken by panel judges.

Issues of enforcement of foreign judgments can pose problems in this area of law. Much depends upon general principles of reciprocity. Not being a superior court there is some uncertainty as to the enforcement of the judgments of the Court in foreign jurisdictions.

The decision in Spliethoff Transport BV v Leisure Freight and Import PTY LTD [2013] FCCA 27 is of some significance in the context of delivery undertakings of chartered shipping companies. In this case the Court awarded damages in respect of one cancellation of a contract of carriage and found an implied contractual period of one month for the Carrier to ship yachts citing the internationally recognised Carriage of Goods By Sea Act 1991.

Bankruptcy

There has been a steady downturn in the number of bankruptcy applications filed. In 2012–13 a total of 3984 bankruptcy applications were filed with the Court as opposed to 4591 in 2011–12. Despite this, the personal bankruptcy jurisdiction continues to comprise a significant proportion of the general federal law work of the Court. While the jurisdiction is concurrently exercised by the Court and the Federal Court, most applications (96 per cent) are filed in the Federal Circuit Court. Bankruptcy and divorce are the only areas of the Courts jurisdiction where registrars with delegate powers undertake the substantive workload. The Court appreciates the significant role that registrars play in the bankruptcy jurisdiction. The Court has a bankruptcy panel to deal with those matters, which go on review from registrars or are otherwise not within the scope of the delegated powers of registrars. The conferral of some insolvency corporations law jurisdiction is seen as desirable to complement the significant personal bankruptcy jurisdiction exercised by the Court.

Figure 3.7: Bankruptcy applications 2008–09 to 2012–13

 

Figure 3.7: Bankruptcy applications 2008–09 to 2012-13.

 

 

In view of the shared bankruptcy jurisdiction, the Federal Circuit Court and the Federal Court have harmonised bankruptcy rules and forms. In addition both courts participate in regular liaison meetings with representatives from the Insolvency and Trustee Service Australia to discuss current trends and significant case law. There were amendments to the Court’s bankruptcy rules as a consequence of the new name of the Court. From 12 April 2013, these rules were renamed the Federal Circuit Court (Bankruptcy) Rules 2006.

The Parliamentary Secretary to the Treasurer and the Attorney-General released an exposure draft of the primary amendments to be included in the Insolvency Law Reform Bill with the announcement of a second tranche of amendments to be announced at a later date. This Bill seeks to implement reforms previously released in the proposals paper: A modernisation and harmonisation of the regulatory framework applying to insolvency practitioners in Australia. In Burke v Inspector-General in Bankruptcy & Ors [2013] FMCA 2, the Court considered, in the context of a possible de-registration of a registered trustee, whether there had been a valid and effectual act to convene a committee within the meaning of the Bankruptcy Act.

Included in recent fee increases, which came into effect on 1 January 2013 were new fees, including fees for examinations in bankruptcy, and other fee increases in respect of bankruptcy applications.

The Court has jurisdiction (subject to limits) under the Personal Property Securities Act 2009 in respect of parties wishing to enforce their rights under a secured agreement. During the year judges in Melbourne and Sydney had a judicial education session on these new provisions.

Consumer

Few consumer law applications are filed in the Court and this may, in part, be due to the statutory limit of $750,000 on the amount of damages that the Court can award. The types of consumer law matters that come before the Court are diverse but fall generally under claims of alleged misleading and deceptive conduct. For example, Rowe v Emmanuel College (No 2)[2013 FCCA 501 where such a claim was made in the context of a school enrolment application; Naroth v Innovative Hair Loss Solutions Pty Ltd & Ors (No 3) [2013] FMCA 209 in relation to a service contract and Dorrian & Anor v Rushlyn Pty Ltd & Anor [2013] FMCA 101, in the context of a franchise agreement. The Court in the context of its administrative law jurisdiction was asked to consider in Pro Teeth Whitening (Aust)Pty Ltd v Parliamentary Secretary to the Treasurer [2013] FCCA 188, whether a compulsory recall notice made pursuant to the Australian Consumer Law was of an administrative character.

Under this head of jurisdiction (as well as the industrial law jurisdiction) the Court has some small claims jurisdiction. In the 2011–12 Annual Report, it was noted that as there was no reduction in fees for small claims consumer applications in the Court, this may be a possible impediment to filing such applications. However since 1 January 2013, following commencement of the Federal Court and Federal Magistrates Court Regulation 2012 (now renamed the Federal Court and Federal Circuit Court Regulation 2012) there is a lower fee for small claims consumer credit matters with the amount set at the same rate as the fee for small claims applications under the Fair Work Act 2009.

Human rights

Although only a small component of the Court’s general federal law workload, human rights is a relatively new jurisdiction for federal courts and therefore the Court’s decisions are of interest. In Innes v Rail Corporation of NSW [2013] FMCA 36 (No 2) the applicant who is blind and is the Commonwealth Disability Commissioner, brought proceedings under the Disability Discrimination Act 1992 alleging discrimination by the respondent for failing to make clear and audible next stop announcements on its trains and alleged breaches of a Disability Standard. The Court found that the complaints should be considered holistically and awarded $10,000 by way of compensation. The High Court, in Maloney v The Queen [2013] FCA 28, dismissed an appeal from a decision of the Court of Appeal of the Supreme Court of Qld which held that a law restricting possession of alcohol on Palm Island was not invalid by reason of inconsistency with s10 of the Racial Discrimination Act 1975.

On November 2012 the Government released an exposure draft of the Human Rights and Anti-Discrimination Bill 2012, which proposed a consolidation of the five existing anti-discrimination laws into a single Act. One proposal which was included in this Bill has been progressed by way of the Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 which received Royal Assent on 28 June 2013 and is awaiting commencement. This Act establishes sexual orientation, gender identify and intersex status as protected grounds. The existing exemption for religious organisations in relation to discrimination on the basis of sexual orientation has been modified to no longer apply to the provisions of Commonwealth-funded aged care services by religious organisations.

In June 2013 the Sex Discrimination Commissioner was asked to conduct research to identify the prevalence of discrimination in relation to pregnancy at work and return to work after parental leave. A final report is expected in May 2014 to coincide with the launch of the national disability insurance scheme. The Australian Law Reform Commission was asked to inquire into how to reduce legal barriers to people with disabilities.

Industrial

The industrial workload of the Court comprises an increasing component of the overall general federal law work of the Court. In 2012–13 a total of 763 industrial applications were filed with the Court as opposed to 736 matters in 2011–12.

Figure 3.8: Industrial applications filed 2008–09 to 2012–13

 

Figure 3.8: Industrial applications filed 2008–09 to 2012–13.

 

The workload impact of incremental industrial law jurisdiction being conferred on judicial and registrar resources is an issue which will need to be monitored.

The Fair Work Amendment Act 2013 received Royal Assent on 28 June 2013. The Act gives the Fair Work Commission (FWC) power from 1 January 2014 to make orders in respect of workplace bullying and expands rights in respect of requests for flexible working arrangements. Orders made by the FWC to prevent bullying can be the subject of a contravention application to the Federal Circuit Court (or the Federal Court or an eligible State or Territory court). The Australian Jobs Act 2013 received Royal Assent on 27 June 2013 and confers injunctive relief on the Court in the context of contravention of certain powers under the Act.

Jurisdiction is increasingly being conferral by way of civil penalty provisions. For example, under the Migration Amendment (Reform of Employer Sanctions) Act 2013, the Minister may apply to the Federal Circuit Court as an eligible court for an order that a person, who is alleged to have contravened a civil penalty provision, pay the Commonwealth a pecuniary penalty. In addition, the Migration Amendment (Temporary Sponsored Visa) Act 2013 received Royal Assent on 29 June 2013 and confers jurisdiction on the Court in respect of certain civil penalty provisions.

The types of industrial law matters that come before the Court include proceedings for civil penalties, allegations of sham contracting and adverse action claims such as that in Harrison v In Control Pty Ltd [2013] FMCA 149. In this matter the employer was successful in defending a claim as the Court found the complaints did not arise out of a workplace right. The Court considered the complaint was more in the nature of one concerning everyday workplace matters and could not constitute the exercise of a workplace right in the context of the general protections.

The Court has small claims jurisdiction and has established dedicated lists to deal with such matters in Melbourne, Sydney and Brisbane. The aim is to facilitate determination summarily on the day the matter is listed. Staff from the Fair Work Ombudsman have been made available to assist and sessional registrars seek to facilitate negotiation on the day.

Intellectual Property

From 15 April 2013, the Court has exercised trade mark and design jurisdiction in addition to the existing copyright law: see Intellectual Property Laws Amendment (Raising the Bar) Act 2012. The conferral of this jurisdiction is consistent with recommendations made by the Advisory Council on Intellectual Property.

The Court has specialist panels to deal with intellectual property matters.

The Intellectual Property Laws Amendment Bill 2013 was introduced into the Parliament during the year. Schedule 4 includes amendments to the Plant Breeder’s Rights Act 1994 to give the owners of plant breeders rights the option of taking action against alleged infringers in the Federal Circuit Court in addition to the Federal Court. The proposed extension of this jurisdiction to the Court accords with a recommendation made by the Advisory Council on Intellectual Property following review.

The types of copyright matters which came before the Court during the year included actions of infringement of copyright in karaoke videos over which the applicant claimed an exclusive licence; Top Plus Pty Ltd v Muse Entertainment Pty Ltd [2013] 379; breach of an applicants copyright in software programs and assessment of compensatory and additional damages: Microsoft Corporation v Melgar [2013] FCCA 344 and proceedings brought by a collection society for copyright in sound recordings by the public performance in a nightclub venue: Phonographic Performance Co of Australia [Ltd] v Evermore Entertainment Pty Ltd [2013] FCCA 17.

The Australian Law Reform Commission is currently inquiring into the operation of copyright exceptions in the digital environment. The terms of reference are reflective of the constantly evolving technology which tests the boundaries of copyright law. A Discussion Paper – Copyright and the Digital Economy (DP 79) was issued as part of the second stage of the consultation process leading up to a final Report by the end of November 2013. As noted in this Discussion Paper:

Policy makers around the world are actively reconsidering the relationship between copyright exceptions and innovation, research, and economic growth, with a view to ensuring that their economies are capable of fully utilising digital technology to remain competitive in a global market [1.11].

Migration

Applications for judicial review of migration decisions have been increasing and are likely to continue to increase. In 2012–13 a total of 1981 applications were filed with the Court as opposed to 1464 in 2011–12.

Figure 3.9: Migration applications filed 2008–09 to 2012–13

 

Figure 3.9: Migration applications filed 2008–09 to 2012–13.

 

The stated aim of the Migration Litigation Reform Act 2005 which came into effect on 1 December 2005 was to direct migration matters to the Federal Circuit Court. The Federal Court has limited first instance jurisdiction in relation to migration cases. There is provision for remittal from the High Court to the Federal Circuit Court. The Federal Circuit Court has the same jurisdiction as the High Court under s.75(v) of the Constitution and the Federal Court is precluded from exercising first instance migration judicial review in all except limited migration matters, while retaining appellate jurisdiction.

The Court seeks to actively manage the migration workload by way of a specialist panel and has regular user group meetings. Specific rules for migration proceedings are set out in Part 44 of the Federal Circuit Court Rules 2001 and the procedure established by those rules is intended to follow generally the procedure of the High Court in dealing with applications for constitutional writs. The Court has summary dismissal powers which allow it to dispose of applications at the first court date. There is provision in Part 44 for a show cause hearing and the Court has power to dismissal at an early stage if not satisfied that the application raises an arguable case.

This specialist branch of administrative law often illustrates the tension between legislative measures to constrain migration litigation and rule of law principles. It is not therefore surprising that decisions are often the subject of High Court consideration. During the year the following significant High Court decisions were delivered.

In Plaintiff S10/2011 v Minister for Immigration and Citizenship; Kaur v Minister for Immigration and Citizenship; Plaintiff S49/2011 v Minister for Immigration and Citizenship; and Plaintiff S51/2011 v Minister for Immigration and Citizenship [2012] HCA 31 the applications to set aside decisions for failure to accord procedural fairness was rejected. French CJ and Kiefel held (at [4]) that:“... the consideration by officers of the Department of the requests by the plaintiffs for the Minister to consider exercising non-compellable powers under the Act did not attract the requirements of procedural fairness. Further, the Minister is not obliged to accord procedural fairness, in the form of the so-called hearing rule, in personally considering whether to exercise the Minister’s discretion under ss 48B, 195A, 351 or 417. Each of the applications should be dismissed.”

Plaintiff M47/2012 v Director General of Security & Ors [2013] HCA 46 related to a challenge the ability to detain people (indefinitely) on the basis of an adverse security assessment and whether the process of assessment is fair. The Court declined to revisit its 2004 decision that the Government can detain indefinitely. The Court also found that ASIO’s security assessment of M47 was procedurally fair, because it gave him a chance to state his version of events in an interview.

In Tahiri v Minister for Immigration and Citizenship [2012] HCA 61 the High Court found that the Minister for Immigration and Citizenship did not err in refusing a combined application for a Subclass 202 Refugee and Humanitarian (Class XB) visa by the plaintiff’s mother and her four dependent children.

In Minister for Immigration & Citizenship v Li & Anor [2013] HCA 18 the High Court held that the Migration Review Tribunal’s refusal to adjourn review proceedings was unreasonable and thus the Tribunal exceeded its jurisdiction.

In Plaintiff M79 v Minister for Immigration and Citizenship [2013] HCA 24, by a majority, the High Court held that the Minister’s decision to grant the plaintiff a temporary safe haven visa was valid, and that the plaintiff’s application for a protection visa was not valid

Amendments to the Migration Act 1958 and Migration Regulations 1994 provided a new ground upon which protection visas may be granted. The new criteria commenced on 24 March 2012. These ‘complementary protection’ amendments supplement Australia’s obligations under the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol (the Refugees Convention). The jurisprudence on this new ground is still developing.

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 the Public Interest Law Clearing House (PILCH).

Complaints

During 2012–13 the Court received 172 complaints which is slightly higher than the previous year. Complaints are categorised as follows:

  • Conduct of Judge or Registrar – 40
  • Dispute Resolution and Mediation – 18
  • Judicial Decision – 10
  • Legal Process – 10
  • Conduct Legal Representative – 4
  • Pending proceedings – 4
  • Conduct Registries – 3
  • Conduct Chambers – 1
  • Enforcement of orders – 1, and
  • Overdue judgments – 81.

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 Judge is seeking to actively monitor delays in delivery of reserved decisions and ensure that sufficient days out of court are assigned to enable judges to meet the three month benchmark set.

New Judicial Complaints Policy

The Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012 and the Courts Legislation Amendment (Judicial Complaints) Act 2012 commenced on 12 April 2013.

The Judicial Complaints Act amends the Family Law Act 1975, the Federal Court of Australia Act 1976, the Federal Circuit Court of Australia Act 1999 and the Freedom of Information Act 1982 to:

  • provide a statutory basis for the Chief Justice of the Federal Court, the Chief Justice of the Family Court and the Chief Judge of the Federal Circuit Court to deal with complaints about judicial officers
  • provide protection from civil proceedings that could arise from a complaints handling process for a Chief Justice or the Chief Judge as well as participants assisting them in the complaints handling process, and
  • exclude from the operation of the Freedom of Information Act 1982 documents arising in the context of consideration and handling of a complaint about a judicial officer.

The Parliamentary Commissions Act provides a standard mechanism for parliamentary consideration of removal of a judge from office under of the Australian Constitution paragraph 72(ii). Details of the Judicial Complaint Procedure of the Court are found at on the Federal Circuit Court website www.federalcircuitcourt.gov.au in the About the Court section.

Judgments

During 2012–13, 2863 judgments of the Court were settled into a written format compared with 2277 during the previous year. A breakdown by jurisdictional category is as follows:

  • Administrative Law – 10
  • Admiralty – 2
  • Bankruptcy – 39
  • Consumer Law – 27
  • Copyright – 10
  • Family Law – 1629; 69 of which were Child Support. Of those Child Support judgments, 19 were SSAT Appeals.
  • Human Rights – 28
  • Industrial Law – 170
  • Migration – 809, and
  • Practice & Procedure – 39.

Of the 1629 family law judgments, 487 were sanitised in accordance with s.121 of the Family Law Act 1975 and distributed to AustLii and external publishers.

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 settled in writing, in view of the additional time that is required for this task. The anonymising of family law decisions imposes an additional requirement on judgment officers. 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 AustLii website, it also distributes to a wide range of external stakeholders. Interested persons can subscribe via the Court’s website and receive regular updates of decisions when posted, see www.austlii.edu.au

During the year, 95 decisions were published in law reports.

Following the name change of the Court, FCCA has been used as the new medium neutral citation for all decisions of the Court. Previously general federal law decisions had a citation of FMCA while family law had an FMCAfam citation.

The role that AustLii plays 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.

Appeals

Family Law

An appeal lies to the Family Court from the Federal Circuit Court exercising jurisdiction under the Family Law Act and with leave, the Child Support Acts. An appeal in relation to such matters is exercised by a Full Court unless the Chief Justice considers it appropriate for a single judge to exercise the jurisdiction. There was a decrease of 19 per cent in the number of appeals going to the Family Court from the Federal Circuit Court during the year as set out below. The Court exercises some appeal jurisdiction from the SSAT in respect of child support matters. See the child support section earlier in Part 3.

Table 3.5: Notice of appeals filed 2008–09 to 2012–13

2008–09 2009–10 2010–11 2011–12 2012–13 Percentage change 2011–12 to 2012–13
204 202 193 220 179 -4%

General Federal Law

Appeals in respect of general federal law proceedings go to the Federal Court and are heard by a single judge unless it is considered appropriate for the appellate jurisdiction to be exercised by a Full Court. The majority of general federal law appeals are in respect of migration proceedings and are heard and determined by single judges exercising the Federal Court’s appellate jurisdiction. During the year, appeals from the Federal Circuit Court comprised 55 per cent of the appellate work of the Federal Court being 434 of the total of 787. Of these 322, were in respect of the migration jurisdiction. The overall number of appeals from the Federal Circuit Court was slightly less than during 2011–12 at 449.

Dispute resolution in family law

The family law dispute resolution provisions are found in the Family Law Act 1975. See in particular Parts 11, 111, 111A and 111B of the Act, which contain provisions dealing with family counselling, family dispute resolution and other processes that apply to the Court in relation to family law proceedings.

Child Dispute Services

Assessment services (Court based)

Preliminary assessment and advice to court are provided by court-based family consultants.

Family reports are provided by family consultants employed by the Court, or private psychologists and social workers who are appointed by the Court under the Family Law Regulations to provide services on fee for service basis.

Preliminary assessment and advice (S11F FLA)

Section 11F FLA allows the Court to order parties to attend appointments with a family consultant. These appointments are non-privileged/reportable, and are intended to:

  • identify risk factors, including risks associated with family violence, abuse, mental health and substance alcohol abuse
  • identify the issues in dispute
  • identify the potential for resolution/negotiation, and
  • identify case management and referral options which may progress the matter.

While dispute resolution is not the main function of s11F events, the family consultant may be able to assist the parties to reach agreement, or make referrals to community based services.

At the conclusion of the conference, the family consultant is required to report the outcomes of the session to the Court via a family consultant Memorandum to Court. The purpose of the Memorandum is to advise the court as to the current status of the dispute in relation to each issue and to make recommendations in relation to the process of the management of the case through the court process in cases where the parties are unable to resolve their dispute.

Two preliminary assessment services are then offered:

  1. Child Dispute Conference – this Conference includes the family consultant and the parties. Parties are seen individually, in order to screen for family violence and risk and safety issues. Parties may also be seen jointly at the discretion of the family consultant and with the consent of the parties.
  2. Child Inclusive Conference – this Conference includes the family consultant, the parties and children who are of an age to be interviewed. Parties are seen individually, in order to screen for family violence and risk and safety issues and to allow the family consultant to begin to get a sense of the children’s parenting context. Children are always seen independently of parents.

Family Reports (s62G FLA)

A family report is a written report prepared by a family consultant, all of whom are psychologists or social workers at a senior level. A family report can be ordered pursuant to s62G FLA to assist a judge to make a decision about the parenting arrangements that will best meet the needs of the children in parenting cases. Family reports may also assist parties to settle their matters pending final determination.

The process involves the report writer interviewing each of the parties and the children, and any other people significant in the lives of the children. The report writer will also observe interactions between the children and each of the parties. The report writer will then prepare a written report for the Court on matters including the issues in dispute, the past and current parenting arrangements, the parenting capacities of each of the parties, and the children’s wishes and views, and any other matters specifically included in the order. Based on their assessment, they will make recommendations to the Court as to the parenting arrangements that are likely to be in the best interests of the children.

Wherever possible, family reports are prepared by family consultants employed by the Court. Where in-house resources are insufficient, the Court has funds to pay for family reports prepared by private psychologists and social workers who have been appointed as family consultants under Regulation 7 of Family Law Regulations to prepare family reports on a fee-for-service basis.

Such orders are made where the parties are unable to afford to cost of a private family assessment.

Table 3.6: Family reports ordered by state for 2009–10 to 2012–13

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

288

1008

94

907

505

95

1757

4654

2012–13

165

1099

81

957

476

109

1736

4623

Upgraded quality assurance for non-staff family consultants

In addition to 80 court employed family consultants providing services to the courts’ litigants, the Court appoints non-staff family consultants (known as Regulation 7 family consultants), to prepare family reports when a court-employed consultant is not available. At any one time the Court may have as many as 151 Regulation 7 family consultants available to provide family reports, as required.

A major area of focus during 2012–13 has been on quality assurance associated with the work of the Regulation 7 family consultants. The Court has upgraded the minimum professional requirements for non-staff family consultants and has also significantly increased the requirements and opportunities for support, professional development and feedback for the Regulation 7 family consultants.

The work is a direct result of feedback received in 2011 in a review of the Family Law Child Dispute Services management structure. At that time, a number of submissions were made included opinions about quality assurance models within the courts, including the quality of reports made by Regulation 7 family consultants. That review found that there needed to be a more consistent approach applied across the courts.

In early 2012, the Principal, Child Dispute Services established a working group to advise and make recommendations on future minimum requirements that would support a quality assurance framework for Regulation 7 appointed family consultants. In December 2012, a discussion paper proposed various recommendations to achieve this, which was accepted by the courts. The intent is that the professional standards required of court employed family consultants apply to anyone who is appointed as a Regulation 7 family consultant.

All but one of the recommendations had been implemented at 30 June 2013. The remaining recommendation requiring Regulation 7 appointees to attend mandatory induction (of four modules) prior to being allocated any family reports, is in progress and expected to be fully implemented by mid July 2013.

The recommendations, in summary, require Regulation 7 recruited family consultants to have the same professional psychology or social work qualifications as court employed family consultants (irrespective of rural or metropolitan location) and a minimum of five years post-graduate experience, working with families and children. Appointments will be for three years, with reappointment to be an automatic and administrative process.

In addition, the following recommendations are now included in the courts’ professional directions on Appointment and Use of Regulation 7 Family Consultants, requiring that Regulation 7 family consultants:

  • complete induction before any family reports are allocated and for new appointees without prior court-based experience, a number of their first written family reports will be reviewed by the Senior Family Consultant. Further allocations will depend on the quality of the reports and the willingness of the Regulation 7 family consultant to respond to feedback. There may be scope for online peer discussion forums for newly appointed Regulation 7 family consultants
  • ensure the currency of their professional knowledge and access to appropriate supervision; also comply with the requirements of professional registration and continuing professional development must be informed about training opportunities (within the courts and externally provided) and available peer support networks; and have access to various online tools and information from the courts
  • may receive formal feedback from judicial officers via the Principal Child Dispute Services and/or regional coordinators, obtained via judgments. Informal feedback, spontaneously initiated and provided by judicial officers is also possible
  • as a quality assurance minimum, have a number of their family reports evaluated every 12 months; also their individual adherence to policy and practice requirements will be evaluated. This includes a review of their timeliness in submitting reports. Feedback from judicial officers, lawyers/independent children’s lawyers and available judgments about the work of Regulation 7 family consultants (reports or cross examination) will be considered, and
  • will be subject to a complaints process that is consistent with internal family consultant policy and processes.

In addition, the Regulation 7 family consultants now have improved access to the Federal Circuit Court and the Family Court’s information systems, including for training and development, policy and practice guidelines, key research materials and judgments and access to the Commonwealth Courts Portal.

In financial matters the Court:

  • offers privileged conciliation conferences conducted by registrars of the Court
  • offers privileged mediation in appropriate matters via the Administered Appropriation (the next page), and
  • refers appropriate matters to privately funded mediation.

In 2012–13, registrars held 4490 privileged conciliation conferences and settled 1621 of these matters.

Administered Fund

The Federal Circuit Court receives an Administered Appropriation to source dispute resolution services such as counselling, mediation and conciliation from community based organisations. The major focus of the administered fund now is to provide mediation services to litigants in property matters 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:

  1. 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
  2. to provide counselling and mediation services to litigants locally in appropriate circumstances.

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 those in rural and regional Australia where services are limited.

Dispute resolution in general federal law

The general federal law dispute resolution provisions are contained in Part 4 of the Federal Circuit Court of Australia Act 1999. The Court operates a docket management system and referrals by judges 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 response to the growing work load in the Fair Work small claims jurisdiction, the Court has engaged a sessional registrar in Sydney and Melbourne.

The number of matters referred to mediation remained at a similar level to 2011–12, however the resolution rate fell to 61 per cent in 2012–13.

Figure 3.10: Outcomes of matters ordered to dispute resolution

Figure 3.10: 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 Circuit 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 has commissioned an evaluation of the Act as they indicated they would twelve months after operation.

Circuit Program

The Court is committed to providing services to the rural and regional areas of Australia. Judges of the Court currently sit in rural and regional locations to assist in meeting this commitment. These sittings are known as circuits.

The importance of the Court’s circuit program was emphasised by the Attorney-General, the Honourable Mark Dreyfus QC at the ceremonial sitting marking the Court’s change of name when he noted:

“the Court remains committed to improving access to court services for people living outside the larger metropolitan areas and it continues to meet a clear need in the community for people to be able to access a court service near where they live and work in places like Broken Hill and Bundaberg, Ballarat and Burnie not just the capital cities”

Further recognition of the Court’s commitment to regional and rural Australia is in the name ‘Federal Circuit Court of Australia’.

In 2012–13 the Court continued its extensive circuit program to 33 rural and regional locations across Australia. Details of the circuit locations are included at Appendix J. Judges of the Court allocated approximately 145 weeks to the circuit program enabling litigants to attend hearings and have their matters heard locally.

In addition to attending circuit locations, judges of the Court conduct some procedural and urgent hearings by video link and telelink in between visits. The use of technology provides greater access to litigants and ensures that time spent at the various circuit locations is fully utilised.

The continued growth in eFiling has enhanced access to justice for Australians living in rural and regional Australia by mitigating the costs associated with travelling to capital cities to file applications and documents.

Establishing new circuits

In light of the ever increasing pressure being placed on the Court’s resources, it is important that circuits are efficient and effective. In recognition of those pressures, the Court has adopted a policy to assist in determining the merits of any proposed new circuit. The policy will assist the Court in ensuring that the cost of any new circuit is justified and can be met from within existing budget allocations.

In addition to the cost, the Court will take into account a range of factors when considering a request to establish a new circuit. These factors include but are not limited to the workload in a particular area, proximity to the principal location and the availability of suitable premises.

The Court has a structure comprising of a National Coordinator of Case Management and case management judges who oversee the work of the Court. This group meets quarterly to consider practical workload issues with each case management judge representing a location or a region and the Coordinator providing a national overview.

Any request to establish a new circuit will be considered in the first instance by these judges who will make a recommendation to the Chief Judge. The Chief Judge will ultimately decide whether a request to establish a new circuit is approved.

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 3.7.

Table 3.7: Family law final applications by party representation, finalised in 2012–13

Party representation

Number of applications

Percentage

Both have legal representation

11,873

67.4

Neither have legal representation

1379

7.83

Only applicant has legal representation

3751

21.3

Only respondent has legal representation

611

3.47

Total

17,614

100%

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 Circuit 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.

Assistance in small claims lists (Industrial Law)

In those localities where the Court has set up a discrete industrial law small claims list (Melbourne, Sydney, Brisbane) the Court is endeavouring to resolve such matters on the first court date. The Court is assisted by registrars who are able to facilitate a negotiated settlement in certain matters. In addition the presence of representatives from the Office of the Fair Work Ombudsman facilitates the summary disposition of such matters.

Public information

Throughout 2012–13, 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 (Family Law)

Registry services are provided to people who wish to file an application or are considering filing an application in the Federal Circuit Court or the Family Court.

Registry services include:

  • provision of effective support to the Federal Circuit Court and the Family Court
  • family law telephone and referral services, and
  • family law document processing.

They are complemented by the services of the National Enquiry Centre (NEC), to which all 1300 telephone calls go automatically, and all emails in the first instance, as well as follow up enquiries from clients about their Federal Circuit Court or Family Court files.

Summary of performance

During 2012–13, family law registries and the NEC provided a high level of service to clients and other users of the Federal Circuit Court and the Family Court and to the judiciary of both courts. They responded to increased demand, more counter enquiries and emails, although less telephone calls.

The NEC met the client services Portfolio Budget Statement (PBS) deliverables for counter enquiries and email but not the third deliverable for the number of telephone calls taken. Three of the four KPIs were also met. The fourth KPI, with a target of 80 per cent of telephone calls to the NEC being answered in 90 seconds, was not met. However the NEC continue to investigate how improvements might be achieved in this area. The KPI for complaints, as a percentage of total applications, was met this year.

Table 3.8 summarises the performance of the various client services functions of the Court against PBS key performance indicators and deliverables. Please note the data in this table relates to services provided for both the Federal Circuit 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 3.8: Summary of performance—client services

Key performance indicators and deliverables

Target/deliverable

2011–2012 Target/result

2012–2013 result

2012–2013 target achieved

Deliverables

Counter enquiries

151,000 counter enquiries handled

161,800 / 187,665

243,384

Yes

Telephone enquiries served*

287,600 telephone enquiries served

253,800 / 267,995

223,419

No

Email enquiries**

50,300 email enquiries

53,900 / 83,700

107,798

Yes

KPIs

Counter enquiries

75% of all counter enquiries are served within 20 minutes

75% / 88%

93.37%

Yes

Time taken to process applications lodged

75% of applications lodged are processed within two working days

75% / 97%

97%

Yes

NEC telephone calls answered

80% of calls answered within 90 seconds

80% / 33%

21%

No

Email response times

80% of emails answered within two days

80% / 100%

100%

Yes

Complaints***

Complaints, 1% of total applications received

1% / 0.6%

0.9%

Yes

* This figure is calls answered not calls received at the PABX.

** This figure covers emails sent in response to emails received by the courts, also emails sent by the courts as part of responding to telephone callers but NEC statistics only.

*** 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 each state and territory (except Western Australia). Family law registries provide registry services to both the Federal Circuit Court and the Family Court for family law matters. 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
  • ensure that available information is provided in an accurate and timely fashion to support the best outcome through file management and quality assurance – from the initiation of proceedings, to hearing and to archiving
  • make the best use of court time by facilitating an orderly secure flow of clients, files and exhibits
  • enhance community confidence and respect by responding to clients’ needs and assisting with making the court experience a more positive one
  • progress cases by providing administrative services in accordance with court processes and to manage external relationships to assist with the resolution of cases
  • schedule and prioritise matters for hearing and intervention to achieve the earliest resolution or determination
  • monitor and control the flow of cases, and
  • assist in the evaluation of caseloads by reporting on trends and exceptions to facilitate improvements in processes and allocation of resources.

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 2012–13, the family law registries continued to provide a high level of service and met noticeably increased volumes of counter enquiries.

As detailed in Table 3.8, it is estimated that the registries dealt with 243,384 counter enquiries in 2012–13 from clients or other people seeking information face-to-face. This compared to 187,384 in 2011–12. The increase is marked, however, with the introduction of new q-matic queuing systems in the six largest registries, thus a more reliable counting of attendances at the courts’ registries has been achieved, The new queuing system has provided clarity around counting that was not available previously. For example, where some registries had separate counters for subpoena viewing rooms, these areas have now been relocated into the one counter service area thus enabling a more accurate capturing of this data.

In 2012–13, an estimated 93 per cent of clients were served within 20 minutes, against a target of 75 per cent, compared to 88 per cent in 2011–12.

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).

Telephone and email enquiry and referral services (National Enquiry Centre – NEC)

The NEC continued providing family law client service support by telephone and email for the Federal Circuit Court and the Family Court. The NEC deals with all first telephone and email contact with the courts and the majority of telephone and email enquiries from existing clients relating to their files. The NEC also supports the CCP, the After Hours Service, prints all divorce orders and processes divorce order reprints.

In 2012–13, the NEC sought to build on the significant performance improvements it had made in 2011–12. The introduction of an Interactive Voice Response (IVR) system in October 2011 continued to provide positive results for clients of the courts, helping to direct callers to the most effective and efficient service for their particular needs, without needing to wait for their call to be answered in person.

The courts’ telephone answering system has three distinct stages, firstly a record message providing general information about the most efficient ways to receive a wide range of information, including via the CCP or the Family Law Courts website. If they do not choose to go elsewhere for information at that initial stage (in 2012–13, 84,887 callers did so, compared with 79,093 in 2011–12), the IVR gives options for more specific direction of calls, including, for example, to divert callers to staff with particular skill sets. In 2012–13 65,932 callers abandoned their calls at this point, compared with 28,975 in 2011–12. As best the courts can determine, it is likely many of these abandonments are ‘good’ in that people have received the information they need at that point in time. In support of this view, further improvements were made to the IVR in 2012–13 to help with more effective call direction.

The NEC did not meet either the KPI for the percentage of calls answered within 90 seconds or the deliverable for actual telephone enquiries in 2012–13. It did, however, perform strongly against the KPI related to email response times, even with a marked increase in actual email numbers.

Key factors affecting the NEC’s performance were a growth in responsibilities (the NEC took over the financial processing of proof of divorce requests during the year), a 21 per cent increase in emails sent, including significant growth in responding to enquiries about the CCP. These were further impacted by reduced staffing levels in 2012–13. As part of initiatives to respond to the challenges, in 2012–13, the NEC continued with endeavours to streamline processes and support staff by:

  • providing ongoing coaching and training to enhance performance
  • providing peer support and mentoring
  • updating information on the client service wiki when a change is made, and
  • creating a collaborative work place where staff are involved in operational decisions when possible.

It is hoped that these actions will contribute to maintaining high standards for email response times and for the total number of telephone calls answered, plus contribute to improvements against the KPI for the time taken to answer calls. It is recognised that the NEC works in a high demand work area, where staff are dealing with a myriad of enquiries, and like all areas of the courts demand can outstrip capacity, especially in peak demand periods.

In summary, in 2012–13 the NEC:

  • had a total of 390,349 telephone calls, of which 235,177 remained on line waiting to talk to a staff member and, of these, 223,419 (or 95 per cent) were actually served, compared with 267,995 (or 92 per cent of those waiting to be served) in 2011–12. There was a two per cent decrease overall in calls made to the NEC in 2012–13 compared with the previous year. Factors thought to contribute to this include better information being provided in emails, thus clients not requiring further information by telephone; also better information on the Family Law Courts website for clients requiring proof of divorce (this was substantiated by analysis of call type with a decline in these calls after the website was updated with self-service information). The busiest time was January to March 2013 and peaks such as this make it more difficult to manage workloads and call wait times.
  • maintains records of call types and in 2012–13, it had a 30 per cent increase in calls associated with the CCP, totalling 19,549 calls for the year. The most significant categories of calls was general enquiries on filing, followed by 45,198 calls concerned with Federal Circuit Court matters and 25,362 concern pre-filing of divorce applications.
  • The five per cent that abandoned while awaiting to be answered was a three per cent improvement on 2011–12.
  • had abandonments as follows at the three possible stages:
    • 84,887 (52 per cent of all abandoned calls) 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 callers can get information, forms etc. such as via the CCP or the Family Law Courts website. This level of abandonment (52 per cent) during the initial pre-recorded message, compared with 20 per cent abandoning at this first stage in 2011–12, suggests the messaging being provided is more effective in call direction
    • 65,932 (41 per cent of all abandoned calls) were abandoned during the IVR. Again, this was a significant difference to 2011–12 when only seven per cent abandoned at this stage, which suggests likewise that many of these calls are ‘good’ abandonments given the IVR provides callers with further options for assistance
    • 11,844 (seven per cent of the total abandonments) were abandoned while the callers were in the queue waiting for their call to be answered. Whilst higher than the courts would like, it was comparable with 2011–12 when 6.7 per cent were abandoned at this stage
  • transferred 3647 calls (one per cent of calls answered) to a family law registry, when the caller needed specific information unavailable to the NEC staff
  • sent 107,798 emails in response to either email enquiries or in following up telephone enquiries, compared with 83,700 in 2011–12, a 21 per cent increase in total emails, including a 54 per cent increase in telephone initiated emails, compared to 2011–12 (so emails sent as a result of telephone calls)
  • reprinted 5916 divorce forms on request, and
  • printed 84,816 divorce orders after these has been granted by the courts, compared with 85,584 in 2011–12.

As previously noted, the NEC did not achieve against the deliverable for the time taken to answer calls. The target is for 80 per cent of calls to be answered in 90 seconds. In 2012–13, the NEC answered 21 per cent or 46,917 calls within 90 seconds compared with 45 per cent (88,931 calls) in 2011–12. In 2012–13, callers waited an average of six minutes and 29 seconds for their calls to be answered, compared with three minutes and 15 seconds in 2011–12. As noted above, key factors contributing to this included a growth in other areas of service and service demand (emails, financial processing of divorce order reprints) and resource constraints. The NEC maintained the average time it took on each call, at four minutes and 25 second (4 minutes and 24 seconds in 2011–12).

The NEC is expecting some relief in 2013–14, when the financial processing of proof of divorce requests can be done by online payment. In addition, a website review was underway at 30 June 2013, and it was hoped that improvements to the website might further reduce the need for people to make telephone calls.

Table 3.9: National Enquiry Centre performance, 2009–10 to 2012–13

Performance indicators and internal targets

2009–10

2010–11

2011–12

2012–13

Less than 5% of calls abandoned when queued

18%

24%

8%

5%

Less than 10% of calls transferred to a registry

4%

2%

1%

1%

Commonwealth Courts Portal and eFiling

The Commonwealth Courts Portal (www.comcourts.gov.au), launched in July 2007, is an initiative of the Federal Circuit 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 the CCP has been rapid over the five years since its introduction. For more information on the progress of the CCP and eFiling during 2012–13, see Part 1.

Service Charter and service commitments

The aim of the Federal Circuit Court and the Family Court is to give clients and others users of the Court the best services they possibly can. What the courts mean by this is set out in the courts joint Service Charter and Service Commitments documents.

The Court also has a Portfolio Budget Statement KPI specifically about complaints. This, along with the Service Charter, is a central part of the Court’s service monitoring and response mechanism.

The service charter outlines the standard of service you can expect from the administrative staff of the Federal Circuit Court and the Family Court and what you can do if you are not happy with the service you have received. It also outlines your responsibilities as a client of either court.

This Charter does not relate to the work that is performed by judges.

Staff cannot:

  • give legal advice; tell clients what words to use in court papers or what to say in court
  • tell clients whether or not to bring their case to court
  • recommend a certain lawyer to act on the client’s behalf
  • tell the client what the decision of the court will be
  • interpret, change or enforce orders made by a judicial officer, and
  • let the client communicate with a judicial officer, other than at the hearing of the court case.

Both the service charter and the service commitments document (which summarises information about what clients of the courts can expect from client services staff, what the staff cannot do, clients rights and responsibilities and how clients can help the courts to help them) are available on the Family Law Courts website: www.familylawcourts.gov.au.

Feedback and service improvements

Feedback helps to drive service improvement and the courts invite feedback, including suggestions and complaints about administrative things such as the standard of client service received in a registry, a privacy matter, a security matter, a court policy, or the way correspondence has been handled.

During 2012–13 the courts pursued several initiatives aimed to strengthen these client service commitments, including:

  • developed a family law services feedback and complaints form and restructured the feedback and complaints information on the website to make it more user-friendly
  • implemented changes in response to the 2011 family law user satisfaction survey to improve our services
  • introduced a new queuing system for faster and more orderly service in the largest registries
  • simplified the document request form to assist clients seeking copies of orders or divorce certificates, and
  • introduced a new client service wiki to ensure staff have access to the most up-to-date procedural information.

Registry Services (General Federal Law)

The Federal Court provides registry services for the Federal Circuit Court in relation to its non family law matters. The Principal registry of the Federal Court is located in Sydney and there is a district registry in each capital city. The district registries receive applications and related documents on behalf of the Court. They also assist judges of the Court, practitioners and litigants.