Circuited to 33 rural and regional locations across Australia

Migration applications increased by 61 per cent

The Court's performance

Portfolio Budget Statements Outcome and Program

The Family Court of Australia and Federal Circuit Court of Australia FMA Act Agencies were merged into a single FMA Act Agency from 1 July 2013, the Family Court and Federal Circuit Court.

The outcome and program framework of the Family Court and Federal Circuit Court sets out the agency's commitments to the Government. Each year, details of the framework are outlined in the Portfolio Budget Statements, along with relevant performance information. Government outcomes are the intended results, impacts or consequences of actions by the Government on the Australian community. Agencies deliver programs that are government actions taken to deliver the stated outcomes. Agencies are required to identify the programs that contribute to government outcomes over the Budget and forward years.

Outcome

The outcome of the Family Court and Federal Circuit Court is described below.

Outcome 1

Provide access to justice for litigants in family and federal law matters within the jurisdiction of the courts through the provision of judicial and support services.

Program

The Family Court and Federal Circuit Court has a single program under which all services are provided:

Program 1.1: Family Court and Federal Circuit Court

The program objectives for the Family Court and Federal Circuit Court are managed via three separate components:

  1. Family Court of Australia
    • The objective of the Family Court of Australia is to support Australian families involved in complex family disputes by deciding matters according to the law, promptly, courteously and effectively. This involves:
      • providing decisions in complex family disputes for separating Australian couples and families through the determination of matters, and
      • providing national coverage as the appellate court in family law matters.
  2. Federal Circuit Court of Australia
    • The objective of the Federal Circuit Court of Australia is to provide a simple and accessible alternative to litigation in the Family Court and Federal Court.
    • Where practical, parties are encouraged to resolve their disputes through dispute resolution and negotiation methods.
  3. Family Court and Federal Circuit Court Administration
    • The objective of the Family Court and Federal Circuit Court Administration is to assist the courts to achieve their stated purpose by:
      • Maintaining an environment that enables judicial officers to make determinations
      • Providing effective and efficient registry services
      • Effectively and efficiently managing resources
      • Providing effective information and communication technologies.

Deliverables and Key Performance Indicators

The deliverables and key performance indicators associated with each component encompass core service standards for judicial services and client services (that is, the family law registries, where people attend in person, and the National Enquiry Centre, the first point of contact for telephone and email enquiries).

Although a single agency for the purposes of the FMA Act, the Federal Circuit Court of Australia remains a separate Chapter III Court under the Australian Constitution and the deliverables and key performance indicators applicable (KPIs) to the Court as identified in the 2013–14 Portfolio Budget Statements are shown in Table 3.1. The deliverables and KPIs for the Family Court and Federal Circuit Court Administration are also set out in Table 3.2.

Table 3.1: Deliverables and key performance indicators, 2013–14 Portfolio Budget Statements

Deliverables

Performance

Number of cases litigated and divorce cases processed

In 2013–14, the Court litigated 92,022 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 2013–14, 81 per cent of all applications (family law and general federal law) were completed within six months and 93 per cent were completed within 12 months.

In family law, 82 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, 71 per cent of applications were completed within six months and 85 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 2013–14, the number of complaints represented 0.2 per cent of cases.

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

In 2013–14, 71 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 2013–14. These KPIs are the same for the reporting periods from 2009–10 through to 2012–13. 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 2013–14, achieving 81 per cent. In the 2012–13 reporting period the Court achieved 83 per cent of applications finalised within six months. The fall in the percentage of matters finalised may in part be attributed to the 61 per cent increase in migration applications filed in 2013–14.

The Court has continued to develop and maintain strategies to achieve this KPI including:

  • the development of a national relief roster whereby judges of the Court allocate one week annually to assist in locations when judges are ill or in locations requiring assistance
  • the continued development of operational reports to enable the Court to better understand its workload
  • attention to ensuring the accuracy of data entry to ensure that the true position of the Court is reflected in statistical and operational reports
  • the ongoing review of the Court's oldest active cases with a view to ensuring an understanding of any reasons for delay and developing strategies for managing older cases, and
  • case management judges work together on improving the performance of the Court on a national and regional basis.

During 2013–14, 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.

Family Court and Federal Circuit Court administration

Table 3.2: Deliverables and Key Performance Indicators

Deliverables

Performance

Telephone enquiries served target 238,400

356,004 telephone enquiries served

Counter enquiries served target 187,400

255,792 counter enquiries served

Email enquiries responded to target 83,600

113,163 emails responded to

Key Performance Indicators

Performance

National Enquiry Centre telephone enquiries answered within 90 seconds for 80 per cent of calls

28 per cent of telephone enquiries were answered within 90 seconds

Counter enquiries served within 20 minutes in 75 per cent of matters

92 per cent of counter enquiries were served within 20 minutes

Email enquiries responded to within two working days in 80 per cent of matters

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

Application lodged processed within two working days in 75 per cent of matters

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

Budgetary pressures

Over recent years, and in response to the emerging challenging financial position, the courts have separately, and as a combined entity, undertaken significant initiatives to reduce costs and generate efficiencies; however, there are still significant financial pressures upon the Family Court and Federal Circuit Court.

The courts are committed, along with the Government, to continue to examine and implement opportunities within the courts to address these pressures. This includes the courts comprehensively examining options available to transform their operations while still considering access to justice, courts excellence, impacts of family violence, and e-lodgement reforms.

Workload

Table 3.3: Family law and general federal law applications filed 2013–14

Family law

Total

% of total

Final orders

17,565

19

Interim orders

20,298

22

Divorce

43,634

47

Other

1860

2

Total family law

83,357

90

General federal law

Total

% of total

Bankruptcy

4285

5

Migration

3208

4

Industrial

935

1

Other

237

0

Total general federal law

8665

10

Grand Total

92,022

100%

Figure 3.1: (continued) Family law and general federal law applications filed 2013–14

This figure shows the family law and general federal law applications filed in 2013–14.

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.

Figure 3.2: Case Management approach diagram

This is a diagram of the Court's Case Management approach.

Productivity Commission

On 20 June 2013 the Productivity Commission was asked to examine the Access to Justice Arrangements. The full terms of reference can be found at www.pc.gov.au/projects/inquiry/access-justice/terms-of-reference.

In the context of the consultation process, senior executive staff of the Court met with relevant Productivity Commission representatives and attended round table conferences in Melbourne in November 2013. On 8 April 2014, the Commission released a draft report titled Access to Justice Arrangements. The draft report endorses a docket style of case management and recommended that courts that do not currently utilise an individual docket system for civil matters should move to this model unless reasons to do the contrary can be demonstrated. As noted earlier, in this Report the Federal Circuit Court has employed a docket system of case management since inception.

The draft report also recommends that courts should extend their use of telephone conferences and online technologies for the purpose of procedural or uncontentious hearings where appropriate, and examine whether there should be a presumption in favour of telephone hearings or use of online court facilities for certain types of matters of litigants. This is consistent with the well-established practice of the Federal Circuit Court using telephone attendances and technologies particularly to assist litigants and practitioners in rural and regional Australia.

A copy of the draft report can be found at www.pc.gov.au/projects/inquiry/access-justice/draft

Specialist panel arrangements

The Court has specialist panels in areas of general federal law and child support which ensure that matters of a specialist legal nature are allocated to judges with expertise in that particular area of the Court's jurisdiction. Specialist panel members meet regularly with user groups and judicial colleagues from other courts to respond to issues of practice and procedure in these specialist jurisdictions.

The following panels support the work of the Court:

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

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

Report on work in family law

The family law workload in 2013–14 represented 90 per cent of all applications filed with the Court, which is slightly less than 2012–13 where family law applications represented 93 per cent of the workload. The Court currently deals with 86 per cent of all federal family law matters filed (excluding Western Australia family law matters). This compares to 87 per cent in 2012–13. The Court is justifiably proud of the fact that despite overall workload increasing and limited judicial capacity, it is still able to generally maintain clearance rates.

Family law applications can be categorised as one of four types as set out in Table 3.4. The table also describes the application types as a percentage of the family law applications filed.

The Court shares family law jurisdiction with the Family Court and undertakes 86 per cent of this workload. However there are some jurisdictional gaps. Although almost all applications for divorce are filed in the Federal Circuit Court, the jurisdiction in relation toApplications for Validity of a Marriage or Annulment is exclusively conferred on the Family Court. It would seem desirable that the Federal Circuit Court is also conferred this jurisdiction in view of its significant divorce workload. The desirability of the Court having Corporations jurisdiction in respect of civil matters arising in family law proceedings to avoid the need to rely on the general transfer powers, is illustrated the Family Court decision of Talbot & Talbot [2014] FamCA 128.

Table 3.4: Family law applications filed by type, 2013–14

Application

Filed

%

Final Orders applications

17,565

21

Interim applications

20,298

24

Divorce applications

43,634

53

Other applications

1860

2

Total

83,357

100

Figure 3.3: (continued) Family law applications filed by type, 2013–14

This figure shows the family law applications filed by type in 2013–14.

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

Figure 3.4: Final orders applications 2009–10 to 2013–14

This figure shows the final orders applications from 2009–10 to 2013–14.

Figure 3.5: Interim orders applications 2009–10 to 2013–14

This figure shows interim orders applications from 2009–10 to 2013–14.

The family law workload (excluding divorce) can be broken into three main categories. In 2013–14, 55 per cent of family law applications related specifically to matters concerning children, a further 11 per cent involved both children and property and 34 per cent involved discrete property applications.

Figure 3.6: Issues sought in final orders applications, 2013–14

This figure shows the issues sought in final orders applications in 2013–14.

Increasing reporting of risks

The prevalence of allegations of risk in parenting proceedings is of particular significance as parenting applications represent 55 per cent of the family law workload of the Court and most parenting applications are commenced in the Federal Circuit Court.

In the 2012–13 Annual Report, it was noted that there had 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 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. This trend has continued in the 2013–14 reporting period as highlighted in Figure 3.7.

Figure 3.7: Notice of Child Abuse, Family Violence, or Risk of Family Violence filed 2009–10 to 2013–14

This figure shows the Notice of Child Abuse, Family Violence, or Risk of Family Violence filed from 2009–10 to 2013–14.

Notice of Risk – South Australian Pilot

As outlined in the 2012–13 Annual Report, the Court is seeking to better facilitate the early identification of risk in parenting matters when allegations are raised. Accordingly a new Notice of Risk has been piloted by the Court in South Australia since February 2013 ('the SA pilot'). This Notice of Risk is being considered by the Court as a possible replacement for the currently prescribed Form 4 to better identify risks in parenting proceedings in the Federal Circuit Court. It represents a departure from the prescribed Form 4 in that it would be required to be filed in all matters involving children rather than only in instances where allegations are made which attract the statutory requirements. Information about the Notice of Risk is available under the forms section on the Federal Circuit Court website www.federalcircuitcourt.gov.au

An evaluation of the South Australian pilot is expected to be finalised in August 2014. While the statistical information gathered indicates a higher level of reporting of risk in South Australia as a percentage of children's matters compared to other locations, this would seem to point to an overall under reporting of risks, as there was no evidence to suggest that the identified risks were unsupported by the facts. The Court is currently considering a possible national roll out of the Notice of Risk in 2015.

Efforts to improve collaboration and information sharing between the Court and State and Territory child welfare authorities

In March 2013, the Attorney-General's Department published a report by Professor Richard Chisholm, AM, Information-Sharing in Family Law & Child Protection: Enhancing Collaboration. This report is available from the Attorney-General's website www.ag.gov.au. The Department has also engaged Professor Chisholm to undertake a review of the sharing of experts' reports between the child protection and family law systems. The Court has representatives on a taskforce established to assist Professor Chisholm in his review and will consider any recommendations which may be made in respect of greater sharing of such reports.

To complement this and other national initiatives to improve collaboration and information flow between the Court and State and Territory child welfare authorities, a court committee has been established to advance local initiatives. One such initiative is a co-location project, which involves the placement of a senior child protection practitioner at the Dandenong registry in Victoria. In addition, a co-located Department of Human Services position is based in the Melbourne registry to provide a state wide liaison role and guide the response to concerns for the safety and wellbeing of children when allegations are raised. This initiative is currently the subject of an evaluation.

Inquiry into grandparents who take primary responsibility for raising their grandchildren

In response to a request, a submission was provided which highlighted the barriers that are not infrequently encountered by grandparents in initiating family law parenting proceedings. By way of illustration a number of cases involving grandparents who are the only viable carers where the mother and/or father have substance abuse issues, are incarcerated or have mental health problems, were noted in the submission. A copy of the submission can be found on the parliamentary website www.aph.gov.au

Engagement in the Australian Institute of Family Studies research

Representatives from the Court participated in surveys conducted by the Australian Institute of Family Studies (AIFS) in respect of their evaluation of the 2012 Family Violence Amendments to the Family Law Act 1975 and their research on Independent Children's Lawyers (ICLs) in the family law system. The AIFS research on ICLs was released during the year and highlighted the complexity of the environment in which ICLs operate and the differing expectations from stakeholders with different needs. Representatives from the Court have met with National Legal Aid and other stakeholders to progress some of the recommendations flowing from this Report.

Divorce

Almost all applications for divorce are filed in the Federal Circuit Court. Uncontested divorce applications are heard by registrars with delegated powers. As highlighted in previous Annual Reports, the Court considers the conferral of jurisdiction in relation toApplications for Validity of a Marriage or Annulment to be desirable in view of the fact that most divorce applications are filed in the Court.

During the year the Federal Circuit Court and the Family Court launched their official YouTube channels to provide information videos aimed at helping self-represented litigants with court procedures. In view of the large number of litigants who file for divorce and have no legal representation, a specific video dealing with the service requirements for divorce was prepared.

How to apply for a divorce: serving divorce papers was produced to help self-represented litigants understand and carry out the process of service in divorce applications. This video is the first in a series of planned videos to provide court users with simple information in a digital format which differs from the usual printed fact sheet.

To view the YouTube video visit www.youtube.com/federalcircuitcourt

Since eFiling of divorce applications commenced on 26 September 2009, 35,162 divorce applications have been eFiled and are now averaging about 169 per week. The Court is further progressing work on the development of an electronic file to facilitate the determination of divorce applications where no attendance is required on the part of the applicant(s).

Included in the 2013 fee increases announced by the Government, was an increase in the fee for divorce applications. Although there was a general full fee exemption introduced, this exemption does not apply to divorce applications where eligible persons pay a reduced fee.

The Marriage (Celebrant Registration Charge) Act 2014 and the Marriage Amendment (Celebrant Administration and Fees) Act 2014 introduces cost recovery and other changes for the Marriage Celebrants Program.

The High Court in Commonwealth of Australia v The Australian Capital Territory [2013] HCA 55 held that the Marriage Equality (Same Sex) Act 2013 enacted for the ACT could not operate concurrently with the federal Marriage Act 1961 which does not provide for the recognition of marriage between same sex couples.

Of interest was the Family Court Full Court appeal decision in Anderson & McIntosh [2013] FamCAFC 200. The parties were divorced and orders for property settlement were made overseas in relation to foreign property but not in relation to property in Australia. The wife's application for property settlement in the Family Court was filed more than 12 months after the date of the foreign divorce. The trial judge determined that the wife did not need leave. The husband sought that the wife's application be dismissed as she had not obtained leave pursuant to s 44(3). The Appeal Court held that leave pursuant to s 44(3) is not required in respect of a divorce obtained overseas.

Figure 3.8: Divorce applications 2009–10 to 2013–14

This figure shows divorce applications from 2009–10 to 2013–14.

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.

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 2013–14 there were 42 appeals from the SSAT filed, which is an increase from 28 in the previous year. The Court has established a panel of judges to hear such appeals – the current specialist panel list is available on the Court's website http://www.federalcircuitcourt.gov.au. These decisions are also made available on the Austlii website 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. Appeals from decisions of the Administrative Appeals Tribunal (AAT) go to the Federal Court. To rationalise the pathways to review of decisions under the child support legislation, it would seem useful for the Federal Circuit Court to be given jurisdiction in respect of child support AAT appeals (except where the AAT is constituted by a presidential member). This would ensure the Court had jurisdiction either at first instance or on appeal, with respect to all issues relating to child support.

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

In April, the House of Representatives Standing Committee on Social Policy and Legal Affairs commenced an inquiry into the Child Support Program. Further details on the inquiry can be found at www.aph.gov.au

Report on work in general federal law

Administrative

The number of administrative law applications is small with 26 applications filed in 2013–14. The Court has 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 SSAT and in respect of child support departure prohibition order appeals.

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.

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 at least in respect of appeals such as those relating to child support.

The types of administrative law proceedings that come before the Court are illustrated by the following cases:

Campbell and Anor v Australian Crime Commission [2013] FCCA 2085 which concerned an application seeking reasons why summonses which compelled appearances before the Australian Crime Commission were issued and claims for public interest privilege and legal professional privilege.

Sekhon v The Director of Quarantine [2013] FCCA 331 which involved an objection to a subpoena issued by the Court. In the substantive proceedings the applicant sought judicial review of a decision that the applicant's dog, a Dalmatian called 'Pepper', imported into Australia, be exported from Australia by a certain date. The decision was made and communicated to the applicant on 25 October 2012. In August 2012, Pepper had been diagnosed with canine monocytic ehrlichiosis which was said to present 'a life-threatening risk to the wider Australian dog population'.

Table 3.5: General federal law applications filed by type, 2013–14

Application

Filed

% of total

Bankruptcy

4285

49.4

Migration

3208

37

Admistrative

26

0.3

Admiralty

17

0.2

Consumer

62

0.7

Intellectual property

53

0.6

Human rights

79

0.9

Industrial

935

10.9

Total

8665

100%

Admiralty

In 2013–14 a total of 17 admiralty law applications were filed with the Court as opposed to 16 in 2012–13.

Admiralty applications comprise a very small portion of the overall general federal law jurisdiction. Those applications which are filed in the Court are undertaken by panel judges. 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.

The Admiralty Rules Committee established under section 42 of the Admiralty Act 1988 (Cth), advise the Attorney-General and consult the Court during the year in respect of a number of proposed amendments to the Admiralty Rules.

Although the Court's admiralty jurisdiction is confined to in personam claims, the Court can exercise in rem jurisdiction upon remittal from the Federal Court and state supreme courts. Enforcement of foreign judgments often depends upon general principles of comity/ reciprocity. Not being a superior court, this could present difficulties for enforcement of Federal Circuit Court judgments in foreign jurisdictions.

During the year there was some Full Court Federal Court decisions of significance including:

Ships 'Hako Endeavour', 'Hako Excel', 'Hako Esteem' and 'Hako Fortress' v Programmed Total Marine Services Pty Ltd [2013] FCAFC 21, which involved a dispute about the termination of a demise charter.

Daebo Shipping Co Ltd v The Ship Go Star [2012] FCAFC 156, which involved a bunker fuel dispute . Special leave to appeal to the High Court was granted in September 2013 to consider the issue of the governing law. However special leave was subsequently revoked as the Court considered the case was not a suitable vehicle to explore the law governing the procurement of the breach of contract.

In Dampskibsselskabet Norden A/S v Gladstone Civil Pty Ltd [2013] FCAFC 107, the Full Court found a voyage charter party is not a 'sea carriage document' within the meaning of the Act. The decision has been seen as providing some clarification on the meaning of 'sea carriage document'.

Bankruptcy

During the last financial year it was noted that bankruptcy filings had trended downwards. However the data for this year would seem to indicate filings have increased, see table 3.9.

In respect of the numbers of filings, bankruptcy applications comprise a significant proportion of the general federal law work of the Court. Although the jurisdiction is concurrently exercised by the Court and the Federal Court, most applications (95 per cent) are filed in the Federal Circuit Court. Registrars with delegate powers undertake the substantive bankruptcy workload. The Court appreciates the significant role that registrars play in the bankruptcy jurisdiction. Panel judges deal with those matters which go on review from registrars or are otherwise not within the scope of the delegated powers of registrars.

By way of illustration, the following are some of the decisions which come before the judges for determination in this area of the jurisdiction:

  • Charlton v CNH Capital Australia Pty Ltd [2013] FMCA 232
    Application to set aside bankruptcy notice – lodging by facsimile – whether filed in or out of time
  • Kneipp v Jonsson [2013] FCCA 1695
    This judgment covered a number of applications made by a bankrupt against his Trustee. The applications arose out of a decision made by the Trustee to file notices of objection to discharge
  • Perpetual Trustee Co Ltd v Sanna [2013] FCCA 2107 
    The Court had to consider whether the bankruptcy notice was effectively served at the debtors 'last known address', in circumstances where the debtor no longer resided at the address and no longer the registered owner of the address, and
  • Kuhadas v Gomez [2014] FCCA 1130
    In the context of an application to set aside a bankruptcy notice, the Court had to consider whether the Court had power to go behind an order made under the Foreign Judgment Act 1991.

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.

The conferral of some insolvency corporations law jurisdiction is seen as desirable to complement the significant personal bankruptcy jurisdiction exercised by the Court.

In view of the shared bankruptcy jurisdiction, the Federal Circuit Court and the Federal Court have harmonised bankruptcy rules and forms. Representatives from the Australian Financial Security Authority (formerly known as the Insolvency and Trustee Service Australia) have regular liaison meetings with representatives from the courts.

Included in 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.

A pilot project to assist self-represented litigants in the Federal Circuit Court bankruptcy lists in Melbourne is hoped to be progressed. The pilot is a joint project with the Court, the Consumer Action Law Centre and Melbourne University Law School and is intended to provide funding for financial counsellors to be present at bankruptcy lists to assist self-represented litigants understand their debt situation and financial position, provide options, assist with negotiation with creditors and provide referral to legal or other assistance. If the pilot proceeds, it is hoped that it could be included in evaluative research on Australian personal insolvency laws being undertaken by Professor Ian Ramsay, Melbourne University Law School.

Figure 3.9: Bankruptcy applications 2009–10 to 2013–14

This figure shows bankruptcy applications 2009–10 to 2013–14.

Consumer

The new Australian Consumer Law (ACL) commenced on 1 January 2011, and repealed the Trade Practices Act 1974. It applies nationally and in the States and Territories and is underpinned by an Intergovernmental Agreement signed by the Council of Australian Governments.

During the year, 62 consumer law applications were filed which compares with 70 during the previous reporting period.

The Court has a statutory limit of $750,000 on the amount of damages that it can award under this head of jurisdiction. This no doubt detracts from the number of consumer law applications filed in the Court. However jurisdiction is also available in respect of matters that are associated with the jurisdiction invoked.

The Court has small claims jurisdiction in both consumer and industrial matters and the fee for such applications is reduced.

In O'Hagan v Classic Cars Australia Pty Ltd & Anor [2014] FCCA 749, the Court had to consider the liability of a motor dealer in New South Wales to a customer in Victoria who purchased a 30 year old Rolls Royce motor vehicle, sight unseen, for statements made by himself and the dealership in its website and orally prior to the customer entering into a contract to purchase that vehicle.

In Mill Estate Holdings Pty Ltd v Reinhardt & Anor [2014] FCCA 906 the action related to the purchase of a real estate agency. The Applicant claimed against the Respondents for damages for misleading and deceptive conduct, for breach of fiduciary duties, breach of contract and for breach of contract of employment. The Second Respondent counter-claimed against the Applicant for unpaid commissions to which he claimed an entitlement pursuant to the contract of employment.

The implications of the High Court decision in Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2 in which the Court held that criminal prosecutors should not make submissions to the sentencing judge on the outer bounds of the available sentencing range, is of interest to civil regulators in the consumer and industrial context. The application of the High Court's decision in Barbaro in the context of submissions on the quantum or range of civil penalties is awaiting further judicial consideration.

Human rights

Proceedings cannot be instituted for alleged unlawful discrimination until the Australian Human Rights Commission (AHRC) terminates the complaint.

The human rights workload has fallen from 105 matters in 2012–13 to 79 in 2013–14. While not a significant component of the general federal law, the jurisprudence is still evolving. Such applications are assigned to panel members.

An appointment of a Freedom Commissioner as a Human Rights Commissioner to the AHRC to focus on the protection of rights recognised in the International Covenant on Civil and Political Rights was made during the year. In addition, the Attorney-General asked the Australian Law Reform Commission (ALRC) to review Commonwealth legislation to identify provisions that unreasonably encroach upon traditional rights, freedoms and privileges.

In April 2014 the High Court unanimously held in NSW Registrar of Births, Deaths and Marriages v Norrie [2014] HCA 11, that the Births Deaths and Marriages Registration Act 1995 (NSW) permits the Registrar to register that a person's sex is 'non specific'. The High Court had to consider whether the statutory construction favoured by the appellant would place the appellant in breach of a provision of the Sex Discrimination Act 1984 ('the SDA').

The Sex Discrimination Amendment (Sexual Orientation, Gender Identity and Intersex Status) Act 2013 introduced amendments to the SDA which took effect on 1 August 2013. Included were new discrimination protections on the basis of sexual orientation, gender identity and intersex status and extended the ground of marital status.

Protections for intersex, trans and gender diverse people in Australia is also the subject of Commonwealth Guidelines on the Recognition of Sex and Gender which came into force on July 2013. Government departments and agencies are to align their existing practices with these Guidelines by 1 July 2016. These guidelines are on the Attorney-General's Department website www.ag.gov.au under consultations, reforms and reviews.

Proposed amendments to the racial vilification provisions of the Racial Discrimination Act 1975 have been the subject of public consultation. Alleged unlawful acts in contravention of the existing racial vilification provisions, was the subject of a determination by the Court in Kanapathy v In De Braekt (No 4) [2013] FCCA 1368. In the context of possible remedies, the Court also considered whether if it had been pursued, an order for an apology would have been appropriate in the circumstances.

Human rights issues which arise in the workplace can also be the basis for redress under industrial law.

Industrial

Since 2009, the industrial law work of the Court has steadily increased and now comprises a significant component of the overall general federal law workload. The Court has similar industrial jurisdiction to the Federal Court in relation to claims for unlawful termination and contraventions of general protections. The Federal Circuit Court exercises jurisdiction in respect of small claims (which jurisdiction is not exercised by the Federal Court) and use streamlined procedures to manage these matters in a way which is designed to facilitate resolution at the first event. Discrete small claims lists are conducted in Melbourne, Sydney and Brisbane.

The incremental conferral of industrial law jurisdiction since 2009 has occurred without consideration of its impact on the overall judicial resourcing of the Court and is a matter of concern.

The industrial law jurisdiction is one which continues to evolve, and is not infrequently the subject of High Court proceedings. For example, in Construction Forest Mining & Energy Union v Mammoet Pty Ltd [2013] HCA 36, the High Court considered section 470 (1) of the Fair Work Act 2009 which prohibits an employer from making "payment" to an employee taking protected industrial action "in relation to the total duration" of the action on that day. The proceedings which had originally been filed in the Federal Circuit Court were remitted by the High Court to the Federal Circuit Court. The High Court has also granted special leave in respect of the Full Court of the Federal Court decision in Commonwealth Bank of Australia v Barker [2013] FCAFC 83. It is expected the High Court decision will clarify whether there is an implied term of mutual trust and confidence in an employment relationship in Australia.

The decision of the Court in the matter of Baerji v Martin Bowles, Acting Secretary, Department of Immigration and Citizenship [2013] FCCA 1052 attracted much commentary. In this case, the Applicant sought declaratory and other relief to prevent dismissal having committed a breach of the APS Code of Conduct by 'tweeting' comments critical of the Minister and government policy. The Applicant argued that such breaches were protected by the 'constitutional right/freedom of political communication'.

The Public Interest Disclosure Act 2013 established a new legislative scheme for the investigation of allegations of serious wrongdoing in the Commonwealth public sector. The substantive provisions commenced on 15 January 2014. The Court and the Federal Court have jurisdiction to make orders for civil remedies (including compensation, injunctions and reinstatement of employment) if a reprisal against a person because of public interest disclosure). The general workplace protections provided by the Fair Work Act 2009 apply in relation to the making of a public interest disclosure by a public official who is an employee within the meaning of that.

Figure 3.10: Industrial applications filed 2009–10 to 2013–14

This figure shows industrial applications filed from 2009–10 to 2013–14.

Intellectual property

Since 15 April 2013, the Court has exercised trade mark and design jurisdiction in addition to the existing copyright law.

The Court has specialist panels to deal with intellectual property matters. In 2013–14 a total of 53 applications were filed with the Court compared to 40 applications in 2012–13.

The Court does not have jurisdiction in respect of patents infringements however the Intellectual Property Laws Amendment Bill 2014 is currently before the Parliament and replaces a 2013 version of the Bill. The Bill includes amendments to the Plant Breeder's Rights Act 1994 to give the owners of plant breeder's rights the option of taking action in the Court against alleged infringers.

In light of the enhanced intellectual property jurisdiction, the Court will be considering whether it would be useful to have some specific rules or practice for such proceedings.

In February, the ALRC released the final report for its inquiry Copyright and the Digital Economy. One of the recommendations in the report was the introduction of fair use. While acknowledging that the Copyright Act is unnecessarily restrictive in potentially prohibiting some beneficial uses of copyright material, the Government is considering the issues raised in the report before responding.

In the case of Societe Des Produits Nestle SA & Anor v Christian & Anor [2014] FCCA 367, the Court had to consider an order for dispensation of service in circumstances where personal service was impracticable in the context of an alleged infringement of a trade mark and provisions of the ACL.

The nature of the relief sought is often injunctive or declaratory and not infrequently the claim is an alleged breach of copyright and/or trade mark as well as provisions of the ACL: Facton Ltd & Ors v Remmy Cardin Pty Ltd [2014] FCCA 627. Similarly, in Dolby Laboratories Licensing Corporation & Anor v Kamil [2013] 1326 in the context of an alleged trade mark infringement, an application for interlocutory orders was made restraining the release of goods from customs control.

In Tylor v Sevin [2014] FCCA 445 an interesting issue for the Court to consider was whether copyright subsisted in photograph.

Migration

It is apparent from Figure 3.11 below, applications for judicial review of decisions under the Migration Act are increasing significantly. Without additional judicial resources there is likely to be difficulties in ensuring timely disposition of such matters and early hearing dates. The work is undertaken by panel judges and in certain localities additional panel judges have been assigned in light of the increasing migration workload.

A total of 3208 migration applications were filed in 2013–14 as compared to 1981 in 2012–13. This is an increase of 1227 matters or 61 per cent from the previous reporting period. The increase has placed significant pressure on the Court.

Figure 3.11: Migration applications filed 2009–10 to 2013–14

This figure shows migration applications filed from 2009–10 to 2013–14.

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 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 self-represented 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 Justice Connect and others.

The Department with oversight of migration changed its name during the year from

DIAC – Department of Immigration and Citizenship (2007–2013)

DIMC – Department of Immigration, Multicultural Affairs and Citizenship (2013)

DIBP – Department of Immigration and Border Protection (2013 – current)

Representatives from the Court met during the year with departmental officers to discuss issues pertaining to workload and other trends.

This specialist branch of administrative law often illustrates the tension between legislative measures to constrain migration litigation and the Constitutional protection of judicial review of Commonwealth decisions. It is not therefore surprising that decisions are often the subject of High Court consideration.

During the year a number of High Court decisions were delivered including:

Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship [2013] HCA 53 in which the High Court found that the Department acted on an error of law in refusing to refer the plaintiff's case to the Minister for consideration as to whether to allow the plaintiff to make a protection visa application. This refusal was on the basis of an adverse security assessment which the Department erroneously believed would preclude her from obtaining such a visa.

In Plaintiff M47/2012 v Director-General of Security [2012] HCA 46 the High Court held that the relevant public interest criterion for a protection visa contained in the Migration Regulations 1994 was invalid. Following this decision, the Migration Amendment Act 2014has come into effect to make it a criterion for the grant of a protection visa that the applicant is not assessed to be a risk to security. In addition this Act seeks to put it beyond doubt that a decision on review is taken to be made on the day and at the time when a record of it is made, and not when the decision is notified or communicated to the review applicant. It also provides statutory clarification on the operation of the statutory bar on making a further protection visa application.

This High Court challenge was of significance in that while the Court decided not to re-open its earlier decision on indefinite detention, a majority has left open the possibility of reconsidering it the future in an appropriate case.

In Plaintiff S156/2013 v Minister for Immigration and Border Protection & Anor [2014] HCA 22 the High Court unanimously held the provisions which operate to effect the removal of the 'unauthorised maritime arrivals' from Australia are valid under the aliens power conferred by s 51(xix) of the Constitution. The Court also held that the proceedings are able to be remitted to the Federal Circuit Court.

Plaintiff S297/2012 v Minister for Immigration and Border Protection/ Plaintiff M150/2013 v Minister for Immigration and Border Protection the Applicants, where the applicants claimed that the relevant Migration Regulation was invalid as incompatible or repugnant to section 36 and section 198 of the Migration Act. The Regulation prevented the Minister from granting a protection visa to any person who did not arrive with a visa, had not been cleared by Immigration or was an unauthorised maritime arrival. A significant number of matters filed in the Court had been adjourned pending the High Court challenge. In June 2014, the Court upheld the challenge to the validity of the Regulation which had been disallowed in the Senate in March 2014.

In February 2014, a routine report released on the department's website unintentionally enabled access to some personal information about people who were in immigration detention in Australia on 31 January 2014. In SZTXY v Minister for Immigration & Anor [2014] FCCA 841 some of those whose personal information was made available, sought an injunction and declarations in the Court, preventing their removal from Australia pending a lawful assessment of the consequences of the release of their personal information. The Court found that the applicants have an alternative remedy under the Privacy Act 1988. None of these applicants were found to have established an arguable case for the relief sought. The applicants have appealed to the Federal Court of Australia.

The complementary protection criterion for a protection visa introduced in 2012 has been available for those not falling within the Convention definition of a refugee but cannot be refouled because of a real risk they would suffer harm that would engage non-refoulment obligations under certain treaties. The Migration Amendment (Regaining Control over Australia's Protection Obligations) Bill 2013, if passed, would remove the criterion for a grant of a protection visa on complementary protection grounds.

Complaints

During 2013–14 the Court received 188 complaints which is higher than the previous year (172). Complaints are categorised as follows:

  • Overdue judgments – 72
  • Conduct of judge or registrar – 47
  • Dispute resolution and mediation – 40
  • Judicial decision – 9
  • Legal process – 8
  • Conduct – legal representative – 2
  • Conduct – registries – 3
  • Conduct – chambers – 2
  • Perjury – 4, and
  • Pending proceedings – 1

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.

Judicial complaints policy

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

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

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

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

Judgments

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 www.austlii.edu.au, 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. The Court acknowledges the role that AustLii plays in hosting the decisions.

A significant number of the Court's decisions are delivered orally at the conclusion of a hearing or soon after. In view of the additional time that is required for this task not all oral decisions are settled in writing. Efforts are made to increase the number of family law decisions which are distributed for publication on AustLii. The anonymising of family law decisions imposes an additional requirement on judgment officers.

During 2013–14, 2923 judgments of the Court were settled into a written format compared with 2863 during the previous year. A breakdown by jurisdictional category is as follows:

  • Admin – 15
  • Bankruptcy – 161
  • Child support (incl. SSAT) – 64
  • Consumer law – 18
  • Copyright – 5
  • Family law – 1517
  • Human rights – 23
  • Industrial law – 156
  • Migration – 918
  • Practice and procedure – 45
  • Trademarks – 1

Of the 1581 family law judgments (family and child support and SSAT), 582 were sanitised in accordance with s.121 of the Family Law Act 1975 and distributed to AustLii and external publishers.

During the year, 151 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.

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 no change in the number of appeals from the Federal Circuit Court which remained at 179 cases, whilst appeals from the Family Court rose by three per cent. The Court exercises some appeal jurisdiction from the SSAT in respect of child support matters. See the child support section earlier in Part 1.

Table 3.6: Notice of appeals filed, finalised and pending by jurisdiction, 2009–10 to 2013–14

Filed

2009–10

2010–11

2011–12

2012–13

2013–14

% change from 2012–13 to 2013–14

Family Court of Australia

113

135

153

147

151

3%

Federal Circuit Court

202

193

220

179

179

0%

Appeals filed

315

328

373

326

330

1%

Per cent from Family Court of Australia

36%

41%

41%

45%

46%

1%

Per cent from Federal Circuit Court

64%

59%

59%

55%

54%

-1%

Finalised

2009–10

2010–11

2011–12

2012–13

2013–14

% change from 2012–13 to 2013–14

Family Court of Australia

144

129

138

140

158

13%

Federal Circuit Court

201

196

194

193

191

-1%

Appeals finalised

345

325

332

333

349

5%

Per cent from Family Court of Australia

42%

40%

42%

42%

45%

3%

Per cent from Federal Circuit Court

58%

60%

58%

58%

55%

-3%

Pending

2009–10

2010–11

2011–12

2012–13

2013–14

% change from 2012–13 to 2013–14

Family Court of Australia

93

97

132

143

130

-9%

Federal Circuit Court

108

106

141

130

107

-18%

Appeals pending

201

203

273

273

237

-13%

Per cent from Family Court of Australia

46%

48%

48%

52%

55%

3%

Per cent from Federal Circuit Court

54%

52%

52%

48%

45%

-3%

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 56 per cent of the appellate work of the Federal Court being 497 of the total of 886. Of these 370, were in respect of the migration jurisdiction. The overall number of appeals from the Federal Circuit Court was 497 which was slightly more than during 2012–13 at 434.

Dispute resolution

The Federal Circuit Court has grown to become Australia's principal federal trial court. The Federal Circuit Court's jurisdiction and less formal legislative mandate is such that a significant number of parties present as self-represented litigants. In family law the Court is assisted by legal aid duty lawyer schemes. To address the needs of such litigants in the general federal law jurisdiction a number of initiatives have been established.

General federal law

The general federal law dispute resolution provisions are contained in Part 4 of the Federal Circuit Court of Australia Act 1999. The Court operates a docket management system and referrals by judges are the most frequently used procedure in general federal law proceedings. Most mediation is undertaken by registrars of the court however some matters are referred to external providers.

Not all matters are equally likely to be referred to mediation. In practice particular characteristics of some matters mean that referrals to mediation may occur infrequently if at all. Such matters include Migration applications.

The number of matters referred to mediation in 2013–14 has increased markedly from the 482 referrals in 2012–13 to 540 in 2013–14. The increase can be attributed to the increased filing of Industrial matters. Table 3.7 shows the number of matters referred to mediation for the past five financial years.

Table 3.7: Number of matters referred to mediation

 

2009–10

2010–11

2011–12

2012–13

2013–14

Referrals

418

388

487

482

540

Table 3.8 shows the number of referrals to mediation by cause of action both as a number and as a percentage of filings. Overall ten per cent of filings were referred to mediation. The causes of action most referred to mediations were Human Rights with 80 per cent of matters referred, Industrial and Consumer matters with 45 per cent.

Table 3.8: Filings and mediation referrals

Filings and mediation referrals as a percentage of filings 2013–14

 

Filings

Referrals

Referrals as % of Filings

Administrative

26

0

0%

Admiralty

17

1

5%

Bankruptcy

4285

16

0.30%

Human rights

79

63

80%

Industrial

935

418

45%

Intellectual property

53

14

26%

Consumer

62

28

45%

All Filings

5457

540

10%

The Court continues to engage a sessional registrar in both Sydney and Melbourne to assist with mediation in the growing Fair Work small claims jurisdiction.

Table 3.9 shows the outcome of mediations conducted in the reporting period. Not all matters mediated in the reporting period will have been filed or even referred to mediation in the reporting period. Matters that are referred to mediation at the end of the reporting period may be mediated in the following reporting period.

Table 3.9: Mediation outcomes

Mediation Referral Outcomes 2013–14

 

Not Held

Resolved

Part resolved

Not resolved

Administrative

0

0

0

0

Admiralty

0

0

0

0

Bankruptcy

2

7

0

4

Human Rights and Equal Opportunities Commission

12

23

1

14

Industrial

70

163

10

125

Intellectual Property

3

2

0

4

Consumer

4

12

0

3

Total

91

207

11

150

In the reporting period, registrars conducted 368 mediations and partially or fully resolved 218 matters or 59 per cent of matters. This is slightly down on the 61 per cent of matters resolved in 2012–13.

Pro Bono Scheme – Federal Circuit Court Rules 2001 – Part 12

A court-based pro bono scheme is in operation similar to that which operates in the Federal Court. Part 12 of the Rules sets out rules in relation to the Court administered scheme. Referrals for pro bono have generally been confined to general federal law matters. With a significant proportion of migration related matters involving self-represented litigants, the Court has been able to facilitate assistance to litigants. Assistance is also provided in various states by way of organisations such as JusticeNet. The Court appreciates the generosity of those members of the profession who agree to give their valuable time voluntarily to assist in such referrals.

Features include:

  • only people who are already parties to proceedings will be referred under the scheme. The scheme does not cover people who are considering bringing proceedings
  • a judge will decide whether a party is to be referred for legal assistance under the scheme
  • judges will refer a party under the scheme only when such referral is appropriate in the interests of the administration of justice. In deciding whether to make a referral, judges will take into account factors such as the party's financial means, the ability to otherwise obtain legal assistance and the nature and complexity of the matter
  • the judge will specify the scope of the referral when making it. For example, it may be to obtain advice, to draft a particular document or to appear at a particular hearing. There is no obligation for a barrister to act for a party once that particular task is completed
  • if a judge refers a party to the scheme, a registrar will attempt to find a barrister prepared to act for the party, and will put the party in contact with the barrister. The registrar will provide copies of any relevant court documents to the barrister
  • barristers are not obliged to accept referrals. If a barrister does accept a referral, then that barrister will not charge the party any professional fees. However, there may be other expenses which need to be incurred during the course of the proceeding, such as transcript, expert reports or photocopying. The barrister can ask the party to pay for these
  • if the party assisted wins the case, the Court may decide that the barrister should be able to recover his or her professional fees for acting for the party, and may make an order to allow this, and
  • a barrister may cease acting for a party if the party agrees, if a registrar gives the barrister leave to do so, or if the Bar's rules allow the barrister to cease to act. This would include circumstances such as where the barrister's advice is rejected or ignored, where the barrister has a conflict of interest or where the barrister has insufficient time to give proper attention to the matter.

Small claims lists – Melbourne, Brisbane and Sydney

Background

The Fair Work Act 2009 makes provision for certain proceedings to be dealt with as small claims proceedings. An application may request that an application for compensation be dealt with under this Division if the compensation is not more than $20,000 and the compensation is for an entitlement mentioned in the Fair Work Act 2009. When dealing with a small claim application, the Court is not bound by the rules of evidence but may inform itself of any matter in any manner as it thinks fit.

A party to a small claims application may not be represented by a lawyer without the leave of the Court. Rules in relation to the conduct of proceedings in the Fair Work Division are found in Chapter 7 of the Federal Circuit Court Rules 2001.

Objective

The Court aims to minimise the number of events needed to dispose of such applications. Ideally the Court aims to finalise these matters on the first hearing date. In Melbourne, Sydney and Brisbane we have dedicated lists with panel judges assigned, with the aim of disposing of such matters on the first date. Staff from the Fair Work Ombudsman are available to provide assistance on an amicus basis.

The main aims are:

  • ensuring that both parties attend court at the first hearing with all relevant material. This is facilitated by:
    • having a notice with the listing that indicates the matter may be dealt with and determined on the first return date
    • providing information to applicants that advises them of the type of material they may need to provide in support of their claim, and
    • accepting documents such as Fair Work Ombudsman Inspector's Report as evidence of the applicant.
  • having a registrar with some knowledge of the area available for mediation where the judges consider this to be helpful.
  • keeping it simple – with an application form with instructions which guides the applicant through what they need to provide on a step by step basis, and a pro forma affidavit of service.

Support

Litigants are provided with a fact sheet along with other resources to assist them in the process.

The Fair Work Ombudsman provides staff to assist at the lists on an amicus basis and various information material is available if additional claims are raised Registrars are available for mediation.

Migration Duty Lawyer Scheme – Melbourne

The Federal Circuit Court migration workload, particularly its hearing workload, has steadily increased since October 2001 when migration jurisdiction was conferred on the Court. Migration now represents the largest jurisdiction in the Court's general federal law defended hearing list, with most first instance judicial review applications being filed in the Federal Circuit Court.

Migration work presents additional demands on the Court and its administration that do not arise in other areas of the Court's jurisdiction. As many litigants in migration matters are self-represented, particularly those seeking review of protection visa decisions, there is a greater need for pro bono representation or other legal representation, particularly as legal aid is not available to protection visa applicants who are in migration detention. The Court has found it essential to set up a pro bono scheme (similar to that which operates in the Federal Court).

There is a Legal Aid duty lawyer scheme in respect of the Federal Circuit Court directions lists in Melbourne.

Skilled Victorian Legal Aid migration duty lawyers are present at the directions hearings and give legal advice, refer eligible clients for legal aid, and may earmark some matters for pro bono referral. The Court is very grateful for this service at it facilitates the conduct of the migration matters.

Pilot to assist self-represented litigants – Federal Circuit Court bankruptcy lists

There are differing needs among those self-represented litigants who appear before the registrars in the Federal Circuit Court bankruptcy lists. These litigants often present in a vulnerable financial position and with little or no understanding of the nature of the proceedings. Subject to funding, we are seeking to set up a pilot to have financial counsellors present at the Federal Circuit Court's bankruptcy lists in the Melbourne registry to assist self-represented litigants understand their debt situation and financial position, provide options, assist with negotiation with creditors, and provide referral to legal assistance or other assistance. The project will include an evaluation component. Consumer Action Law Centre and Melbourne University Law School will be overseeing the project in collaboration with the courts and the Financial and Consumer Rights Council. If the pilot secures funding, it is proposed to link in to the empirical research being undertaken by Professor Ian Ramsay, Melbourne Law School who is undertaking an evaluation of Australian personal insolvency laws in the context of changing demographics and increasing financial stress.

Self-represented service – Attorney-General's Department funding to support self-represented litigants in federal law matters

On 25 July 2013, the then Attorney-General announced new funding of four million dollars over four years to support self-represented litigants in areas of general federal law. The funding allows the Queensland Public Interest Law Clearing House, Justice Connect, JusticeNet SA and Legal Aid Western Australia to provide greater access to the Federal Court and Federal Circuit Court in each state and territory.

This funding allows these services to provide basic legal information and advice to these people. The services will include a focus on early resolution and mediation of disputes and discourage or divert unnecessary legal action. The four organisations providing this service have a strong history of providing frontline legal assistance services and dedication to improving access to justice for disadvantaged Australians. The service is based on a successful pilot conducted by the Queensland Public Interest Law Clearing House in the Federal Court and former Federal Magistrates Court.

Access to the service for Australians in each state and territory is through the following providers:

  • Queensland Public Interest Law Clearing House, Queensland
  • Justice Connect: New South Wales, Victoria, Tasmania and the ACT
  • JusticeNet SA: South Australia and the Northern Territory
  • Legal Aid Western Australia, Western Australia

The self-representation service was piloted in the Queensland District Registry of the Federal Court in 2011 and 2012. It was conducted by the Queensland Public Interest Law Clearing House (QPILCH).

The service recommenced in Brisbane in January 2014. It is operated by a full time lawyer and full time paralegal. Volunteers are a vital component of the service and eight large law firms have committed their support to the service.

Similar self-representation services are being set up in New South Wales, Victoria, Western Australia and South Australia.

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 is provided by court-based family consultants.

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

Preliminary assessment and advice (S11F FLA)

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

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

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

Two preliminary assessment services are then offered:

  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.

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

Family reports (s62G FLA)

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

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

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

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

Table 3.10: Family reports ordered by state for 2009–10 to 2013–14

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

2013–14

170

1117

71

1102

466

89

1620

4635

New standards of practice for family assessments and reporting

Family reports are a very important tool to assist in resolving or determining disputes over children, and judges often rely heavily on the assessments in family reports as evidence. Consequently there are often many questions and issues that clients and the legal profession have about the quality and validity of the family reports, and how the assessments are conducted.

In Australia there has, until now, not been any public document designed to inform the judiciary, the legal profession or the clients as to what can be expected as the minimum standards in the process of preparing family reports.

In order to address this issue, the Court has drafted the Australian Standards of Practice for Family Assessments and Reporting, basing the principles on the existing practice guidelines for Child Dispute Services and similar documents from overseas, such as the guidelines produced by the United States-based Association of Family and Conciliation Courts (AFCC). The Australian Standards address the local context and assessment of such important issues as family violence, cultural issues and issues for Indigenous clients.

The Australian Standards promote good practices in conducting and reporting on full family assessments by social workers and psychologists in family law matters, such as those completed under s65G of the Family Law Act and family reports commissioned privately.

The Standards:

  • provide information to the judiciary, agencies, legal professionals and clients who utilise the services of family assessors to increase the understanding as to what constitutes good practice in family assessments and reporting
  • inform as to what can be expected as a minimum standard of practice when conducting family assessments and preparing reports, and
  • address some common issues and concerns about family assessments and the processes of assessments and reporting, such as whether psychometric testing or home visits should be part of the assessment process.

The draft Standards have been through an initial round of consultation with internal and external social science stakeholders and were widely supported. Feedback from these consultations has been incorporated into a second draft and consultations are now proceeding on this with peak legal bodies in the family law area. It is planned to present the final version of the Standards at the first conference of the newly formed Australian chapter of the AFCC in Melbourne in August 2014.

Overall it is hoped this initiative of the courts will lead to a more informed community, fewer complaints based on misunderstandings, and a higher standard in the reports completed across the whole sector.

National professional development

Professional development for Child Dispute Services is coordinated via a dedicated Senior Family Consultant role. The role is designed to ensure that there is a coordinated approach to addressing the professional development needs of the highly trained clinicians employed by the Court to assist in complex parenting matters. Essentially, there is a professional obligation to ensure that family consultants engage in ongoing activities that keep them abreast of trends in research, theory, and assessment techniques, in order to ultimately ensure that their clinical practice is of the highest standard. There are a number of professional development activities that have been implemented or extended during 2013–14, including:

Monthly seminar series

The monthly seminar series has been running consistently throughout the year. This initiative involves having an invited guest present nationally (via video link) to family consultants, judges, and other invited professionals, on a topic that is relevant to family law. The seminars provide a regular forum in which clinicians can receive information in areas relevant to their practice, ask questions of external guests who are experts in their field, and keep apprised of the latest trends in research.

There have been a number of amendments to the seminar series implemented during 2013–14. First, there has been an increased emphasis on having a greater balance of guest speakers who are academics and practitioners. The hope is that the seminars have a more applied feel for participants. Second, presenters are being provided with far more information about the Court prior to their presentation, with the aim that their seminar will be more applicable for the audience. They are also provided with an itemised list of suggested topics. Third, attendees are given a far more detailed overview of each seminar beforehand so that they can appropriately prepare and consider the types of issues/questions they may wish to raise.

Strategic Initiatives

Child Dispute Services has identified several areas of need for family consultants, and have initiated strategic training packages to meet these needs. These include:

Dyadic peer consultation

  • Peer consultation is a framework being introduced within Child Dispute Service (CDS) during the course of 2014. It involves a system whereby clinicians can select a peer to engage with in monthly sessions around issues that are salient to their practice. These sessions are designed to allow an opportunity for family consultants to critically reflect on their practice. However, in order for this system to run correctly and effectively, all participating staff require training in terms of how to facilitate the reflective process for their colleagues. As such, formal training is being provided throughout 2014 by Dr Daphne Hewson to all CDS staff across the country, rolling out at three sites – Sydney, Melbourne, and Brisbane. Each training session runs for two days, and involves a thorough theoretical overview of the peer consultation model, in addition to practical exercises designed to ensure that clinicians can competently facilitate peer reflection sessions with their colleagues. The ultimate aim is that clinical staff can have an opportunity to critically consider their practice, and in turn enhance the quality of their assessments and reports to the Court.

Indigenous cultural competence

  • Given the unique needs of Aboriginal and Torres Strait Islander people accessing the family law system, it was identified that CDS should have a staff member at each registry trained in conducting culturally sensitive assessments. As such, Aboriginal Forensic Psychologist, Mr Stephen Ralph, was commissioned to develop and deliver two training sessions. These were held at Sydney in February 2014, and Townsville in May 2014. All staff located at these registries were required to attend, with a representative from nearby registries also attending. As a result of this training initiative, there is now a staff member in each region (and most sub-registries) who has undergone training in how to approach assessments with Aboriginal litigants.

Family violence clinical modules

  • Following the substantial legislative amendments to the Family Law Act in 2012 relating to family violence, an audit of family consultant reports and memoranda was completed to determine the degree to which the practice of clinicians had adapted to these changes. While there had been some substantial adjustments in some areas, it was evident that family consultants required additional support around how best to assess and report on family violence in a manner consistent with the changed legislation. Therefore, a series of three x 90 minute training modules were developed to meet this need. These modules focus on (i) the practices used by clinicians to assessment family violence, (ii) their attitudes and beliefs around this complex issue, (iii) any biases in their formulations around violence, and (iv) the process of critiquing their own written work to ensure it fully complies with the needs of the court. All staff around the country have undertaken these modules (in a dedicated one-day event or over several sessions), or will do so before the end of 2014.

Emotional availability scales

  • Given the lack of standardised practice in conducting parent-child observations, there is currently a plan to train family consultants in using the Emotional Availability Scales (EAS). The EAS tool is a well validated behaviourally-based approach to assessing the interaction between parents and their children, and offers a comprehensive framework within which clinical staff can undertake observations with parents and their children. It has the potential to create a level of standardisation in the practice of conducting observations with families. The precise method of how all family consultants will complete this training is still being reviewed.

Clinical induction program

A far more rigorous clinical induction program has been developed and implemented in 2013–14. The program is designed to ensure that all new staff who join CDS have undertaken some induction in core knowledge areas that are relevant to the family consultant role. The amended induction model requires new clinicians to source and review scholarly research on various topics, familiarise themselves with the internal library system and research tools, create summary sheets relating to chosen areas, and attend monthly meetings during their probation period where their colleagues present on core knowledge subjects.

Review of existing tools

An ancillary function of the national professional development role is to ensure that any research tools or clinical processes used by family consultants are continually updated. During 2013–14, there have been two major initiatives in this respect. The first relates to the database of scholarly articles that clinicians can access if they require information on a given topic. Here, there have been efforts to create a 'review' function within the database, so that each article or chapter can be given a rating by users. Moreover, each topic within the database will be linked to a summary sheet – essentially a quick reference guide on the subject – as a point of introduction for users. The second initiative has been to review and update the current family violence screening process used by clinicians. This has involved ongoing dialogue with several international academics, and the development of a draft instrument that may be trialled by CDS in the coming months.

Child dispute services fact sheets

Five new Child Dispute Services fact sheets were developed to assist in matters where children are involved. They include:

  • Family Reports
  • Child Dispute Conferences
  • Child Inclusive Conferences
  • Exposure to family violence and its effect on children, and
  • Parental conflict and its effect on children.

These fact sheets are available in the family violence>child dispute services section of the Family Law Courts website at www.familylawcourts.gov.au.  Several more new CDS fact sheets will be released in 2014-15.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              

Family law financial

In financial matters the Court:

  • offers privileged conciliation conferences conducted by registrars of the Court
  • offers privileged mediation in appropriate matters via the administered appropriation, and
  • refers appropriate matters to privately funded mediation.

In 2013–14, registrars held 4511 privileged conciliation conferences and settled approximately 1804 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 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 o services is an innovative way of providing access to justice to litigants, particularly those in rural and regional Australia where services are limited.

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.

In 2013–14 the Court sat in 33 rural and regional locations as part of its extensive circuit program. When on circuit the Court sits in leased premises at five locations and relies on access to state and territory court facilities at the remaining locations. Details of the circuit locations are included at Appendix J.

Judges of the Court allocated approximately 145 weeks to circuits in 2013–14. It is estimated that the work undertaken in the rural and regional locations equates to between 16 and 20 per cent of the Court's family law workload. The Court is working towards providing better data in respect to the work undertaken on Circuit.

The Court has met twice in the reporting period with legal practitioners representing the Family Law Council Regional Committee to discuss a variety of issues regarding circuits. The Committee consists of legal practitioners from across Australia representing their various regions. The Court is currently consulting with the Committee in respect to procedures for practitioners and litigants seeking to attend court by video or telephone link. The meetings provide the Court with useful feedback in respect to the circuit program.

In addition to attending circuit locations, judges of the Court conduct some procedural and urgent hearings by video link and telephone link in between visits. The technology provides litigants with greater access to the Court and assists in maximising the value of time spent at the circuit locations.

Access to the Court via eFiling enables parties and legal practitioner's greater access to the Court by enabling them to file documents from rural and regional locations as opposed to attending registry locations or using standard post.

Establishing new circuits

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

In addition to the cost, the Court will take into account a range of factors when considering a request to establish a new circuit. These factors include, but are not limited, to the workloads in a particular area, proximity to the principal location and the availability of suitable premises noting the Court's reliance on being able to access state and territory facilities.

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

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

Table 3.11: Family law final applications by party representation, finalised in 2013–14

Party representation

Number of applications

Percentage

Both have legal representation

11,913

67.72

Neither have legal representation

1343

7.64

Only applicant has legal representation

3653

20.77

Only respondent has legal representation

681

3.87

Total

17,590

100

National Enquiry Centre

The National Enquiry Centre (NEC) continued to provide family law telephone and email support services to the Family Court and the Federal Circuit Court in 2013–14.

The NEC's responsibilities include:

  • first telephone contact to the courts and a majority of first email contacts
  • a large proportion of telephone and email contacts from existing clients, lawyers and other court stakeholders
  • support for users of the Portal. This includes the Family Court of Western Australia and the Federal Court
  • the After Hours Service
  • printing of divorce orders and requests for proof of divorce, and
  • management of Live Chat for all clients and stakeholders of the courts.

Calls received to the 1300 enquiry number are provided with a presentation message to ensure that they have called the appropriate service. Callers are given options in relation to where their call may be better serviced. If they choose to continue they are given options through an interactive voice response for general enquiries, divorce enquiries or Portal enquiries. These options are channelled to client service officers with particular skill sets. Once they choose an option in the interactive voice response they are channelled to the queue to wait for the next available officer to answer their enquiries.

In 2013–14 the NEC focussed on providing clients and stakeholders with appropriate information as efficiently and simply as possible via email. These emails included links to appropriate forms and support information and also helped to promote electronic filing via the Portal.

Portal support was a major contributor to the workload of the NEC in 2013–14. Portal support calls and emails take longer as they can be of a technical nature or users require help with eFiling of documents.

Another large part of the NEC's work is referrals to stakeholders including Family Relationship Centres, the Family Relationship Advice Line (FRAL), community legal centres and other family community organisations. The NEC regularly consults with FRAL who provide services to Family Relationship Centres and community legal centres.

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

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

Workload and performance enhancing projects conducted in 2013–14 include:

  • reviewing and updating of telephony wrap up times. These were reduced from 40 seconds to 20 seconds, giving staff the opportunity to pick up calls faster
  • enhancing information on the Court websites to enable linking from email templates.
  • streamlining proof of divorce request processes, including the introduction of a $30 fee for all requests
  • introducing capability to provide direct email access to all registries for certain enquiries, removing then need to concierge emails, and
  • introducing Live Chat on the Court websites.

All these initiatives have helped to reduce the number of calls received as well as call waiting and call length times and have also led to substantial savings in telephony bills.

2013–14 NEC – summary of performance

  • The NEC did not meet either the KPI for the percentage of calls answered within 90 seconds, but met all other performance targets. The NEC achieved a service level of 28 per cent which is up compared to last year (21%).
  • Callers waited an average of five minutes and 21 seconds for their call to be answered, compared to six minutes and 29 seconds in 2012–13.
  • The average time of a call was four minutes and 12 seconds, compared to four minutes and 24 seconds in 2012–13.
  • The NEC received a total of 356,004 calls (compared to 390,349 in 2012–13). Of these calls, 214,544 were queued to talk to a staff member.
  • There was a nine per cent decrease overall in calls received to the NEC compared with 2012–13. Factors contributing to this include: better service at the first point of contact by emailed information; there being no requirement to call back; better structured information on the website; increased use of the Portal; and the introduction of Live Chat.
  • 24,035 calls were received for Portal support. This is an increase from the 19,549 calls received in 2012–13.
  • 7084 calls abandoned while queued. This is a decrease of 4760 from 2012–13. The decrease in calls abandoned in the queue can be attributed to a flow on effect from fewer phone calls which contributed to reduced wait times.
  • 51,612 calls were transferred to a family law registry. This is a decrease of 33 per cent compared to 2012–13. The main reason for the decrease in transfers is better training in the NEC. NEC staff now assess whether the registry can assist the caller straight away or whether they can manage the response better by receiving an email from the NEC with file and client information so the registry can pull the file and call the client back at an operationally suitable time.
  • 30,855 emails were sent in response to an email enquiry. This is an increase of 5365 emails from 2012–13.
  • 65,274 emails were sent in response to a telephone enquiry, compared with 50,976 in 2012–13.
  • 11,329 proof of divorce requests were processed. This is a decrease of 39 per cent from 2012–13 and can be attributed to better website information.
  • 79,895 divorce orders were printed and posted to clients.
  • 213 calls were received by the After Hours Service of which 21 were referred to a registrar. Of these 15 orders were made by a judge.
  • 2434 live chats or an average of 120 per day were received since its launch in May 2014. This is predicted to increase once Live Chat is promoted more and a link provided on the Commonwealth Courts Portal website.

Table 3.12: Summary of performance—client services

Key performance indicators and deliverables

Target/deliverable

2012–2013 result

2013–2014 target achieved

2013–2014 achieved

Deliverables

Counter enquiries

187,400

151,000 / 243,384

255,792

Tick

Telephone enquiries*

238,400

287,600 / 223,419

356,004

Tick

Email enquiries**

83,600

50,300 / 107,798

113,163

Tick

KPIs

Counter enquiries

75% of all counter enquiries are served within 20 minutes

75% / 93%

92%

Tick

Time taken to process applications lodged

75% of applications lodged are processed within two working days

75% / 97%

98%

Tick

NEC telephone calls answered

80% of calls answered within 90 seconds

80% / 21%

28%

Cross

Email response times

80% of emails answered within two working days

80% / 100%

100%

Tick

Complaints***

Complaints, 1% of total applications received

1% / 0.9%

0.4%

Tick

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

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

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

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

Other interesting statistics

  • International calls decreased by six per cent in 2013–14 to 25 calls per day (or approximately 6325 calls per year). It is hoped that Live Chat and improved website information will see a further decline in this area.
  • Calls from the Australian Capital Territory (ACT) increased by 13 per cent. The ACT was the only state/territory to have an increase in callers.
  • Divorce outcome enquiries decreased by 27 per cent. This can be attributed to an increase in Portal usage and Portal notification of divorce order made.

Table 3.13: National Enquiry Centre, 2009–10 to 2013–14

Performance Indicators and internal targets

2009–10

2010–11

2011–12

2012–13

2013–14

80% of calls answered within 90 seconds

40%

32%

45%

21%

28%

Less than 5% of calls abandoned when queued

27%

20%

8%

5%

3%

Less than 10% of calls transferred to a registry

2%

2%

1%

1%

1%

80% of emails answered within 2 days

91%

98%

100%

100%

100%

Service Charter and Service Commitments

The aim of the Family Court and Federal Circuit Court is to give clients and others users of the courts 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 Key Performance Indicator specifically about complaints. This, along with the Service Charter, is a central part of the Court's service monitoring and response mechanism.

The Service Charter outlines the service level standards clients can expect from staff of the courts and how clients and other users of court services may make suggestions or complaints about services, policy, practice or procedures. An aspect of the charter, in terms of community expectations of the courts, is that it makes clear what court staff cannot do. This is important because frequently clients or prospective clients have expectations that the courts cannot meet.

The context is that for many clients, the Federal Circuit Court and the Family Court are the only courts they will ever have anything to do with—so the processes, procedures and legal environment are completely unfamiliar and this unfamiliarity occurs at what may be one of the most stressful times of their lives because of the breakdown of family relationships. The courts appreciate this, however, must work impartially and professionally: thus the information about what people can expect but also what staff cannot do. For example, staff cannot give legal advice or tell people what words to use in their court papers or what to say in court; they cannot tell someone whether or not they should bring their case to court. Staff cannot recommend a certain lawyer to act on a client's behalf or interpret, change or enforce orders made by a judge or other judicial officer.

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.

Replacement of Blackberry fleet

During 2013–14 the courts made a decision to move away from BlackBerry devices and replace them with Apple iPhone smartphones. There are 250 devices to replace and the first tranche of 50 devices has now been implemented. The remaining devices will be replaced in 2014–15. The new devices are being used in conjunction with Good Software for email and calendar services.

Registry services (general federal law)

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