Statistics at a glance

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

FAMILY LAW

2018–19

2019–20

Filings

Finalisations

Filings

Finalisations

Final orders

17,070

16,683

16,455

15,769

Interim orders

22,115

20,758

21,775

20,715

Divorce applications

44,342

44,545

45,886

44,963

Other

1,707

1,654

1,447

1,440

Total family law

85,234

83,640

85,563

82,887

MIGRATION LAW

2018–19

2019–20

Filings

Finalisations

Filings

Finalisations

Migration

5,591

3,784

6,555

4,045

GENERAL FEDERAL LAW

2018–19

2019–20

Filings

Finalisations

Filings

Finalisations

Bankruptcy

2,885

2,823

1,872

2,105

Administrative

53

50

48

43

Admiralty

6

6

11

9

Consumer

141

141

157

138

Intellectual property

43

44

57

36

Human rights

86

85

70

74

Industrial and Fair work

1,291

1,273

1,563

1,329

Total general federal law

4,505

4,422

3,778

3,734

The year in review

Photo of Chief Judge William Alstergren

The past 12 months have seen rapid change for the Federal Circuit Court’s operations and the commencement, or in some instances, the continuation, of a number of exciting initiatives. Through the advent of improved use of technology, the Court has been able to transform itself into a truly national and modern Court while ensuring that it continues to provide an essential service for the Australian people.

The Federal Circuit Court is in the unique position of being an intermediate court of record that hears both a high volume of cases, but also a complex caseload, which spans a broad array of federal jurisdictions. This year, the Federal Circuit Court celebrates its 20th Anniversary. The Court has grown in magnitude, reputation and scope of jurisdiction in its industrious 20 year history, and is the largest federal court in the country. In 2019–20, the Court received in excess of 95,000 applications, the majority of which were filed in the family law jurisdiction. The Court has also seen extraordinary growth in filings in migration law, as well as an increase in filings in the fair work jurisdiction. The Federal Circuit Court now undertakes the majority of the workload across both the family law and general federal law jurisdictions across all federal courts.

In 2019–20, the Court’s performance has been directly affected by two particular challenges: the first is the COVID-19 pandemic. The second is the significant increase in migration applications filed.

Notwithstanding the large volume of work undertaken in the family law jurisdiction, where the Court hears 87 per cent of all family law applications and 92 per cent of all parenting applications, migration is now the second largest area of work of the Court. The pending migration caseload has increased from 7,674 applications in 2017–18 to 12,158 applications in 2019–20. At 30 June 2020, the clearance rate for final order applications in family law was 96 per cent. For migration applications, it was 62 per cent.

To put that in perspective, without further resources, on current filing rates, the pending migration caseload will surpass the pending family law caseload in less than two years. This is impacting the Court broadly, but is having a particular impact on the judges who are trying to accommodate hearing more migration cases in a finite amount of available judicial time, which necessarily comes at the expense of their other work.

Response to the COVID-19 pandemic and a digital transformation

Like many courts nationally and internationally, the Court’s operations have been impacted by the COVID-19 global pandemic. However, given the essential service the Court provides to Australian families, it was simply never an option for the Court to close or reduce its operations beyond what was absolutely necessary. I took the step to issue a public statement urging parents to comply with the spirit of the parenting orders they had in place, and if they were unable to do so, then the Court was open to assist them. The Court was quick to issue face-to-face protocols for hearings and other court events, and update these as required as the situation evolved. It is a testament to the judges and staff of the Court that they responded quickly and flexibly to the rapidly changing uncertainties of the early stages of the pandemic.

Within a number of weeks of the pandemic emerging, the Court had undergone a significant digital transformation. Microsoft Teams was introduced court-wide to facilitate virtual hearings by videoconferencing, as well as options for hearings by telephone. Shortly after this, registrars were trained to conduct electronic alternative dispute resolution (ADR) using Microsoft Teams and immediation. By mid-April, the Court had fast tracked the introduction of the Digital Court File, so that all new applications had a fully digital court file and could be accessed remotely from any location around the country, including by those working from home. In addition, Joint Practice Direction 2 of 2020: Special Measures in relation to COVID-19 was issued in both the Family Court and Federal Circuit Court to deal with issues in relation to electronic filing, viewing of subpoenas, electronic signatures, witnessing documents and affidavits, and the payment of fees. The Court’s Child Dispute Services team quickly modified its operations and implemented guidelines so as to continue to interview families and children for the preparation of section 11F memorandums and section 62G family reports using technology.

Staff at all levels and across all aspects of the Court’s operations stepped up to ensure that the core business of the Court continued to be discharged, and for that they have my sincere gratitude. The Court is constituted by many hard working judges and staff who appreciate the importance of what we do, and it is the motivation and commitment of these individuals that makes the Court effective, dynamic and responsive.

COVID-19 List

A prime example of the responsiveness of the Court is the establishment of the COVID-19 List. By mid-April it became apparent that the Court was receiving an increased number of urgent applications in family law. The COVID-19 List was quickly implemented to deal with any urgent applications filed as a direct result of the COVID-19 pandemic. All applications have been given a first court date within three business days of being considered by a registrar. The List is the Court’s first national electronic list, and has ensured that litigants could access urgent family law assistance from anywhere around the country. More detail about the COVID-19 List is set out in Part 3 of this Annual Report.

Improvements to access to justice and safety for vulnerable litigants

The Court has been determined to find positive learnings out of the pandemic, and it has been an opportunity for the Court to modernise and showcase its adaptability. While operating in a near fully electronic environment has presented some challenges, it has also improved the administration of justice, both in terms of accessibility and safety. For some litigants and practitioners who live in rural or regional Australia, hearings by videoconferencing have saved them the time and expense of travelling into regional centres, without having to wait for a visiting Judge to circuit to that location. The Court circuits to 30 locations around Australia as part of its work in family law, and it was important to the Court and to Australian families that this work has been able to continue electronically during the pandemic. This is a modernisation that will be used to supplement face-to-face hearings on circuits going forward, particularly for the hearing of urgent applications, general case management, and electronic ADR. Additionally, and critical to the Court’s focus on managing safety and risk, videoconferencing provides an alternative way for vulnerable parties or witnesses to attend court when they may have safety concerns about coming into the Registry or coming into contact with another party in the proceeding. The Court will be closely considering how to make the best use of technology to benefit litigants moving forward, and to continue the journey towards being a modernised court at the forefront of innovation amongst justice systems both nationally and internationally. These are serious ambitions, but Australians and their families deserve no less.

Harmonisation

Despite the significant impact of the COVID-19 pandemic, the Court has continued to progress a number of important projects that will fundamentally change the way the court system operates. In the family law jurisdiction, many of these projects involve both the Family Court and the Federal Circuit Court. The process of harmonisation to recast the family law system into a system that meets the needs of Australian families in a clear and consistent way is at the forefront of our operations.

Joint Practice Direction 1 of 2020

As an initial step towards reconciling the case management procedures in family law across the two Courts, in January this year I issued the first Joint Practice Direction, Joint Practice Direction 1 of 2020 – Core Principles in the Case Management of Family Law Matters. The practice direction contains a statement of ten core principles that underpin the exercise of the family law jurisdiction of both Courts. The practice direction includes principles in relation to prioritising safety and handling risk, achieving the overarching purpose of the just, safe, efficient and timely resolution of matters and the importance of ADR. The core principles also remind parties and practitioners of their responsibilities in relation to identifying and narrowing issues in dispute, being prepared for hearings, and incurring costs only as are fair, reasonable and proportionate to the issues that are genuinely in dispute.

Harmonisation of the Family Law Rules 2004 and the Federal Circuit Court Rules 2001

Over the past 12 months, the Joint Rules Harmonisation Working Group met regularly to progress the harmonisation of the Family Law Rules and the Federal Circuit Court Rules in so far as they apply in the family law jurisdiction of the Court, so as to create a single, harmonised set of rules. This is a project that has required the focus and dedication of Judges and staff of both Courts, overseen by an independent Chair, the Hon Dr Chris Jessup QC, and ably assisted by two barristers, Emma Poole and Chris Lum. The Working Group’s efforts have produced a complete draft of the harmonised rules, which has been distributed to all Judges for consultation, and will thereafter be distributed to the profession and other stakeholders for external consultation in the second half of 2020. While there is still some way to go before the rules, forms and case management practices across the Courts are harmonised, compiling a draft of the harmonised rules is a significant achievement which had not been able to be accomplished in the past 20 years. My thanks go to those judges of the Federal Circuit Court who have worked diligently as part of the Joint Rules Harmonisation Working Group, namely Judge Driver, Judge Hughes and Judge Harland.

Harmonisation of the Notice of Risk and Registrar Delegations

As a precursor to formal rules harmonisation, the Courts are accelerating the harmonisation of two important aspects of the Courts’ practice and procedure that are currently divergent. The first is the redesign of each Court’s form used for risk notification, which are being harmonised into a comprehensive notice to be called the Notice of Child Abuse, Family Violence or Risk. This aligns with the Court’s focus on early risk identification to prioritise the safety of litigants and ensure informed decisions can be made in the best interests of the child. A single form to be used for risk identification will also complement the implementation of the Lighthouse Project, a pilot initiative involving risk screening and assessment, safety planning, service referral and the establishment of a high risk list to be called the Evatt List.

The second area being harmonised and expanded as a priority is the rules that delegate judicial power to registrars in the family law jurisdiction. This will allow registrars in the Federal Circuit Court to provide greater support to judges by assisting with case management work and free up judicial time so that judges can focus on determining the most complex matters and hearing trials.

Initiatives in family law case management

Summer Campaign

In February 2020, the Court commenced the Summer Campaign involving the listing of more than 500 family law cases in the Federal Circuit Court that had been in the court system for more than two years. A key objective of the campaign is to provide families with an opportunity to resolve their long-term family law dispute, preferably through the use of ADR. Prior to attending court, parties involved in this campaign were sent an electronic questionnaire to assist the Court to assess suitability for ADR and to understand how best to progress the case. During the week of the callover, parties had the opportunity to attend an ADR case conference with a registrar, or if appropriate in parenting matters, with a registrar and family consultant, or otherwise were referred to private mediation, family dispute resolution or arbitration. The Summer Campaign was a success in Melbourne and Sydney, assisting with the resolution of a number of older pending family law matters. Unfortunately the onset of the COVID-19 pandemic necessitated the suspension of the Summer Campaign in other locations, but will recommence electronically in July 2020.

Discrete Property List and Priority Property Pools under $500,000 (PPP500) Pilot

Following on from a successful pilot in the Newcastle registry, the Discrete Property List was rolled out to the Brisbane, Sydney, Parramatta, Melbourne and Adelaide registries in 2019–20. The List involves registrars closely case managing all property only applications filed in the Court, including monitoring compliance with disclosure obligations and valuations, and referring the parties to ADR. The list has been an outstanding success, assisting a large proportion of property cases to resolve without judicial intervention.

In addition, the Court received funding to undertake a pilot to resolve property cases with an asset pool of less than $500,000 in a simplified way, which has been named the PPP500 Pilot. The aim is to resolve these cases in a timely and efficient manner, whilst achieving a just outcome at a cost to the parties that is reasonable and proportionate to the assets available in the proceedings. Parties are able to commence proceedings in a simplified manner in an attempt to reduce cost and delay. The PPP500 Pilot involves an intensive registrar led resolution phase, followed by a simplified judicial determination phase if necessary.

Both of these initiatives are showcasing the benefits of early registrar intervention and case management, monitoring for compliance, and appropriate referrals to ADR in a timely way. More detail about the Discrete Property List and the PPP500 Pilot can be found in Part 3 of this report.

National Arbitration List

In April 2020, a specialist National Arbitration List was established in both the Family Court and the Federal Circuit Court. The Lists were established to support the development and promotion of arbitration for property matters in family law, furthering the Courts’ emphasis on the importance of alternative dispute resolution. The List operates electronically on a national basis, with a dedicated judge assigned to the List in each Court to ensure that matters sent to arbitration are closely managed, and any applications arising out of an arbitration can be determined promptly.

The Lighthouse Project and Family DOORS Triage

In late 2019, the Courts received funding for a risk screening and triage pilot which will initially be operating in the Adelaide, Brisbane and Parramatta registries. The Pilot will play a central role in the Courts’ response to cases involving allegations of family violence and assist matters to be allocated to a case management pathway that is the most appropriate, with a view to improving the safety of litigants and children who may have experienced family violence. The pilot involves three interconnected processes: (1) screening parenting matters for family safety risks at the point of filing using a bespoke web based risk screening tool called Family DOORS Triage; (2) triaging matters to an appropriate pathway based on the identified level of risk and providing safety planning and service referral; and (3) maintaining a specialist list to hear matters assessed as high risk. The high risk list has been named the Evatt List in honour of the first Chief Justice of the Family Court of Australia, the Hon Elizabeth Evatt AC. An extraordinary amount of preparation and planning was put into this project in the first six months of 2020 and I look forward to its commencement in the second half of 2020.

Indigenous Lists

Over the past year, the Court has expanded the family law Indigenous Lists into five locations: Adelaide, Alice Springs, Darwin, Melbourne and Sydney. The List is one of the Court’s commitments under the Reconciliation Action Plan and aims to provide greater access to justice for people who identify as Aboriginal and/or Torres Strait Islander. Indigenous Lists differ from other Court lists as they adopt a degree of informality. The Judge sits at the bar table with the parties, their legal representatives and any other family members or extended kin, there are specialised support services available on the day, and the Court is closed to the public. I thank the judges involved in running these lists for their hard work, and for spearheading the Court’s deep commitment to Indigenous access to justice issues.

General federal law and migration

Whilst the greatest proportion of the Court’s work is in family law, the Court is receiving a growing number of applications in areas of general federal law. Over the past financial year, the Court received an increased number of applications filed in the fair work jurisdiction, reflecting the growing importance of this area of law. The Court is working hard to ensure the timely resolution of fair work matters, particularly in relation to matters in the small claims list which require prompt resolution.

The sharp increase in migration filings continues to be a pressing issue for the Court. Filings continue to grow at an unprecedented rate and this growth is placing increasing pressure on judicial resources. The Court considers the provision of judicial resources to be essential to the timely resolution of the migration caseload. In the meantime, all migration cases have been allocated to a Central Migration Docket to be managed and allocated on a national basis. This ensures that the Court is operating as efficiently as possible with the resources that it has available in the migration jurisdiction. However, an injection of resources would be beneficial to assist the Court to manage the migration caseload in a timely way.

Appointments and retirements

On 20 April 2020, the Court farewelled her Honour Judge Judy Small AM. Judge Small served on the bench of the Federal Circuit Court for seven years, during which her Honour made a significant contribution to the Court and to the culture of the Melbourne registry. While we were unable to hold a traditional ceremonial farewell sitting to commemorate Judge Small’s time with the Court, an electronic ceremonial sitting was held via videoconference attended by more than 170 distinguished guests, family and friends. I would like to thank Judge Small once again for her contribution to the Federal Circuit Court.

In September 2019, I was pleased to welcome Mr David Pringle as acting Chief Executive Officer (CEO) and Principal Registrar of the Family Court of Australia and the Federal Circuit Court of Australia. David’s appointment as CEO and Principal Registrar was formalised in April this year for a term of five years. David has commenced his role with enthusiasm and determination, and I look forward to continuing to work closely with him on the many exciting projects we are undertaking. I would also like to take this opportunity to thank Virginia Wilson for acting in the role of CEO and Principal Registrar for much of 2019 and into the 2019–20 financial year, and for the substantial assistance she provided the Court in that position.

In February 2020, the Court farewelled Mr Steve Agnew, Executive Director of Performance, Planning and Strategy, who retired after many years of dedicated service to the Federal Circuit Court. Steve worked for the Court from its inception, and made a significant and positive impact on the development of this Court for which he has our gratitude. Steve was a leader, mentor and friend to many in the Courts, and I wish him well in his retirement.

Lastly, I would like to reiterate my gratitude to all judges and staff for their hard work during 2019–20. It has been a busy year, and continuing to provide an essential service during a pandemic has called upon our flexibility and our resilience. My thanks also to the profession who have supported the Court during this time, and I look forward to working closely with the profession and other stakeholders over the coming year.

The Honourable William Alstergren
Chief Judge