Impact of COVID-19 pandemic

The impact of the COVID-19 pandemic on the Court’s operations in 2019–20 can be detected in the statistics reported in this Annual Report. Prior to the beginning of the COVID-19 pandemic, the Court was achieving a clearance rate above 100 per cent for applications for final orders in family law and therefore reducing the backlog of pending cases. This was strengthened by the Summer Campaign, through which the Court was successfully targeting the finalisation of long-term family law disputes. However, due to the COVID-19 pandemic, the Summer Campaign had to be suspended after its completion in only two registries, Melbourne and Sydney, and thus the Court was unable to continue this initiative during the financial year. While the Court has been able to continue with the majority of its workload during the pandemic and has maintained a high clearance rate, there are certain categories of work that have not been able to be conducted electronically at the usual rate they would be undertaken, for example trials for final orders applications. Some trials have needed to be temporarily adjourned if parties do not have access to technology or a satisfactory internet connection, or where there are difficulties arising from access to an interpreter or other procedural fairness issues. It is also accepted that conducting high volume lists and hearings electronically can be more time consuming, so while judges, registrars and staff have been working diligently, the volume of matters undertaken has been lower than it otherwise would have been.

Additionally, there was a period of significant upheaval and adjustment at the end of March and beginning of April, during which the Court shifted to electronic hearings. This required substantial effort, reorganisation, training and administrative work on the part of judges and staff, which also contributed to the slightly lower number of applications finalised overall during this financial year compared to the previous financial year (90,666 compared to 91,794).

Snapshot of performance

Table 3.1: Snapshot of Court performance against targets

TIMELY COMPLETION OF CASES

Target

Result 2019–20

Target status

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

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

Target not met

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

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

Target not met

70 per cent of matters resolved prior to trial

73 per cent of matters were resolved prior to trial

Target met

The first target includes disposals of final order applications filed in family law, as well as applications filed in general federal law and migration. The second target only includes disposals of other applications filed in family law, and does not include other applications filed in migration or general federal law, such as interlocutory applications.

It is noted in this financial year, the Notice of Risk cause of action has not been included in consideration of the results of the second target as the Notice of Risk is not an application type. Previously in the 2017–18 and 2018–19 Annual Reports, the Notice of Risk cause of action was included in this target.

As stated above, the steady increase in migration filings is having a substantial impact on 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.

Analysis of performance in 2019–20

The stated outcome of the Federal Circuit Court is:

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

The Court has the following targets under the performance measure of timely completion of cases:

Timely completion of cases

  • 90 per cent of final orders applications disposed of within 12 months
  • 90 per cent of all other applications disposed of within six months, and
  • 70 per cent of matters resolved prior to trial.
Table 3.2: Family law, general federal law and migration applications filed and finalised, 2019–20

Family law

Filings

Finalisations

Total

% of total

Total

% of total

Divorce applications

45,886

47.8%

44,963

49.6%

Interim orders applications

21,775

22.7%

20,715

22.8%

Final orders applications

16,455

17.2%

15,769

17.4%

Other applications

1,447

1.5%

1,440

1.6%

Total family law

85,563

89.2%

82,887

91.4%

Migration

Total migration

6,555

6.8%

4,045

4.5%

General federal law

Total

% of total

Total

% of total

Bankruptcy

1,872

2.0%

2,105

2.3%

Fair work

1,563

1.6%

1,329

1.5%

Other

343

0.4%

300

0.3%

Total general federal law

3,778

3.9%

3,734

4.1%

Total

Grand total

95,896

100%

90,666

100.0%

Figure 3.1: Percentage of applications filed, 2019–20
Pie chart showing the percentage of applications filed in 2019–20
Figure 3.2: Case management approach in family law (docket system)

Case management

The Federal Circuit Court uses a docket case management process designed to deal with applications in a flexible and timely way. The docket case management process is based on the following principles:

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

The docket case management system provides the following benefits:

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

Specialist panel arrangements

The Court has specialist panels in areas of general federal law 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 (fair work)
  • 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 Federal Circuit Court.

Report on work in family law

Family law constitutes the largest proportion of the overall workload of the Court, representing 87 per cent of all family law work filed at the federal level including 92 per cent of all parenting applications filed across both Courts (excluding divorces and consent order applications). This compares with 89 per cent during 2019–20.

Table 3.3: Family law applications filed by type, 2019–20

Application

Filed

%

Divorce applications

45,886

54%

Interim orders applications

21,775

25%

Final orders applications

16,455

19%

Other applications

1,447

2%

Total

85,563

100%

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

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

Figure 3.3: Family law applications filed by type, 2019–20
Pie chart showing the family law applications filed by type in 2019–20
Figure 3.4: Final orders applications, 2015–16 to 2019–20
Bar chart showing the final orders applications filed, finalised and pending from 2015–16 to 2019–20
Figure 3.5: Interim orders applications, 2015–16 to 2019–20
Bar chart showing the interim orders applications filed, finalised and pending from 2015–16 to 2019–20

The family law workload (excluding divorce) can be broken into three main categories based on the orders sought in the final orders application. In 2019–20, 51 per cent of family law applications related specifically to matters concerning children, a further 13 per cent involved both children and financial matters, and 36 per cent involved discrete financial applications.

Figure 3.6: Issues sought in final orders applications, 2019–20
Pie chart showing the issues sought in final orders applications in 2019–20

Divorce

The Federal Circuit Court deals with all divorce applications filed (other than in Western Australia) and the work is largely undertaken by registrars. A divorce application only proceeds to a judge for determination if it is contested. Many applications are made by unrepresented litigants with the assistance and information in the form of online guides that allow them to navigate the procedural requirements.

In addition, in some localities, staff from the Court Network are available to support litigants as it is appreciated that for many litigants a court appearance can be stressful and unfamiliar.

During the year, 45,886 divorce applications were filed in the Court. This compares with 44,342 in 2018–19.

A significant number of calls to the National Enquiry Centre (NEC) relate to divorce proceedings, in particular providing information to assist eFiling on the Commonwealth Courts Portal (the Portal) and directing litigants to the website to complete the divorce checklist at How do I apply for a divorce?

Figure 3.7: Divorce applications, 2015–16 to 2019–20
Bar chart showing divorce applications filed, finalised and pending from 2015–16 to 2019–20

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

The Court has also developed a fully electronic divorce file which permits the management of divorce applications in electronic format from filing to disposition. These initiatives meet a range of objectives including aligning with federal government strategies for digital administration and records management, and offering litigants and the legal profession streamlined services. The Court still accepts hard copy applications from litigants, lawyers and others who do not have access to technology and converts them to a digital record.

In 2019–20, over 87 per cent of all divorce applications were eFiled, with this percentage expected to grow as enhancements are made to the process. Litigants and practitioners are being encouraged to eFile divorce applications in view of the benefit to litigants. One such benefit is the ability to select from a list of available hearing dates. There are also administrative benefits for registries not only in the reduction of hard copy files and accompanying storage, but also greater flexibility in the management of the divorce workload.

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

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

Child support

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

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

While the Court shares this review jurisdiction with the Federal Court, most appeals proceed before the Federal Circuit Court and are few in number. This is reflected in the number of child support appeals for the year, which was 34 — twelve more than were filed in the previous year.

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

Unrepresented litigants

The Court monitors the proportion of unrepresented litigants as one measure of the complexity of its caseload in the family law jurisdiction. Unrepresented litigants can have greater difficulty navigating the court system, and can also require greater assistance from the Court to follow the Federal Circuit Court Rules 2001 and relevant procedures. The Court collects data about the percentage of matters where a party is represented at some point in the proceedings, which is summarised in Figure 3.8 below. It is important to note that, this graph does not describe the length of time for which a party retained legal representation. A litigant who was unrepresented from filing until the trial but engages legal representation at the trial stage is recorded the same as a litigant who had legal representation for the entirety of the proceeding.

In 2019–20, the percentage of final order applications finalised where both parties have had legal representation at some point during the proceedings increased, and the percentage of final order applications finalised where both parties were unrepresented throughout the entire proceedings decreased. However, at any given time, the number of matters where both parties have legal representation is likely to be much lower than 74 per cent.

Child Dispute Services

Child Dispute Services (CDS) provides expert independent, social science advice and assistance in relation to disputes about children in matters before the Family Court or the Federal Circuit Court. To achieve this, family consultants conduct preliminary family assessments at the interim stage of a matter, provided to the Court in the form of a memorandum, or comprehensive family assessments for a final hearing, provided to the Court in the form of a family report. CDS makes information available about the different types of assessments it undertakes through fact sheets on the Courts’ websites.

In 2019–20, CDS continued to assist families and the Courts through the provision of preliminary and comprehensive assessments in parenting matters. In addition, CDS staff joined with registrars to provide alternative dispute resolution conferences ordered within the Summer Campaign of callovers conducted in a number of registries.

Figure 3.8: Representation of litigants in final order applications at some stage in the proceedings, 2015–16 to 2019–20
A diagram showing the representation of litigants in final order applications at some stage in the proceedings from 2015–16 to 2019–20

From March 2020, when the impacts of COVID-19 began to seriously affect Australia, CDS worked hard to ensure that assessments were adapted in way that balanced the need for the Courts to continue hearing matters whilst also ensuring that families and staff are safe. Where appropriate, assessments were conducted by video or phone, thereby reducing the need for families to travel. Feedback from CDS staff, judicial officers and families is that these innovative practices were highly effective and supported the Court’s capacity to maintain effective service delivery.

Ongoing professional development remains a high priority for CDS and in 2019, all CDS staff completed a comprehensive training package on the topic of family violence. This training will be undertaken by new staff when they join CDS and has also been made available to those practitioners that are appointed to the role of Family Consultant under Regulation 7 of the Family Law Regulations 1984 (Cth). In addition, new CDS staff were funded to undertake an extensive, external course in child inclusive practice.

CDS also continues to run its monthly professional development seminar program for family consultants. Across 2019–20, seminars were presented on topics including:

  • intimate partner violence in refugee and migrant communities
  • assessing children with special needs
  • interviewing children living with family violence
  • technology facilitated abuse, and
  • assessment of parenting capacity when parents have an intellectual disability.

Circuit program

The Federal Circuit Court is committed to providing services to rural and regional areas of Australia. Judges of the Court currently sit in rural and regional locations to assist in meeting this commitment. These sittings are known as circuits. It is estimated that the work undertaken in the rural and regional locations equates to approximately 20 per cent of the Court’s family law workload.

In 2019–20, the Court sat in 30 rural and regional locations as part of its extensive circuit program. Details of the circuit locations are included at page 21.

When on circuit, the Court sits in leased premises and state and territory court facilities. While the Court appreciates the hospitality of state and territory courts in enabling the Court to service regional and rural litigants, reliance on state facilities poses a number of challenges for the Court, including availability of courtrooms, hours of access, access to technology, court recording and resources such as telephone and video link facilities, and security arrangements.

The Court is aware of these challenges, not only for litigants and legal practitioners, but also staff, and continues to look for opportunities to improve facilities and resources, and thereby, the efficiency and value of circuits.

Judges of the Court travelled to circuit locations on 118 occasions (excluding Dandenong and Wollongong) throughout 2019–20. Due to the impact of COVID-19 and travel restrictions, 37 additional circuits were conducted electronically through the use of Microsoft Teams and telephone, rather than judges travelling to those circuit locations.

The length of these circuits varied from single days to whole weeks depending on the demands of the circuit and the distance to parent registries. In addition to the above circuits, there was a significant judicial presence in the Dandenong and Wollongong registries where there is a near full-time judicial presence.

In addition to attending circuit locations, judges conduct some procedural and urgent hearings by videoconference and telephone in between circuits. The technology provides litigants with greater access to the Court and assists in maximising the value of time spent at the circuit locations. As stated above, due to COVID-19, the Court has had a greater reliance on electronic hearings to conduct circuits. Feedback from the profession and litigants has been positive, particularly in relation to the time and cost savings for litigants in rural and remote locations who do not have to travel to circuit locations.

eFiling also provides litigants and legal practitioners with greater access to the Court by enabling them to file documents from rural and regional locations as opposed to attending registry locations or using standard post.

The Court has experienced an increase in the workload pressure on numerous circuits with increasing volumes of matters as well as increasing complexity of matters. The Court has a policy of not increasing circuit frequency or durations without proper consultation, including having regard to competing workload demands across the country, in both registry and circuit locations, as well the budgetary pressures faced by the Court.

The Court continues to look at ways to improve the efficiency of circuits and access to justice for litigants and legal practitioners.

Initiatives in family law

COVID-19 List

The Family Court and the Federal Circuit Court (the Courts) each established a court list dedicated to dealing exclusively with urgent family law disputes that have arisen as a direct result of the COVID-19 pandemic. The Lists were established in response to an increase in the number of urgent applications filed in the Courts from the beginning of the COVID-19 pandemic. The Lists commenced on 29 April 2020.

The operation of the COVID-19 Lists is set out in Joint Practice Direction 3 of 2020

The COVID-19 Lists are administered by the National COVID-19 List registrars. The national registrars consider the urgency of the applications filed and triage them to judges in each Court who have been assigned to the COVID-19 Lists. Applications that meet the COVID-19 criteria are given a first return date before a national registrar or a judge within three business days of being considered by the national registrar, or less if assessed as critically urgent.

The COVID-19 Lists operate electronically, meaning that the application may be heard by a judge from any registry. The COVID-19 List judge will hear the discrete COVID-19 application, or put interim arrangements in place to deal with the circumstances of urgency. Once that issue is dealt with, the remainder of the matter will be case managed by the docket judge or a registrar as appropriate.

From commencement of the Lists on 29 April 2020 to 30 June 2020, 214 applications for the COVID-19 List were received. All applications accepted into the Lists were given a first court date within three business days.

Discrete Property List

The Discrete Property List is a registrar-run case management list for property-only applications filed in the Federal Circuit Court.

The Discrete Property List commenced as a pilot in Newcastle (commencing 12 February 2018 as the Financial Applications Pilot). As a result of the positive outcomes from the pilot, the Discrete Property List was rolled out to the Brisbane, Sydney, Parramatta, Melbourne and Adelaide registries throughout 2019–20.

The Discrete Property List aims to:

  • more closely monitor compliance with orders for production of documents and valuations
  • reduce delays in getting financial cases through the dispute resolution process
  • expand opportunities for parties to discuss and take ownership of their own dispute resolution planning at any early stage, and
  • improve dispute resolution outcomes through close involvement in preparation and case management of the case before a dispute resolution process takes place.

Matters in the Discrete Property List are case managed by registrars up until an unsuccessful alternative dispute resolution event or where earlier transfer to the docketed judge is required such as:

  • parenting issues raised
  • jurisdictional issues raised
  • interim issues require judicial determination, or
  • to be listed for possible undefended hearing.

A Guide for practitioners and parties in FCC family law financial matters listed before a Registrar (The Discrete Property List) is available on the Court’s website.

As at 30 June 2020, 68 per cent of matters in the Discrete Property Lists resolved without judicial involvement. On average, matters resolve without judicial intervention within 90 days of the first court date

The Discrete Property List is an example of the benefits of early registrar intervention and case management, through which registrars can provide support to judges by resolving less complex matters and freeing up judicial time to focus on more complex applications and final hearings.

Priority Property Pools under $500,000 (PPP500) pilot

The Federal Government announced funding for a small claims pilot through the Commonwealth Government’s Women’s Economic Security package which is designed to improve the responsiveness of the family courts to family violence. The pilot will be independently evaluated by the Australian Institute of Family Studies. Adelaide, Brisbane, Melbourne and Parramatta are the nominated pilot locations.

The aim of the PPP500 pilot is to provide a simplified way of resolving property disputes which will minimise risk and legal costs, and best preserve the parties’ assets. The purpose is to achieve a just, efficient and timely resolution of PPP500 cases, at a cost to the parties that is reasonable and proportionate in the circumstances of the case.

The purpose will be achieved by identifying and narrowing the issues in dispute and assisting the parties to undertake:

  • Alternative Dispute Resolution (ADR) at the earliest opportunity, and
  • where ADR is unsuccessful, providing an opportunity for a less adversarial trial or a hearing on the papers.

A PPP500 case is an application for alteration of property interests pursuant to section 79 of the Family Law Act 1975 (Cth) (Family Law Act) or section 90SM Family Law Act (as may apply) filed after 1 March 2020 in the Brisbane, Parramatta, Adelaide or Melbourne Registries, where the following applies:

  • the value of the net property of the parties (including superannuation interests) is, or is likely to be, $500,000 or less, and
  • there are no entities (such as a family trust, company, or self-managed superannuation fund) owned or in the effective control of either party that might require valuation or expert investigation, and
  • neither party in the proceedings seeks orders:

In an effort to minimise costs, parties commencing a PPP500 case are only required to file an Initiating Application and a PPP500 Financial Summary in order to commence proceedings. There are also shortened timeframes and an emphasis on reducing the number of court events to ensure a quick and inexpensive resolution.

The case management of a PPP500 case has two components:

  • registrar-led resolution: where a registrar can assist separating couples to reach agreement, in the shortest possible time, and
  • short-form judge managed PPP500 lists (limb two): applying procedurally simpler processes to the determination phase.

The PPP500 funded pilot has the following important features:

  • intensive monitoring of compliance with orders for production of documents and valuations
  • reduced delays in getting financial cases through the alternative dispute resolution process
  • expanded opportunities for parties to discuss and take ownership of their dispute resolution planning at any early stage
  • opportunities for settlement at an early stage
  • improved dispute resolution outcomes through close involvement in the preparation and case management of the case before ADR takes place
  • where possible, unnecessary court appearances are eliminated and the number of court appearances reduced, and
  • referral to appropriate services is made proactively.

Practice Direction 2 of 2020 – Case Management – Family Law (Priority Property Pools under $500,000) Financial Cases has been issued and is available on the Court’s website.

A Guide for Practitioners and Parties in Family Law Priority Property Pools under $500,000 cases is available on the Court’s website.

National Arbitration List

Section 13E of the Family Law Act 1975 provides for the Court to refer Part VIII or Part VIIIAB proceedings, or aspects of those proceedings to arbitration. This can only be done with the consent of all parties. To support the development and promotion of arbitration for property matters in family law, in April 2020, the Family Court and the Federal Circuit Court each established a new specialist list – the National Arbitration List.

The list operates as a national electronic list and includes the following features:

  • whenever a matter is referred to arbitration that case will be placed into the National Arbitration List
  • any application for interim orders sought by an arbitrator or one of the parties will be dealt with by the National Arbitration Judge electronically
  • any applications relating to the registering of the arbitration award, objection to an award being registered or an application for review will be conducted either the National Arbitration Judge or a nominated judge assigned by the Chief Justice or Chief Judge, and
  • any appeal from a decision of the National Arbitration Judge or other nominated judge will be managed by Justice Strickland as the Coordinating Arbitration Appeal Division Judge.

Further information on the National Arbitration List can be found in the Information Notice The National Arbitration List available on the Court’s website.

Co-location of state and territory child welfare authorities and police

In early 2020, state and territory child welfare officials and police were co-located in the busiest family law registries of the Family Court and Federal Circuit Court as part of a co-location initiative announced by the Federal Government. The co-location initiative is intended to improve the sharing of information between the state and territory police and child welfare authorities and the family courts, and ensure that this information is available to judges and registrars at the earliest opportunity. It is anticipated that the co-location initiative will lead to a more cohesive response to identifying and managing family safety and child protection issues across the family law, family violence and child welfare systems.

Greater information sharing between agencies can provide a clearer picture of the nature, frequency and severity of violence or other risks to children occurring within a family and trigger earlier intervention or a more robust system response. It is anticipated that improved information sharing can improve the Courts’ ability to assess risk, triage and prioritise cases, and make orders which protect children and victims of family violence to the greatest extent possible.

The co-location of state and territory child welfare officials in the Courts’ family law registries follows the co-location of an officer from the Department of Health and Human Services in Victoria, which has operated successfully and proven a valuable resource for judges and registrars. The process has provided additional benefits including:

  • early information for the triage of urgent cases
  • reduction in the number of subpoenas and orders pursuant to section 91B of the Family Law Act 1975, and
  • information flow between the Courts and the child welfare authority has improved the understanding within each entity of the other’s role.

Child welfare officials are co-located in most registries save for the Northern Territory. Police officials are co-located in most registries save for the Northern Territory and Victoria.

Information sought from co-located police officers may include information in relation to current or previous family violence orders, firearms licences, criminal convictions or pending criminal proceedings.

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

The Courts are progressing 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. The Courts’ aim is to promote consistency of practice in the family law jurisdiction, and ensure as far as possible that there is a single set of rules that are clear and accessible for all users of the family law system. This is a project that has required the focus and dedication of judges and staff of both Courts, overseen by an independent Chair, the Honourable 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.

Report on migration

Migration represents the second largest area of the Court’s jurisdiction (after family law). In 2019–20, Migration matters represented 63.44 per cent of the Court’s filings in the general federal law jurisdiction. The Court received 6,555 migration filings and finalised 4,045 migration applications. The nature of migration work leads to a larger number of written judgments than any other area of the Court’s work (migration judgments represent approximately 40 per cent of the Court’s written judgments and approximately 52 per cent of the Court’s judgments published on AustLII in 2019–20). In 2019–20, 36 per cent of migration applications were disposed of within 12 months.

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

Figure 3.9 shows a significant increase (17 per cent) in the number of migration applications filed during the reporting period. The increase has placed significant pressure on judicial resources. A system is in place for the early identification of matters where litigants are in detention or otherwise in need of an urgent hearing so that those matters may be prioritised.

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

The early identification of matters that may have implications for a wider cohort, particularly those relating to the ‘fast track caseload’, was also identified as a process that may assist the Court.

Figure 3.9: Migration applications filed and finalised, 2015–16 to 2019–20
Bar chart showing migration applications filed and finalised from 2015–16 to 2019–20

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

Migration law is a specialist area of administrative law that is highly technical and often the subject of constitutional challenge. The jurisdiction exercised by the Court in judicial review concerns the issue of constitutional writs based upon jurisdictional error of administrative decision makers made pursuant to the lengthy and complex provisions of the Migration Act and Regulations which must be interpreted in the context of international conventions, such as the Convention Relating to the Status of Refugees (also known as the 1951 Refugees Convention), Convention Against Torture, the International Covenant on Civil and Political Rights, and the Convention on the Rights of the Child.

Initiatives in migration

Migration case management

In response to large volumes of migration filings concentrated in certain registries, the Court undertook internal consultation and developed the Central Migration Docket (CMD). Prior to the CMD, cases were docketed directly to judges, meaning that judge dockets each contained hundreds of cases, and obliging docket judges to manage those cases in the interim period. Discrepancies between filings and judicial resources led to variations in the times between filing and hearing across the country. As these variations grew, it appeared that registries with longer delays attracted greater numbers of filings (as filing usually results in a bridging visa for the applicant).

The CMD aims to ensure judicial resources are targeted at final hearings in locations where they are needed, rather than focused simply on cases filed in the local registry, and minimising the use of judicial time for interlocutory and case management work that can be undertaken by a registrar. A unique feature of the migration case load is that most cases require little interlocutory management, and that such case management is largely the same for most cases and rarely requires the time of a judge.

The CMD was introduced in September 2019 to provide a national case management system for the Court’s migration caseload. This commenced in the Melbourne registry and has been extended throughout Queensland, Victoria, Tasmania and South Australia. New South Wales is in the process of transitioning to the CMD. This has enabled better use of judicial and registry resources and a consistent approach to case management processes. The CMD is comprised of a central docket, to which all new matters are now docketed; a central database of all Federal Circuit Court migration filings; upgraded and increased video-hearing capabilities in all registries; and efforts to standardise directions, court books and lists of authorities.

Cases are assigned to judges when ready to be judicially determined. Listings are based on judge availability, utilising judicial capacity nationally. The CMD has also enabled the Court to identify cases requiring expedition and case cohorts so as to manage those identified cases appropriately on a national basis. The national migration registrar is now a central point of contact for any request that a matter be heard urgently. Where cases do require interlocutory management the national migration registrar is supported by the national migration case management judge.

As at 30 June 2020, 49 per cent of the CMD related to applicants for protection visas. Of the 51 per cent of non-protection visa related matters, the most significant portion related to student visa refusals and cancellations (58 per cent of the non-protection caseload), followed by skilled visa refusals and cancellations (27 per cent). The remainder consists of applications relating to partner and family visas, business visas and short stay visas such as visitor, medical treatment bridging visas and training visas.

Figure 3.10 shows the pending migration caseload as at 30 June 2020 by case type.

Figure 3.10: Visa categories comprising pending Federal Circuit Court migration caseload
Pie chart showing visa categories comprising pending Federal Circuit Court migration caseload

In the past year, since the implementation of the CMD, finalisation rates have increased by 10 per cent (See Figure 3.9) and waiting times for directions hearings have significantly decreased.

The expansion of the CMD to include all registries is continuing.

Access to justice

Migration work presents additional demands on the Court and its administration that do not arise in other areas of the Court’s jurisdiction. The Court provides interpreters to the 75 per cent of unrepresented litigants who require them. Interpreters are provided for over 70 different languages, with the highest need for Tamil, Malay, Mandarin, Punjabi and Farsi (Persian). Applicants are nationals of more than 90 different countries, with a significant number being nationals of India, Malaysia and Sri Lanka.

Because 76 per cent of litigants in migration matters are unrepresented, including those seeking review of protection visa decisions, there is a greater need for pro bono representation or other forms of legal assistance, especially where 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 Victoria Legal Aid migration duty lawyers are present at the directions hearings and give legal advice, refer eligible clients for legal aid, and may earmark some matters for pro bono referral.
  • In the Adelaide registry, JusticeNet maintains an onsite presence to assist unrepresented litigants requiring help with filing, consent orders, and referrals to other legal aid assistance.
  • In the Brisbane registry, LawRight, also onsite, assists unrepresented litigants with advice, document drafting, preparing for hearings and referrals, where appropriate.
  • LegalAid WA works closely with the Perth registry to provide advice and assistance for litigants seeking review of protection visa refusals.

The Court is grateful for these services as they improve access to justice for the litigants and facilitate the fair and efficient conduct of the migration matters. The Court continues to liaise with local legal aid agencies and other legal services regarding the further expansion of these valuable schemes.

Report on general federal law

Table 3.4: General federal law applications filed by type, 2019–20

General federal law

Total

% of total

Administrative

48

1.3%

Admiralty

11

0.3%

Bankruptcy

1,872

49.6%

Consumer

157

4.2%

Fair work

1,563

41.4%

Human rights

70

1.9%

Intellectual property

57

1.5%

Total

3,778

100%

In 2019–20, 88 per cent of general federal law applications were disposed of within 12 months. Due to rounding, percentages may not always appear to add up to 100%.

Administrative

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

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

As noted in previous annual reports, the Court considers there is scope for expanding the jurisdiction of the Court to encompass some review rights under s 39B of the Judiciary Act 1903.

Excluding those judicial review applications filed in respect of migration, the number of administrative review matters that proceed before the Court are few in number (48 in 2019–20).

Admiralty

Although the number of applications in person filed under this head of jurisdiction is small (11 in 2019–20), it is an important jurisdiction conferred under s 76 (iii) of the Constitution. The admiralty and maritime jurisdiction conferred on this Court is a dispute subject matter that requires an appreciation and understanding of the United Nations Law of the Sea Conventions and the domestic legislation giving effect to maritime-related international treaties and conventions.

The work is undertaken by a discrete panel of judges who are required to maintain appropriate breadth of knowledge in admiralty and maritime law.

The jurisdiction of the Court is governed by the Admiralty Act 1988. Section 9 of that Act confers in personam jurisdiction on the Court for matters falling within the meaning of a maritime claim as defined in s 4. While confined to in personam disputes, the Court can also hear in rem matters referred to it by the Federal Court, which is not limited by quantum.

As proceedings commenced in personam in the Court can be transferred to the Federal Court, the Federal Circuit Court is a convenient forum for preserving time limitations in disputes concerning carriage of goods, charter parties, collisions, general average and salvage. The jurisdiction in personam is not limited by quantum.

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

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

The Admiralty and Maritime Practice Direction, issued by the Chief Judge on 3 June 2019, has revitalised this important area of the Court’s general federal jurisdiction. It is available on the Court’s website.

The unlimited general federal jurisdiction of the Federal Circuit Court in the in personam matters conferred by the Admiralty Act 1988 is of great utility for litigants involved in maritime commerce disputes and their legal practitioners. The Court can also exercise jurisdiction in respect of matters remitted by the Federal Court.

The lower court costs and now streamlined and unified procedures for case management of these maritime matters, will simplify and make more accessible resolution of the in personam maritime disputes. The Court can readily accommodate interstate appearances by legal practitioners at the case management hearings by either telephone or video link and can make orders to facilitate the same.

While the numbers of maritime matters at this stage filed in the Court are not substantial, there is considerable importance in facilitating the fair, inexpensive and expeditious determination of maritime disputes.

The new case management procedures will still ensure that maritime matters ready for final hearing are promptly heard and determined by judges of the Court in the local registries where the matters are filed, except where exigencies within the Court require otherwise. The judges of the Court deal with a vast range of general federal law matters and the Court will continue to expand and enhance access to justice in this special area of admiralty and maritime jurisdiction.

Bankruptcy

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

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

  • creditors’ petitions
  • applications to set aside bankruptcy notices, and
  • examinations pursuant to s 81 of the Bankruptcy Act 1966.

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

Figure 3.11: Bankruptcy applications, 2015–16 to 2019–20
ar chart showing bankruptcy applications filed and finalised from 2015–16 to 2019–20

The Court received 1,872 bankruptcy applications in 2019–20, and finalised 2,105. This represents a significant decrease in bankruptcy filings of 35 per cent, compared with 2,890 filings in 2018–19. However, it is noted that, due to COVID-19, on 25 March 2020, the Commonwealth Government introduced significant temporary debt relief measures which increased the debt threshold required for creditors to apply for a bankruptcy notice and increased the timeframe for a debtor to respond to a bankruptcy notice from 21 days to six months. These temporary debt relief measures will have had an impact on the bankruptcy filing figures post 25 March 2020 and it is anticipated that a substantial increase in filings will arise after the measures are lifted and will flow through to the 2020–21 financial year.

In light of the shared personal bankruptcy jurisdiction, the Federal Court and the Federal Circuit Court have adopted harmonised bankruptcy rules:

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

The Bankruptcy Amendment (Debt Agreement Reform) Act 2018 (Cth) amended the Bankruptcy Act 1966 (Cth) to effect a comprehensive reform of Australia’s debt agreement system. The majority of the amendments commenced on 27 June 2019.

The reforms include changes to:

  • the length of a debt agreement a debtor can propose debtor eligibility to enter into a debt agreement
  • the official receiver’s powers to refuse to accept a debt agreement proposal in exceptional circumstances
  • creditor voting rules around debt agreements
  • debt agreement administrator registration requirements, and
  • the Inspector-General’s investigation and inquiry powers.

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

Consumer

The consumer law jurisdiction of the Court is confined and there is a monetary limit on the grant of injunctive relief and damages up to $750,000. The number of filings under this head of jurisdiction is accordingly small (157 in 2019–20).

Consumer law now has a national framework following the commencement, on 1 January 2011, of the Australian Consumer Law. This cooperative framework is administered and enforced jointly by the Australian Competition and Consumer Commission and the state and territory consumer protection agencies.

The regulatory framework surrounding consumer protection, in the context of the banking, insurance and financial services sectors, has been the subject of some oversight. On 29 November 2016, the Senate referred an inquiry into the regulatory framework for the protection of consumers, including small businesses, in the banking, insurance and financial services sector (including managed investment schemes) to the Senate Economics References Committee for inquiry and report.

In November 2018, the committee provided its report and recommended that the Federal Government consider increased funding for community legal and financial counselling services dealing with victims of financial misconduct.

Additionally, the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry was established on 14 December 2017. The Commissioner, the Honourable Kenneth Madison Hayne AC QC, provided his final report on 1 February 2019.

Fair work

The Court has jurisdiction to deal with a broad range of matters under the Fair Work Act 2009 (Cth) (the FW Act). Legislative developments have included amendments to the Fair Work (Registered Organisations) Act 2009 by way of the Fair Work (Registered Organisations) Amendment Act 2016, which included the conferral of jurisdiction on the Federal Circuit Court to impose civil remedies against persons taking action against whistle blowers by way of reprisal action (as defined).

Since the conferral of industrial law jurisdiction on the Court, the workload under this head of jurisdiction has grown. The Court received 1,563 applications in 2019–20, and finalised 1,329 applications during the reporting period. This represents an increase in filings of 21 per cent, compared with 1,295 filings in 2018–19.

The Migrant Workers’ Taskforce Final Report was released on 7 March 2019. The taskforce was established on 4 October 2016 and was preceded by a significant number of high profile cases revealing exploitation of migrant workers. Among other things, the report stated that these cases exposed unacceptable gaps in Australia’s legal system designed to treat all workers equally, regardless of their visa status. Accordingly, the taskforce was set the specific task to identify proposals for improvements in law, law enforcement and investigation, and other practical measures to more quickly identify and rectify cases of migrant worker exploitation. The Government has subsequently agreed ‘in principle’ to all recommendations of the report.

The report makes 22 recommendations. Recommendation 12 of the Report provides ‘that the Government commission a review of the Fair Work Act 2009 small claims process to examine how it can become a more effective avenue for wage redress for migrant workers’. The report can be found at: https://docs.employment.gov.au/documents/report-migrant-workers-taskforce 

Finally, the Court’s small claims jurisdiction continues to provide a ready means by which employees can, through the less formal process in s 548, secure orders for payments of their lawful entitlements under the FW Act. The small claims process is limited to applications seeking to recover employment entitlements up to an amount of $20,000. The Court is committed to ensuring that small claims applications can be determined quickly and inexpensively. Information about the small claims lists operating in the Brisbane, Melbourne and Sydney registries is included on page 49.

Figure 3.12: Fair work applications filed and finalised, 2015–16 to 2019–20
Bar chart showing fair work applications filed and finalised from 2015–16 to 2019–20

Human rights

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

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

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

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

The number of matters that proceed to the Court is relatively small. In 2019–20, there were 70 applications filed under this head of jurisdiction.

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

Figure 3.13: Human rights applications filed and finalised, 2015–16 to 2019–20
Bar chart showing human rights applications filed and finalised from 2015–16 to 2019–20

Intellectual property

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

The IP work of the Court is undertaken by a discrete panel of judges within the Court’s specialist national practice areas in general federal law who are required to maintain an appropriate breadth and depth of knowledge in copyright, design and trade marks law, passing off and analogous claims.

Since 1 July 2018, the Federal Circuit Court has conducted the National IP list, promoting the Court as a forum for IP litigation, providing a streamlined and consistent national approach to the case management of IP litigation in the Court. The National IP list is conducted as a specialist list within the Court’s general federal law jurisdiction, and was developed from and extended the IP pilot operating in the Court’s Melbourne registry since 30 June 2017. Supporting the Court’s national IP initiative, Judge Baird is the inaugural judge in charge of the IP national practice area. All IP matters filed in the Court are provisionally docketed to Judge Baird, who case manages the matters in the National IP List commencing with an early first court date, through the interlocutory steps and to hearing.

Through the National IP list, the Court seeks to provide consistency in case management and interlocutory processes, to identify matters requiring early hearing dates, and to encourage cost effective and early identification and narrowing of issues in dispute. Improving convenience, and obviating the costs of in-person attendance, through the National IP List, the Court undertakes case management hearings on the papers, by telephone and by video link with multiple registries, encouraging electronic and effective case management. The Court encourages and facilitates the use of alternative dispute resolution for the resolution of IP litigation, including through the Court’s mediator registrars (who hold dual appointments with the Federal Court).

Figure 3.14: Intellectual property applications filed and finalised, 2015–16 to 2019–20
Bar chart showing the intellectual property applications filed and finalised from 2015–16 to 2019–20

Guiding the conduct of IP matters in the Federal Circuit Court, the IP Practice Direction, Practice Direction No. 1 of 2018, applies nationally with respect to all IP proceedings commenced in the Federal Circuit Court after 1 July 2018. It is available on the Court’s website.

There was extensive consultation with stakeholders prior to the commencement of the Melbourne IP pilot, and Judge Baird has continued that consultation and engagement with the IP profession.

The Court is well placed to hear and determine IP disputes, especially straightforward and less resource intensive cases (one to three day hearings), and appeals from the offices of IP Australia, in a cost effective and streamlined way. The Court offers an accessible, responsive and less expensive alternative to IP litigation, particularly attractive to individual rights-holders and small and medium enterprises.

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

With the conduct of the National IP list, the number and diversity of filings in IP matters in the Federal Circuit Court has increased. It is a small, but an important and growing part of the Court’s jurisdiction and work.

Examples of the types of IP matters that have come before the Court during the year include appeals (hearings de novo) from decisions of the Registrar of Trade Marks (Office of IP Australia), counterfeit and other infringement of copyright works and other subject matter (cinematograph films, sound recordings), breach of IP licences and assignments, and counterfeit and other infringement of trade marks, and trade mark infringement proceedings following Customs seizures of goods. The Court has determined claims involving a wide range of subject matter and industry sectors, including celebrity and personality rights, fast-moving consumer goods, fashion and surf-wear, pharmacy and salon products and services, financial products and services, IT equipment, services and electronic games, music entertainment and leisure industries, taxi and public transport service sectors, among other claims.

Initiatives in general federal law

The Federal Circuit Court has grown to become Australia’s principal federal trial court. The Court’s jurisdiction and less formal legislative mandate is such that a significant number of parties present as unrepresented 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.

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 Federal Circuit Court Rules 2001 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 unrepresented litigants, the Court has been able to facilitate assistance to litigants. Assistance is also provided in various states by organisations such as JusticeNet and Justice Connect. The Court appreciates the generosity of those members of the profession who agree to give their valuable time voluntarily to assist in such referrals.

Small claims lists – Brisbane, Melbourne and Sydney

The Fair Work Act 2009 (Cth) makes provision for certain proceedings to be dealt with as small claims proceedings. An applicant 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 (Cth). When dealing with a small claim application, the Court is not bound by the rules of evidence but may inform itself of any matter in any manner as it thinks fit. A party to a small claims application may not be represented by a lawyer without the leave of the Court. Rules in relation to the conduct of proceedings in the Fair Work Division are found in Chapter 7 of the Federal Circuit Court Rules 2001.

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

The main aims are:

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

Litigants are provided with a fact sheet, along with other resources to assist them in the process. The Fair Work Ombudsman provides staff to assist at the lists on an amicus basis and various other material is available if additional claims are raised.

Pro bono migration scheme – Brisbane

Pro bono matters are now processed through LawRight’s self-representation service as it also administers Pro Bono Connect, which is now used by the both the Bar Association and the Law Society for matching barristers and/or solicitors to particular cases as pro bono lawyers.

Pilot to assist unrepresented litigants – bankruptcy lists – Melbourne and Adelaide

With the assistance of Consumer Action in Melbourne and Uniting Communities in Adelaide, the Court has, in conjunction with the Federal Court, been able to maintain a program of targeted financial counselling assistance to unrepresented litigants in bankruptcy proceedings. Since the latter part of 2014 in Melbourne and 2018 in Adelaide, a financial counsellor sits in the courtroom in every bankruptcy list. Since the COVID-19 restrictions, a financial counsellor has been available over the telephone. The registrar presiding is able to refer an unrepresented litigant to the financial counsellor for an immediate confidential discussion so that the litigant better understands his or her options when faced with the prospect and consequences of bankruptcy.

In Melbourne, during the reporting year, there were 41 referrals of debtors in proceedings to financial counsellors, 38 of which have been determined. In 24 of those proceedings (63 per cent), they were resolved by consent. While statistics are not available from Adelaide, registrars have reported favourably about the program.

Appeals

Family law appeals

An appeal lies to the Family Court from the Federal Circuit Court exercising jurisdiction under the Family Law Act and, with leave, the Child Support Acts. An appeal in relation to such matters is exercised by a Full Court unless the Chief Justice considers it appropriate for a single judge to exercise the jurisdiction.

There was a 7 per cent decrease in the number of appeals going to the Family Court from the Federal Circuit Court during the year (see Table 3.5). Appeals from the Family Court of Western Australia are included in the appeal figures from the Family Court of Australia. Appeals from family law Magistrates in Western Australia are included in the appeal figures from the Federal Circuit Court. This should be factored in when considering appeal numbers as a proportion of Federal Circuit Court filings.

Table 3.5: Notice of appeals filed, finalised and pending by jurisdiction, 2015–16 to 2019–20

Notice of appeals

2015–16

2016–17

2017–18

2018–19

2019–20

% change
from 2018–19
to 2019–20

Filed

Family Court of Australia

161

145

189

133

198

49%

Federal Circuit Court of Australia

210

199

201

267

247

-7%

Appeals filed

371

344

390

400

445

11%

Per cent from the Family Court of Australia

43%

42%

48%

33%

44%

34%

Per cent from the Federal Circuit Court of Australia

57%

58%

52%

67%

56%

-17%

Finalised

Family Court of Australia

157

161

184

135

174

29%

Federal Circuit Court of Australia

197

216

186

244

274

12%

Appeals finalised

354

377

370

379

448

18%

Per cent from the Family Court of Australia

44%

43%

50%

36%

39%

9%

Per cent from the Federal Circuit Court of Australia

56%

57%

50%

64%

61%

-5%

Pending

Family Court of Australia

139

107

110

80

101

26%

Federal Circuit Court of Australia

131

101

110

144

112

-22%

Appeals pending

270

208

220

224

213

-5%

Per cent from the Family Court of Australia

51%

51%

50%

36%

47%

12%

Per cent from the Federal Circuit Court of Australia

49%

49%

50%

64%

53%

-12%

General federal law appeals

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

Of the 1,026 appeals and related actions filed in the Federal Court in 2019–20, 722 were from decisions of the Federal Circuit Court, accounting for approximately 70 per cent of the overall appeals and related actions filed.

This compares with a total of 1,085 appeals and appellate-related applications from the Court in 2018–19, a decrease of over 33 per cent.

The vast majority of these appeals concern decisions made under the Migration Act 1958, with 661 of the appeals filed arising from migration judgments of the Court in 2019–20, compared with 1,021 in 2018–19.

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

Figure 3.15: Source of appeals and related actions filed in the Federal Court, 2015–16 to 2019–20
Bar chart showing the source of appeals and related actions filed in the Federal Court from 2015–16 to 2019–20

Dispute resolution

General federal law

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

Not all matters are equally likely to be referred to mediation. In practice, particular characteristics of some matters mean that referrals to mediation may occur infrequently if at all. Such matters include migration applications. The number of matters referred to mediation increased from 615 in 2018–19 to 755 in 2019–20 (see Table 3.6).

Table 3.6: Number of matters referred to mediation, 2015–16 to 2019–20

MEDIATION

2015–16

2016–17

2017–18

2018–19

2019–20

Referrals

583

620

720

615

755

Table 3.7 shows the number of referrals to mediation by cause of action both as a number and as a percentage of filings. Overall, 7.3 per cent of filings were referred to mediation. As a percentage of matters, the cause of action most referred to mediation was human rights at 71.4 per cent of matters referred, followed by intellectual property and fair work matters.

Table 3.7: Filings and mediation referrals to a registrar as a percentage of filings, 2019–20

CAUSE OF ACTION

Filings

Referrals

Referrals as % of filings

Administrative

48

2

4.2%

Admiralty

11

1

9.1%

Bankruptcy

1,872

22

1.2%

Consumer

157

22

14.1%

Human rights

70

50

71.4%

Fair work

1,563

636

40.7%

Intellectual property

57

21

36.8%

Migration

6,555

0

0.0%

All filings

10,333

755

7.3%

Table 3.8 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.

In the reporting period, registrars conducted 620 mediations and partially or fully resolved 412 matters, or 66 per cent of matters.

Table 3.8: Mediation referral outcomes, 2019–20

CAUSE OF ACTION

Finalised – not resolved

Finalised – resolved

Finalised – resolved in part

Total

Administrative

0

5

0

5

Admiralty and maritime

0

0

0

0

Bankruptcy

4

12

0

16

Consumer

5

10

1

16

Human rights

11

31

0

42

Fair work

178

345

3

526

Intellectual property

10

5

0

15

Migration

0

0

0

0

Total

208

408

4

620

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 2019–20, registrars held 2,974 privileged conciliation conferences, resulting in 59 per cent of matters being fully resolved by the next court event.

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 Court is seeking to enhance the services provided to litigants and allow for greater flexibility in the provision of those services by utilising the fund to allow providers to provide counselling and mediation services to litigants locally in appropriate circumstances.

The major focus of the administered fund is to provide mediation services to litigants in property matters, particularly in rural and regional areas, in support of its circuit work. These services are currently provided by Relationships Australia (Victoria) who undertake property mediation where the provider is located within the same location as the litigants and in a position to offer more timely interventions.

The use of the administered fund continues to expand as services are extended to more regional locations. This reduces the need for registrars to travel from registry locations, which impacts on the delays and services in the principal registries. It allows regional litigants to access mediation services in a timely fashion rather than waiting for registrar circuits.

In 2019–20, over 430 matters were referred for property mediation through Relationships Australia (Victoria). Of the 397 mediations that occurred in this financial year, 71.5 per cent were reported as having settled.

Family law parenting

Dispute resolution refers to a range of services designed to help parties resolve disputes arising from separation or divorce.

Under section 13C of the Family Law Act 1975, the Court may refer parties to family counselling, family dispute resolution and other family services at any stage of the proceedings.

Family Dispute Resolution is defined in s 10F as a process (other than a judicial process) undertaken by a family dispute resolution practitioner. Section 93D of the Federal Circuit Court of Australia Act 1999 (Cth) (Federal Circuit Court Act) provides for the CEO to authorise an ‘officer or staff member’ of the Federal Circuit Court (defined in s 99 to include a registrar and family consultant) to provide family dispute resolution or family counselling under the Family Law Act.

Judicial mediation

Practice Direction 1 of 2019 sets out arrangements for the conduct of judicial mediations in the family law jurisdiction of the Court. Judicial mediation is not intended to be a substitute for private mediation conducted by appropriately qualified mediators, but may be an option for appropriate matters. The Practice Direction sets out criteria for suitability for judicial mediation.

Complaints

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

During 2019–20, 286 complaints were received, which is an increase from 2018–19 (252). Table 3.9 provides a breakdown of these complaints by category.

Table 3.9: Federal Circuit Court complaints by category, 2019–20

Complaint about

Number received

Child dispute services

56

Overdue judgment

61

Legal process and conduct of proceedings

65

Conduct – judge

15

Judicial decision

36

Family registry

23

Conduct – registrar

8

Divorce

5

National Enquiry Centre

2

Electronic filing

7

General federal law registry

1

Mediation

1

Privacy

6

The number of complaints received is relatively small compared to the high volume of work the Court deals with. Judicial complaints in relation to overdue judgments represent less than 2 per cent of all matters where written reasons are delivered. That is, 61 complaints about overdue judgments compared to 3,589 settled judgments delivered. Alternatively, the 112 complaints relating directly to judicial officers represents complaints in less than 0.5 per cent of all final order applications filed. That is, 112 complaints compared to family law final orders, migration and other general federal law applications, excluding bankruptcy.

The Court has a protocol that sets a benchmark of three months for the delivery of reserved judgments, and matters that are outside this benchmark are actively monitored by the Chief Judge’s chambers.

It is noted the above information includes complaints about matters that cannot be dealt with under the complaints policy. This includes complaints about judicial decisions (which must be dealt with under the appeals process) and matters regarding the legislative regime and legal system generally.

Judicial complaints policy

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

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

  • provide a statutory basis for the Chief Justice of the 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). The Judicial Complaints Procedure of the Court is available on the Court’s website.

Judgment publication

In 2019–20, 3,589 settled judgments were received by the Judgments Publication Office.

Table 3.10 provides a breakdown of judgments finalised by jurisdictional category.

Table 3.10: Federal Circuit Court judgments by jurisdictional category, 2019–20

Jurisdictional category

Number finalised

Administrative law

7

Admiralty law

2

Bankruptcy

81

Child support (includes AAT)

18

Consumer law

15

Family law

1,825

Human rights

14

Industrial law

220

Intellectual property (includes Copyright and Trade marks)

5

Migration

1,365

Practice and procedure

37

TOTAL

3,589

Publication of judgments is seen as an important way to serve the public interest and reflect the Court’s commitment to open access to justice. Efforts are made to publish as many judgments as practical while also applying legal publishing standards and complying with legislative requirements restricting the publication of private information related to certain proceedings. The publication of these judgments is also seen as a way to adequately reflect the work of the Court.

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

Copies of unreported judgments are also distributed to commercial legal publishers (including LexisNexis, Thomson Reuters, Wolters Kluwer CCH Australia and Jade) for inclusion in case citation databases.

In 2019–20, 69 decisions of the Court were published in commercial law report series, including the Federal Law Reports, Family Law Reports, Australian Industrial Law Reports and Australian Bankruptcy Cases.

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

A significant number of the Court’s decisions are delivered ex tempore at the conclusion of the hearing or soon after. Not all of these judgments are settled into a written form due to the additional time required for this task. Those that are settled are done so in response to a request from the parties or a notice of appeal, or if the judicial officer considers it appropriate to do so.

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

In 2019–20, approximately 761 family law decisions were published externally.

Changes to the Court’s jurisdiction in 2019–20

The following Acts affected the jurisdiction of the Court:

  • Treasury Laws Amendment (Consumer Data Right) Act 2019
  • Health Insurance Amendment (Bonded Medical Programs Reform) Act 2019
  • National Sports Tribunal Act 2019
  • Inspector-General of Live Animal Exports Act 2019
  • Offshore Petroleum and Greenhouse Gas Storage Amendment (Miscellaneous Amendments) Act 2019
  • Aged Care Legislation Amendment (New Commissioner Functions) Act 2019
  • Medical and Midwife Indemnity Legislation Amendment Act 2019
  • Export Control Act 2020
  • Student Identifiers Amendment (Enhanced Student Permissions) Act 2020
  • Telecommunications Legislation Amendment (Competition and Consumer) Act 2020
  • Health Insurance Amendment (General Practitioners and Quality Assurance) Act 2020.

Amendments to fee regulations

There are two fee regulations that apply to proceedings in the Court, one for general federal law proceedings and one for family law proceedings:

  • Family Law (Fees) Regulation 2012, and
  • Federal Court and Federal Circuit Court Regulation 2012.

Fee increases to items 103, 104, 209 and 210 of Schedule 1 of the Federal Court and Federal Circuit Court Regulation 2012 (applications in relation to dismissals in contravention of Part 3–1 of the Fair Work Act 2009) are calculated in accordance with regulations 3.02 and 3.03 of the Fair Work Regulations 2009.