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AG report signals end for family courts duplication

A media release, AG site info for Review and three articles FYI.

ATTORNEY-GENERAL MEDIA RELEASE

Date: Thursday 20 November 2008

IMPROVING AUSTRALIAS FEDERAL COURT SYSTEM

Attorney-General Robert McClelland today released a report and discussion paper on improvements to the delivery of family law services by Australias federal courts for public consultation.

The report, Future Governance Options for Federal Family Law Courts in Australia, was prepared by the Attorney-Generals Department in conjunction with Mr Des Semple.

The recommendations seek to ensure that our federal courts are focussed on helping people to resolve their differences as quickly and cost-effectively as possible, Mr McClelland said.

The report finds that current arrangements are financially unsustainable and have led to confusion among litigants, conflict over resources and inefficiencies in administration.  This is impeding the delivery of family law services to Australians.

Among the reports key recommendations are the creation of a single federal family law court by combining the Family Court and the Federal Magistrates Court, and the use of savings identified through streamlined administration to enhance family law services.

The discussion paper seeks public comment on the reports recommendations, and emphasises that any changes must preserve and build on the existing service culture of the Federal Magistrates Court.  The report and discussion paper also propose recognising the constitutional status of Federal Magistrates as Chapter III judges under any changes.

The discussion paper seeks input on a range of proposed initiatives including simpler and more limited rules of evidence and procedure in the new combined family law court.

Court resources should be deployed at an early stage to enable parties to resolve their dispute as quickly as possible, Mr McClelland said.

I would like to thank my Department and Mr Semple for the extensive consultation that has been undertaken with the courts, legal professional bodies and key stakeholders in the development of the proposals.

The report and discussion paper can be accessed at: www.ag.gov.au.  Submissions and comments are invited by 6 February 2009.


The report and details for public submissions about the recommendations are on www.ag.gov.au

Downloads

- Consultation Paper on Review - November 2008 - 60KB

- Report on Future Governance of Federal Family Courts in Australia Report - November 2008 - 304KB

Improving access to Justice a better framework for federal courts November 2008

A Better Framework for Federal Courts - Consultation


Consultation Paper  Improving access to Justice  a better framework for federal courts  November 2008

The Report of the Review of the delivery by the federal courts of family law services, Future Governance Options for Federal Family Law Courts in AustraliaStriking the Right Balance, and a consultation paper were released by the Australian Attorney-General, the Hon Robert McClelland MP, on 20 November 2008 for public comment.

The Report and consultation paper can be accessed from the Downlaods section on this page. The papers are only available in a PDF format. If you have difficulty downloading these documents, please send an email containing your address to fedcourtsconsultation@ag.gov.au and we will send a copy to you.

The Report focuses on the federal family law system. Its recommendations also propose some changes to the delivery of general federal law services by the federal courts.  The consultation paper details the proposed framework for the federal family courts and the policy rationale for these changes while seeking to facilitate broad public consultation on developing a more streamlined federal family law system as part of the Australian Governments strategy for enhancing access to justice.

Submissions are invited by 6 February 2009 and may be provided by email to fedcourtsconsultation@ag.gov.au, mailed or faxed to:

Federal Courts Branch
Australian Attorney-Generals Department
Robert Garran Offices
3-5 National Circuit
BARTON  ACT  2600

Facsimile: (02) 6250 5904


Submissions to the Review were made by:

Chief Justice Bryant (Family Court of Australia) [PDF 19KB]
Federal Magistrates Court [PDF 743KB]
Law Council of Australia [PDF 143KB]
National Legal Aid [PDF 723KB]
Australian Institute of Family Studies [PDF 1.1MB]
North Queensland Bar Association [PDF 34KB]
NSW Law Society [PDF 661KB]
Law Institute of Victoria [PDF 797KB]
Clarence River and Coffs Harbour Law Society [PDF 1.2MB]


The Australian
21 November 2008

Family law in line for revamp by Rudd Government
By Michael Pelly

The Rudd Government is poised to dismantle the Federal Magistrates Court and create a one-stop shop for family law in a move expected to cause tensions within the judiciary.

Attorney-General Robert McClelland yesterday released a report by consultant Des Semple that recommended the court's family law division should become part of the Family Court and its general division should fold into the Federal Court.

Mr McClelland said "no change is not an option" and that the creation of the court in 1999 - the principal judicial reform of the Howard government - was a mistake.

The Attorney-General said he wanted the "faster, cheaper and less formal" practices of the Federal Magistrates Court to become part of family law culture, and described Mr Semple's model as "a reverse takeover".

There are now 34 Family Court judges, but the report says that only 25 will be required to handle complex trial work and legal appeals.

Up to 36 of the 59 magistrates would be transferred to a general division of the Family Court under the plan, with the remainder to serve in a second-tier federal court.

The report was finalised after discussions with Mr McClelland. Despite a discussion paper on the issue also being released yesterday, the Government is expected to adopt his suggested reforms.

Mr McClelland told The Australian he was prepared to back a pay rise for federal magistrates in the current review before the Remuneration Tribunal. He said he would support renaming them judges, rather than justices - the title that goes with appointment to the Federal Court of Family Court.

He did not specify a figure, but federal magistrates have argued they should receive 90per cent of the pay of Family Court judges as part of any restructure. After a pay rise in July, they get $249,490 a year, which is 78 per cent of the pay for federal judges and Supreme Court judges around the country, who receive $319,880.

Ninety per cent would mean a pay rise to $287,892 a year, and would cost taxpayers more than $2million.

Mr McClelland said it was an anomaly that Queensland magistrates were paid more than their federal counterparts.

The creation of the Federal Magistrates Court removed a significant amount of federal law work from the state and territory courts and freed up superior courts, such as the Federal Court and the Family Court, to concentrate on more complex cases. More than half of all migration matters and 79 per cent of family law applications are now completed by what is regarded as the workhorse of the federal judiciary.

The architect of the court, former attorney-general Daryl Williams, declined to comment yesterday but has previously warned creating two levels of judges would lead to a reprise of an earlier struggle in the Family Court.

When that court was established in 1976, it had "senior judges" and "judges", but pressure soon came for the judges to be made senior judges and be paid the same salary.

His successor, Philip Ruddock, said he feared that the Family Court culture would adversely affect the way the magistrates undertook their functions, leading to increased costs and delays. "I think the culture of the magistrates has been to produce very timely outcomes for litigants," Mr Ruddock said.

Mr Semple said the present model was financially unsustainable and that "tension over resources has distracted the Family Court and the Federal Magistrates Court from their core responsibilities".

In Adelaide, a Family Court judge ordered Federal Magistrates Court staff out of tearooms for stealing "Family Court teabags".

There was also an attempt to have the entire magistrates court staff banned from the Family Court floor because they were a "security risk".

The transfer of non-family law judges to the Federal Court is expected to cause friction, given the vast difference in qualifications and experience. There has already been disquiet expressed at the prospect of a magistrate such as John O'Sullivan - a staffer for former workplace relations minister Kevin Andrews appointed by Mr Ruddock - being part of the same court.

Mr McClelland said "getting our family law system right is a significant access-to-justice issue".

"If we do it well then kids can be substantially shielded from the trauma of divorce," he said. "Family law is still horrifically expensive. It still takes too long and it is unfortunately more fragmented than it needs to be.

"I think the former government experienced frustration in reforming the Family Court and rather than focusing on reforming the court effectively, gave up and created an entirely separate court."

Mr Semple said he believed the reduction of Family Court judges from 35 to 24 could be achieved swiftly through natural attrition.


The Age (Melbourne)
21 November 2008

Report signals end for court duplication
By Peter Gregory

Tensions over family law cases and the expense of duplicating services for judges might have spelt the end for the Federal Magistrates Court.

Consultant Des Semple and the Commonwealth Attorney-General's Department have recommended that the court's services be split between the Federal and Family courts after reviewing its operations.

The FMC was opened in 2000, with the aim of providing a faster, cheaper and less formal option in family law cases.

It has grown into the largest federal court, and now handles 79 per cent of family law applications.

The Semple report praised the court's "service culture'', but said it created friction and resentment between the FMC and Family Court, particularly over resources to support judges and magistrates.

According to the review, judicial support resources for both courts would cost $23.45 million to maintain service levels.

It said a significant level of duplication in administrative structures and corporate services existed across the two courts.

"The existing and proposed duplication is not financially sustain able, and utilises services that could be directed more effectively to assisting litigants,'' it said.

The report also said tension over resources had distracted the FMC and Family Court from their core responsibilities.

Litigants had also been confused about where to file applications, and by the different procedures in the two courts.

The report and details for public submissions about the recommendations are on www.ag.gov.au


The Sydney Morning Herald
21 November 2008

The answer's Semple - cull federal magistrates
By Richard Ackland

It's a reflex condition of the human spirit that once a person is elevated to rung No.1 on the greasy ladder of life, immediately rung No.2 is the place they really want to be.

So it is with federal magistrates. They were invented in 2000 by the Howard government's attorney-general Daryl (Rowdy) Williams.

No one was quite certain why he wanted to insert a new layer into the system of federal courts. The official reasons were the desire for a "quicker, cheaper option for litigants" than the one provided by the Family Court of Australia. The other reason was that the then chief justice of the Family Court, Alastair Nicholson, was on the nose with the Howardistas.

All of which seem like perfectly sound reasons to invent a new court, which started with eight and is now stocked with 59 judicial officers, each pulling down in excess of $250,000 a year, plus staff, perks, facilities and so on.

On top of that, there are another 42 "real" judges in the Family Court, each on $333,660, with the exception of the chief justice, who is on $367,150.

Within eight years the Magistrates Court has become the largest federal court in the country.

The total funding for both the Family Court and the Federal Magistrates Court is $180 million a year, about 80 per cent of the grunt work in family law being done by the magistrates.

The federal magistrates have a submission before the Remuneration Tribunal arguing for a pay increase from 75 per cent of a federal judge's income to 85 per cent. They also want to be called judges rather than magistrates, having quietly switched the name of their fiefdom from Federal Magistrates Service to Federal Magistrates Court.

The self-aggrandisement knows no bounds.

An investigation into federal family courts conducted by the former head of the Family Law Council Des Semple, in conjunction with the Attorney-General's Department has recommended that there be an end to this nonsense.

The expense, duplication, squabbling over resources and status is all too much. Williams's great contribution to the federal judicial firmament is about to be skewered. Of course, there is a consultation process and so on but there is no doubt that the days of the stand-alone federal magistrates are numbered.

They will be absorbed into a new "general division" of the Family Court, and the serious stuff and appeals will be handled by a dwindling number of judges in a "superior" division.

The relatively small number of general federal law magistrates, who used to mainly do immigration work, are likely to be absorbed into a freshly created lower rung of the Federal Court of Australia.

Now the tussle will be about whether these former magistrates will be allowed to call themselves judge, and be entitled to judicial pensions, cars and so on.

We've had some landmark squabbles over important pecking-order issues, and sadly they are still unresolved.

In Adelaide a Family Court judge was forced to dress down an employee of the magistrates court for taking tea bags and biscuits from the servery. A magistrate had his computer disconnected for having the temerity to work in offices usually occupied by Family Court staff.

The chief magistrate, John Pascoe, tried to diffuse the tension with a speech at a law conference titled, "Of tea bags, bikkies and constant change - a journey in family law". In north Queensland there has been a struggle over a magistrate's parking space, which momentarily had been invaded by a visiting judge.

Some of the appointments to the federal magistrates court have attracted political attention (not that a person's political bent is automatically a problem). Possibly the best known was the appointment of a relatively inexperienced lawyer, John O'Sullivan, straight from the office of the then immigration minister, Kevin Andrews, to the Federal Magistrates Court in Melbourne.

A friend of the Queensland liberal senator George Brandis was appointed in Brisbane, a former staffer of the Liberal attorney-general in Queensland, Denver Beanland, was also anointed, and an adviser to the Catholic Church on its opposition to IVF for lesbians sits in the ACT branch of the court. Even Pascoe is regarded as a bit of a Liberal favourite, having worked closely with the former prime minister's brother at the big law shop Mallesons Stephen Jaques.

There was a small kerfuffle in 2006 when a Brisbane federal court magistrate, Jennifer Rimmer, was caught cut and pasting the reasoning of a another magistrate into her judgments without due acknowledgement. She was ordered to take leave for "training, counselling and mentoring" and then slipped off the bench altogether.

There is nothing wrong with having a court that is fast and informal. Instead of addressing the problems of the Family Court and how it could be made to be more flexible, the former government just inserted a new court, with concurrent jurisdiction, into the hierarchy.

The job of making the Family Court work properly is still awaiting attention. The Semple report is the first step.

Edited

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