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Court Merger a GRAVE mistake says Shadow Attorney-General


Speech to the Senate
Senator the Hon George Brandis SC, Shadow Attorney-General
Wednesday 13 May 2009
Senator the Hon George Brandis SC, Shadow Attorney-General said
Last August, the Government received a report entitled Future Governance Options for Federal Family Law Courts in Australia prepared by Mr Des Semple.  The terms of reference of the Semple Review included consideration of governance options to achieve a more integrated family law system, structure and management processes necessary to improve the efficiency, effectiveness and integration of service delivery across the family law jurisdiction, and potential changes in judicial structures.   The principal recommendation of the Semple Review was the abolition of the Federal Magistrates Court, the absorption of most of the Federal Magistrates into the Family Court, where they would constitute a second, lower tier of that Court, and the assignment of the remaining Federal Magistrates to the Federal Court.  

Last Tuesday, the Attorney-General announced that the Government had decided to accept the recommendations of the Semple Report, and last nights Federal Budget reflects the proposed abolition of the Federal Magistrates Court and its integration into the structures of the Family Court and the Federal Court.

The Opposition believes this decision is a grave mistake.  In our view, if the Rudd Government proceeds with its plan to abolish Federal Magistrates Court, and  drive all family law cases into the more expensive Family Court, the result will be increased costs, longer delays, and less accessible justice.

The Federal Magistrates Court was established by the Howard Government in  1999.   

Its purpose was to take the pressure off the other two Commonwealth trial courts  the Federal Court and the Family Court  by creating a lower-level court to deal with smaller cases, while freeing the hands of those courts to concentrate on larger and more complex cases.  That has been the experience of the FMC, which is today the busiest of the federal courts, with 61 judicial officers.  In the years since its creation, the FMC has won an enviable reputation for its non-nonsense, pragmatic, efficient approach to dispute resolution, which  in the manner typical of lower courts - has avoided undue technicality while delivering accessible justice to the parties who have come before it.  

Inevitably, because the family law jurisdiction is the busiest Commonwealth jurisdiction  in other words, there are more family law cases commenced in federal courts than any other type of case  most of the work of the FMC has been family law work.  According to the Semple Report 79% of family law cases are now dealt with by the FMC rather than by the Family Court.   The main reason for that is that the FMC has earned a good reputation for more efficient, less costly, swifter dispute resolution.  

As all honourable Senators are acutely aware, many of the most difficult and vexed constituent inquiries we receive is from people who are involved in marriage break downs and are seeking remedies from the family law system.  The issues arising from family break down  in particular, those concerning access to and custody of children  are always distressing.  They demand prompt, accessible, sympathetic resolution.  

It has been my experience from talking to people in those circumstances  and I know from my colleagues both in this chamber and in the other place that is has been their experience as well  that they would much sooner have their matters dealt with by the Federal Magistrates Court, than to be ensnared in to the more complex and lengthy processes of the Family Court.   

In 2003, the House of Representatives Standing Committee on Family and Community Affairs, chaired at the time by my friend Mrs Kay Hull MP, the member for Riverina, held an inquiry into child custody arrangements, the report of which, entitled Every Picture Tells A Story, was delivered in December 2003.  The Deputy Chair of the Committee was the Member for Fowler, Ms Julia Irwin.  The report was unanimous.  

That report in fact recommended the creation of a new tribunal, which would be less legalistic than the existing system.  Of the two courts exercising family law jurisdiction at the time, the Committee certainly had a more favourable view of the Federal Magistrates Court than of the Family Court.  In the end, the Government did not adopt the recommendation to establish a new tribunal, but the report of the Committee was seminal to the former Governments thinking when it introduced the Family Law Amendment (Shared Parental Responsibility) Bill 2005.  In speaking on the Second Reading of that Bill on 26 February 2006, Ms Hull told the House of Representatives
The Honourable Mrs Kay Hull said
I want to take the time to pay tribute to the Federal Magistrates Court and put in a plug for the court.  

In my observation  and I have done a huge amount of observation of these cases in the Parramatta family law court, the Sydney family law court, the Cairns family law court and the Federal Magistrates Court  the Federal Magistrates Court is doing a mighty job already of taking on the interests that the old Committee raised in Every Picture Tells A Story and is already putting these into place and delivering very good outcomes.  But what it needs is more funding.

I would like to see all of these cases going through the Federal Magistrates Court where possible, because I think it is the perfect body to be able to really deliver what the Committee intended in the first place If you are not going to have a tribunal, there very next best thing is the Federal Magistrates Court.
And so it has proved.  The Federal Magistrates Court is indisputably the first choice of those involved in family law disputes  hence the throughput of family law cases today exceeds that of the Family Court by a factor of four to one.

One would have thought that, if the Federal Magistrates Court is the preferred venue for those most immediately affected by family law disputes, the very last thing a review of the structure of the courts exercising family law jurisdiction would want to do is to abolish it.  But that is what the Government is now proposing to do.  Indeed, in a sense, the Federal Magistrates Court has been a victim of its own success.  Because most family law litigants would prefer their matters to be dealt with by the FMC than by the Family Court, the Government now says that the integration of the FMC into the Family Court is necessary in order, in the words of the Attorney-Generals press release last week, to avoid confusion amongst litigants, and to create a one-stop shop in family law matters.  The confusion that is said to exist, arises from the fact that there is now substantial jurisdictional overlap, in relation to family law matters, between the FMC and the Family Court, so the courts are, in a sense, in competition with one another in the provision of the same service.  Even if that be the case, then surely the clear  indeed overwhelming - preference of the litigants to have their matters disposed of in the FMC tells us something.  It is certainly not an argument for the abolition of that very court.  Such inefficiencies as arise from jurisdictional overlap can, in the Oppositions view, be better dealt with by delimiting the respective jurisdictions of the two courts more clearly  reserving for the Family Court appellate and more complex trial matters  than by the simplistic expedient of abolishing the court which is the workhorse of the family law jurisdiction.

In fact, the Semple Report does essentially recommend that  reserving for the existing Family Court judges appeals, and jurisdiction over more complex trials.  But with this crucial difference:  most of the Federal Magistrates would be absorbed into the Family Court itself.  With all due respect to the latter court  and in particular to Diana Bryant, the Chief Justice, with whom I have had discussions about the court  it is inescapable that that court does not enjoy the reputation which the Federal Magistrates Court does, for the prompt, less costly resolution of disputes.  The Opposition is gravely concerned that if most of the Federal Magistrates are absorbed into the Family Court, as a lower tier of that court, governed by the Family Court Rules, subject to the Family Courts administrative structures, and ineluctably affected by its culture, the efficiencies which have become the hallmark of the Federal Magistrates Court will gradually, but inevitably, be lost.  That is the real fear of many of the stakeholders with whom I have spoken.      

Although, in addressing the Semple Report, I have emphasised the Oppositions concerns about the potentially serious damage it will do to the efficient resolution of family law disputes, I should add that we have other serious concerns about the Governments decision to adopt the Semple Report as well.   It is widely known within legal circles that the Federal judiciary is deeply divided about this proposal.  The Family Court is strongly in favour of it  and one cannot help but detect more than a whiff of judicial empire-building in the Family Courts eagerness to take over most of the Federal Magistrates Court.  The Federal Magistrates are deeply divided over the issue.  The other Court directly affected by the proposal, the Federal Court, does not want a bar of it.  

One of the many errors in the Semple Report has been to approach a question which directly affects three courts  the Family Court, the FMC and the Federal Court  but only take into account the needs and interests of two of them.  As the terms of reference, indeed the very title, of the Semple Report indicate, its entire focus was upon family law.  But family law is not all that the Federal Magistrates Court does:  it deals with a large number of other federal law matters:  bankruptcy, immigration, administrative law, copyright, consumer protection, trade practices, and industrial law among them.   Semple barely considers the consequences upon those other areas of the abolition of the FMC.  Constrained by his terms of reference  and I should say, in fairness to Mr Semple, that he was not the author of those terms of reference - he approaches the matter exclusively from a family law point of view.  His answer to the question:  'what is to happen to those Federal Magistrates who deal with matters other than family law?' is to suggest that they be integrated into the Federal Court as a division of that Court.  Yet, as emerged during the February Estimates when I asked officers of the Attorney-Generals Department about the conduct of the Semple Review, the Federal Court was scarcely consulted in the process.  Rather, it was not until 11 February 2009  i.e., six months after the Semple Review had been delivered to the Government - that the Chief Justice of the Federal Court, Chief Justice Black, wrote to the Attorney-General stating that, so far as the Semple Reports recommendations affecting the Federal Court were concerned, I do not support the recommendation and it is opposed by the judges of the Federal Court.   What kind of decision-making process is it which proposes a serious alteration to the constitution of a court  the Federal Court  without proper consultation, almost as an afterthought, and reduces that Court to expressing its views after the report has already been written?   From a process point of view alone, the Semple inquiry has been deeply unsatisfactory.  

Finally, it is said by the Attorney-General that the abolition of the Federal Magistrates Court will save money, by reducing three courts to two.  But the number of cases will not change, and the savings are in any event derisory.  By the Governments own estimates, the saving will be just $7.8 million over 4 years.  To put that figure into context, the total funding for the Attorney-Generals portfolio, according to the Portfolio Budget Statement tabled with the Budget last night, was $5,080,165,000 for 2009-10.  The savings brought about, on the Governments own estimates, by the implementation of the Semple review would be 0.038% of the budget of the Attorney-Generals Department and its agencies for the coming year.  

At what price is this scant saving to be achieved?   How great will be the additional costs to family law litigants, as they wait longer, to have their matters dealt with in a more complex, less efficient, more expensive court?   And beyond the extra legal costs  how can we calculate the emotional costs for people at the most vulnerable time of their lives.   

The Opposition is of the view that the Government has made a grave mistake in adopting the recommendations of the Semple Report.   Like so much else the Rudd Government does, it is likely to damage the very people it claims to be helping.  The Federal Magistrates Court has been one of the most successful reforms to the Australian judiciary in our lifetimes, and the litigants have voted with their feet in choosing it as their court of preference in resolving, in particular, family law disputes. The Government should leave it alone.
Secretary of the Shared Parenting Council said
Many of the points raised are valid and needing much further examination by the Senators of both sides of the Assembly.

The Federal Magistrates Court is a court where litigants can expect to get an agile performance and in most cases in weeks rather than months and years wiill see a result and parenting orders made routinley that give good contact out comes to fathers in particular. The Federal Magistates we see daily in family matters are an interesting bunch of active characters, impressionable, firm, no nonsense, and routinely we see a number of litigants posting relatively supportive comments about the outcomes.

I have said before
The timing of this announcement concerning the demise of the Federal Magistrates Court is somewhat coincidental coming immediately on top of the recent media hype around Domestic violence and the 41.5 Million dollars of measures to protect mothers and children, the Chief Justice comments around watering down of the Family Law Act and removing the section relating to a 'willingness of each child's parents to facilitate and encourage a close and continuing relationship between the child and the other parent', and now the announcement of the Family and Federal Magistrates Court merger.

The new legislation in 2006 was designed specifically to ensure that children did not lose all contact with one parent and to ensure both parents understood their responsibilities in parenting after separation. We will support any system that will deliver the outcomes that children can enjoy and participate in the lives of both parents on an equal or substantially equal basis.

We are seriously concerned at what may happen with this merger.

I also said , It is disappointing that the key groups, who made submissions and significant inputs into the review, were not able to be briefed more thoroughly by the Minister directly on the initiatives and to obtain a better view on how the recommendations contained in the Governments 2008 discussion paper, Future Governance Options for Federal Family Law Courts in Australia were to be linked to the recommendations arising from the substantial submissions earlier this year. It surely would not have been difficult to have further discussions with key external stakeholders who's members utilse the court services daily.

In perspective the cost savings of $7.8 million over four years (1.95 mil pa) by reducing duplicated and administration costs represents a minuscule cost saving considering the total combined spend of the court is around 140 Million pa and it is somewhat hard to believe a major reason, as given, for the cessation of the Federal Magistrates service in its current form.

We would support all of those cost savings going into measures to enable enhanced support for families and assist them to resolve disputes in a non-adversarial manner including through access to Family Consultant services, however our experience suggests that when contact is withheld by one parent the best way to fix that is to get the parties before a Federal Magistrate who will make at least an interim determination usually in a few weeks. All the mediation in the world will not fix the problem of wayward parents who want to leverage the children to advantage in settlements.

The existing entry system is fairly straight forward and was tidied up a few years ago. The registry generally arranges placement of the case in the correct area so there is nothing much new there.

Further simplification of the rules and procedures will be welcome although it will be interesting to see how the 515 pages of Family Court rules will be watered down to look like the 133 pages of the less complex Federal Magistrates Court.

At this stage it is hard to see what gains will be made.

If the Federal Magistrates Process and Procedures are merged into a dinosauric and cumbersome system what will be the outcome… It can only be a lesser outcome than we currently see which the Council will not support and will be active in overturning such a regime.

We will certainly be interested in case outcomes. Any ideas coming from the new organisation that generates early contact after separation and early interventions such as the work already being undertaken in the procedural documentation are most welcome and will be strongly supported by the SPCA. But at this time it is almost impossible to see from the information available that there will be any significant advantage if any advantage at all.

We would have liked to have seen a new identity for both Family and Federal Magistrates courts for both to enter into a new fresh organisational structure rather than one be assimilated into the other and possibly inherit poor policy or procedures. It will certainly take a significant amount of goodwill on both sides to merge up much duplicated policy, procedure and process. 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. How this major factor is to be dealt with is still a mystery.

There is also reason to take some interest around any possible conflict of interest in the appeal process of the 2nd tier court being heard by colleagues in the 1st tier. Where previously appeals were heard by the distinctly separate Family Court.

The Shared Parenting Council of Australia receives many complaints from parents regarding access to children after separation, the lengthy delays to get parties to mediation and the ongoing delays in getting contact in conflictual cases. The Shared Parenting Council has been at the forefront of much legislative change and suggests that early intervention measures should be mandatory for separating parents where escalating conflict is often caused by one partner withholding contact from the other.

The Federal Magistrates court merger needs further careful scrutiny, and significantly more published detail on what we can expect from a new single court before the more agile cultural regime of a younger more youthful looking system passes into obscurity.
(Question No. 645)

Mr Price asked the Attorney-General, in writing, on 12 March 2009

(1) Did the Semple report (Des Semple and the Attorney-Generals Department, Striking the Right Balance, August 2008) estimate how the greater efficiency associated with the proposed merger translates into lower legal costs for litigants before the family law merged courts; if not, why not.

(2) Has he requested his department model savings in legal costs for family law litigants before the merged courts; if not, why not; if so, what are the anticipated savings and how will he ensure that the savings are passed on.

Mr McClellandThe answer to the honourable members question is as follows:

(1) The Terms of Reference for the Review of the delivery by the federal courts of family law services required consideration of governance options for a more integrated family law system, structures and management processes necessary to achieve this, and impact of any such changes on administrative or judicial structures. The issue of legal costs for litigants was beyond the scope of the Terms of Reference for the Review. However, the Report of the Review, Future Governance Options for Federal Family Law Courts in Australia: Striking the Right Balance, does note the improvements for litigants,such as less forum confusion, which could result from the proposed merger (paragraphs 100 and 124).

(2) I have not requested my Department to model savings in legal costs for family law litigants before any implementation of the restructure of the federal courts recommended by the Report of the Review. At this stage my Department is focussed on improvements in the corporate governance, judicial case management and structure for the family court system. These improvements will enable a greater number of disputes to be resolved as efficiently as possible without the cost and trauma of protracted litigation, including through simpler procedures, front end support for users and better integration of courts with other dispute resolution services.
Shadow AG - Hansard report

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