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Family Court takeover hits a brick wall in the Senate

Reference source: The Australian news item

The Australian
14 May 2009

Barrier to federal courts restructure
By Michael Pelly and Nicola Berkovic

The Rudd Government's plan to restructure the federal courts hit a hurdle yesterday when the Opposition indicated it would vote against it, and minor party senators raised fresh concerns.

Opposition legal affairs spokesman George Brandis told the Senate the restructure would cause "serious damage to the efficient resolution of family law disputes" and the judiciary was "deeply divided".

The Greens, Family First's Steve Fielding and independent Nick Xenophon said they wanted to see more detail.

The Government requires the support of all seven minor party senators to pass legislation when the Coalition is opposed.

The Attorney-General, Robert McClelland, announced last week that the Federal Magistrates Court would be dismantled in December, with its family law division to become part of the Family Court and its general division to fold into the Federal Court.

The decision followed a report into the delivery of family law services by consultant Des Semple, which found tension over resources had "distracted the Family Court and the Federal Magistrates Court from their core responsibilities".

The Magistrates Court handles more than half of all migration matters and
79 per cent of family law applications.

Mr McClelland has talked about his desire for a "reverse takeover in terms of culture, simplification of rules and numbers", but Senator Brandis was sceptical.

He said the Magistrates Court had "won an enviable reputation for its no-nonsense, pragmatic, efficient approach to dispute resolution" and the move was "a grave mistake".

"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 Court's 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," he said.

Senator Brandis added that the Federal Court had not been properly consulted and had been asked for its views "almost as an afterthought".

"The Federal Court does not want a bar of it," he said.

Greens legal spokesman Scott Ludlum expressed concern about extra pressure being put on the Federal Court as it was getting a new criminal jurisdiction under laws cracking down on cartels.

"My initial impression is that I'm supportive of the changes that are proposed," Senator Ludlum said. "(But) if we're giving the Federal Court a greater workload, we'd better not in the process of restructuring be drawing resources away from them."

Mr McClelland said the restructure would "provide better outcomes for Australian families and children who require the support of the court system".

Reference source: The Australian news item

The Australian
15 May 2009

Magistrates threaten to resign over restructure plans By Michael Pelly and Nicola Berkovic

A group of federal magistrates have threatened to resign over plans to restructure the judiciary and move them into the Family Court.

The 15, who do general law work, say they are prepared to join the Federal Court, but accept not all will be wanted.

The court has told the Government it will require as few as seven magistrates to do less complex work in its new "second tier" and will not be forced to take anyone it does not want.

Attorney-General Robert McClelland said last week that the Government had accepted a report by consultant Des Semple that recommended the Federal Magistrates Court be abolished.

 From January 1, the court's family law division will become part of the Family Court and the general law division will fold into the Federal Court.

The Magistrates Court, which opened in 2000, has become the workhorse of the federal judiciary, handling 79 per cent of family law matters and half of all immigration cases.

There are 61 magistrates and the Family Court has told the Government it will happily take as many as possible to handle the workload caused by the states referring their powers over property relationship issues to the commonwealth.

Opposition legal affairs spokesman George Brandis has called the restructure a "grave mistake", saying this week that the magistrates were "deeply divided" and that the Federal Court did not "want a bar of it".

The discontent among the magistracy comes as the Commonwealth Remuneration Tribunal is considering giving judges of the High Court and Federal Court a
6 per cent pay top-up above any increase it awards to all federal judicial officers. The move would destroy the long-standing parity between Federal and Family Court judges and has been resisted by Mr McClelland.

The family law section of the Law Council has warned that paying Federal Court judges more than Family Court judges would drive a wedge between the courts.

It would also create additional tension among federal magistrates, as those who shift to the Federal Court would likely be paid more than those moving to the Family Court.

Law Council president John Corcoran said although he supported the changes, he wanted to see more detail on how they would affect the Federal Court.

Mr Corcoran cited jurisdiction, resourcing and rules as areas that "require a lot of consultation".

"There are going to be two tiers for each court, so are there going to be two sets of rules or one?" he said.

Mr McClelland said last week that one of the more difficult areas ahead of the restructure start date of January 1 concerned the magistrates.

"The significant thing is we can't compel a judge to go to a court," he said.

"Some of the magistrates, they have to think through the merits of what they're doing as far as administration of justice and service to the public.

"These things they will have to weigh up."

Mr McClelland said he accepted the Federal Court was "reluctant" to take on outsiders and that he would be liaising with the court on who was acceptable "in terms of their competence and their personality, their work ethic and temperament".

Another issue expected to cause friction is the plan to rename those going to the Family Court "judges" while those joining the Federal Court will retain the lesser title of magistrate.

Mr McClelland said this was because of "the differentiation between the range of work".

"It's fair to say in the Family Court area they will be mixing and matching across the spectrum, on all matters."

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