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Push to merge family law courts

The Australian
24 August 2008

Push to merge family law courts
By Michael Pelly

The Rudd Government should dismantle the Federal Magistrates Court and create a one-stop shop for family law, according to the peak national body for lawyers.

The Law Council of Australia says the Federal Magistrates Court, which opened its doors in 1999, has been feuding with the Family Court over resources. The council argues that integration of the two courts is urgently needed.

Federal Attorney-General Robert McClelland is awaiting a report by KPMG consultant Des Semple on the federal court system. The report was due at the end of May, but has been delayed because Mr McClelland expanded Mr Semple's brief to cover the Family Court of Western Australia, which operates outside the federal system.

In a speech two weeks ago, the Attorney-General maintained key services were not operating in the best way and said: "Fresh thinking is required."

Relations between the two courts have been marred by petty squabbles and funding fights.

In Adelaide, a Family Court judge ordered Federal Magistrates Court staff out of tearooms for stealing "Family Court tea bags". And there was also attempt to have the entire magistrates court staff banned from the Family Court floor because they were a "security risk".

Requests from the Federal Magistrates Court to use vacant Family Court rooms in Sydney and Brisbane have been refused.

The creation of the Federal Magistrates Court as a lower-level federal 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 75 per cent of family law applications are now completed by more than 50 judicial officers in what is regarded as the workhorse of the federal judiciary system.

The Australian understands three options are being explored by Mr Semple: the formation of a Federal Courts Authority to oversee all courts except the High Court, changing the standing of the Federal Magistrates Court, and mergers with other courts.

Key officials of the courts involved have told The Australian they believe Mr McClelland is inclined to split the Federal Magistrates Court and turn it into branches of the Federal Court and the Family Court.

This would mean all family law matters would begin in the Family Court, rather than matters being divided according to their complexity.

While this would mean the end of the Federal Magistrates Court, its judicial officers have been assured their jobs are safe.

The Law Council's submission to Mr Semple, who headed the commonwealth's Family Law Council when the Howard government introduced the Federal Magistrates Court, says the current arrangement is "wholly unacceptable". It says there should be a "single coherent structure with a common pool of resources delivering family law services at the appropriate level" and argues: "This model should provide significant efficiencies and cost savings."

The council, which represents 50,000 members of state and territory law societies and bar associations, says practitioners consistently emphasise the need for one registry, one set of rules, one set of forms and uniformity of procedures.

Lawyers complain they can wait up to 18 months for a trial in the Family Court, while the Federal Magistrates Court aims to conclude all its matters within six months.

The council says the effective running of the family law courts requires a single budget and a single administration. However, it calls for "a higher level of judge" to be retained to hear appeals and the more complex and lengthy cases.

The submission also argues that the Federal Magistrates Court was poorly conceived, but it concedes that by offering a low-cost alternative, the court has delivered significant value.

"It is important that any changes which might be made, that the current culture of the FMC is maintained," the submission says.

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