Senior bureaucrat Ian Govey told Senate Estimates this week that plans to abolish the Federal Magistrates Court and divert magistrates into new second tiers of the Family Court and the Federal Court had been complicated by the fact judicial officers are appointed until they turn 70.
"If offers are made to people to join other courts and they do not accept those offers, they would remain judicial officers of the Federal Magistrates Court," Mr Govey said.
"If that happened, it would not be possible to fully merge the Federal Magistrates Court."
Mr Govey, the deputy-secretary of the federal Attorney-General's Department, said those who declined would retain their commission as a federal magistrate in the Federal Magistrates Court. The jurisdiction of the court would be exclusively family law matters assigned by the Family Court. There are 15 magistrates who only do general law work, but the Federal Court has told the Government it only needs seven for its second tier.
This has sparked fears of a divisive "beauty contest" and The Australian recently reported that among the 15 there is a resolve that those who miss out will refuse to join the Family Court.
There is also annoyance that those going to the Federal Court will still be called magistrates and not judges – the designation for those who join the second tier of the Family Court.
And those inside the court say the desire of Attorney-General Robert McClelland for a "reverse takeover in terms of culture, simplification of rules and numbers" will be thwarted by Family Court judges.
Mr McClelland yesterday said he remained committed to the restructure and was confident that magistrates would accept offers to join either the Family Court or Federal Court.
Mr Govey's comments came as he and the acting chief executive of the Federal Magistrates Court, Richard Foster, were questioned by shadow attorney-general George Brandis. Senator Brandis described it as "a court in chaos" and Mr Foster agreed there were "many federal magistrates who are deeply unhappy" that their court would be abolished.
He added that there was "a very strong feeling that the nomenclature should be 'judge' and it should be consistent across both courts".
Mr Govey said he recently met five senior magistrates – Michael Bauman, Philip Burchardt, Michael Connolly, Warren Donald and Rolf Driver – after complaints they had not been given sufficient information about the mergers.
Mr Foster agreed he "was not in a position to dispute" the earlier report in The Australian.
Senator Brandis said: "Many people I have never heard of before ring up or send in documents and say, 'You need to raise this in parliament, Senator Brandis. The court is deeply divided over this; we are being railroaded; this is a terrible decision'.
"It is unheard of for a court to be leaking to politicians like a sieve. It is unheard of for one-quarter of the members of the court to be telling journalists that they are threatening to resign."
Senator Brandis said he suspected Mr McClelland's stated desire for a "reverse takeover" was "a matter of rhetoric rather than real commitment".
He bristled when Mr Foster said the Chief Justice of the Family Court, Diana Bryant, wanted "a single set of rules for both tiers" of the merged court.
"Do you know, Mr Foster, that the Family Court rules are longer and more complicated than either the High Court rules or the Federal Court rules?"
Mr Foster, who is also chief executive of the Family Court, revealed a rules group had been set up comprising Family Court judge Peter Murphy, Mr Baumann and Geoff Sinclair, chair of the Law Council's family law section.
However, Senator Brandis said he suspected the Family Court judges would have the final say.
"The culture wars, if I may put it that way, within the family law system are going to be resolved by the people with the power – the senior judges."
Family law litigants were "very strongly of the view that the Federal Magistrates Court ought to be left alone", Senator Brandis said.
However, Mr McClelland pointed to the support of the Law Council and the report by consultant Des Semple, which said the present system was "financially unsustainable and caused confusion amongst litigants".
"The Government cannot compel a magistrate to move from the Federal Magistrates Court, in which case it would continue to have jurisdiction in family law matters," Mr McClelland said. "The Government is confident, however, that magistrates will consider their responsibilities to efficiently assist litigants and ensure the effective administration of justice."
Michael Pelly, The Australian 29th May 2009
Secretary of the Shared Parenting Council saidThe Council has maintained, from day one, in all our deliberations and reports on this matter that one of our biggest concerns is the loss of the rapid and agile culture in the Federal Magistrates court processes and procedures. The comments made by Senior bureaucrat Ian Govey who told the Senate Estimates committee they are running into problems is no surprise.
Those inside the court say the desire of Attorney-General Robert McClelland for a 'reverse takeover in terms of culture, simplification of rules and numbers' will be thwarted by Family Court judges who hold senior rankings is simply a fact and again no surprise.
It is a great pity that the bureaucrats in the Attorney Generals department have not engaged with the Shared Parenting Council in meaningful discussions, as we have had a number of suggestions in how to put this together.
Hopefully at some stage the key stakeholders who actually use the facilities might be consulted with a view to put some damage control around a range of published measures which have simply aggravated what could have been a relatively smooth transition to achieve the aims of the Semple report and better effect proper parenting outcomes early after separation. It is a pity the the Attorneys advisors have not realised the advantages of community and key stakeholder face to face engagement, as did the Child Support Agency, through the initiatives of the previous General Manager Matt Miller.
It is no good leaving this sort of work to the legislators and Government administrators who do not use the facilities. You need people who are at the coal face and understand what goes on day to day and see the many families that go through the system to help put together a real framework for success that delivers a rapid solution to getting contact matters resolved quickly.
Why not, even at this late stage, put a small working party group together of key external stakeholders; including the SPCA, Judicial officers including The Deputy Chief Justice John Faulks, Federal Magistrates Grant Riethmuller and others to look again at the key issues and get a tri-partisan agreement that involves the AG's department guided by this working group.
The Shared Parenting Council is available to assist and anything less won't be successful