14.6 per cent of all applications for final orders involved a Notice of Child Abuse, Family Violence, or Risk of Family Violence
The Court awaits the Government's response to the KPMG review into the federal courts' performance and funding
The Appeal Division pending list remains a high priority for the coming year
Courts awarded the Diversity and the Law Award at the 2014 Australian Migration and Settlements Awards
The Honourable Chief Justice Diana Bryant AO.
During the 2013–14 financial year, there were two retirements from the Court. These, together with four retirements in the previous year, involved a departure of six experienced judges, representing around 20 per cent of the Court. All but one of the retiring judges has been replaced, indicating real generational change, and as at 30 June 2014, slightly more than 50 per cent of the judges have been appointed within the last five years.
The workload of the Court remains fairly constant, although there is continuing pressure on the Appeal Division, with the Court being required to deal with the increasing number of applications filed in each appeal. The number of unrepresented litigants in appeals adds to this increased volume. Nevertheless the Court has maintained a high level of clearance rates and the management and resolution of the cases filed within the Court. The challenge for the Appeal Division is to reduce the number of cases in the pending list, which means disposing of significantly more cases in each year than are filed. More information on appeals is available in part four of this report.
The workload of the Court continues to be demanding in managing the most difficult and complex family law cases, most of which relate to international family law (including Hague Convention and abduction matters), cases involving issues of family violence and/or allegations of child abuse, medical procedures for which court approval is required, cases involving mental illness and/or substance abuse, which are increasing in frequency, and property cases, including those involving accrued jurisdiction and third parties.
An issue of importance that garnered significant public attention during the year is that of family violence, brought to the fore because of the very sad and far too frequent instances whereby the lives of women (and some children) were lost, allegedly at the hands of their spouse or former spouse. Incidents of domestic violence prevail within families across all strata of our society and therefore it is not surprising to see that reflected through the many families that come before the Family Court and the Federal Circuit Court.
Unfortunately, many of the cases that come before the Court involve issues of family violence and the proportion of such cases has increased. However, this increase may be attributable, in part at least, to amendments made to the Family Law Act in 2011 which widened the definition of family violence.
The Court has identified that since 2011–12 there has been an increase in the proportion of applications that involve a Notice of Child Abuse, Family Violence, or Risk of Family Violence (Form 4) by almost five per cent. In 2013–14, 14.6 per cent of all applications for final orders involved a Form 4.
While the widening of the definition of family violence is likely to have contributed to this increase, it may also be due to the many initiatives that are in place, not only within the Court system, but implemented throughout services relating to family law. These initiatives place more attention on screening for, and identifying issues of, family violence for separating couples and hopefully they have led to parties being more willing to raise and disclose issues of family violence to the Court. In addition, the Court continuously looks at ways to improve how it deals with cases involving allegations of family violence and it regularly reviews and updates the Family Violence Best Practice Principles and relevant procedures.
There is no doubt that family violence, and particularly violence against women, is prevalent in our community and we all must do what we can to stop it. Speaking publicly against acts of family violence is one way in which we can keep the issue on the public agenda.
Resourcing and budgetary issues
At the time of finalising this report, the issue of future funding for the Family Court is unclear as we await the Government's response to the KPMG review of and report into the federal courts' performance and funding, which was commissioned by the Attorney-General's Department in December 2013.
The Court is aware of some expected changes which involve separation of some current administrative arrangements, such as the position of the joint Chief Executive Officer shared for both the Family Court and the Federal Circuit Court. The joint arrangement was established in 2008 initially on a temporary basis for the purpose of overseeing the establishment of a joint administration across the two courts. It was only intended to be a short-term measure because of the (then) uncertainty of the courts' corporate structure.
The details and extent of those changes is a matter for the Government. Similarly, the question of any shared administrative and/or budgetary structures remains to be determined.
I can report that the courts have, for a number of years, been doing everything they can to reduce expenditure, but the continuing application of the efficiency dividend has had a cumulative effect and the courts now find themselves in a difficult financial position. The remaining alternatives in ameliorating this difficult position would involve a significant cut to the delivery of services that are currently in place, something I have hoped to avoid.
While we await details arising from the review, the Family Court is committed to work with the Government to continue examining and identifying opportunities within the courts to address the ever-present financial pressure.
2013–14 financial result
The underlying result for the 2013–14 financial year was a loss, in real terms, of $0.645m. This is consistent with our expectation of a loss in 2013–14 which will increase over the forward years of the budgetary period.
However, because a single merged FMA agency was created at 1 July 2013, the unspent appropriations balance of $19.429m1 available as at 30 June 2013 for the then separate FMA Prescribed Agencies, was no longer legally available to the merged single FMA Agency. The amount of $19.429m was therefore required to be re-appropriated as part of the 2013–14 Portfolio Additional Estimates, and recognised as appropriation revenue in 2013–14 in accordance with the Finance Ministers Orders. Thus for accounting purposes, the underlying result for the 2013–14 financial year is a surplus of $18.784m.
That does not change the courts' overall financial position, or the forecast of significant deficits from 2014–15 and across the forward years.
I want to particularly thank the Chief Executive Officer and all the staff who comprise a very dedicated workforce, for their empathetic and professional approach. This year the Chief Financial Officer and those in his team deserve singling out for the work involved in briefing KPMG in a tight timeframe for their report, and in supporting the courts to demonstrate and explain the difficult financial position they find themselves in.
Further details of the Court's financial position are available in part six of this report.
Performance of the Court in 2013–14
Whilst the jurisdiction of the Family Court is largely concurrent with that of the Federal Circuit Court, there has been a relatively consistent number of filings in each court over the last four to five years. This is in no small part due to the protocol reached between the courts indicating the kind of work that each court should be doing and encouraging filing in the appropriate court. The Court continues to monitor time frames across the country, as it is my strong view that in a national court there should be a degree of consistency as to when a party can expect their matter to be heard. For example, it is not, in my view, appropriate in a national court for a litigant who happens to live in a particular area to have their matter reached within nine months, whereas someone else, simply by virtue of living in another area which is under more pressure, having to wait two years for their case to be heard. As a result, the Court operates a national calendar and despite budgetary constraints, we have endeavoured to have judges from different registries where there may be more capacity, sit in other places so as to try and provide fair and equitable access to the Court, notwithstanding the location in which the parties may live.
The Appeal Division continues to be under pressure to reduce the pending list, particularly in Sydney where most of the work of the Full Court is filed. Increasing numbers of applications filed with appeals is concerning and puts pressure on registry resources which are already under pressure. During the past year, the Court has tried to sit two Full Courts on each day of the Court sittings in Sydney and whilst this has enabled us to keep on top of the work coming in to the Court, it has not enabled us to make any significant inroads into our pending list which must remain a high priority for the coming year.
International Framework for Court Excellence
The Court has continued to make progress with the adoption of the International Framework for Court Excellence. During the year, a survey of judges was completed in relation to the seven 'pillars' recommended by the International Framework for Court Excellence. Arising out of the survey, a report from the Committee will be made available to me in the new financial year, focussing on several of the areas of the framework in particular, which I hope to implement during the coming year.
Legal Aid funding Victoria
In last year's annual report, I drew attention to the new policy by Victoria Legal Aid to only fund representation for a parent if the other party is represented. I have, on a number of occasions, publicly expressed my concern, particularly in cases where there is violence or allegations of child abuse, that we would expect an unrepresented party who may have been a subject of abuse, to conduct a case to establish facts to the required standard and to cross-examine and be cross-examined by the alleged perpetrator. Fortunately during the year, Victoria Legal Aid announced some amelioration to its policy and although it is a small step, I am pleased to see some improvement in what I regard as a serious question of access to justice.
Cultural Diversity Award
I was extremely pleased to accept, on behalf of the staff of the Family Court and Federal Circuit Court, the award in the legal section for Diversity and the Law Award at the Australian Migration and Settlements Awards dinner 2014 from Chief Justice French. The Family Court has been at the forefront of cultural diversity and access to justice for over a decade and the award reflects that long term commitment to access to justice for all members of the community, including our Indigenous community and culturally and linguistically diverse groups.
Leisha Lister, Chief Justice Bryant AO and Maria Dimopolous.
1 The unspent appropriations relate to funding held in respect of the courts' provisions, including employee-related provisions and creditors.