The Court’s goal is to support families involved in complex family disputes by deciding matters according to law, promptly, courteously and effectively.
The purpose of the Court, as Australia’s superior court in family law, is to:
- determine cases with the most complex law, facts and parties
- cover specialised areas in family law, and
- provide national coverage as the appellate court in family law matters.
The core services of the Court are those that:
- are prescribed by legislation
- enable and support judges to determine cases, and
- meet duty of care requirements.
The Court’s vision provides for:
- putting children and families first in the design and delivery of services
- furthering functional family relationships after separation
- ensuring independence and impartiality in the judicial process
- having staff who are valued for providing quality service for families
- providing quality child dispute services for families, and
- being at the forefront of the development of services.
The Court's year in review 2015–16
Changes from 1 July 2016
Before looking back upon the year, I would like to set out some significant changes that will occur as of 1 July 2016, when the Courts Administration Legislation Amendment Act 2016 (Cth) comes into effect. The main practical effect of the legislation will be the commencement of the Federal Court of Australia's Corporate Services Unit which will be managed by the newly appointed Executive Director of Corporate Services. In addition, from 1 July, the Federal Circuit Court of Australia will assume responsibility for the operation of the registries and the National Enquiry Centre and will provide registry services to the Family Court pursuant to a Memorandum of Understanding which is presently being drafted.
Further changes include the retirement of Richard Foster as Chief Executive Officer of the Family Court and Federal Circuit Court on 30 June 2016. The new legislation provides for a different model, which incorporates the roles of Chief Executive Officer and Principal Registrar into the one position. This position has been advertised and the recruitment process is underway.
I would like to take this opportunity to acknowledge Mr Foster for his support and work as the Chief Executive Officer of the Court since his appointment in 2000. He has had a long and successful career in the public service, both in the state and federal jurisdictions, and that experience and corporate knowledge will be sorely missed. The establishment of a new court (the Federal Magistrates Court) exercising concurrent jurisdiction and not adequately funded put considerable pressure on the existing resources, which the courts were largely left to resolve themselves. Mr Foster successfully managed the merger of the administrations of the Family Court and Federal Circuit Court in 2009 and has operated as Chief Executive Officer of both courts since that time. He has maintained a very professional approach to the role and has represented the Court and later both courts exceptionally well, particularly in relations with government and in Senate Estimates hearings over the years.
On 30 June 2016, the Principal Registrar of the Family Court, Angela Filippello, will also retire after 28 years working for the Family Court, as her position merges into the new role of Chief Executive Officer and Principal Registrar. She has been with the Court from the time when responsibility for the administration moved from the Attorney-General's Department to the Court in 1989. She has been involved in every phase of the legislative, judicial and case management processes since that time, and her corporate knowledge is without equal. She has also been responsible for the training and professional development of all the registrars of the Court, and her corporate knowledge and experience will very much be missed.
As will be apparent, the Court is very much moving into a new phase after 1 July.
The Court has seen a slight increase in filings over the past year, in respect of both final and interim applications. In addition, the work of the Court continues to be extremely demanding, with Family Court judges hearing the most complex and difficult family law matters involving allegations of family violence and/or child abuse; questions of international family law (relating to the Hague 1980 Child Abduction Convention and/or 1996 Child Protection Convention); applications related to special medical procedures (such as stage two treatment for gender dysphoria in children); and complex property matters including those concerning accrued jurisdiction and third parties.
The number of appeals filed over the last financial year remained steady, though there was a 16 per cent increase in applications in an appeal. There was also a five per cent increase in the number of appeals in which litigants were unrepresented.
Over the 2015–16 financial year, the Appeal Division disposed of 17 per cent more appeals from the Family Court than the previous year. Indeed, the disposals are higher than in the past five financial years, due to a concerted effort to reduce the number of pending appeals and to list older outstanding cases. Extra sittings were scheduled, particularly in Sydney, and two courts often sat simultaneously.
Due to Justice Finn's impending retirement on 3 July 2016, Justice May has taken over responsibility for the administration of the Appeal Division. On 10 December 2015, Justice Kent was appointed to the Appeal Division.
Justice Catherine Carew was appointed to the Bench commencing on 7 March 2016 at the Brisbane registry, replacing Justice Graham Bell who retired on 27 February 2015. Justice Shane Gill commenced with the Court at the Canberra registry on 17 May 2016, replacing one of two vacancies that will arise in the second half of 2016 following the retirement of Deputy Chief Justice Faulks and Justice Finn.
In recent years, the Australian community has very appropriately become increasingly concerned about the issue of family violence. This concern is reflected in a number of inquiries that have been undertaken at the state and federal levels over the last financial year.
The Inquiry into Domestic Violence in Australia, undertaken by the Senate Finance and Public Administration References Committee, was finalised and the final report tabled on 20 August 2015. The Court made a written submission to the Inquiry.
The final report of the Victorian Royal Commission into Family Violence was tabled in the Victorian Parliament on 30 March 2016, making 227 recommendations that were immediately accepted by the Victorian Government. The Court made a written submission, attended a 'roundtable' arranged by the Royal Commission and continues to be represented on Victorian committees concerned with overlapping issues affecting both state and federal courts.
The South Australian Parliament's Social Development Committee tabled the final report from its Inquiry into Domestic and Family Violence on 12 April 2016. As far as I am aware, the South Australian Government has not to date responded to these recommendations. The Court made a written submission to the Inquiry.
These submissions were necessary to explain how family violence is dealt with in Commonwealth legislation, in the processes and practices of the Family Court and how it is reflected in the Court's decisions, available publicly on AustLII.
Also completed in the last year was the Australian Institute of Family Studies' comprehensive Evaluation of the 2012 Family Violence Amendments, which showed among other things that 41 per cent of cases in the family courts now involve allegations of family violence, child abuse or both family violence and child abuse. It should also be noted that this statistic is related to data collected prior to the recent federal and state government investments in family violence education and front line services, which will likely also increase the numbers of family law cases involving allegations of family violence and/or child abuse.
In June 2015, the Family Law Council published its Interim Report to the Attorney-General in Response to the First Two Terms of Reference on Families with Complex Needs and the Intersection of the Family Law and Child Protection Systems. The Council's final report was due to the Attorney-General on 30 June 2016.
The inquiries that have been undertaken are of value to the Court as we attempt to implement policies and procedures to improve past performance and ensure client safety. However, I must reiterate what I have said publicly in recent months about the need for the federal government of the day to provide additional funding to the courts dealing with family law, in order to enable them to better assist in the management of cases involving family violence. New initiatives are increasingly difficult to implement without appropriate resourcing.
Court User Satisfaction Survey 2015
February 2016 saw the publication of the courts' User Satisfaction Survey 2015, which is one element of the commitment by the Family Court and Federal Circuit Court to the International Framework for Court Excellence.
The survey involved 13 family law registries and was aimed at users in both courts in respect of family law, and general federal law in the Federal Circuit Court. Of the 1719 people who provided responses to the survey, 77 per cent reported overall satisfaction with their experience.
Family law cases are often referred to in the media. Such articles tend to report some but not all aspects of a particular case. Judgments of the Family Court are publicly available on AustLII. Section 121 of the Family Law Act prevents publication of an account of proceedings that would identify parties, children or witnesses and, accordingly, pseudonyms are allocated and a process of de-identification takes place prior to publication in order to ensure compliance with this section. Otherwise, the judgments are published unaltered.
A new era
We move into a new era from 1 July 2016. Financial statements will henceforth be prepared by the Federal Court of Australia and this is the last year in which the Family Court will be responsible for the family law registries. The Family Court has been responsible for operating the registries since the federal courts became self-supporting in 1990. The new arrangements, which will see the Family Court and Federal Circuit Court with separate and discrete budgets, will bring challenges and opportunities. One of the opportunities is to focus on the core work of the Court and utilise the Court's resources to provide for the most efficient and efficacious disposition of cases and the Court is looking at how best to achieve this outcome.
In Focus: Australia–Japan collaboration
In her role as one of the Hague Network Judges for Australia, Justice Bennett has initiated and led a number of collaborative programs and activities between Japan and Australia. These initiatives have resulted in closer ties and a deeper understanding of the Japanese legal system and legal frameworks in order to facilitate speedier resolutions to Hague related matters.
Japan Co-Mediation Program
Following the initial proposal led by Justice Bennett to build a family law mediation and electronic access resource between Japan and Australia, her Honour, joined by Justice Benjamin, implemented a proposal to create a system of bi-national co-mediators and social scientists who would be trained together in Japan; an online mediation service which would operate at little or no expense to users; and an online supervised access service which would be affordable to produce and use.
The program was extended to include members of the Japanese Ministry of Foreign Affairs, Japanese lawyers, and Australian legal practitioners with expertise in Hague matters. It has the full support of Chief Justice Bryant AO as well as the Australian Attorney-General's Department which provided a special grant for the program.
The overall objectives of the project were to:
- establish an integrated system for use in international child abduction and access cases between Japan and Australia, and
- enable children whose parents live across international borders to know both their parents where it is in the child's best interests to do so, in an atmosphere of enhanced awareness by each country of the other country's laws, cultural values and social conventions.
In September 2015 the Australian delegation travelled to Japan for co-training. The Australian participants were:
- The Honourable Justice Robert Benjamin AM (Family Court of Australia)
- Dr Ben Jones (Family Court of Australia/Federal Circuit Court of Australia)
- Ms Paule Eckhaus (Family Court of Australia/Federal Circuit Court of Australia)
- Ms April O'Mara (Family Court of Australia/Federal Circuit Court of Australia)
- Ms Deborah Fry (Family Court of Australia/Federal Circuit Court of Australia)
- Ms Freia Carlton (Victoria Legal Aid)
- Mr Walter Ibbs (Victoria Legal Aid)
- Ms Jill Raby (Victoria Legal Aid)
- Ms Lynette Hill (Legal Aid Western Australia)
- Ms Helen Freris (International Social Service)
- Ms Kay Hardefeldt (International Social Service)
- Ms Mary Louise Hatch (Relationships Australia Victoria)
- Ms Amanda Humphreys (Kennedy Partners), and
- Mr Maurice Edwards (Watts McCray Lawyers).
The training was conducted by Eberhard Carl, former International Hague Network Judge and Judge of the Regional Superior Court at Frankfurt/Main, Germany, and Sybille Kiesewetter, a psychologist, mediator and trainer who co-edited the handbook Cross-Border Family Mediation: International Parental Child Abduction, Custody and Access Cases (Wolfgang Metzner Verlag, 2nd ed, 2014).
The Australia–Japan co-mediation program is the first of its kind in the world and serves as a pilot project that will assist bilateral processes between other Asian states using the structure that has been created as a broad geopolitical resource.
Further association between Japan and Australia
In June 2016 through the collaborative efforts of this program, Justice Bennett organised for Ms Caroline Smith, Independent Children's Lawyer, Victoria Legal Aid, to participate in the Asia Pacific Symposium on the 1980 Hague Convention in Tokyo, Japan. Ms Smith presented on the unique role of independent children's lawyers and the valuable role that they play in the family law system.
On 14 April 2016 a lunch was hosted by Ms Keiko Haneda, Consul General of Japan, in honour of Justice Bennett, recognising the collaboration and cooperation her Honour has initiated between our two countries.