Digital Court File established for Family Law
21,054 Applications filed (highest in five years)
445 Appeals filed up 11% from 2018-19
470 applications called over in the summer campaign
14,946 consent orders applications finalised
49% of final order applications sought only financial orders
29 April 2020 COVID-19 list established to handle increase in urgent family law applications
93% of all applications finalised within 12 months
83% of judgments delivered within 3 months
5,014 twitter followers
The year in review
The past 12 months have seen rapid change for the Family Court’s operations. Through the advent of improved use of technology, the Court has been able to transform itself into a truly national and modern Court, while ensuring that it continues to provide an essential service for the Australian people.
In 2019–20, the Court received in excess of 21,000 applications, the most applications the Court has received in the past five financial years. The Family Court has continued to hear the most complex family law disputes, often involving serious allegations of risk and family violence, complex financial arrangements, and disputes arising under the regulations implementing the Hague Convention on the Civil Aspects of International Child Abduction.
Response to the COVID-19 pandemic and a digital transformation
Like many Courts nationally and internationally, the Court’s operations have been impacted by the COVID-19 global pandemic. However, given the essential service the Court provides to Australian families, it was simply never an option for the Court to close or reduce its operations beyond what was absolutely necessary. The Court was quick to issue face-to-face protocols for hearings and other Court events, and update these as required as the situation evolved. It is a testament to the judges and staff of the Court that they responded quickly and flexibly to the rapidly changing uncertainties of the early stages of the pandemic.
Within a number of weeks of the pandemic emerging, the Court had undergone a significant digital transformation. Microsoft Teams was introduced Court-wide to facilitate virtual hearings by video conferencing, as well as options for hearings by telephone. The Appellate Division of the Court embraced electronic appeals with enthusiasm, and were the first appeal Court in the country to begin hearing Full Court appeals with a bench of three judges all sitting remotely, sometimes from three different locations around Australia.
The Court issued Special Measures Information Note (SMIN-1 FCoA Appeals) – Special Measures in response to COVID-19 to facilitate the continued operation of the Appellate Division by implementing a variety of electronic processes, to supplement the electronic practices that were already in place.
Shortly after this, registrars were trained to conduct electronic alternative dispute resolution (ADR) using Microsoft Teams and immediation. By mid-April, the Court had fast tracked the introduction of the Digital Court File, so that all new applications had a fully digital court file and could be accessed remotely from any location around the country, including by those working from home. In addition, Joint Practice Direction 2 of 2020: Special Measures in relation to COVID-19 was issued in the Family Court and Federal Circuit Court to deal with issues in relation to electronic filing, viewing of subpoenas, electronic signatures, witnessing documents and affidavits, and the payment of fees. The Court’s Child Dispute Services team quickly modified its operations and implemented guidelines so as to continue to interview families and children for the preparation of section 11F memorandums and section 62G family reports using technology.
Staff at all levels and across all aspects of the Court’s operations stepped up to ensure that the core business of the Court continued to be discharged, and for that they have my sincere gratitude. The Court is constituted by many hard working judges and staff who appreciate the importance of what we do, and it is the motivation and commitment of these individuals that makes the Court effective, dynamic and responsive.
A prime example of the responsiveness of the Court is the establishment of the COVID-19 List. By mid-April it became apparent that the Court was receiving an increased number of urgent applications. The COVID-19 List was implemented to deal with any urgent applications filed as a direct result of the COVID-19 pandemic. All applications have been given a first Court date within three business days of being considered by a registrar. The List is the Court’s first national electronic list, and has ensured that litigants could access urgent family law assistance from anywhere around the country.
Improvements to access to justice and safety for vulnerable litigants
The Court is determined to find positive learnings out of the pandemic, and it has also been an opportunity for the Court to modernise and showcase its adaptability. While operating in a near fully electronic environment has presented some challenges, it has also improved the administration of justice, both in terms of accessibility and safety. For some litigants and practitioners who live in rural or regional Australia, hearings by video conferencing have saved them the time and expense of travelling into capital cities or regional centres. This is a modernisation that will be used to supplement face-to-face hearings going forward, particularly for the hearing of urgent applications, general case management, and electronic ADR. Additionally, and critical to the Court’s focus on managing safety and risk, video conferencing provides an alternative way for vulnerable parties or witnesses to attend Court when they may have safety concerns about coming into a registry or coming into contact with another party in the proceeding. The Court will be closely considering how to make the best use of technology to benefit litigants moving forward, and to continue the journey toward being a modernised Court at the forefront of innovation amongst justice systems both nationally and internationally. These are serious ambitions, but Australians and their families deserve no less.
Despite the significant impact of the COVID-19 pandemic, the Court has continued to progress a number of important projects that will fundamentally change the way the Court system operates. In the family law jurisdiction, many of these projects involve both the Family Court and the Federal Circuit Court. The process of harmonisation to recast the family law system into a system that meets the needs of Australian families in a clear and consistent way is at the forefront of our operations.
Joint Practice Direction 1 of 2020
As an initial step towards reconciling the case management procedures in family law across the two Courts, in January this year I issued the first Joint Practice Direction, Joint Practice Direction 1 of 2020 – Core Principles in the Case Management of Family Law Matters. The practice direction contains a statement of ten core principles that underpin the exercise of the family law jurisdiction of both Courts. The practice direction includes principles in relation to prioritising safety and handling risk, achieving the overarching purpose of the just, safe, efficient and timely resolution of matters and the importance of ADR. The core principles also remind parties and practitioners of their responsibilities in relation to identifying and narrowing issues in dispute, being prepared for hearings, and incurring costs only as are fair, reasonable and proportionate to the issues that are genuinely in dispute.
Harmonisation of the Family Law Rules 2004 and the Federal Circuit Court Rules 2001
Over the past 12 months, the Joint Rules Harmonisation Working Group met regularly to progress the harmonisation of the Family Law Rules and the Federal Circuit Court Rules in so far as they apply in the family law jurisdiction of the Court, so as to create a single, harmonised set of rules. This is a project that has required the focus and dedication of judges and staff of both Courts, overseen by an independent Chair, the Honourable Dr Chris Jessup QC, and ably assisted by two barristers, Emma Poole and Chris Lum. The Working Group’s efforts have produced a complete draft of the harmonised rules, which has been distributed to all judges for consultation, and will thereafter be distributed to the profession and other stakeholders for external consultation in the second half of 2020. While there is still some way to go before the rules, forms and case management practices across the Courts are harmonised, compiling a draft of the harmonised rules is a significant achievement which had not been able to be accomplished in the past 20 years. My thanks go to those judges of the Family Court who have worked diligently as part of the Joint Rules Harmonisation Working Group, including Justice Ryan, Justice Watts, Justice Rees, Justice Williams and Justice Hartnett.
Harmonisation of the Notice of Risk and Registrar Delegations
As a precursor to formal rules harmonisation, the Courts are accelerating the harmonisation of two important aspects of the Courts’ practice and procedure that are currently divergent. The first is the redesign of each Court’s form used for risk notification, which are being harmonised into a comprehensive notice to be called the Notice of Child Abuse, Family Violence or Risk. It will also become mandatory to file the notice with every Initiating Application, Response and Application for Consent Orders seeking Part VII orders. This aligns with the Court’s focus on early risk identification to prioritise the safety of litigants and ensure informed decisions can be made in the best interests of the child.
The second area being harmonised and expanded as a priority is the rules that delegate judicial power to registrars in the family law jurisdiction. This will allow registrars to provide greater support to judges by assisting with case management work and free up judicial time so that judges can focus on determining the most complex matters and hearing trials.
Initiatives in family law case management
In February 2020, the Court commenced the Summer Campaign involving the listing of almost 500 family law cases in the Family Court that had been in the Court system for more than two years. A key objective of the campaign is to provide families with an opportunity to resolve their long-term family law dispute, preferably through the use of ADR. Prior to attending Court, parties involved in this campaign were sent an electronic questionnaire to assist the Court to assess suitability for ADR and to understand how best to progress the case. During the week of the callover, parties had the opportunity to attend an ADR case conference with a registrar, or if appropriate in parenting matters, with a registrar and family consultant, or otherwise were referred to private mediation, family dispute resolution or arbitration. The Summer Campaign was a success in Melbourne and Sydney, assisting with the resolution of a number of older pending family law matters. Unfortunately the onset of the COVID-19 pandemic necessitated the suspension of the Summer Campaign in other locations, but it will recommence electronically in the second half of 2020.
National Arbitration List
In April 2020, a specialist National Arbitration List was established in both the Family Court and the Federal Circuit Court. The Lists were established to support the development and promotion of arbitration for property matters in family law, furthering the Courts’ emphasis on the importance of ADR. The List operates electronically on a national basis, with a dedicated judge assigned to the List in each Court to ensure that matters sent to arbitration are closely managed, and any applications arising out of an arbitration can be determined promptly.
Appointments and retirements
In September 2019, the Court farewelled the Honourable Justice Bill Johnston who served as a judge of the Trial Division for nine years. Prior to this, Justice Johnston served the Court as a judicial registrar for 20 years, and also held positions as a deputy registrar and principal registrar. Justice Johnston’s period of service to the Court spans an extraordinary four decades, and the Court is indebted to him for his steadfast commitment to the administration of justice.
In September 2019, I was pleased to welcome Mr David Pringle as Acting Chief Executive Officer (CEO) and Principal Registrar of the Family Court of Australia and the Federal Circuit Court of Australia. David’s appointment as CEO and Principal Registrar was formalised in April this year for a term of five years. David has commenced his role with enthusiasm and determination, and I look forward to continuing to work closely with him on the many exciting projects we are undertaking. I would also like to take this opportunity to thank Ms Virginia Wilson for acting in the role of CEO and Principal Registrar for much of 2019 and into the 2019–20 financial year, and for the substantial assistance she provided the Court in that position.
Lastly, I would like to reiterate my gratitude to all judges and staff for their hard work during the 2019–20 financial year. It has been a busy year, and continuing to provide an essential service during a pandemic has called upon our flexibility and our resilience. My thanks also to the profession who have supported the Court during this time, and I look forward to working closely with the profession and other stakeholders over the coming year.
[Signed in hard copy]
The Honourable William Alstergren