In late 2011, the Family Court commemorated its 35th anniversary. The Court is the second oldest of the four federal courts, and this occasion provided us with an opportunity to reflect upon the history of the Court.
In its early years the Court had a tumultuous history. From my observations of overseas jurisdictions, family law is always a fraught area of law because it intersects with the breakdown of relationships, loss of companionship and closeness of family. As Elisabeth Kubler-Ross has said 'Divorce is the second most stressful life event after the death of a loved one'.
In this difficult time, parties are expected to manage difficult and often complex litigation going to the very core of their lives. There are rarely winners and therefore very few people are ever happy at the conclusion of their litigation. Why it was so difficult in Australia is a matter for conjecture. Certainly the changes in 1975 were innovative and socially advanced - a separate family court, supposed to be 'different' and no fault divorce. At the same time Australia was caught up in an environment of political, legal and social change.
The Family Court has been scrutinised by numerous inquiries, judged and criticised over the years and yet our dedicated judges and members of staff continue to do an exceptional job in helping people in our community during a period in their lives which is very difficult. Controversy has rarely been far away, but hopefully there is now more understanding in the community about the work of the Court and that the decisions that are made are done within the bounds of the law - as with all Australian courts. I also believe that there is more recognition of the extraordinarily difficult decisions that have to be made by our judicial officers - day in, day out, throughout the country.
Released during the past year was a book that outlines the early history of the Family Court. Born in Hope - the Early Years of the Family Court of Australia, written by academic Shurlee Swain, provides an insight into the first decade of the Court based on dozens of interviews with those involved with it at that time. As the years pass by, it is important to capture the impact that the establishment of the Court had on the Australian society at that time.
Beyond its domestic reputation, there is little doubt that the Court is very highly regarded for its innovations and work internationally and in June 2012, the Court's Chief Executive Officer, Richard Foster, was appointed as President of the International Association for Courts Administration. Considerable time is devoted to liaising and working with other jurisdictions which helps us enormously to continually review and monitor the way in which we approach our work.
In recent years the Court has implemented many initiatives aimed at reducing costs and generating efficiencies. This has included merging operating services with the Federal Magistrates Court, reducing the number of staff and reviewing the way we work to ensure efficiency. Despite the many attempts to rectify the position, the Court is nevertheless still facing ongoing financial pressure as a result of many factors and is working with the Government to address these pressures.
The Court obtained permission for an operating loss of $3.150 million for 2011-12 as expenses continue to rise in excess of the Court's appropriation revenue. In the next three year budget cycle, the Court will continue to face budget deficits particularly in the 2012-13 financial year should additional appropriation revenue not be forthcoming. Due to the 'limited discretionary' nature of about 76 per cent of the Court's costs (such as judges and their direct staff and their requirement for rental for purposebuilt court accommodation) the Court's ability to reduce costs further is extremely limited. As a result of this, in particular, the impact of the efficiency dividend on the Court's remaining costs is significantly higher.
The Court has been informed that it must bring its budget back into balance at the end of the 2012-13 financial year. This will be a significant task but the Court is working with Government on how this could be achieved. Whatever happens in the coming year, the Court will have to take cost saving measures that may reduce some services.
As to the performance of the Court, there has been a significant focus on the 'clearance rate', that is finalising the same (or more) cases that start in the year - which hopefully stabilises or reduces the number of pending cases. Improved reporting systems have enabled the Court to identify areas of concern. In turn it has allowed the Court to respond quickly and introduce strategies that have assisted in reducing the risk of 'backlogs' occurring. Further information on the performance of the Court is available in Part 3 of this report.
In 2011-12 the Court continued to experience significant change in the membership of its judiciary with the retirement of Justices Mushin, Burr, Rose and Monteith and the appointment of Justices Kent, Macmillan and Rees.
At present, the Court is focused on ensuring that its current workload is managed effectively and efficiently within the resources at its disposal, although the number of judges continues to decrease.
For many years the Family Court, and more so the Federal Magistrates Court, has been waiting for the Government to implement its plan to merge the Federal Magistrates Court with the Family Court as was initially announced in 2008. The uncertainty surrounding that initiative has been lifted as the Attorney-General, Nicola Roxon, announced on 26 April 2012 that the Government will not proceed with the proposed merger of the two courts. The Attorney-General stated in an address to the Federal Magistrates' plenary during the year that she believed that the Australian community is best served by a separate and distinct Family Court and Federal Magistracy.
Since the announcement of the proposed merger, the two courts have worked cooperatively to identify ways in which administrative services can be aligned. Much has been achieved over this period and significant savings have been made. The environment in which we now operate is significantly different to that of 2008 when the plan was first announced. The Government's decision to abandon the merger now provides a much clearer direction for the courts and we will continue to work on further clarifying the areas of work for each court.
Significantly, the number of cases filed in each court has been stable for the past few years. Following the report of the Strategic Review of the Small and Medium Agencies in the Attorney-General's Department (the Skehill Review) the Family Court, Federal Court of Australia and Federal Magistrates Court have been working together to identify areas where operations could be shared and savings made. This association has been formalised through a Heads of Jurisdiction Consultative Committee which meets quarterly and reports to the Attorney-General.
The Family Court has for some time had a dedicated and transparent judicial complaints policy and process, however, the Commonwealth Government has raised with the federal courts, the view to develop an enhanced judicial complaints model to help Heads of Jurisdiction handle complaints that are referred to us. The model is broadly based on the NSW Judicial Commission, with appropriate modifications taking into account Chapter III of the Constitution. It is largely non-statutory in nature. The model applies to complaints relating to federal judicial conduct or incapacity. It identifies the basis upon which complaints can be summarily dismissed and proposes that conduct committees be established by Heads of Jurisdiction where they consider that a complaint warrants further investigation or where they would be assisted by independent advice about a complaint.
Legislation to support elements of the complaints handling process is currently before Parliament, in the form of the Courts Legislation Amendment (Judicial Complaints) Bill, which was introduced in March 2012. The Bill has been referred to the Senate Legal and Constitutional Affairs Legislation Committee for inquiry.
Contributing to the busy year experienced by the Court has been the ongoing effort to review and revise our practices to ensure that we are delivering the best service possible within the current resources. Like many courts, we strive to deliver timely justice for those before us, and in doing so that requires considerable effort to implement a wide range of projects and initiatives. This annual report provides details on all of the programs and achievements that have been made throughout the year, however there are some deserving of particular mention.
I reported in last year's annual report some concern with the pressure of the workload on the Sydney registry. During the year, an important initiative was implemented which should assist in reducing that pressure. The Sydney Family Law Settlement Service is a joint initiative of the Law Society of New South Wales, New South Wales Bar Association, Family Court and the Federal Magistrates Court. It is a unique program whereby parties that are waiting for their (property) matter to go to trial in the Sydney registry are encouraged to participate in a specific mediation/conciliation program that aims to resolve the dispute without having to go to trial. An evaluation of this service will be undertaken to monitor its impact and effectiveness. More detail of this initiative is included in Part 2.
During 2011-12 the Family Law Courts released the results of a survey undertaken to gauge a better understanding of the level of satisfaction of those who spend time in the courts. The main observations found that almost 92 per cent of respondents were satisfied with the services that were provided to them and more than 85 per cent of respondents were generally satisfied with their overall visit to the registry. Further details on the survey are available in Part 2.
On 19 July 2011 the Family Court and the Federal Magistrates Court hosted the launch of the revised Family Violence Best Practice Principles. Initially developed by the Court in 2009 to provide judicial decision makers with practical guidance in dealing with cases where issues of family violence have been raised, these principles have been reviewed by the family violence committee which is represented by both the Family Court and the Federal Magistrates Court. A third version is in production to take account of the legislative changes brought about by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 which commenced in June.
Changes to the Family Law Act outlined in the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 were implemented on 7 June 2012. They aim to better deal with issues involving family violence and abuse of children. The revised Act includes key changes such as changing the definition of 'abuse' and 'family violence'; enabling state and territory child protection authorities to participate in family law proceedings when needed; and improved reporting requirements of abuse and family violence. In light of the changes, the Court has reviewed its Rules, updated forms and has revised its Family Violence Best Practice Principles. Considerable work has also been undertaken with our Child Dispute Services and family consultants. More detail on this is in Part 2.
The Commonwealth Government has legislated to provide certainty for de facto property and maintenance orders made by the Family Court and the Federal Magistrates Court between 1 March 2009 and 10 February 2012 (1 July 2010 to 10 February 2012 in South Australia).
The Family Law Amendment (Validation of Certain Orders and Other Measures) Act 2012 retrospectively validates de facto property and maintenance orders; the status of which was called into question by the failure to make a proclamation under section 40(2) of the Family Law Act at the time the courts were sought to be vested with jurisdiction in de facto financial causes. A proclamation has now been made setting 11 February 2012 as the date on and after which the Family Court can exercise this jurisdiction.
It is quite impossible to individually mention all of those who have contributed to the work of the Court throughout the year. However, I wish to extend gratitude to all of the staff of the Court, particularly those who deal directly with the community on a daily basis. It is a difficult job to do when so many of our clients are going through a stressful stage in their lives. This cannot be understated. The Family Court, after 35 years, continues to provide a unique service to the community and it will endeavour to continually improve the way in which it manages family law disputes.