FEDERAL MAGISTRATES COURT OF AUSTRALIA Annual Report 2006 2007
ii CONTACT OFFICER Requests for copies of this report should be directed to: Public Affairs Manager Owen Dixon Commonwealth Law Courts Building 305 William St, Melbourne VIC 3000 Phone: (03) 8600 4451 Fax: (03) 8600 8205 Information about the Court can also be found on the Court s website at www.fmc.gov.au Annual Report 2006-07 ISSN 1444-6707 (print version) ISSN 1447-5065 (online version) Photography by Geoff Beck 2007 Federal Magistrates Court 2007 A copy of this annual report is located on the Court s website at www.fmc.gov.au This work is copyright. Apart from use permitted under the Copyright Act 1969, no part can be reproduced by any process without prior written permission from the Chief Executive Officer of the Federal Magistrates Court, Level 11, Macquarie House, 167-169 Macquarie Street, Sydney NSW 2000.
FEDERAL MAGISTRATES COURT OF AUSTRALIA 20 October 2007 Chambers of the Chief Federal Magistrate John Pascoe, AO The Honourable Philip Ruddock MP Attorney-General Parliament House Canberra ACT 2600 iii Annual Report 2006 2007 Dear Attorney-General 2006-07 Annual Report I have pleasure in submitting the Annual Report of the Federal Magistrates Court of Australia for the period 1 July 2006 to 30 June 2007 in accordance with Section 117 of the Federal Magistrates Act 1999, which requires the Federal Magistrates Court to prepare and give you a report of the management of the administrative affairs of the Court during the financial year as soon as practicable after 30 June in each financial year. Yours sincerely John Pascoe AO Chief Federal Magistrate
Contact details SYDNEY NATIONAL OFFICE Level 11, Macquarie House, 167-169 Macquarie St, Sydney NSW 2000 Chambers of the Chief Federal Magistrate Chief Federal Magistrate John Pascoe AO Phone: (02) 9234 0002 Fax: (02) 9234 0052 iv Office of the Chief Executive Officer Mr John Mathieson Phone: (02) 9234 0012 Fax: (02) 9234 0050 MELBOURNE NATIONAL OFFICE Owen Dixon Commonwealth Law Courts Building 305 William St, Melbourne Victoria 3000 National Enquiry Centre for family law: 1300 352 000 Melbourne telephone number: (03) 8600 4450 Melbourne fax number: (03) 8600 4445 Websites: www.fmc.gov.au www.familylawcourts.gov.au Email: customer.service@fmc.gov.au enquiries@familylawcourts.gov.au Darwin Cairns Townsville Perth Principal locations Circuit locations Alice Springs Mackay Rockhampton Lismore Armidale Tamworth Coffs Harbour Dubbo Port Macquarie Orange Whyalla Newcastle Parramatta Port Lincoln Berri Sydney Adelaide Wagga Wagga Wollongong Bendigo Shepparton Canberra Hamilton Bega Castlemaine Warrnambool Gippsland Ballarat Geelong Moe Traralgon Melbourne Dandenong Devonport Bundaberg Hervey Bay Maroochydore Toowoomba Brisbane Southport Launceston Hobart
Registries for family law and child support issues All family law telephone enquiries: 1300 352 000 All email enquiries: enquiries@familylawcourts.gov.au New South Wales Sydney Lionel Bowen Building, 97-99 Goulburn St, Sydney NSW 2000 Parramatta Garfield Barwick Commonwealth Law Courts Building 1-3 George St, Parramatta NSW 2150 Newcastle 61 Bolton St, Newcastle NSW 2300 Lismore Manchester Unity Building, 29-31 Molesworth St, Lismore NSW 2480 Albury Dubbo 463 Kiewa St, Albury NSW 2640 (Divorce applications only) Cnr Macquarie and Wingewarra Sts, Dubbo NSW 2830 (Divorce applications only) Wollongong 43 Burelli St, Wollongong NSW 2500 (Divorce applications only) Victoria Melbourne Owen Dixon Commonwealth Law Courts Building, 305 William St, Melbourne Vic 3000 Dandenong 53-55 Robinson St, Dandenong Vic 3175 v Annual Report 2006 2007 Queensland Brisbane Harry Gibbs Commonwealth Law Courts Building, 119 North Quay, Brisbane Qld 4000 Townsville 143 Walker St, Townsville Qld 4810 Rockhampton Commonwealth Centre, Cnr East and Fitzroy Sts, Rockhampton Qld 4700 Cairns 104 Grafton St, Cairns Qld 4870 Australian Capital Territory Canberra Nigel Bowen Commonwealth Law Courts Building, Cnr University Ave and Childers St, Canberra ACT 2600 South Australia Adelaide Roma Mitchell Commonwealth Law Courts Building 3 Angas St, Adelaide SA 5000 Northern Territory Darwin TCG Building, 80 Mitchell St, Darwin NT 0800 Alice Springs Centrepoint Building, Hartley St, Alice Springs NT 0870 Tasmania Launceston ANZ Building, Cnr Brisbane and George Sts, Launceston Tas 7250 Hobart Edward Braddon Commonwealth Law Courts Building 39-41 Davey St, Hobart Tas 7000
Registries for general federal law issues New South Wales Law Courts Building, Queens Square, Sydney NSW 2000 Phone (02) 9230 8567 Email nswdr@fedcourt.gov.au vi Victoria Owen Dixon Commonwealth Law Courts Building, 305 William St, Melbourne Vic 3000 Phone (03) 8600 3333 Email vicreg@fedcourt.gov.au Queensland Harry Gibbs Commonwealth Law Courts Building 119 North Quay, Brisbane, QLD 4000 Phone (07) 3248 1100 Email qldreg@fedcourt.gov.au Australian Capital Territory Nigel Bowen Commonwealth Law Courts Building Cnr Childers St and University Ave, Canberra ACT 2600 Phone (02) 6267 0566 Email actman@fedcourt.gov.au South Australia Roma Mitchell Commonwealth Law Courts Building, 3 Angas St, Adelaide SA 5000 Phone (08) 8219 1000 Email sareg@fedcourt.gov.au Northern Territory Supreme Court Building, State Square, Darwin NT 0800 Phone (08) 8941 2333 Email ntreg@fedcourt.gov.au Tasmania Edward Braddon Commonwealth Law Courts Building, 39-41 Davey St, Hobart Tas 7000 Phone (03) 6232 1715 Email tasreg@fedcourt.gov.au Western Australia Peter Durack Commonwealth Law Courts Building, 1 Victoria Ave, Perth WA 6000 Phone (08) 9268 7100 Email waregistry@fedcourt.gov.au
Contents vii Introduction to the report 1 PART 1 Year in review 3 Key achievements 3 Key projects 3 Legislative changes 4 Continued development of the Court 5 Challenges to the Court 6 PART 2 Overview of the Court 7 Role and functions of the Court 7 Objective of the Court 8 The administration of the Court 8 Judicial Officers 8 Retirements 10 Jurisdiction of the Court 10 Federal Magistrates Court Rules 14 Federal Magistrates Regulations 2000 15 Practice Directions 15 PART 3 Report on the Court s performance 17 Overview of the Court s performance 17 Outcomes and outputs 18 Report on the Court s work by jurisdiction 20 Report on the Court s work in general federal law 21 Report on the Court s work in family law and child support 33 Transfers between courts 42 Dispute resolution 45 Complaints 49 Judgments 50 Appeals 51 Time taken to finalise cases 52 Annual Report 2006 2007
viii Access to justice 53 Self-represented litigants 54 PART 4 Report on governance and administration of the Court 57 Governance 57 Administration of the Court 58 Corporate and operational planning 59 Working with the Federal Court and the Family Court 59 Risk management, fraud control and internal audit 60 Management of human resources 60 The APS code of conduct 62 Senior appointments 62 Remuneration 63 Financial performance 63 Property and environmental management 64 Information technology and records management 65 PART 5 External scrutiny 67 External relations 67 Auditor-General audit report 68 Commonwealth Ombudsman 68 Privacy 69 Freedom of Information 69 Legal Services Directions 69 PART 6 Purchasing and contracting 71 Performance against core purchasing policies 71 Advertising and market research 71 Consultancy services 71 PART 7 Financial statements 73 PART 8 Appendixes 107 A) Compliance with annual report guidelines 107 B) Summary resources 109 C) Conferences attended and presentations made by federal magistrates 110 D) Staffing levels 119 E) Organisational chart 121 F) Consultancies 122 G) Fraud Control Certification 124 H) Circuit locations 125 Index 127
Introduction to the report Part one of the 2006-07 annual report contains an annual review of the Court s work, examining the major legal and administrative developments over the year. Part two provides a brief introduction to and overview of the Federal Magistrates Court its achievements, establishment, objectives, organisational details and jurisdiction. Annual Report 2006 2007 Part three contains information on the performance of the Court, its output and outcomes, the work of the Court, examples of cases, information on complaints and appeals, work in regional locations circuits and dispute resolution information. Part four contains information on governance, committees, administration, corporate planning, performance reporting and review, remuneration, human resources, information technology and an analysis of financial performance. Information about external scrutiny is contained in part five. Part six contains information on purchasing, assets management, consultancies and competitive tendering and contracting. Financial statements are contained in part seven. Appendixes in part eight provide details on staffing levels, report compliance, resources, presentations, consultancies and fraud control.
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PART 1 Year in review 3 Key achievements The 2006-07 year has been another period of significant growth for the Federal Magistrates Court of Australia (the Court). Seventeen federal magistrates were appointed during the year although three resigned, resulting in 14 additional judicial officers over the previous year. This makes the Federal Magistrates Court equivalent in size to the Federal Court of Australia (the Federal Court) in terms of the number of judiciary, and larger than the Family Court of Australia (the Family Court). Annual Report 2006 2007 With resident judicial officers in every state and territory, the Federal Magistrates Court is now a truly national federal court. It also continued to have a significant presence in rural and regional Australia both through its expanded circuit network and through judicial officers permanently located in regional areas. The latter was enhanced during the year with the appointment of a federal magistrate in Far North Queensland. There was a continuing increase in the proportion of new family law matters filed in the Court and, by the end of the reporting year, the projection made in the early stages of the Combined Registry Project that 75 per cent of family law filings would be in the Federal Magistrates Court, is closer to being realised. Key projects The Court (with the Family Court) continued to implement the final stages of the Combined Registry Project during the year which included: piloting a joint application form; introducing a single hard copy file cover for use in both courts in family law matters; modifying the Courts computer application (Casetrack) to support a single numbering regime and to enable users to view and work an application from both courts; and implementing and enhancing intranets in both courts to provide better support in the management of family law workload. Plans were also finalised to implement a pilot program in Adelaide to stream cases to the Federal Magistrates Court.
4 Federal Magistrates Court Family Law Meeting, 30 June 2007, Sydney During the year the Court established specialised panels in a range of areas in its general federal law jurisdiction. This concept was further extended by the establishment of a specialist panel in child support. The Court continued to reduce the backlog of migration matters which built up in 2003-04 and 2004-05, disposing of 591 more migration matters than it received during 2006-07. The Court also continued to monitor progress of reserved judgments. Only 0.2 per cent of the 2547 reserved judgments delivered during the year were delivered more than 12 months after the hearing. COMMONWEALTH COURTS PORTAL The Commonwealth Courts Portal is a joint project of the Family Court, Federal Court, and the Federal Magistrates Court. The vision of the Portal is to provide the external community, lawyers and litigants with a single entry point or gateway to a broad range of court services and information aggregated from each of the jurisdictions via a single and consistent user interface. The three Commonwealth jurisdictions have adopted a common case management system, (Casetrack), which has facilitated taking this next collaborative step. The project has progressed during the year. All jurisdictions have confirmed the feasibility of the vision and advanced the project s first development phase. The outcome of this initial phase will be deployed in August 2007. Legislative changes On 1 July 2006 significant amendments to the Family Law Act 1975 came into effect, which included increased jurisdiction to the Federal Magistrates Court to give it almost the same jurisdiction in family law as the Family Court. These were discussed in more detailed at pages 3, 27 and 28 of the Federal Magistrates Court s 2005-06 annual report.
5 Mr John Pascoe AO, Chief Federal Magistrate (right) and Mr John Mathieson, Chief Executive Officer (left) Also commencing on 1 July 2006 was the first tranche of amendments to the Child Support Acts, which resulted from the review of that legislation in 2005 by the Ministerial Taskforce on Child Support. Further amendments came into effect on 1 January 2007 and 22 June 2007. These included introducing a process for external review of decisions of the Child Support Agency by the Social Security Appeals Tribunal with a right to appeal on a question of law to a court having jurisdiction under Family Law Act 1975, including the Federal Magistrates Court. Annual Report 2006 2007 The Court s general federal law jurisdiction was further increased with conferral of jurisdiction by the Do Not Call Register Act 2006, which came into effect on 31 May 2007, in relation to recovery of penalties and to grant injunctions relating to contraventions. The Court s industrial law jurisdiction further expanded with the commencement on 1 March 2007 of the Industrial Contractors Act 2006. On 5 April 2007 the Minister for Industry Tourism and Resources announced that the Australian Government had agreed to extend the jurisdiction of the Federal Magistrates Court to hear trademark and design matters. The Minister also announced that the Government would reconsider in two year s time the recommendation of the 2004 Advisory Council on Intellectual Property Report 1 to also extend the Court s jurisdiction to patent matters, after the experience gained from the transfer of trademark and design matters to the Court had been assessed. Continued development of the Court A review of the Court s administrative structure was undertaken in the last quarter of the year. In view of significant growth of the Court, it was recommended a more effective level of support was required for the Court s judicial officers. There was also a need for an independent governance structure for the Court s case management; senior strategic management be located with the Chief Federal Magistrate and Chief Executive Officer in Sydney; and a regional network to support federal magistrates and to manage day-to-day operations on a local basis should be established. 1 Should the jurisdiction of the Federal Magistrates Court be extended to patent, trademark and design matters?
6 Cairns registry The review recommendations have been accepted in principle and will be implemented in the first part of the coming year. This will include establishing a Sydney National Office for senior management and a new strategic policy unit, the Melbourne National Office taking responsibility for corporate transaction processing and establishing regional offices in Adelaide, Brisbane, Melbourne and Sydney. Challenges to the Court Lionel Bowen Building, Sydney The rapid and continuing growth in the size of the Court s bench and in the breadth of its jurisdiction poses significant challenges. Last financial year, the roles of Coordinating Federal Magistrates were established in the Court. These roles have provided the valuable regional assistance required in managing a Court with such wide geographic spread and diversity. Implementing structural changes to the Court s administration, as mentioned above, should provide better support to the growing number of judicial officers. Resources have and will need to continue to be devoted to the induction of new judicial officers and the ongoing judicial education of federal magistrates, as well as the training and development of staff. In 2006-07 judicial education has been focused on court craft, a theme which will continue next year with a residential program on judgment writing planned for August 2007. As noted above, the Court continued to closely monitor the timely delivery of judgments and to provide federal magistrates with as much judgment writing time as possible within the confines of their busy workload. Complaints about delayed delivery of judgments (as noted in the Court s last annual report) have continued to remain significantly less than in earlier years. Maintaining, however, the appropriate balance of finalising reserved judgments and managing a heavy and demanding caseload will continue to be a challenge for the Court and each of its judicial officers. To achieve increased efficiencies, the Court continued to review practice and procedures following legislative changes. It is an ongoing challenge for the Court to consistently manage and decide cases and at the same time, to appropriately manage their individual needs and make decisions according to the law.
PART Overview of the Court Role and functions of the Court The is a federal court established under the Constitution by the Federal Magistrates Act 1999 ( the Act ). It was established to handle less complex matters in the areas of family law and general federal law. The Court shares jurisdiction with the Family Court and the Federal Court. 2 7 Annual Report 2006 2007 The Act received royal assent on 23 December 1999. The first court sittings were on 3 July 2000 in Adelaide, Brisbane, Canberra, Melbourne, Newcastle, Parramatta and Townsville. Jurisdiction is conferred on the Court by laws of the Commonwealth other than the Act. The initial jurisdiction of the Court was conferred by the Federal Magistrates (Consequential Amendments) Act 1999. The jurisdiction of the Court is expanded by amendment of Commonwealth legislation to confer the new jurisdiction, most recently by the Do Not Call Register Act 2006 which came into effect on 31 May 2007. The industrial law jurisdiction of the Court was expanded following commencement of the Independent Contractors Act 2006 on 1 March 2007. After seven years, the Court has established itself as the basic trial court, in significant areas of jurisdiction, of the federal judicial system. Most first instance migration review matters are now filed with the Court. Nearly all bankruptcy work and a significant amount of children s and property applications are now completed in the Court. The Court handles almost all divorce applications filed in all states and territories in Australia other than Western Australia. Thirteen additional federal magistrates were appointed to the Court during 2006-07, increasing the total number of federal magistrates to 49. The new appointments have assisted the Court to deal with its expanding jurisdiction and expanding workloads.
Objective of the Court The objective of the Federal Magistrates Court is to provide a simple and accessible alternative to litigation in the Family Court and the Federal Court. This allows the higher level courts to focus on more complex cases and appellate work. It also translates into lower costs for litigants and the Government. 8 The Court encourages the use of various dispute resolution approaches to resolve matters without judicial decisions. This objective has been strengthened with the new family law legislation s requirement for pre-court dispute resolution activity. Where practical, parties are encouraged to resolve their disputes through dispute resolution and negotiation methods such as counselling, mediation and conciliation prior to or during the court process. The administration of the Court The Chief Federal Magistrate of the Court is Mr John Pascoe AO. Mr John Mathieson is the Chief Executive Officer. Also see page 58. Judicial Officers The Court consists of the Chief Federal Magistrate and federal magistrates. At 30 June 2007, those appointed included: Chief Federal Magistrate John Pascoe AO Sydney (appointed 14 July 2004) Federal Magistrate Warren Donald Parramatta (appointed 13 June 2000) Federal Magistrate Christine Mead Adelaide (appointed 13 June 2000) Federal Magistrate Michael Baumann Brisbane (appointed 19 June 2000) Federal Magistrate James Brewster Canberra (appointed 19 June 2000) Federal Magistrate Norah Hartnett Melbourne (appointed 19 June 2000) Federal Magistrate Stephen Scarlett Sydney (appointed 19 June 2000) Federal Magistrate John Coker Townsville (appointed 26 June 2000) Federal Magistrate Murray McInnis Melbourne (appointed 26 June 2000) Federal Magistrate Rolf Driver Sydney (appointed 31 July 2000) Federal Magistrate Kenneth Raphael Sydney (appointed 31 July 2000) Federal Magistrate Stuart Roberts Hobart and Launceston (appointed 4 December 2000) Federal Magistrate Maurice Phipps Melbourne (appointed 18 December 2000) Federal Magistrate Michael Connolly Melbourne (appointed 4 June 2001) Federal Magistrate John Walters Melbourne (appointed 29 October 2001) Federal Magistrate Stewart Brown Adelaide (appointed 5 November 2001) Federal Magistrate Shenagh Barnes Sydney (appointed 5 November 2001)
9 Victoria s Ballarat Law Courts, used for regional circuits Federal Magistrate Giles Coakes Newcastle (appointed 12 January 2004) Federal Magistrate Stuart Lindsay Adelaide (appointed 19 January 2004) Federal Magistrate Michael Jarrett Brisbane (appointed 2 February 2004) Federal Magistrate Sylvia Emmett Sydney (appointed 5 July 2004) Federal Magistrate Grant Riethmuller Melbourne (appointed 19 July 2004) Federal Magistrate Michael Lloyd-Jones Sydney (appointed 26 July 2004) Federal Magistrate Daniel O Dwyer Melbourne (appointed 2 August 2004) Federal Magistrate Graham Mowbray Canberra (appointed 2 August 2004) Federal Magistrate Matthew Smith Sydney (appointed 2 August 2004) Federal Magistrate Nick Nicholls Sydney (appointed 23 August 2004) Federal Magistrate Robyn Sexton Sydney (appointed 27 September 2004) Federal Magistrate Kevin Lapthorn Newcastle (appointed 29 August 2005) Federal Magistrate Keith Slack Brisbane (appointed 12 September 2005) Federal Magistrate Louise Henderson Parramatta (appointed 28 November 2005) Federal Magistrate Judith Housego Sydney (appointed 16 January 2006) Federal Magistrate Kate Hughes Melbourne (appointed 30 January 2006) Federal Magistrate Heather Riley Melbourne (appointed 3 July 2006) Federal Magistrate Philip Burchardt Melbourne (appointed 10 July 2006) Federal Magistrate John O Sullivan Melbourne (appointed 10 July 2006) Federal Magistrate David Halligan Parramatta (appointed 31 July 2006) Federal Magistrate Toni Lucev Perth (appointed 14 August 2006) Federal Magistrate John Morcombe Adelaide (appointed 14 August 2006) Federal Magistrate Keith Wilson Brisbane (appointed 14 August 2006) Federal Magistrate Robert Cameron Sydney (appointed 3 October 2006) Federal Magistrate Frank Turner Sydney (appointed 3 October 2006) Federal Magistrate Tom Altobelli Sydney (appointed 13 November 2006) Annual Report 2006 2007
10 Federal Magistrates Court, Cairns Federal Magistrate Coates, Cairns Federal Magistrate Michael Burnett Brisbane (appointed 24 November 2006) Federal Magistrate Stephen Coates Cairns (appointed 27 November 2006) Federal Magistrate Leanne Spelleken Brisbane (appointed 11 December 2006) Federal Magistrate Charlotte Kelly Adelaide (appointed 12 March 2007) Federal Magistrate Janet Terry Darwin (appointed 10 April 2007) Federal Magistrate Denys Simpson Adelaide (appointed 12 June 2007) Retirements Federal Magistrate Judy Ryan resigned her appointment as a Federal Magistrate to take up appointment as a judge of the Family Court on 31 July 2006. Federal Magistrate Adrian Dangerfield was appointed on 25 September 2006 and retired on 13 November 2006. Federal Magistrate Jennifer Rimmer resigned her appointment as a Federal Magistrate on 1 February 2007. Jurisdiction of the Court The Federal Magistrates Court deals with a wide range of matters, sharing jurisdiction with the Federal Court and the Family Court and, in some cases, state courts. The transfer provisions of the Family Law Act 1975 and the Federal Court of Australia Act 1976, enable those courts to transfer any matters within their jurisdiction to the Federal Magistrates Court. Upon transfer, the Court will have jurisdiction in any matter transferred to it, including matters in which the Federal Magistrates Court would not otherwise have jurisdiction. Generally, the Court s rules and procedures are less formal than those of the federal superior courts, and aim to reduce costs and the number of court appearances for clients.
11 Family law and child support Federal Magistrate Terry and Associate Cathy White, Darwin The Federal Magistrates Court exercises the same family law jurisdiction as the Family Court with the exception of adoption and applications for nullity or validity of marriage. Annual Report 2006 2007 The Court also has the same jurisdiction as the Family Court in relation to matters under child support legislation. General federal law The Court can hear and decide on matters that relate to administrative, admiralty, bankruptcy, copyright, industrial, migration, privacy, trade practices and unlawful discrimination law, as well as any matter transferred from the Federal Court. The Court has jurisdiction in the following areas of general federal law: ADMINISTRATIVE LAW Matters under the Administrative Decisions (Judicial Review) Act 1997 Appeals from the Administrative Appeals Tribunal remitted from the Federal Court. ADMIRALTY In personam actions (claims against a specific person or company) such as cargo claims, damage claims and seafarers wages In rem actions remitted by the Federal Court and state/territory Supreme Courts. BANKRUPTCY All civil claims and matters under the Bankruptcy Act 1966, except those requiring jury trials.
12 COPYRIGHT Federal Magistrate Coker, Townsville Civil claims and matters under Parts V,VAA, IX and Section 248J of the Copyright Act 1968, such as claims for injunctions and damages for breach of copyright. INDUSTRIAL LAW Matters under the Workplace Relations Act 1996, including unlawful termination claims Breaches of the Australian Fair Pay and Conditions Standards, claims with respect to the business transmission rules, workplace agreements, right of entry and certain types of industrial action Matters arising under the Building and Construction Industry Improvement Act 2005 with respect to unfair contracts for services with respect to building work and certain types of industrial action Matters under the Independent Contractors Act 2006, to review a contract for service to see if it is unfair or harsh. MIGRATION Most first instance judicial reviews of visa-related decisions of the Migration Review Tribunal, Refugee Review Tribunal and the Administrative Appeals Tribunal. The Court does not have jurisdiction to undertake a merits review of these types of decisions. PRIVACY Enforcing determinations of the Privacy Commissioner and private sector adjudicators under the Privacy Act 1988.
13 TRADE PRACTICES Federal Magistrate Riethmuller on circuit in Ballarat The Court has jurisdiction under the Trade Practices Act 1974 with respect to claims under the following Sections: Part IVA Unconscionable conduct Part IVB Breach of industry codes Part V Consumer protection Division 1 Unfair practices, including misleading and deceptive conduct 1AAA Pyramid selling schemes 1A Product safety and product information, and 2A Actions against manufacturers and importers of goods, and Part VA Liability of manufacturers and importers of defective goods. Annual Report 2006 2007 The Court can provide injunctive relief under Section 80 and award damages under Section 82 of the Trade Practices Act 1974 up to $750,000. UNLAWFUL DISCRIMINATION Federal unlawful discrimination matters under the Human Rights and Equal Opportunity Commissions Act 1986 relating to complaints under the: Age Discrimination Act 2004 Disability Discrimination Act 1992 Racial Discrimination Act 1975, and Sex Discrimination Act 1984.
14 Federal Magistrates Court Family Law Meeting, 30 June 2007, Sydney Federal Magistrate Mead, Family Law Meeting, 30 June 2007, Sydney Federal Magistrates Court Rules During 2006-07 the following amendments were made to the Federal Magistrates Court Rules 2001: FEDERAL MAGISTRATES COURT AMENDMENT RULES 2007 (NO 1) These amendment rules came into effect on 27 June 2007 and included the following miscellaneous amendments: To remove the prescription, by schedule, of forms for use in the Federal Magistrates Court. The amendments enable forms to be approved by the Chief Federal Magistrate. Consequential amendments to the terminology used in the Rules for dispute resolution to accord with the terminology in the Federal Magistrates Act 1999 and the Family Law Act 1975 as amended by the Family Law Amendment (Shared Parental Responsibility) Act 2006. Amendments to enable the filing of a statement of claim (points of claim) or defence (points of defence) rather than a supporting affidavit, in proceedings other than family law or child support. New rules to introduce a new form Application in a case, for applications seeking interim, procedural, ancillary or interlocutory orders, after commencement of proceedings. An amendment to introduce time limits for the service of an application and any document filed, of no less than three days before the day fixed for the hearing of an application in a case; or no less than seven days before the day fixed for the hearing of any other application. New rules in relation to child support proceedings which include applications for child maintenance. These new rules facilitate determination of such matters, where possible, on the first return date and include rules in relation to appeals from the Social Security Appeals Tribunal (SSAT) consistent with legislative amendments to child support legislation.
15 Federal Magistrate Jarrett, Family Law Meeting, 30 June 2007, Sydney Darwin registry Federal Magistrates Regulations 2000 There were no amendments to the fee regulations during the reporting period. However, as part of the Combined Registry Project, consideration is being given to a simplified fee structure for family law proceedings. It is expected that this review of fees will also address current anomalies in the Court s fee regulations resulting in greater consistency between the fee regulations of the courts exercising concurrent jurisdiction. Annual Report 2006 2007 Practice Directions PRACTICE DIRECTION NO 1 OF 2006 TRIAL OF A NEW FORM: INITIATING APPLICATION (FAMILY LAW) To advance the implementation of the Combined Registry Project, the Federal Magistrates Court and the Family Court agreed to trial a new form entitled Initiating Application (Family Law). The Practice Direction took effect from 8 January 2007 and relates to the use of this new form in the Federal Magistrates Court. PRACTICE DIRECTION NO 1 OF 2007 APPLICATION FOR DIVORCE, RESPONSE TO DIVORCE AND DIVORCE SERVICE FORMS This Practice Direction was issued following a review of the divorce forms which resulted in extensive revision of the forms used in divorce proceedings filed in the Court. The Practice Direction commenced on 11 January 2007 and enabled the new forms to be used in proceedings for divorce prior to a formal rule amendment. Amendments have subsequently been made to the Federal Magistrates Court Rules 2001 by the Federal Magistrates Court Amendment Rules 2007 (No 1).
16 Josephine Willis, local barrister, Cairns PRACTICE DIRECTION NO 2 OF 2007 FAMILY DISPUTE RESOLUTION - APPLICATIONS FOR ORDERS UNDER PART VII FAMILY LAW ACT 1975 This Practice Direction took effect from 1 July 2007 and outlines the procedural requirements for applicants who seek to file an application for an order under Part VII of the Family Law Act 1975 in the Federal Magistrates Court. The Practice Direction provides that applications seeking an order under Part VII, will (after 1 July 2007) be required to provide a certificate from a registered family dispute resolution practitioner, unless they fall within the exceptions outlined in the Act. A party who contends that the matter falls within one of the exceptions must set this out in their affidavit in support of their application.
ppart Report on the Court s performance Overview of the Court s performance The past year has been one of continued expansion and growth while ensuring an enhanced service to litigants and the community. As with previous years, the Court s jurisdictional coverage expanded and the number of judicial officers increased further with 14 additional judicial appointments. 3 17 Annual Report 2006 2007 The Court managed a large and expanding workload in a manner considered to be at minimal expense for the Government and the community. Included in the growth is the Court s enhanced focus on its regional presence through further appointments to regional Australia and further expansion of its regional and rural judicial circuit work. The increased jurisdictional coverage has enhanced the Court s experience and professional reputation in dealing with a wide range of general federal law matters. Figure 1 National statistics for Federal Magistrates Court filings Total % of Total FAMILY LAW Final Orders 15725 18.6% 3.7% Other (Family) Interim Orders 13662 16.2% Divorce 44277 52.4% Other 3143 3.7% Total Family Law 76807 90.9% 2.5% Migration 6.1% Bankruptcy 0.5% Other (General Federal) 18.6% Final Orders (Family) GENERAL FEDERAL LAW Bankruptcy 5151 6.1% Migration 2114 2.5% Other 413 0.5% Total Federal Law 7678 9.1% Grand Total 84485 100% 52.4% Divorce 16.2% Interim Orders (Family)
Outcomes and outputs Figure 2 Federal Magistrates Court s performance measures for the Attorney-General s Portfolio Budget Statements Performance measure Performance 18 Less than 1 per cent of cases litigated or divorces processed are subject to complaint. The time taken from filing to disposition is less than six months in 90 per cent of cases. Sixty per cent of matters are resolved before trial. Feedback from clients as to whether they are satisfied that their disputes have been handled quickly and simply. Feedback from clients regarding the simplicity and effectiveness of court Rules. Feedback from clients regarding the availability of information about the Court. The number of complaints in 2006-07 represented 0.1 per cent of cases. Further details are on page 39. In 2006-07, 87 per cent of all matters were completed within six months of filing. Almost 100 per cent of divorces were completed within six months and 72.4 per cent of final orders in family law (excluding divorce) were completed within that time. In general federal law, 69 per cent of matters were completed within six months. During the year, the Court finalised 34 819 cases, excluding divorces. However, it needed to deliver only 2547 judgments following a hearing. The Court continues to place significant priority on dispute resolution. Further details on the latter are on pages 45-50. A number of surveys were conducted during the year, covering ad hoc and specific issues. Enquirer feedback obtained from the National Enquiry Centre (NEC), was overwhelmingly positive in regard to how their inquiry was dealt with by NEC staff. The Court met with several key bodies and stakeholders who have an interest in the Court. The Court surveyed some members of the general community on their understanding of the Court and its work, the feedback was that most participants had limited knowledge of the Court s work. The Court has previously conducted surveys of legal practitioners who regularly appear in the Court. While a survey of practitioners was not conducted in 2006-07, previous feedback has consistently been favourable about the time taken to resolve matters, the Court s procedures, the public information available and the manner in which proceedings are conducted in the Court. Number of cases litigated and divorce cases processed. During the year, 84 485 new cases were filed in the Court, of which, 44 277 were applications for divorce. A total of 80 000 cases were finalised in the Court during 2006-07. Further details including a breakdown between family law and general federal law and cause of action type are outlined later in part three of this report. Number of mediation, family dispute resolution, and conciliation services delivered. In 2006-07, a total of 10 063 dispute resolution events were delivered. Community-based organisations conducted 150 mediations for general federal law, and for family law, 812 family dispute resolution events and 71 property conciliation events. In addition, 6007 family dispute resolution events and 3023 property conciliation events were conducted for the Court by staff of the Family Court. Number of presentations to organisations representing clients regarding the Court, and publications issued. Details of presentations made during the year are in Appendix C. See page 56 for information on publications.
19 Robin Alexandar, Client Service Officer, Cairns National enquiry centre Entrance to the Federal Magistrates Court, Cairns With the aim of improving customer service for family law clients, the Federal Magistrates Court and the Family Court established the National Enquiry Centre (NEC) in April 2006, as part of the Combined Registry Project. The NEC is a centralised point of electronic contact for both courts, with client service officers managing all telephone and email enquiries on behalf of both courts. Annual Report 2006 2007 The NEC s service benchmarks are: 80 per cent of calls are answered within 90 seconds less than 5 per cent of calls abandoned less than 10 per cent of calls transferred to a family law registry 100 per cent of emails answered within 7 days, and 100 per cent of requests for divorce certificates processed and sent within 3 working days. Of the calls received by the NEC in 2006-07 only 8 per cent were transferred to a family law registry, approximately 5 per cent were referred to the Family Relationships Advice Line or other external service providers, 1 per cent was transferred to the Federal Court, and 3 per cent required the assistance of other courts such as local courts or the Family Court of Western Australia. EVALUATION OF THE NEC The effectiveness of the NEC was evaluated by an external consultant during 2006-07. The review concluded that the NEC provides a cost effective, reliable, timely and client focussed first point of electronic contact for clients of both courts. The evaluation further illustrated that this service provides a highly visible, nationally integrated and seamless telephone service, and provides a uniform and consistent approach when dealing with family law telephone and email enquiries.
20 Federal Magistrates Court, Darwin Tracey Marris, local solicitor, Darwin Report on the work of the Court by jurisdiction The Court s jurisdiction covers both family law and general federal law matters such as administrative law, admiralty law, bankruptcy, copyright, industrial law, migration, national security, privacy, trade practices and unlawful discrimination. Ninety one per cent of the Court s work is in family law. As noted in last year s annual report, the Jurisdiction of the Federal Magistrates Court Legislation Amendment Act 2006 conferred jurisdiction on the Court in matters transferred to it by the Federal or Family Court. The legislative intent was to give jurisdiction to the Court in areas where it would not otherwise have it. While the number of matters transferred to the Court under this provision was small, the Court considers this provision to be significant in enabling the federal superior courts to transfer less complex matters which would otherwise not be able to be heard by the Federal Magistrates Court because of jurisdictional limitations. New jurisdiction has been conferred on the Court following passage of the Do Not Call Register Act 2006 which came into effect on 31 May 2007. The Act establishes a do not call register and provides for civil penalties for breaches by telemarketers and others. Both the Federal Magistrates Court and the Federal Court have been conferred jurisdiction in relation to the recovery of penalties. The Courts also have a range of injunctive powers in relation to contraventions. The industrial law jurisdiction of the Court was expanded following commencement of the Independent Contractors Act 2006 on 1 March 2007. The Court now has jurisdiction to review a contract for services to see if it is unfair or harsh. The establishment of specialist panels in this, and other areas of the Court s general federal law jurisdiction, will further enhance the expertise of the Court.
21 Lorraine Singer, Associate, Townsville Federal Magistrate Coker, Townsville Report on the Court s work in general federal law Filings in general federal law represent 9.1 per cent of all filings in the Federal Magistrates Court. This is an increase of two per cent from the previous year, taking the number of general federal law filings from 7561 to 7678 filings nationally. A new area of jurisdiction, industrial law, experienced the greatest rate of growth, increasing by 982 per cent. The number of applications filed in relation to migration has continued to taper off, with a decrease of 13 per cent. Annual Report 2006 2007 Figure 3 General federal law applications filed in the Federal Magistrates Court Total % of Total Administrative law 32 0.4% Admiralty law 22 0.3% Bankruptcy 5151 67.1% Copyright 46 0.6% Industrial law 119 1.6% Migration 2114 27.5% Trade practices 95 1.2% Unlawful discrimination 98 1.3% Other 1 0.0% Total 7678 100.0% 67.1% Bankruptcy 27.5% Migration 1.6% Industrial law 0.6% Copyright 0.4% Administrative law 1.2% Trade practises 1.3% Unlawful discrimination 0.3% Admiralty law
Figure 4 Number of general federal law applications filed in the Court 4500 4000 3500 3000 2500 2000 22 1500 1000 500 0 Adelaide Brisbane Canberra Darwin Hobart Melbourne Perth Sydney 2006-07 313 1138 67 9 52 1735 287 4077 7678 2% 2005-06 404 897 64 12 58 1784 332 4010 7561 16% 2004-05 288 794 48 15 87 1624 239 3444 6539 32.8% Specialist panels in general federal law During 2006-07 the Chief Federal Magistrate announced the establishment of specialist panels for the Court s general federal law jurisdictions. The Court sees the establishment of panels as an important stage in the ongoing development of the Court. The panel system will enable the Court to use its judicial resources effectively and to ensure that work is handled by federal magistrates with expertise in the area. Total % Change The following panels have been established in Sydney, Melbourne and Brisbane: Commercial (including trade practices, copyright and bankruptcy) Migration and administrative Unlawful discrimination Industrial law National security Admiralty Convenors of the panels have established liaison user groups which meet regularly to respond to issues of practice and procedure in these specialist jurisdictions. Administrative law Figure 5 Number of administrative law applications filed in the Court YEAR Adelaide Brisbane Canberra Darwin Hobart Melbourne Perth Sydney TOTAL % Change 2006-07 2 9 2 1 0 5 1 12 32-18% 2005-06 4 10 1 0 1 10 5 8 39
The Court s administrative law workload includes appeals from the Administrative Appeals Tribunal (AAT) and applications under the Administrative Decisions (Judicial Review Act) 1977. This workload has decreased from last year and represents a small component of the Court s overall general federal law workload. In relation to appeals from decisions of the AAT, the Court only has jurisdiction upon remitter from the Federal Court. The limitation on the Court s AAT jurisdiction may explain the small number of appeals heard by the Court. There is no restriction on the jurisdiction of the Court to hear applications under the Administrative Decisions (Judicial Review Act) 1977. 23 Specialist panels for migration and administrative law proceedings have been established in Sydney, Melbourne and Brisbane. A specialist child support panel has also been established to hear certain child support proceedings, including those that come to the Court via administrative law review processes. Admiralty law Figure 6 Number of admiralty applications filed in the Court Annual Report 2006 2007 YEAR Adelaide Brisbane Canberra Darwin Hobart Melbourne Perth Sydney TOTAL % Change 2006-07 0 0 0 0 1 18 1 2 22 There were 22 admiralty law applications filed in the Court since the conferral of this jurisdiction in May 2006. While the admiralty jurisdiction conferred is confined to in personam actions, the Federal Court and state/territory Supreme Courts can transfer in rem proceedings commenced in that Court to the Federal Magistrates Court. The Court established specialist admiralty law panels during the year, which have benefited from the co-operative relationship with Federal Court admiralty and maritime law panels of which Justice Allsop is the national convenor. This relationship has resulted in the Courts sharing resource material and conducting joint forums on issues relevant to admiralty and maritime law. Bankruptcy In terms of the number of applications filed, bankruptcy represents a large proportion of the Court s general federal law jurisdiction. Much of the bankruptcy work, however, is undertaken by registrars with delegated powers. The role played by registrars in bankruptcy is a significant one which is appreciated by the Court. Since the conferral of migration jurisdiction on the Court, migration matters have assumed greater significance in the Court s workload particularly the hearing workload. Bankruptcy filings continued to increase (by five per cent) since last year, however, the level of increase was significantly less than experienced in previous years (27 per cent in 2005-06 and 14 per cent in 2004-05).
Figure 7 Number of bankruptcy applications filed in the Court 2500 2000 1500 24 1000 500 0 Adelaide Brisbane Canberra Darwin Hobart Melbourne Perth Sydney 2006-07 266 1065 51 5 41 1306 245 2172 5151 5% 2005-06 350 838 51 10 52 1359 297 1943 4900 27% 2004-05 258 729 27 11 79 1118 214 1427 3863 14% Total % Change In 2006-07 there were increases in Sydney and Brisbane, but Melbourne and other locations experienced a decrease in the number of bankruptcy applications filed. The Federal Court and the Federal Magistrates Court developed harmonised bankruptcy Rules and forms and established a Harmonised Bankruptcy Rules Monitoring Committee to monitor the operation of the harmonised Rules and to recommend necessary amendments. The Bankruptcy Legislation Amendment (Superannuation Contributions) Act 2007 came into effect in 2006-07. This Act amends the Bankruptcy Act 1966 to allow bankruptcy trustees to recover superannuation contributions made prior to bankruptcy with the intention to defeat creditors. The amendments aim to address problems that were highlighted following the High Court s decision in Cook v Benson [2003] HCA 93 (19 June 2003). The Bankruptcy Legislation Amendment (Debt Agreements) Act 2007 (BLADAA) and the Bankruptcy (Estate Charges) Amendment Act 2007 (BECAA) were granted Royal Assent on 10 April 2007. A range of bankruptcy matters come before federal magistrates, including determinations as to whether there has been substantial compliance with the requirements for bankruptcy notices following the High Court decision of Adams v Lambert [2006] HCA 10. See for example, Hussain v Deputy Commissioner of Taxation [2006] FMCA 1247, Coshott v B & W Windows Pty Ltd [2007] FMCA 981, Jones v Verity [2007] FMCA 1108, Browne v Wright [2007] FMCA 699. A number of cases sought annulments of bankruptcy, such as, Della Bruna v Glowsoar Pty Ltd [2006] FMCA 1815, and Mahmoud v The Owners Corporation Strata Plan No 811 [No.3] [2006] FMCA 1742. The Court considered whether the appropriate order was to set aside a creditors petition rather than an annulment in Begetis v Temperzone Australia Pty Ltd [2007] FMCA 498. In the following cases, orders were sought for the avoidance of transfers of property which were allegedly
made to defeat creditors: Posner v Chen [2007] FMCA 394, Rangott v Sharp [2007] FMCA 324, and Official Receiver v Huen [2007] FMCA 304. In Boral Montoro Pty Ltd v McLachlan [2007] FMCA 533 the Federal Magistrate considered the entitlement of a debtor to challenge the appointment of a proposed trustee. Copyright Figure 8 25 Number of copyright applications filed in the Court 25 20 15 10 5 Annual Report 2006 2007 0 Adelaide Brisbane Canberra Darwin Hobart Melbourne Perth Sydney 2006-07 0 1 1 0 0 16 1 27 46 44% 2005-06 0 0 0 0 0 16 2 14 32 14% 2004-05 1 0 0 1 0 12 2 12 28 56% Total % Change The number of copyright applications filed in the Court represents a relatively small proportion of the Court s overall workload. There has, however, been a 44 per cent increase since last year. This increase has been in Sydney and all other locations have remained relatively static. By conferring copyright jurisdiction on the Court, the community has an alternative legal forum, which is less formal, to pursue alleged infringements of copyright. The Court s increased involvement in this area of work is encouraging. The Government has announced that the intellectual property jurisdiction of the Court will be expanded to include trademark and design matters following recommendations made by the Advisory Council on Intellectual Property. In a press release issued following the announcement, the Minister stated This change will benefit owners of trademark and design rights by giving them the option to pursue any dispute through the quicker and less costly Federal Magistrates Court. In June 2007 the Attorney-General, the Hon. Philip Ruddock MP, announced the appointment of Federal Magistrate Rolf Driver as one of two new appointees to the Copyright Tribunal. The Tribunal is established under the Copyright Act 1968 and has a role in arbitrating disputes between copyright collecting societies and their licensees over copyright licence fees.
26 Urgent injunctive relief is frequently sought in copyright proceedings. Applications for injunctive relief in the form of Anton Piller orders and Norwich Pharmacal relief require careful balancing in light of the circumstances of each case and the competing interests of the parties. In George (Melbourne) Pty Ltd v Mitchell & Anor [2006] FMCA 464, the Court granted injunctive relief in relation to copyright of certain artistic works associated with a contract for the supply of advertising services for a particular type of football boot. In considering the application for injunctive relief it was relevant to the Court that the respondent provided no evidence to indicate there would be significant detriment if such an order was made. In Meskenas v ACP Publishing Pty Ltd [2006] FMCA 1136 relief was claimed on the basis of an alleged infringement of copyright as well as moral rights. While the Court found there was no copyright infringement, this case was the first Australian case where damages have been awarded for a breach of the moral rights provisions of the Act. The Court considered a claim for copyright infringement in respect of adult DVD s in Fraserside Holdings & Anor v Venus Adult Shops [2005] FMCA 997. This went on appeal to the Full Court of the Federal Court in Venus Adult Shops Pty Ltd v Fraserside Holdings Ltd [2006] FCAFC 188. The Federal Magistrate was not asked to consider the refusal of protection on public policy grounds. He was, however, required to consider whether the sale of the DVD s was contrary to law and, if so, what effect the illegality of the product would have on the amount of conversion. He also had to assess additional damages. On appeal, the Full Court, in considering a challenge to the assessment of damages, made observations on whether there is an obscenity defence as a ground for refusing copyright protection in Australia. Industrial law Figure 9 Number of industrial law applications filed in the Court 4500 4000 3500 3000 2500 2000 1500 1000 500 0 Adelaide Brisbane Canberra Darwin Hobart Melbourne Perth Sydney 2006-07 6 15 4 1 5 41 10 37 119 982% 2005-06 0 0 3 0 1 2 1 4 11 Total % Change
As industrial law is a relatively new area of jurisdiction for the Court, the number of industrial law applications filed in the Court increased by 982 per cent on last year. Increases were experienced in all locations, particularly in Sydney, Melbourne, Perth and Brisbane. The industrial law jurisdiction of the Court commenced on 27 March 2006 with amendments made to the Workplace Relations Act 1996 as a result of the Work Choices legislation. The jurisdiction is similar to the Federal Court except for matters under Schedule 1B (registration and accountability of organisations). The Court also has some jurisdiction under the Building and Construction Industry Improvement Act 2005 including unfair contracts for services with respect to building work and certain types of industrial action. During 2006-07 additional industrial law jurisdiction was conferred on the Court following the commencement of the Independent Contractors Act 2006, with most provisions commenced on 1 March 2007. The Court now has jurisdiction to review a contract for services to see if it is unfair or harsh and to make certain orders to vary or set aside such contracts. 27 Annual Report 2006 2007 While the volume of work is relatively small, the decisions of the Court have been of some significance in light of the new legislative regime. The types of industrial law matters that have come before the Court include the following applications: unlawful termination breaches of an AWA or collective agreement underpayment claims civil penalties As an example, in Flattery v The Italian Eatery [2007] FMCA 9 a penalty of $50,000 was awarded for breaches of an award. One of the factors highlighted by the Court in setting this penalty was the importance placed on compliance and enforcement in the principal objects of the Act. The Court noted that the respondent should have been aware of its obligations under the legislation and Award. As employees under a Subclass 457 visa, the vulnerability of the workers was also a factor taken into account in the determination of the penalty. In Furlong v Australian Workers Union [2007] FMCA 443 the Court, in considering penalties for an agreed unlawful strike action, noted the contrition and early co-operation of the respondents as a matter relevant to its consideration in setting a penalty of $40,000. In Lee v Hills Before & After School Care [2007] FMCA4 the Federal Magistrate had to consider whether the applicant, who was receiving Workers Compensation benefits at the time of dismissal, was temporarily absent on paid sick leave because of injury or illness within the meaning of the Workplace Relations Regulations 2006.
This involved a consideration of the statutory intent in the context of international conventions. The Court concluded: 28 [23]An interpretation of s.659 based solely on the words of the statute reveals no exclusion of workplace injury from the term temporary absence for illness or injury. That Parliament intended, in enacting the provision, to exclude employees on Workers Compensation from protection from dismissal would be anomalous with its obligations under the Convention, viewed in the context of the preparatory materials, which the Act embodied. Migration law Figure 10 Number of migration applications filed in, and finalised by the Court 3500 3070 3000 2748 2445 2429 2500 2114 2000 1500 2705 1000 500 0 2004-2005 2005-2006 2006-2007 Filed Finalised Figure 11 Number of migration applications filed in the Court 2500 2000 1500 1000 500 0 Adelaide Brisbane Canberra Darwin Hobart Melbourne Perth Sydney 2006-07 27 17 1 0 5 293 16 1755 2114-13% 2005-06 38 30 6 0 1 331 17 2006 2429-1% 2004-05 16 32 12 1 4 427 7 1946 2445-20% Total % Change
Figure 12 Number of migration applications finalised by the Court 2500 2000 1500 1000 500 0 Adelaide Brisbane Canberra Darwin Hobart Melbourne Perth Sydney 2006-07 34 20 1 0 2 322 16 2310 2705-12% 2005-06 33 25 17 0 2 522 17 2454 3070 12% 2004-05 13 31 4 2 2 605 9 2082 2748 131% Total % Change 29 Annual Report 2006 2007 Although the number of migration-related applications filed in the Court decreased by 13 per cent over the past year, the Court s workload in this area was still significant, evident by the number of outstanding matters that were finalised. In 2006-07, the Court finalised 591 more migration matters than it received. The aim of the Court is to develop best practice to efficiently complete migration matters. The Court s migration Rules give federal magistrates a wide discretion on how to deal with such matters on the first court date. With these considerations and the overall caseload of each federal magistrate in mind, individual federal magistrates adopt different approaches to the process of active docket management. At the first court date a further listing will usually be made and its purpose designated, for example, a further directions hearing, a show-cause hearing (under Rule 44.12), or a final hearing is listed. However, in particular cases, federal magistrates may expect parties to address whether the application is competent and if it raises an arguable case, and whether it can be dealt with briefly. The Court has established a specialist migration and administrative law panel and conducts regular user group meetings to discuss issues of practice and procedure. During the year the High Court handed down a significant decision in Bodruddaza v Minister for Immigration [2007] HCA 14 which found that the time limit in s.486a of the Migration Act (which is essentially the same as s.477(1) of the Act) was an impermissible fetter upon the High Court s original jurisdiction under s.75(v) of the Constitution. The High Court raised no issue about the time limits applicable to the Federal Magistrates Court or the Federal Court (see paragraph [24] and footnote 5).
As noted by the Federal Magistrate in SZKKR v Minister for Immigration [2007] FMCA 650 30 [10]...As I understand the High Court decision, it was based upon a finding that s.486a in its application to proceedings in the High Court was an unreasonable interference with the High Court s jurisdiction under s.75(v) of the Constitution. The position of this Court is quite different to that of the High Court. The High Court is created by the Constitution and derives its jurisdiction to deal with constitutional writs against officers of the Commonwealth from the Constitution. This Court, like the Federal Court, is a creature of statute. The jurisdiction of this Court is conferred by Parliament. What Parliament gives, Parliament may take away. What Parliament may take away, Parliament may also circumscribe. Parliament has circumscribed the jurisdiction of this Court in relation to migration proceedings by application of the time limit in s.477 of the Migration Act. The Federal Court has found on several occasions that the Section imposes a jurisdictional limitation I am bound by those decisions of the Federal Court. I proceed on the basis that s.477 of the Migration Act in its application to proceedings in this Court is a valid enactment of the Commonwealth. In SZKKC v Minister for Immigration [2007] FMCA 532 a Federal Magistrate found that s.477 (when read with other provisions of the Migration Act) requires actual notification of a tribunal decision and reasons to an applicant directly, not to a migration agent who represents the applicant. That decision was upheld on appeal by the Full Federal Court in Minister for Immigration v SZKKC [2007] FCAFC 105. The Full Court found that actual notification to an applicant must be accomplished by physical delivery to an applicant personally of a written statement prepared by the tribunal in accordance with s.430 of the Migration Act. In SZBEL v Minister for Immigration [2006] HCA 63 the High Court set aside orders of the Federal Magistrates Court and orders made on appeal by the Federal Court. The High Court found that s.425 of the Migration Act requires the tribunal to identify for an applicant what the issue will be in a review of a delegate s decision, where that issue is new and the applicant could not have anticipated it. The High Court said at [47]... there may well be cases, perhaps many cases, where either the delegate s decision, or the Tribunal s statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant s
account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted. National security The Anti-Terrorism Act (No 2) 2005 made amendments to the Criminal Code (which is contained in the Schedule of the Criminal Code Act 1995 (Cth)), as part of the Government s anti-terrorism legislative package. These amendments included the conferral of jurisdiction on an issuing court to issue control orders to limit a person s movement, association or activities if the court decides the restraint will substantially assist to prevent a terror attack. The Federal Magistrates Court is an issuing court and was the first court to issue an interim control order under Division 104 of the Criminal Code. A hearing for the confirmation of the interim order was adjourned following a High Court challenge to the constitutional validity of that part of the anti-terrorism laws upon which the Federal Magistrates Court issued the interim control order. By a 5-2 majority, the High Court held that Subdivision B of Division 104 is valid (see Thomas v Mowbray [2007] HCA 33). 31 Annual Report 2006 2007 There are requirements relating to national security information that is, or is to be, disclosed in a federal criminal proceeding or civil proceeding under the National Security Information (Criminal and Civil Proceedings) Act 2004. Trade practices Figure 13 Number of trade practices applications filed in the Court 45 40 35 30 25 20 15 10 5 0 Adelaide Brisbane Canberra Darwin Hobart Melbourne Perth Sydney 2006-07 2 13 3 0 0 42 7 28 95 44% 2005-06 1 5 3 0 1 44 4 8 66-15% 2004-05 1 5 0 0 0 46 11 15 78-16% Total % Change The number of trade practices related matters filed in the Court increased by 44 per cent over the past 12 months which reverses the trend experienced in the previous years (-15 per cent in 2005-06 and -16 per cent in 2004-05). There were increases in Sydney and Brisbane. This increase may be due to the expanded trade practices
jurisdiction following commencement of the Jurisdiction of the Federal Magistrates Court Legislation Amendment Act 2006. Although the Court s trade practices jurisdiction is not as extensive as the Federal Court s, the Federal Court can transfer trade practices matters to the Court which may not be within its jurisdiction. 32 The Court would prefer to obtain additional trade practices jurisdiction rather than have matters transferred from the Federal Court. In particular, it would seem appropriate for the Court to have jurisdiction under Part IVA (unconscionable conduct) and Part IVB (industry codes) of the Trade Practices Act 1974. The requirement to file a supporting affidavit in trade practices matters has been raised as an issue of concern. This has been addressed by recent amendments to the Federal Magistrates Court Rules 2001 which enables a statement of claim (points of claim) or defence (points of defence) to be filed instead of a supporting affidavit, in proceedings other than family law or child support. Unlawful discrimination Figure 14 Number of unlawful discrimination applications filed in the Court 45 40 35 30 25 20 15 10 5 0 Adelaide Brisbane Canberra Darwin Hobart Melbourne Perth Sydney 2006-07 10 18 5 2 0 14 5 44 98 15% 2005-06 11 14 1 2 2 22 6 27 85-7% 2004-05 12 12 5 2 1 15 3 41 91-11% Total % Change Although this area of work represents a small proportion of the Court s general federal law work, filings have increased nationally by 15 per cent which reverses the trend on the decreases experienced in previous years. Specialist unlawful discrimination panels have been established within the Court to deal with these matters. The unlawful discrimination decisions made by the Court during 2006-07 included cases alleging sex discrimination, racial discrimination and disability discrimination. Very few applications were filed alleging age discrimination.
One example of a disability discrimination application relating to the scope of the jurisdiction of the Court is Clarke v Oceania Judo Union [2007] FMCA 292. In this case, the respondent was an incorporated association registered in New Zealand. One of the preliminary issues for consideration was whether the alleged act of discrimination was beyond the jurisdiction of the Court in view of the decision which was the subject of the complaint, having been made outside Australia. Artinos v Stuart Reid Pty Ltd [2007] FMCA 1141 raised alleged discrimination in employment on the grounds of marital status and age. Although, on the evidence presented, the Court found the matter should not proceed to a final hearing because the application had no reasonable prospect of success, the Court highlighted the need to be cautious in dismissing an application on that basis. An issue of practice and procedure was considered by the Full Court of the Federal Court in L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114, which went on appeal from the Federal Magistrates Court and considered the law relating to the appointment of a litigation guardian particularly in those cases involving summary dismissal. 33 Annual Report 2006 2007 Report on the Court s work in family law and child support The proportion of family law work conducted in the Federal Magistrates Court has progressively increased since the establishment of the Court in July 2000. In 2006-07, just over 67 per cent of all family law applications for final orders were filed in the Federal Magistrates Court, compared to 17.2 per cent in 2000-01. The following tables provide details on the number of applications made to the Court in its family law jurisdiction. Figure 15 Percentage of family law applications for final orders filed in the Federal Magistrates % Court and the Family Court 2000-01 to 2006-07 100 90 80 70 60 50 40 30 20 10 0 1999 2000 2001 2002 2003 2004 2005 2006 2007 FCoA 100.0% 100.0% 82.8% 72.4% 64.1% 59.8% 50.6% 46.8% 32.8% FMC 0.0% 0.0% 17.2% 27.6% 35.9% 40.2% 49.4% 53.2% 67.2%
34 Figure 16 Family law applications, by type, filed in the Federal Magistrates Court FAMILY LAW Total % of Total Final orders 15725 20.5% Interim orders 13662 17.8% Divorce 44277 57.6% Other 3143 4.1% Total 76807 100.0% 17.8% Interim orders 20.5% Final orders Figure 17 Number of family law applications filed in the Court (including divorce applications) 18000 57.6% Divorce 4.1% Other 16000 14000 12000 10000 8000 6000 4000 2000 0 Adelaide Brisbane Canberra Dandenong Darwin Hobart Melbourne Newcastle Parramatta Sydney Townsville TOTAL %Change 2006-07 7099 17703 2782 5998 946 1856 15482 4448 8041 9535 2917 76807 5% 2005-06 6195 16868 2840 5264 1041 1918 15214 4440 8127 8204 3176 73287-1% 2004-05 6525 15948 2991 6044 1122 2026 14867 5021 8343 7748 3218 73853 5%
Figure 18 Number of family law applications filed in the Court (excluding divorce applications) 9000 8000 7000 6000 5000 4000 3000 2000 1000 0 Adelaide Brisbane Canberra Dandenong Darwin Hobart Melbourne Newcastle Parramatta Sydney Townsville TOTAL %Change 2006-07 3449 7793 1402 2840 510 678 6677 1956 3073 2694 1458 32530 21% 2005-06 2366 6141 1342 1868 628 680 6301 1899 2992 1135 1423 26775 7% 2004-05 2480 5285 1354 2479 644 655 5580 2148 2942 414 1066 25047 9% 35 Annual Report 2006 2007 Figure 19 Number of all applications filed in the Court seeking final orders 4500 4000 3500 3000 2500 2000 1500 1000 500 0 Adelaide Brisbane Canberra Dandenong Darwin Hobart Melbourne Newcastle Parramatta Sydney Townsville TOTAL %Change 2006-07 1631 4067 682 1403 237 282 3112 868 1407 1340 696 15725 27% 2005-06 946 3043 624 864 264 307 2826 841 1391 562 731 12399 7% 2004-05 1016 2716 619 1159 276 360 2572 948 1287 69 512 11534 17%
Figure 20 Number of all applications filed in the Court seeking interim orders 3500 3000 2500 2000 1500 36 1000 500 0 Adelaide Brisbane Canberra Dandenong Darwin Hobart Melbourne Newcastle Parramatta Sydney Townsville TOTAL %Change 2006-07 1434 3064 612 1279 234 241 2987 851 1328 1028 604 13662 18% 2005-06 1096 2424 591 853 298 278 2889 856 1256 501 536 11578 6% 2004-05 1090 1948 616 1131 303 260 2587 959 1333 337 401 10965 13% Filings in the Court s family law jurisdiction represents 90.9 per cent of all of the Court s applications which is a 5 per cent increase on last year, from 73 287 applications to 76 807. Divorce still represents the largest proportion of family law matters filed (57.6 per cent) in the Court. The number of applications filed for final orders continued to increase (by 27 per cent), climbing from 12 399 applications filed in 2005-06 to 15 725 applications in 2006-07. While parenting applications constitute a significant proportion of the family law workload, the Court deals with an extensive volume and mix of family law matters. EXPECTED INCREASE IN FAMILY LAW WORK The Court s family law workload will continue to increase with the staged implementation of the single point of entry initiative that will result in most family law applications commencing in the Federal Magistrates Court. 2 To test this initiative in practice, both Courts have developed and implemented the Adelaide Streaming Model Pilot. The term streaming is used to identify the process by which matters are allocated to each Court. Legal practitioners and litigants are encouraged to file a Combined Initiating Application form with the Family Law Courts registry, which will allocate the matter to the most appropriate court to ensure it is listed as early as possible. This removes the need for litigants to identify which court their matter should be filed in, which reduces confusion for litigants, the legal profession and Family Law Courts staff. 2 See page 41 for more details on the Combined Registry Project and page 42 for information on transferring matters between courts.
It is expected that the Federal Magistrates Court will manage 75 per cent of all family law filings with the remaining 25 per cent to be managed by the Family Court. The distribution of work between the Courts will be on the basis of complexity, with federal magistrates referring appropriate matters to the Family Court. This may require the Federal Magistrates Court to review its so-called two-day rule which is one of the factors in determining whether a matter should be conducted in the Federal Magistrates Court or the Family Court. Another challenge for the Court in managing the increasing family law workload is to balance the Court s up front judging which is a hallmark of the docket management adopted by the Court. The pilot is trialling ways in which registrars can provide assistance to federal magistrates in managing their increased workload. INCREASED WORK IN REGIONAL LOCATIONS The Court has increased its circuit workload in family law matters which is consistent with the Court s aim to increase accessibility in rural and regional and rural locations. Refer to page 53 for more information on the Court s work in regional areas. 37 Annual Report 2006 2007 FAMILY LAW REGISTRIES ACCEPT GENERAL FEDERAL LAW DOCUMENTS A project trialled during the year enabled some family law registries to receive general federal law documents on behalf of the Federal Court and the Federal Magistrates Court. This initiative aims to improve service delivery for general federal law clients, particularly in rural and regional centres. The family law registries involved in the project are Dandenong, Newcastle, Parramatta, Lismore and Townsville. If the trial is successful, the service may be extended to other family law registries. It may also be expanded to include full filing services. COMPULSORY DISPUTE RESOLUTION FOR FAMILY LAW The 2006 amendments to the Family Law Act 1975 introduced a staged process for the implementation of compulsory family dispute resolution in relation to parenting applications. From 1 July 2007, applicants wishing to apply for a parenting order under the Act are required to provide a certificate from a registered family dispute resolution practitioner, unless they fall within one of the legislative exceptions. The Chief Federal Magistrate issued Practice Direction No. 2 of 2007 which outlined the procedural requirements for applications who seek to file an application for a parenting order in the Court from 1 July 2007. SIGNIFICANT FAMILY LAW DECISIONS The 2006 amendments to the Family Law Act 1975 relating to parenting, was the subject consideration by the Full Court of the Family Court in Goode & Goode [2006] FamCA 1346. In this case, the Full Court provided some guidelines on how interim proceedings should be conducted: see para [82]. While these guidelines assist federal magistrates in their determinations of interim proceedings, there is still a need
for Full Court clarification of the amending legislation, particularly in the context of applications for relocation. In M & K [2007] FMCAfam 26 for example, the Court noted that: 38 There are probably few relocation applications that are consistent with maintaining equal time or substantial and significant time after relocation unless both parents move. In theory, substantial and significant time as defined in s.65daa(3) could be achieved even after relocation, but in practice it is unlikely that such time could occur regularly. It is somewhat unusual that s.65daa(3) does not import any notion of frequency or regularity. It could be satisfied, in theory, by an order for time that only occurs four times a year, provided that the definition of time incorporates the features referred to in paragraphs (a), (b) and (c) of s.65daa(3). I doubt if such a legalistic interpretation of substantial and significant time was intended by the legislature. Such a narrow definition would sacrifice substance to form and would be clearly inconsistent with the objects of the legislation. In other words, the framework would be inconsistent with the context [para 35]. Other aspects of the new parenting regime await Full Court clarification. In KML & RAE [2006] FMCAfam 528, the Federal Magistrate had to consider what constitutes substantial and significant. He concluded: 111. For a parenting arrangement to involve a child spending substantial and significant time with a parent, s.65daa(3) requires that it must at the least provide for the child to spend time with the parent both on days falling on weekends and holidays and on days falling outside those times. In addition, the time it provides must allow the parent to be involved in the child s daily routine and in occasions and events that are of particular significance to the child, and the time must allow the child to be involved in occasions and events that are of special significance to the parent. 112. These dual minimum requirements of when the time is to occur and what the time is to achieve by way of mutual involvement of parent and child in each other s lives relate to the dual aspects of the time being both substantial and significant respectively. A parenting arrangement will fail to meet the requirements of substantial and significant time unless it provides for time of a duration and frequency, and occurring at times, that enable the parent to be involved in the child s daily routine. 113. What time arrangement is necessary to achieve this is a matter of fact to be determined in each individual case.
Divorce Figure 21 Number of divorce applications filed in the Court 12000 10000 8000 6000 4000 2000 0 Adelaide Brisbane Canberra Dandenong Darwin Hobart Melbourne Newcastle Parramatta Sydney Townsville TOTAL %Change 2006-07 3650 9910 1380 3158 436 1178 8805 2492 4968 6841 1459 44277-5% 2005-06 3829 10727 1498 3396 413 1238 8913 2541 5135 7069 1753 46512-5% 2004-05 4045 10663 1637 3565 478 1371 9287 2873 5401 7334 2152 48806 3% 39 Annual Report 2006 2007 Figure 22 Number of divorces finalised by the Court 12000 10000 8000 6000 4000 2000 0 Adelaide Brisbane Canberra Dandenong Darwin Hobart Melbourne Newcastle Parramatta Sydney Townsville TOTAL %Change 2006-07 3768 10184 1392 3142 472 1274 8887 2498 5038 7083 1443 45181-7% 2005-06 3917 11582 1561 3476 405 1249 8957 2590 5432 7463 1849 48481 1% 2004-05 4007 10632 1651 3522 512 1251 8965 2863 5486 7254 1972 48115 14%
The number of applications for divorce filed in the Federal Magistrates Court decreased by 5 per cent from the previous year, falling from 46 512 applications for divorce filed in 2005-06 to 44 277 application filed in 2006-07. This continues the downward trend experienced in the previous year where applications for divorce fell by 5 per cent. 40 Most divorces are heard by sessional registrars. The appointment of registrars for divorce work enables federal magistrates to undertake more of the defended hearing work and to deal only with contested divorce proceedings. In 2006-07 the Court convened a conference for sessional registrars to further develop their expertise and discuss best practice protocols and guidelines. A divorce subcommittee has been established which meets regularly to consider issues raised in relation to the conduct of divorce proceedings. A few matters have been the subject of decisions by federal magistrates where applicants have sought to dismiss or stay a divorce application on the grounds of forum non-conveniens: see CC & BC [2007] FMCAfam 56, and JVH & ACNG [2006] FMCAfam 551. A significant amount of work was undertaken by the Court during the year in relation to the Court s divorce forms, resulting in a new set of forms and kits. These new forms were the subject of extensive consultation. Work has continued on the development of an interactive divorce form to assist litigants to complete these (see page 54). The Family Law Courts have published interactive divorce forms to enable better access for people who are vision impaired. Child support There have been significant legislative changes to the child support regime in response to recommendations of the Ministerial Taskforce on Child Support, outlined in the report, In the Best Interests of Children Reforming the Child Support Scheme (2005). The changes are being implemented in a staged process which commenced on 1 July 2006, with the final stage to include a change to the child support formula on 1 July 2008. Most child support applications which come before the courts are dealt with in the Federal Magistrates Court. The legislative reforms will impact on the volume and mix of child support cases which come before the Court. The Families, Community Service and Indigenous Affairs Legislation Amendment (Child Support Reform Consolidation and other Measures) Act 2007 (the Consolidation Act ) introduced consolidation amendments to the 2006 child support legislation. Some of these amendments aim to further clarify the SSAT review processes. The amendment also includes the relocation into the child support legislation of provisions which were previously contained in regulations.
In light of the legislative changes, the child support rules in the Federal Magistrates Court Rules 2001 were amended to combine all child support and child maintenance rules into the one division and the inclusion of new rules for the conduct of child support appeals from the SSAT. In addition, a new form, Notice of Appeal Child Support, and a prescribed brochure have been approved for use. A specialist child support panel has been established comprising federal magistrates in New South Wales, South Australia, Queensland and Victoria. Panel members met in March 2007 with representatives from the SSAT, Child Support Agency, Australian Government Solicitor and international child support officers from the Attoreny-General s Department, for a child support forum. While the Social Security Appeals Tribunal has been conferred significant jurisdiction to review child support matters, there is still some residual AAT review processes for miscellaneous child support matters. Combined registry project The Combined Registry Project of the Federal Magistrates Court and the Family Court commenced in July 2004 with the objective of simplifying access to the family law system by establishing a combined family law registry. 41 Annual Report 2006 2007 The five key objectives of the project are to: reduce confusion for clients through a single point of filing and the introduction of a common application form reduce the number of times clients need to attend court and ensure each event adds value and progresses the case towards a conclusion provide earlier access to a judicial officer provide a single entry point it has been agreed by both Courts that the majority of cases will be first dealt with by the Federal Magistrates Court, and to provide services that make the process more timely and accessible. Highlights of the project during 2006-07 included: A key initiative of the project, the Combined Initiating Application form was introduced as a pilot on 8 January 2007. The Application was the result of many months of consultation between the Courts. The pilot concluded on 30 June 2007 and an evaluation report will be prepared for the Family Law Courts Board. A single hard copy file cover to be used in both courts was introduced on 1 January 2007. The single file cover allows parties to have all documents filed together despite which court the matter is listed in. The introduction of the file cover will reduce confusion for litigants and provide administrative efficiencies.
42 Casetrack, the case management system that supports both courts has been changed to support a single numbering regime required with the introduction of the single file cover. The changes enable users to view and work on applications from both courts without changing jurisdictions. The Courts have settled on a Streaming Model that is to be the subject of a pilot in Adelaide commencing on 2 July 2007. The model anticipates the filing of most family law applications in the Federal Magistrates Court and articulates the process to be trialled in managing the intake of applications and the transfer of matters to the Family Court. The Model was the outcome of a workshop involving the Adelaide Family Court judges, federal magistrates, the legal profession, the Attorney-General s Department and court staff. A joint steering committee involving the Adelaide judiciary has been established to oversee the implementation and running of the pilot. The steering committee will report to the Family Law Courts Board. A new intranet site has been developed for the Federal Magistrates Court and an improved site has been implemented in the Family Court. The development of the intranet sites has involved extensive consultation. The Courts will continue to work together to ensure that the integrity of the site is maintained. The Family Law Courts Board, comprising of the Chief Justice of the Family Court, the Chief Federal Magistrate of the Federal Magistrates Court and the Chief Executive Officers of both courts oversee the combined registry program. Transfers between courts REDUCING DELAYS THROUGH JOINT CALL-OVERS Two joint call-overs were conducted for the first time by the Federal Magistrates Court and the Family Court in 2006-07. The call-overs involved joint sittings conducted by a federal magistrate and a judge of the Family Court. They aimed to transfer appropriate matters from the Family Court s pending cases inventory to the Federal Magistrates Court for hearing. In both locations the joint approach proved to be a highly effective and efficient process that will assist litigants to have their matter progress more quickly. It is anticipated that this approach will be used again where required. Brisbane During the week of 19 February 2007, a joint call-over was conducted in Brisbane by Federal Magistrate Baumann and Justice Carmody. Over 300 matters were listed and at the completion of the call-over, 170 matters had been transferred to the Federal Magistrates Court for determination. Almost all of the matters were subsequently completed by 30 June 2007.
Adelaide During the week of 4 June 2007, a joint call-over was conducted in Adelaide by Federal Magistrate Donald and Justice Strickland. In this joint call-over, more than 180 matters were listed and at the completion of the call over, 143 matters had been transferred to the Federal Magistrates Court for determination. Figure 23 Number of family law matters transferred from the Family Court to the Federal Magistrates Court 1000 43 900 800 700 600 500 400 300 Annual Report 2006 2007 200 100 0 Adelaide Brisbane Canberra Dandenong Darwin Hobart Melbourne Newcastle Parramatta Sydney Townsville TOTAL %Change 2006-07 412 905 23 73 4 46 240 53 197 354 88 2395 96% 2005-06 24 346 20 29 7 52 115 30 104 280 216 1223 46% 2004-05 88 332 18 25 1 38 90 34 44 83 82 835-19% Figure 24 Number of family law matters transferred from the Federal Magistrates Court to the Family Court 250 200 150 100 50 0 Adelaide Brisbane Canberra Dandenong Darwin Hobart Melbourne Newcastle Parramatta Sydney Townsville TOTAL %Change 2006-07 45 122 35 43 12 7 104 124 146 99 27 764 0% 2005-06 52 137 33 40 33 22 187 115 110 15 20 764 18% 2004-05 46 81 27 59 18 16 144 41 193 0 20 645 4%
The number of family law matters transferred from the Family Court to the Federal Magistrates Court increased by 96 per cent from the previous year, while the transfer of family law matters from the Federal Magistrates Court to the Family Court remained steady. The increases in Adelaide and Brisbane are in part due to the joint call-overs conducted by the Family Court and the Federal Magistrates Court (see page 42). 44 The increase experienced in Sydney is due to new federal magistrates being appointed to deal with family law matters in that location. It is usual practice for federal magistrates starting in new locations to take transferred matters when establishing their caseload. Figure 25 Number of general federal law matters transferred from the Federal Court to the Federal Magistrates Court 100 90 80 70 60 50 40 30 20 10 0 Adelaide Brisbane Canberra Darwin Hobart Melbourne Perth Sydney 2006-07 1 3 0 0 0 22 2 20 48-41% 2005-06 6 1 0 0 0 19 2 54 82-44% 2004-05 4 0 2 0 0 90 2 49 147-44% Total % Change Figure 26 Number of general federal law matters transferred from the Federal Magistrates Court to the Federal Court 14 12 10 8 6 4 2 0 Adelaide Brisbane Canberra Darwin Hobart Melbourne Perth Sydney 2006-07 4 0 0 0 0 3 0 5 12-54% 2005-06 4 1 0 0 0 13 1 7 26 24% 2004-05 2 3 0 0 0 7 3 6 21 250% Total % Change
Transfers of general federal law matters from the Federal Court to the Federal Magistrates Court decreased by 41 per cent over the past 12 months. Transfers from the Federal Magistrates Court to the Federal Court have also decreased by 54 per cent. Dispute resolution Dispute resolution refers to procedures and services designed to assist in the resolution of disputes other than by way of judicial decision. Federal magistrates order parties to attend dispute resolution in an attempt to resolve their matter rather than continue the litigation path where a judicial decision is required. The Court places significant priority on dispute resolution services primarily as it is an affordable and timely option for resolving disputes. It also allows parties greater personal control and management of the process and the outcome. Dispute resolution in general federal law Mediation is the dispute resolution process usually adopted to resolve disputes in general federal law matters. It is a process where a neutral third party (the mediator) assists the parties to identify disputed issues, develop options, consider alternatives, and try to reach an agreement. The mediator has no advisory or determinative role in regard to the content of the dispute or its outcome. 45 Annual Report 2006 2007 When a federal magistrate orders parties involved in a dispute to attend mediation, the mediation is, in most cases, conducted by a registrar of the Federal Court and in other cases, by a private mediator. Mediation was ordered in 150 general federal law matters in 2006-07. Of these matters, 134 were new matters ordered to attend mediation in 2006-07 and the other 16 were matters carried over from 2005-06. Of the new orders for mediation, 29 were in the area of trade practices, 37 in industrial law, 34 in unlawful discrimination, 14 in bankruptcy, 14 in copyright and 6 in other areas of jurisdiction. The outcomes of mediations that took place in 2006-07 are indicated in figure 27. Figure 27 Outcomes of mediation sessions (in general federal law) % 70 60 50 40 30 20 10 0 2001-2002 2002-2003 2003-2004 2004-2005 2005-2006 2006-2007 Resolved Part resolved Not resolved Other
Figure 28 Outcomes of mediation sessions (in general federal law) 2006-07 OUTCOME 2001-02 2002-03 2003-04 2004-05 2005-2006 FINALISED % of Total Resolved 29.5% 41.7% 41.2% 48.3% 49.5% 87 58.0% Part resolved 1.3% 3.7% 3.5% 0.8% 0.0% 3 2.0% Not resolved 64.6% 49.1% 51.8% 48.3% 47.7% 59 39.3% 46 Other 4.8% 5.5% 3.5% 2.6% 2.8% 1 0.7% Total 100.0% 100.0% 100.0% 100.0% 100.0% 150 100.0% Over half of the matters were fully resolved at mediation with a further two per cent able to make some progress towards resolution. Dispute resolution in family law matters In family law matters parties may be ordered to attend any or a combination of the following dispute resolution processes: Family counselling a family counsellor assists parties to deal with personal or interpersonal issues relating to separation or divorce, including issues relating to the living arrangements of children. It is a therapeutic process that is not directly aimed at reaching an agreement. Family dispute resolution a family dispute resolution practitioner, who is independent and impartial, adopts mediation techniques to assist the parties to resolve disputes relating to the living arrangements of children. The practitioner assists the parties to identify disputed issues, develop options and try to reach an agreement. Conciliation this is the dispute resolution process adopted in family law property disputes. Conciliation is a similar process to mediation but the conciliator, an independent and impartial third party, may give advice on the content of the dispute and its outcome. The conciliator does not have any determinative role. DISPUTE RESOLUTION SERVICES IN DISPUTES RELATING TO CHILDREN Before 1 January 2007, when an application for orders in relation to children was filed at the Court, the parties were ordered to attend a dispute resolution session with a family consultant from the Family Court. In 2006-07 family consultants of the Family Court conducted 6007 dispute resolution sessions with clients of the Federal Magistrates Court, compared to 6589 sessions in 2005-06. These appointments are no longer being made as pre-filing dispute resolution is now compulsory in most cases. From 1 July 2007 it is compulsory for most parties to attempt to settle their matter through community based dispute resolution prior to filing an application with the Federal Magistrates Court or the Family Court. Parties
are now required to file a certificate (unless exempted) from a registered family dispute resolution practitioner with their application, which indicates that they have attempted to resolve their matter before taking court action. In 2006-07 the Court continued to have agreements with 35 community based organisations for the delivery of dispute resolution services. Under those contracts services were provided on a fee-for-service basis. The appropriation for communitybased primary dispute resolution referrals in 2006-07 was $757,000, compared to $727,000 in 2005-06. At their first court date, federal magistrates in some circumstances ordered parties to attend for dispute resolution at a community based organisation. The Court arranged appointments for the parties with an appropriate organisation through a centralised booking system in the Court s national administration office and paid for the service. During 2006-07, 883 orders were made for attendance at community based organisations for one of the above dispute resolution processes. Of those matters, 678 referrals were returned completed. The remaining 205 have been carried over into 2007-08. 47 Annual Report 2006 2007 The average time taken between the date of a dispute resolution order and the date that it was returned completed to the Court, was 61 days (73 days in 2005-06). Of the matters ordered to attend dispute resolution at community based organisations, 812 were disputes relating to care of the children. These matters were referred for family dispute resolution or family counselling or a combination of both. 20.6 per cent of these matters settled and a further 16.6 per cent partially settled. One of the key findings of an evaluation conducted by Communication Partners (see page 68) was that 65 per cent of matters that partially settled and 53 per cent of matters that did not settle at the dispute resolution event subsequently settled with consent orders. Figure 29 Settlement rates for all family law dispute resolution events (relating to children) conducted by community based agencies OUTCOMES 2006-07 % of total Dispute resolution outcomes Fully settled 127 20.6% Partially settled 102 16.6% Not settled 347 56.3% Incomplete referrals 40 6.5% Referrals returned 616 100% Referrals outstanding 196 TOTAL REFERRALS ORDERED 812
CONCILIATION OF PROPERTY DISPUTES Federal magistrates refer disputed property matters to registrars of the Family Court for conciliation. In 2006-07 the Family Court conducted 3023 conciliation conferences for clients of the Federal Magistrates Court. Of these 24.4 per cent matters settled at the conference and 62.6 per cent of matters continued to another court event. 48 The Court has contracts with one community based organisation to conduct conciliation conferences in property matters for the Court in Victoria and Queensland. During 2006-07, 71 matters were referred for a conciliation conference and 62 were returned completed. Of those, 45.2 per cent settled, 4.8 per cent partially settled, and 38.7 per cent did not settle. Figure 30 Settlement rates for all property concilliations conducted by community based agencies OUTCOMES 2006-07 % of Total Fully settled 28 45% Partially settled 3 5% Not settled 24 39% Incomplete referrals 7 11% Referrals returned 62 100% 45.2% Fully settled Referrals outstanding 9 Total referrals ordered 71 11.3% Incomplete Referrals 38.7% Not settled 4.8% Partially settled CONCILIATION IN CHILD SUPPORT MATTERS The Court continued a program that began in 2004-05 to refer some child support matters to a conciliation conference. Federal magistrates assess matters before the hearing commences and send those matters that are likely to settle to a Family Court Registrar for a conciliation conference. The program runs in the Court s child support lists in Melbourne only and has proved to be a successful way of managing busy child support lists. POST-SEPARATION PARENTING PROGRAMS In 2006-07, 319 orders were made for parties to attend a post-separation parenting program. These programs are designed to assist parties to parent their children cooperatively after separation. Federal magistrates made orders to post-separation parenting programs in preference to making orders for parties to attend postorder counselling. As a consequence, only 5 matters were ordered to post-order counselling in 2006-07. The Court arranges for the parties to attend these services but does not usually pay for them.
FAMILY REPORTS Family reports are ordered to assist the Court to make decisions in relation to the living arrangements of children. These reports are prepared by a Family Consultant who interviews the parties and the children, and sometimes other people significant in the lives of the children. They also observe the children s interactions with the parties. Based on those interviews and observations, the counsellor makes an assessment of the issues that are in dispute, evaluates and makes recommendation to the Court as to what arrangements will be in the best interests of the children. During 2006-07 federal magistrates ordered 1582 family reports to be prepared by a family consultant from the Family Court. Of these 1226 were actually prepared, compared to 1028 in 2005-06. A further 1321 family reports were ordered to be prepared by qualified private report writers with whom the Federal Magistrates Court has arrangements. The number of family reports actually prepared was 1127, almost double the number prepared in 2005-06. 49 Annual Report 2006 2007 PRELIMINARY REPORTS PILOT In 2005-06, a pilot to test a shorter form of family report (a Preliminary Report) was run in the Sydney and Canberra registries and on the Dubbo circuit of the Family Court and Federal Magistrates Court. As part of its results and recommendations, a further study was undertaken. The second pilot, titled Children and Parents Report Pilot for the FMC commenced in February 2007 in the same registries as the first pilot (Sydney, Canberra and Dubbo circuit). The process is similar to the Preliminary Reports Pilot but with the addition of an extra event a meeting of parties, lawyers and Family Consultant after the report has been prepared to consider the issues identified in the report. Settlement rates between the two pilots will be compared as well as the usefulness of the intervention to the Federal Magistrate conducting the hearing. The project is completed and the Court awaits its final evaluation report and recommendations. Complaints During 2006-07 the Court received 125 complaints, nine less than the previous year. The complaints related to issues relating to costs (2), the conduct of legal representatives (7), proceedings pending (7), delays in application being heard (7), the conduct of federal magistrates and chambers staff (13), mediation/dispute resolution services (20), registry (18), overdue judgments (25) and legal processes (26). Included in the complaint data are two matters where a formal complaint was made to HREOC, both of which were terminated by HREOC. One complaint to the Privacy Commissioner is also included in the data and there has been no outcome on this complaint. There were also four matters where complainants sought compensation
under one or other of the Commonwealth schemes for Defective Administration. Two of these complaints were denied, one complaint was not pursued and there has been no decision made on the other complaint. 50 There were 25 complaints in 2006-07 relating to overdue judgments, which is the same as 2005-06. This highlights the continued efforts made by the Court during the year to focus on the timely delivery of judgments through the allocation of adequate judgment writing time and by recording and monitoring the process of reserved judgments. Complaints and compliments provide valuable information about community perceptions of the Court s work, client satisfaction and service delivery. For this reason, one of the performance targets of the Court is to have complaints in less than one per cent of cases litigated or divorces processed. At 0.1 percent, the number of complaints received was well within this performance benchmark. Judgments While most decisions are delivered ex tempore, particularly in family law proceedings, the Court strives to improve timeliness in delivering reserved judgments. Of the 2539 reserved judgments delivered in 2006-07, 98 per cent were delivered within 6 months of the matter being heard, and 0.2 per cent beyond 12 months. Most of the judgments published are migration decisions. This reflects the need for migration decisions to be settled in writing as many decisions are subject to appeal. The small number of family law decisions which are published reflects the general tendency to deliver such decisions ex tempore and the different public interest consideration, there being a general prohibition on publication in Sections (such as Section 121) of the Family Law Act 1975. In relation to the publication of the Court s decisions on review from the Refugee Review Tribunal, the applicants name is replaced with an assigned pseudonym in view of the restriction on publication in Section 91X of the Migration Act 1958. The Court considers it would be desirable for some further legislative clarification on the meaning of publish in Section 91X(2) to avoid any uncertainty as to the scope of this provision. The Court provides access to decisions directly through a link to AustLII from the Court s website. During the past year, 1984 decisions were provided this way. There were 90 decisions published in Law Reports. The Court appreciates the significant role that AustLII plays in facilitating internet access to the decisions of courts and tribunals and has made a contribution to on-going costs.
Appeals Generally, appeals are possible as of right from final decisions of federal magistrates to either the Federal Court or Family Court. In regard to appeals (other than migration appeals), the Chief Justice of the respective appeal court can determine that it is appropriate for the appeal jurisdiction in a matter on appeal from a federal magistrate to be exercised by a single judge. However, in appeals from federal magistrates to the Federal Court in migration matters, such appeals are to be heard by a single judge unless it is considered appropriate that the matter by heard by a Full Court of the Federal Court. Appeals in general federal law In 2006-07, 1107 appeals from the Federal Magistrates Court were filed with the Federal Court compared to 1033 in 2005-06. Of these, 1033 (93.5 per cent) were appeals in migration matters, which was approximately the same percentage as the previous year. 51 Annual Report 2006 2007 Figure 31 A summary of appeals by area of jurisdiction Case Type Number % of Total Administrative law 8 0.7% Bankruptcy 41 3.7% Copyright 1 0.1% Industrial law 4 0.4% Judicial review 11 1% Migration 1033 93.3% Unlawful discrimination 9 0.8% TOTAL 1107 100% Of the 1121 appeals that were decided during the year, 948 (84.6 per cent) were dismissed, 118 (10.5 per cent) were allowed, and 55 (4.9 per cent) discontinued or withdrawn. Figure 32 is a summary of outcomes of appeals heard in migration matters in comparison with the outcome of appeals heard in the other areas of general federal law.
Figure 32 Outcome of general federal law appeals Number % of total Finalised Dismissed 948 84.6% Finalised Granted/Allowed 118 10.5% Finalised Discontinued/ Withdrawn 55 4.9% 52 TOTAL 1121 100% Figure 33 Outcome of migration appeals heard Number % of total Finalised Dismissed 904 86.2% Finalised Granted/Allowed 99 9.4% Finalised Discontinued/ Withdrawn 46 4.4% TOTAL 1049 100% Figure 34 Outcome of all general federal law matters other than migration Number % of total Finalised Dismissed 44 61.1% Finalised Granted/Allowed 19 26.4% Finalised Discontinued/ Withdrawn 9 12.5% TOTAL 72 100% Appeals in family law and child support There were 69 appeals from decrees of the Federal Magistrates Court. This is a reduction from the 104 appeals filed in 2005-06. Of those appeals which were heard, 39 (56 per cent) were allowed compared to 32 (40.5 per cent) in 2005-06. Thirty (44 per cent) were dismissed in 2006-07 compared to 22 (27.8 per cent) in 2005-06. Four appeals were abandoned and 33 were withdrawn. There were three applications for leave to appeal filed from decrees made by the Federal Magistrates Court. Time taken to finalise cases Family law finalised matters During 2006-07, 89 per cent of all family law matters filed with the Court were finalised within six months, 97 per cent was finalised within 12 months, and only one per cent took greater than 18 months to finalise. All of these results were the same in 2005-06.
Family law pending matters Of all family law matters that were filed with the Court but yet to be finalised, at 30 June 2007, 70 per cent was less than six months old, compared to 75 per cent at 30 June 2006. Eighty-three per cent was less than 12 months old, compared to 84 per cent at 30 June 2006, and 13 per cent were greater than 18 months old, compared to 13 per cent at 30 June 2006. General federal law finalised matters Of all general federal law matters dealt with by the Court during the year, at 30 June 2007, 69 per cent of all federal law matters was finalised within six months compared to 67 per cent at 30 June 2006, 84 per cent was finalised within 12 months compared to 82 per cent at 30 June 2006, and only six per cent took greater than 18 months to finalise compared to nine per cent at 30 June 2006. General federal law pending matters Of the general federal law matters that were being dealt with by the Court but were yet to be finalised, at 30 June 2007, 66 per cent of matters were less than six months old compared to 55 per cent at 30 June 2006. Eighty-nine per cent of matters were more than 12 months old compared to 79 per cent at 30 June 2006, and 5 per cent were greater than 18 months old compared to 9 per cent at 30 June 2006. 53 Annual Report 2006 2007 Access to justice The Court s work throughout Australia During 2006-07 the Court s operations expanded to include a permanent judicial presence in Perth, Dandenong 3 and Cairns. The Court s commitment to accessible justice for regional and rural communities was further enhanced during the year with the expansion of the Court s circuit program to include Mt Gambier, Broken Hill and Port Macquarie, taking over responsibility of these locations from the Family Court. Circuit hearings allow parties to have their matters heard locally and to avoid the need to travel to major cities. Wollongong, on the south coast of NSW, is a good example of the Court s efforts to meet the needs of family law clients in response to the withdrawal of Family Court judicial services during 2006-07. 3 While there was no resident federal magistrate appointed to Dandenong, a full-time presence was provided by federal magistrates based in Melbourne.
54 On 21 February 2007 the Coordinating Federal Magistrate for NSW convened a meeting with the Wollongong legal profession and the Family Court registry management to discuss the requirements for judicial services in that region, following the withdrawal of the Family Court Judicial Registrar. In response to the concerns raised during that meeting, the Federal Magistrates Court committed to conduct duty lists on a monthly basis and conduct a weekly circuit for trials every second. The response of the Court was welcomed by local legal practitioners. This circuit arrangement will be reviewed in 2007-08 to determine its effectiveness in terms of the allocation of Federal Magistrates Court judicial resources as part of Court s 2008 circuit program. The Court s commitment to provide services to regional and rural communities is not without cost. Federal magistrates endeavour to finalise as many matters as possible during the course of their circuit weeks, often listing heavily to meet this objective. During 2006-07 the Court decided to analyse the delivery of services in rural NSW to ensure that the supply of judicial resources was properly targeted to demand. Analysis of historical filing data suggested that the Court s current circuit locations within NSW already meet the needs of family law clients in that state. A similar analysis will be applied to other states when planning circuit activities for 2008. Self-represented litigants A significant number of people represent themselves in the Federal Magistrates Court, particularly in the areas of family law, child support and migration. The Court continued to monitor and implement 12 key recommendations outlined in its October 2004 report, An Evaluation of Services for Self-Represented Litigants in the Federal Magistrates Court. The Court s migration brochure was updated during the year and will be translated into 20 languages. Over the past 12 months, the Federal Magistrates Court and the Family Court updated most family law publications to reflect new legislation. This provided an opportunity to ensure that the information would be of assistance to selfrepresented litigants. A new translation provider was selected in 2006-07 and work is underway to translate approximately six joint family law publications into the ten most commonly used languages, based on interpreter statistics. To assist self-represented litigants, the Court undertook a complete review of its forms and the information accompanying them. In recognition that over 70 per cent of divorce applications are filed by self-represented litigants, the Court also undertook a thorough review the Application for Divorce and accompanying
divorce service forms. Detailed kits provide information about completing the forms, serving the divorce application and the court process. Following a lengthy process of consultation, the new forms and information were implemented in February 2007. A new website www.familylawcourts.gov.au has been operating for 12 months. The website is a joint initiative of the Federal Magistrates Court and the Family Court to provide a central source of information that relates to the court process and family law. The Court will continue to work with the Family Court to produce publications and provide information at www.familylawcourts.gov.au to assist self-represented litigants with the family law process. The Court has worked closely with the Family Court to produce an e-learning package for registry and telephone staff to assist with family law inquiries. The package explains the difference between legal information and legal advice and provides practical scenarios. 55 Annual Report 2006 2007 PRO BONO SCHEME FOR SELF-REPRESENTED LITIGANTS A court-based pro bono scheme, similar to schemes which operate in a number of Australian courts including the Federal Court, is in operation. Referrals to the scheme have generally been confined to general federal law matters, particularly migration matters. In Melbourne, assistance to migration litigants is also available through Victoria Legal Aid, which has established a Migration Duty Lawyer Scheme. In Sydney a legal advice scheme continued to operate, comprising a panel of barristers and solicitors nominated by the Bar Association of New South Wales and Law Society of New South Wales respectively and funded by the Department of Immigration and Citizenship. Another scheme for general pro bono assistance also operates in Sydney and comprises a panel of solicitors representing the larger firms who provide initial advice and, in appropriate cases, representation at the hearing. The Court is thankful to the members of the profession who agree to act on a pro bono basis for the Court. FAMILY LAW DUTY LAWYER SCHEMES Self-represented litigants with family law matters before the Court are assisted by duty lawyer schemes operating in capital cities and regional areas. The Court works co-operatively with legal aid commissions and other organisations who provide lawyers to assist litigants at Court on the day of their hearing. Assistance may include legal advice, negotiating consent orders and, in urgent matters, the preparation of documents and representation.
Figure 35 Self-represented litigants involved in family law and child support % 100 90 80 13029 10772 12793 209 70 60 56 50 40 30 20 10 0 2639 2828 31244 186 Final Orders Represented Interim Orders Not represented Divorce Contravention Orders Public information During 2006-07, the Court reviewed all family law brochures and fact sheets due to legislative changes. As a result, several new brochures and fact sheets were produced. As part of the Family Law Courts initiative with the Family Court, six publications will be published in various languages. The Court developed a bankruptcy brochure in conjunction with the Federal Court and updated its migration brochure. The Court now intends to translate its migration brochure into 20 languages. The Court relies heavily on its website to provide useful information about the Court. Information available on the site includes contact details, corporate information, information on how the court works, court forms, fees and charges, dispute resolution information, relevant legislation, publications, circuit details and daily court listings. The website is regularly updated and provides a subscription service which sends email notifications to subscribers when new material has been updated on the site. The Court issued five publication orders during 2006-07. These types of orders provide authority to publish details relating to matters heard under the Family Law Act and aim to help locate children who have been taken from one of their parents. The Court s public affairs manager works closely with the Australian Federal Police in the management of media engagement and coverage of these matters.
ppart Report on governance and administration of the Court 4 57 Annual Report 2006 2007 Governance Advisory committees Following a review of the Court s committees in 2006, the Chief Federal Magistrate and the Chief Executive Officer established a range of new advisory committees, and in some cases continued existing committees. The committees aim to provide the Chief Federal Magistrate and Chief Executive Officer with advice and to assist them to fulfil their respective obligations. All of the committees comprise federal magistrates and some administrative staff. The committees operating in 2006-07 included: Policy and planning advisory committee This committee provides advice to the Chief Federal Magistrate and the Chief Executive Officer in relation to the Court s overall strategies for the delivery of court services. Finance committee This committee primarily assists the Chief Executive Officer to provide advice on the financial management of the Court and its underlying financial systems, ensuring efficient, effective and ethical use of the Court s resources.
Audit committee In accordance with the Federal Magistrates Court Act, this committee supports the Chief Executive Officer to ensure that the Court s financial accounts are in accordance with the Finance Minister s Orders and give a true and fair description of the Court s financial position. 58 Legal committee This committee provides advice to the Chief Federal Magistrate and federal magistrates in relation to the Court s Rules and makes recommendations on amendments to the Rules. It also monitors legislative developments in jurisdiction of the Court and provides advice to its judicial officers. Security committee This committee considers and provides advice to the Chief Federal Magistrate and Chief Executive Officer in relation to security issues including physical, personal and information technology security. Judicial education committee This committee makes recommendations to the Chief Federal Magistrate in relation to judicial education strategy and policy, as well as the judicial education needs of federal magistrates. Practice and procedures committee This committee provides advice to the Chief Federal Magistrate and the Chief Executive Officer in relation to practice and procedures of the Court and its underlying systems. Administration of the Court The Court s Chief Federal Magistrate is Mr John Pascoe AO. Mr John Mathieson is the Chief Executive Officer. Section 89 of the Act provides that the Chief Federal Magistrate is responsible for the administrative affairs of the Court. The Chief Federal Magistrate continues to be responsible for the day-to-day management of the business of the Court (Section 12). The Chief Federal Magistrate is assisted by the Chief Executive Officer, who can exercise powers on his behalf in relation to the Court s administrative affairs (Section 96). The Chief Executive Officer has the responsibilities and powers of an agency head for the purposes of the Public Service Act 1999 and Financial Management and Accountability Act 1997.
Corporate and operational planning During 2006-07 the Chief Federal Magistrate and the Chief Executive Officer engaged Des Semple & Associates to undertake a review of the Court s Melbourne National Administration Office (NAO) in view of the substantial growth in the Court s jurisdiction and size in recent years. The review undertook an analysis of the NAO s current responsibilities and proposed changes in the Court s administrative structure to provide a more effective and efficient level of support to the Court s judicial officers. 59 The review recommended that the Court s strategic policy and planning and senior management be located in the Sydney National Office, closely aligned to both the Chief Federal Magistrate and to the Chief Executive Officer. The review also recommended that the Court establish a regional network of court services and judicial support closely linked to the regional based Coordinating Federal Magistrates. The review recommended that the Melbourne National Office retain responsibility for corporate transactional processing and report to senior management based in the Sydney National Office. Annual Report 2006 2007 The Court has considered the review and endorsed most of its recommendations. It is anticipated that the bulk of the review s recommendations will be implemented in 2007-08. Working with the Federal Court and the Family Court The Federal Court and the Family Court continued to provide to the Federal Magistrates Court a range of services under memoranda of understanding. Both superior federal courts carry out a range of functions on behalf of the Federal Magistrates Court, including making staff available for the work of the Federal Magistrates Court, and share their registries and other facilities, including courtrooms. The Family Court also provides information technology infrastructure and support services to the Federal Magistrates Court. Work continued on the development of new memoranda of understanding between the Federal Magistrates Court and the two superior federal courts, but could not be concluded following commencement of discussions between the courts on funding transfers from the superior federal courts to the Federal Magistrates Court to better reflect the value of actual resources use and needs. The Family Law Courts Board, comprised of the heads of jurisdiction and chief executives of the Family Court and Federal Magistrates Court, met regularly throughout the year. The Board oversees the coordination and management of the shared arrangements and services of the Family Law Courts, including issues arising out of the Combined Registry Project.
The Chief Executives of the Federal Court, Family Court and Federal Magistrates Court met regularly throughout the year to discuss common issues and concerns and opportunities for cooperation. 60 Risk management, fraud control and internal audit The Court s Audit Committee oversees the internal audit program, fraud control plan and risk management plan. The Court has reviewed its risk management plan, areas of risk and their rating. A risk treatment plan has been developed and is being implemented. In 2006-07 the Court continued the engagement of Deloitte Touche Tohmatsu to provide internal audit services. Internal reviews conducted during the year included a review of Court expenses and employee entitlements. The Court s internal auditors also assisted with the establishment of procedures to provide assurance under the Commonwealth Certificate of Compliance. In accordance with the Commonwealth Fraud Control guidelines the Federal Magistrates Court has a fraud control plan in place to prevent and detect fraud. There were no cases of fraud reported in the Court in 2006 07. Management of human resources Staff turnover and retention rates The Court s separation rate includes resignations from the APS, moving to another APS agency and voluntary early cessation of a non-ongoing contract. The overall separation rate for the Court over the 2006 07 period was 21 per cent. This was down on the 32.8 per cent separation rate for the 2005-06 reporting period. Collective agreement A new collective agreement under the work choices provisions of the Workplace Relations Act 2006 was completed by November 2006, replacing the FMS Certified Agreement 2003-2006. The Collective Agreement 2006-2009 was lodged with the Office of the Employment Advocate on 12 December 2006. The new collective agreement will run for three years and will provide for non-salary benefits, including increases in access to health and well-being programmes, as well as flexible and family-friendly work practices, such as flex-time, time off in lieu, and emergency child care costs. The agreement also reinforced Court s commitment to staff through initiatives that foster staff and career development.
Australian workplace agreements During 2006-07, the Court engaged suitably qualified and experienced legal professionals to perform the statutory functions of registrar on a sessional basis to deal primarily with undefended dissolution of marriage proceedings (excluding certain orders relating to children). These positions are filled on a casual basis at a level equivalent to an Executive Level 2 and under terms and conditions specified in individual Australian Workplace Agreements. Eleven sessional registrars were a party to Australian Workplace Agreements as at 30 June 2007. Thirty AWA s are in place with staff that have specialist skills or experience. Workplace diversity The Court values the significant contributions that people from diverse backgrounds make to all divisions. Twenty four per cent of the Courts staff were born overseas, and nine per cent of staff have a first language other than English. Disability strategy The Court continues to be committed to meeting the requirements of the Disability Discrimination Act 1992, including recruitment, performance monitoring, training and development. The Court has a range of policies and initiatives to support this policy. These include guidelines on eliminating workplace harassment, providing recruitment information in a range of forms to ensure that all persons have equal access to this information. The recruitment and selection process is transparent and fair, ensuring equitable and non-discriminatory consideration is given to all applicants. 61 Annual Report 2006 2007 Occupational health and safety The Court has continued its commitment to consultation on occupational health and safety (OHS) matters with staff, through the Staff Consultation committee. Staff from all court locations are able to raise OH&S concerns through the committee. Initiatives undertaken during the year included the expansion of the health and well being programmes for staff. There were no accidents or dangerous occurrences during the year and no investigations were conducted. The Court was not required to give any notices under Section 68 of the Occupational Health and Safety (Commonwealth Employment) Act 1991. No directions under Section 45 or notices under Sections 29, 46, 47 of that Act were given to the Court during 2006-07. Training and staff development Study assistance is one of the learning and development options available to employees to assist with career development. Particular support is given to studies which are relevant to achieving the Court s goals and objectives. All on-going and
some non-ongoing staff are eligible to apply to undertake or continue an approved course of study. The level of support is assessed on merit and based on the needs of the work area and learning outcomes identified through the personal learning and development plans. The APS code of conduct 62 The Court encourages staff to observe the Australian Public Service Code of Conduct and appropriate action is taken if it is determined a possible breach has occurred. Court staff are aware that breaches of the Code of Conduct will be taken seriously and may result in disciplinary action. Staff commencing with the Court are provided with a copy of the Australian Public Service Code of Conduct and APS Values. The induction training programs include information on ethics and values. Information sessions on the Values and Code of Conduct were delivered to new federal magistrates commencing with the Court and court staff including associates to federal magistrates. Senior appointments At 30 June 2007 the principal executive group of the Federal Magistrates Court comprised: John Mathieson, Chief Executive Officer Mr Mathieson was appointed as Chief Executive Officer of the Federal Magistrates Court on 26 April 2005. The Chief Executive Officer assists the Federal Magistrates Court in the conduct of the Courts administrative affairs. The Chief Executive Officer has the power of an agency head under the Public Service Act 1999 and the responsibilities of a chief executive of an agency under the Financial Management and Accountability Act 1997. Glenn Smith, Deputy Chief Executive Officer, Court Services The Deputy CEO, Court Services has the responsibility for the operations of court services such as the regional managers, the policy/strategic secretariat, public affairs, dispute resolution and human resources. Anne Hicking, Executive Director, Corporate Services The Executive Director, Corporate Services has the overall strategic responsibility for financial, information and facility management functions as well as Chief Finance Officer responsibilities. Adele Byrne, Principal Registrar The Court s Principal Registrar supports the judicial functioning of the Court through the provision of high level legal and procedural advice within the Court.
Remuneration The Remuneration Tribunal determines remuneration for federal magistrates and the Chief Executive Officer. There were two employees at the Senior Executive Service level. The performance management program for staff of the Court provides for performance linked advancement within a salary range at various levels. The higher pay point then becomes the employee s nominal salary. If employees are at the top point of the salary range for their level there is no further advancement in salary, but those employees are eligible for a three per cent performance based bonus. Performance bonuses for 2006-07 were paid following the end of the reporting period. The aggregate amount of performance pay was $49,436 in relation to twenty nine employees. Details by classification are included in Appendix D. Financial performance The Federal Magistrates Court is a prescribed agency under the Financial Management and Accountability Act 1997. 63 Annual Report 2006 2007 Operating revenues and expenses The major source of revenue for the operations of the Federal Magistrates Court is an appropriation from government. The appropriation amount for 2006-07 was $39 million (2005-06 $31.5 million). Other revenue, mainly relating to transfer of leave balances from other public sector agencies, amounted to $0.3 million (2005-06 $0.08 million). During 2006-07 operating expenses were $37.4 million (2005-06 $26.2 million). This resulted in an operating surplus of $1.98 million (2005-06 $5.3 million). The increase in both appropriations and operating expenses is largely a consequence of the Government s decision in the 2006-07 budget to provide funding for additional federal magistrates for family law. The major expenses in 2006-07 were $23.9 million in respect of employee expenses, $12.9 million relating to supplier payments, and $0.6 million in asset depreciation and amortisation. Resources received free of charge The Federal Magistrates Court relies on infrastructure and support provided by the Federal Court and the Family Court. Both courts have supplied figures of resources provided free of charge to the Federal Magistrates Court, which total $24.4 million, ($23.1 million in 2005-06). The ANAO also provided resources free of charge of $35,000, for the audit of financial statements. All resources provided free of charge are reflected in the Court s financial statement as notional revenues and expenses.
64 Administered revenue and expenses The Court received revenue on behalf of the Commonwealth (administered revenue is not available to offset Federal Magistrates Court operating cost), mainly for court fees. The amount received in 2006-07 was $15.7 million ($13.4 million in 2005-06). The main variations when compared to 2005-06 relate to an increase in applications filed and fee increases, based on movement in the Consumer Price Index, as set by regulation. The Court administers an appropriation on behalf of the Government to source primary dispute resolution services from community-based organisations. In 2006-07, the appropriation was $0.8 million ($0.7 million in 2005-06) and expenses were $0.4 million ($0.6 million in 2005-06). Financial position The major change in the Court s financial position as at 30 June 2007 related to additional appropriation in the 2006-07 Budget of $3.625 million for additional federal magistrates for family law and $1.222 million for capital injection for federal magistrates. The Court s fees Fees for filing and other services in the Federal Magistrates Court have historically been set by Regulation at a lower rate than the equivalent fees in the Federal Court and the Family Court. Fees are normally increased biennially by government regulation, based on movements in the consumer price index, with the next biennial increase on 1 July 2008. Under the regulations, an exemption from payment of fees may be granted to people who are eligible for legal aid or qualify for certain government social security benefits. Fees may be waived if they would cause financial hardship. The value of exemptions and waivers in 2006-07 was $9,095,870 million or 36.7 per cent of the total value of fees collectible by the Court. Details of fees and eligibility criteria for exemption or waiver are available on the Court s website. Property and environmental management The Federal Magistrates Court occupies accommodation that was previously occupied by the Federal Court and Family Court. These courts continue to be directly funded for the property costs associated with this accommodation, and therefore continue to pay the accommodation costs on behalf of the Federal Magistrates Court under the several memoranda of understanding referred to previously.
During 2006-07 the Federal Magistrates Court commenced a lease for 167 Macquarie Street Sydney from 1 March 2007 and it also exercised the option with the NSW Attorney-General s Department to lease additional courtrooms and chambers at John Maddison Tower in Sydney to the period ending 30 October 2009. The Federal Magistrates Court also leases court and administration offices Commonwealth Law Court Buildings in Brisbane and Adelaide. Information technology and records management The Court continues to develop and improve technological service delivery to people who use the Court s services. The Court has worked closely with the Federal Court to enable federal law clients to fully access electronic services and participate in the Electronic Filing System (efiling) which is part of the Federal Court s ecourt strategy. The aim of electronic filing is to develop and maintain a system that enables court users to file documents electronically, improving access by clients to court services. 65 Annual Report 2006 2007 The Court has also commenced work with the Family Court of Australia and the Family Court of Western Australia to develop an electronic filing system in the family law jurisdiction. The development of this builds upon the electronic services of esearch and efiles which have already been introduced by the Commonwealth Courts. The development of the Commonwealth Courts Portal is currently underway and aims to support the delivery of electronic services to clients of participating Commonwealth Courts. For more information on this project refer to page 4. Other information technology projects which the Court undertook during 2006-07 included the introduction of a new management information system, research into a network wide internet based training methodology, and the redesign of the Court s online application form for divorce. INTERPRETER AND TRANSLATION POLICY There have been some minor amendments to the Federal Magistrates Court Interpreter and Translation Policy which is available on the Court s website. The policy now specifically provides for the use of AUSLAN interpreters and CART (Communication Access Real-Time Translation) service providers to assist clients who are deaf, hearing impaired and/or speech impaired. During the year officers of the Court met with relevant HREOC staff to discuss any issues of practice and procedure.
66 INFORMATION, RECORDS AND DOCUMENT MANAGEMENT The continued growth of the Court during 2006-07 reaffirmed the Court s commitment to efficient management of the Court s corporate information and records. The Court launched its intranet in 2006-07 which contributed significantly to efficient information retrieval and maximises knowledge sharing. A new decentralised content management method was introduced to help keep the intranet content up to date. This translated into increased accuracy, readiness and value of the information required by federal magistrates, chambers and administrative staff. A full review of policies, practices and procedures in the records area was undertaken during the year. Training courses and training materials were developed and distributed to federal magistrates and staff to help them understand record management principles, systems used by the Court and to help staff to adhere to record keeping responsibilities. During 2006-07 the Court received approval for its Step A submission of the Designing and Implementing Recordkeeping Systems (DIRKS) methodology within the National Archives of Australia (NAA). The Court has submitted its DIRKS Step B documentation to the NAA and has started working on Step C. CATEGORIES OF DOCUMENTS Under arrangements made with the respective courts, certain Federal Court and Family Court registries maintain the following categories of documents for and on behalf of the Federal Magistrates Court: documents relating to matters heard by the Court including applications, affidavits, transcripts, orders and copies of judgments registers and indexes of matters coming to the Court general correspondence. The Federal Magistrates Court maintains the following categories of documents: general correspondence documents concerning the development and implementation of policy documents concerning administration and financial aspects of the operation of the service.
PART 5 External scrutiny 67 External relations The Court continues to foster and develop strategic partnerships both in the federal court system, with other courts within Australia and New Zealand and with the legal profession. The Chief Federal Magistrate, federal magistrates and the Chief Executive Officer participate in a range of consultative and strategic forums including: Annual Report 2006 2007 FAMILY LAW COURTS BOARD The Chief Federal Magistrate and the Chief Executive Officer are members of the Board together with their counterparts in the Family Court. The Board meets every six weeks and is the strategic decision making forum that oversees the implementation and management of the Family Law Courts joint registry initiatives. CHIEF EXECUTIVE OFFICERS MEETING The Chief Executive Officer meets with his counterparts in the Federal Court and the Family Court every month. The Chief Executive Officers manage issues that are of relevance to each court, for example the Commonwealth Courts Portal which was an initiative shared by the three courts under the auspices of the Chief Executive Officers. AUSTRALIAN COURTS ADMINISTRATORS GROUP The Chief Executive Officer represents the Court at this forum which brings together all Australian courts and has representation from New Zealand. The Group meets on average five times per year. FAMILY LAW COUNCIL The Family Law Council provides advice to the Attorney-General. Federal Magistrate Hartnett and Federal Magistrate Sexton are members of the Council and the Chief Executive Officer is an observer. The Council meets quarterly.
NATIONAL ALTERNATIVE DISPUTE RESOLUTION ADVISORY COUNCIL Federal Magistrate Hartnett is a member of the National Alternative Dispute Resolution Advisory Council. Auditor-General audit report 68 Evaluation of community based dispute resolution services In response to the Auditor-General report, (no.46) on client service in the Family Court of Australia and the Federal Magistrates Court, during 2006-07, the Court engaged Communication Partners (a consultancy based at the University of Queensland) to conduct a follow up evaluation of outsourced dispute resolution services. The evaluation sought to analyse settlement outcomes and client satisfaction with dispute resolution services provided by community based organisations. The data selected for analysis was data from matters referred to community based dispute resolution in two defined time periods in 2003-04 and 2005-06. Randomly selected clients and practitioners from community based organisations were interviewed for the evaluation. The report was completed and made available in May 2007. One of the key findings of the evaluation was that 65 per cent of matters that partially settled and 53 per cent of matters that did not settle at the dispute resolution event subsequently settled with consent orders. The attitude of the other party towards dispute resolution was identified as significantly affecting the outcome. The clients perceived the skill and neutrality of the dispute resolution practitioner as important factors in the dispute resolution process. The report makes several recommendations including providing a consistent, coordinated and systematic data recording process between the Federal Magistrates Court and the community based organisations. Commonwealth Ombudsman The Commonwealth Ombudsman has jurisdiction only in relation to the administrative affairs of the Court; he does not have jurisdiction, and cannot investigate complaints, about the judicial process. During 2006-07 the Commonwealth Ombudsman received five approaches, one of which was investigated. The Commonwealth Ombudsman s Office sought information from the Court on the complaint-handling process to help a project they are conducting which aims to draw attention to its limited ability to investigate complaints about courts and tribunals and to give an overview on how the courts and tribunals handle complaints. See page X for more information on complaints made to the Court.
Privacy The Court holds no personal information, other than personnel information, in relation to the administrative affairs of the Court. Statement under Section 8 of the Freedom of Information Act 1982 There were three freedom of information applications made to the Federal Magistrates Court in 2006-07. Section 5 of the Freedom of Information Act 1982 provides that the Act does not apply to any request for access to a document of the Court unless the document relates to matters of an administrative nature. Inquiries concerning access to documents or freedom of information matters generally should be directed to: The Chief Executive Officer Level 11, Macquarie House 167-169 Macquarie St, Sydney NSW 2000 69 Annual Report 2006 2007 Access to information outside the Freedom of Information Act Rule 2.08 of the Federal Magistrates Court Rules provides for searching the records of the Court by the Attorney-General (in family law proceedings), a party, a lawyer for a party, a child representative (in family law proceedings) or a person granted leave by the court or a registrar. Leave may be granted if a proper interest is shown and may be subject to conditions. Legal Services Directions 2005 Under paragraph 11.1 of the Legal Services Directions 2005 the Chief Executive Officer of the (the Court) has the responsibility for ensuring that: arrangements for legal services are handled efficiently and effectively, and appropriate systems and procedures are in place to achieve compliance with these Directions.
70 In accordance with paragraph 11.1 (ba) of the Legal Service Directions 2005, the total legal services expenditure incurred by the Court for 2006-07 was as follows: Expenditure $ 000 The Court s total legal services expenditure (GST exclusive) 41 The Court s total external legal services expenditure (GST exclusive) 41 Pursuant to paragraph 11.2 of the Legal Services 2005, the Chief Executive Officer has issued a Certificate to the Office of Legal Services Coordination of the Attorney- General s Department stating that the Federal Magistrates Court: has appropriate systems and procedures in place to ensure compliance with the Directions, and has no record of any alleged, possible or determined breach of the Directions during the financial year 2006-07.
PART g Purchasing and contracting Performance against core purchasing policies Value for money is the core principle underpinning Australian Government procurement. The Federal Magistrates Court is a relatively small government agency and its primary strategy for obtaining value for money is to join with larger agencies where possible, when contracting goods and services. In particular, the Federal Court and the Family Court provide registry and infrastructure services to the Federal Magistrates Court and, wherever practical, the Court joins contracts put in place by those courts. This enables the Court to obtain the buying power of larger contracts. 6 71 Annual Report 2006 2007 Leaving aside these larger contracts, purchasing undertaken by the Court falls below the procurement thresholds outlined in the Commonwealth procurement guidelines. The Federal Magistrates Court does not have any contracts relating to the outsourcing of government activities under the Commonwealth s competitive tendering and contracting policy. Advertising and market research A total of $89,052 was paid to HMA Blaze Integrated Communications during 2006-07 for recruitment advertising. In 2006-07 Profmark Consulting Pty Ltd was engaged to provide survey advice at a cost of $2,860. Consultancy services During 2006-07 consultancy expenses were incurred totalling $663,154. Further details are included at Appendix F.
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PART 7 Financial statements 73 Annual Report 2006~2007