Part 3: Report on Court performance

Impact of COVID-19 pandemic

The Federal Circuit Court responded to the COVID-19 pandemic and associated changes to public health directions and restrictions for the entirety of the 2020–21 financial year. This has had a significant impact on the Court’s ability to plan ahead and efficiently manage the work of the Court, and has required judges and staff to be flexible and adapt to changes to the way all aspects of the Court’s work are conducted in very short periods of time. Despite this, the Court maintained an impressive clearance rate for applications for final orders in family law of 96 per cent.

While the Court has been able to continue with the majority of its workload during the pandemic and has maintained a high clearance rate, there are certain categories of work that have not been able to be conducted electronically at the usual rate they would be undertaken, for example trials for final orders applications. Some trials have needed to be temporarily adjourned if parties do not have access to technology or a satisfactory internet connection, or where there are difficulties arising from access to an interpreter or other procedural fairness issues. It is also accepted that conducting high volume lists and hearings electronically can be more time consuming, so while judges, registrars and staff have been working diligently, the volume of matters undertaken has been slightly lower than it otherwise would have been.

Snapshot of performance

The first target includes disposals of final order applications filed in family law, as well as applications filed in general federal law and migration. The second target only includes disposals of other applications filed in family law, and does not include other applications filed in migration or general federal law, such as interlocutory applications.

High migration filings continue to have a substantial impact on the Court. The pending migration caseload has increased from 12,158 applications in 2019–20 to 14,398 applications in 2020–21. At 30 June 2021, the clearance rate for final order applications in family law was 96 per cent. For migration applications, it was 58 per cent.

To put that in perspective, without further resources, on current filing rates, the pending migration caseload will surpass the pending family law caseload in less than two years.

Table 3.1: Snapshot of Court performance against targets

TIMELY COMPLETION OF CASES

TARGET

RESULT 2020–21

TARGET STATUS

90 per cent of final orders applications disposed of within 12 months

59 per cent of final orders applications were disposed of within 12 months

NOT MET

90 per cent of all other applications disposed of within six months

96 per cent of all other applications were disposed of within six months

MET

70 per cent of matters resolved prior to trial

80 per cent of matters were resolved prior to trial

MET

Analysis of performance in 2020–21

The stated outcome of the Federal Circuit Court is:

Apply and uphold the rule of law for litigants in the Federal Circuit Court of Australia through more informal and streamlined resolution of family law and general federal law matters according to law, through the encouragement of appropriate dispute resolution processes and through the effective management of the administrative affairs of the Court.

The Court has the following targets under the performance measure of timely completion of cases:

Timely completion of cases

  • 90 per cent of final orders applications disposed of within 12 months
  • 90 per cent of all other applications disposed of within six months, and
  • 70 per cent of matters resolved prior to trial.

Table 3.2: Family law, general federal law and migration applications filed and finalised, 2020–21

Family law

Filings

Finalisations

Total

% of Total

Total

% of Total

Divorce applications

49,625

51.1%

47,697

51.6%

Interim orders applications

22,112

22.8%

21,904

23.7%

Final orders applications

16,248

16.7%

15,613

16.9%

Other applications

1,388

1.4%

1,367

1.5%

Total

89,373

92.0%

86,581

93.7%

Migration

Filings

Finalisations

Total

% of Total

Total

% of Total

Total

5,236

5.4%

3,046

3.3%

General federal law

Filings

Finalisations

Total

% of Total

Total

% of Total

Bankruptcy

902

0.9%

944

1.0%

Fair work

1,352

1.4%

1,539

1.7%

Other

289

0.3%

304

0.3%

Total

2,543

2.6%

2,787

3.0%

 

Filings

Finalisations

Total

% of Total

Total

% of Total

Grand total

97,152

100%

92,414

100%

Figure 3.1: Percentage of applications filed, 2020–21

51.1% Divorce, 22.8% interim orders, 16.7% final orders, 1.4% other family law, 0.9% bankruptcy, 1.4% Fair work, 0.3% Other GFL, 5.4% Migration
 

Figure 3.2: Case management approach in family law (docket system)

Case management approach flowchart
 

Case management

The Federal Circuit Court uses a docket case management process designed to deal with applications in a flexible and timely way. The docket case management process is based on the following principles:

  • matters are randomly allocated to a judge who generally manages the matter from commencement to disposition; this includes making orders about the way in which the matter should be managed or prepared for hearing, and
  • matters in areas of law requiring expertise in a particular area of jurisdiction are allocated to a judge who is a member of the relevant specialist panel.

Specialist panel arrangements

The Court has specialist panels in areas of general federal law which ensure that matters of a specialist legal nature are allocated to judges with expertise in that particular area of the Court’s jurisdiction.

The following panels support the work of the Court:

  • commercial (including consumer, intellectual property and bankruptcy)
  • migration and administrative law
  • human rights
  • industrial law (fair work)
  • national security
  • admiralty law, and
  • child support.

The panel arrangements equip the Court with the ability to effectively utilise judicial resources in specialist areas of family and general federal law. They are an essential element of continuing judicial education within the Federal Circuit Court.

Report on work in family law

Family law constitutes the largest proportion of the overall workload of the Court, representing 87 per cent of all family law work filed at the federal level including 89 per cent of all parenting applications filed across both courts (excluding divorces and consent order applications).

Table 3.3: Family law applications filed by type, 2020–21

Application

Filed

%

Divorce applications

49,625

55

Interim orders applications

22,112

25

Final orders applications

16,248

18

Other applications

1,388

2

Total

89,373

100

Due to rounding, percentages may not always appear to add up to 100%.

Final orders applications are filed when litigants seek to obtain final orders in relation to children and/or financial matters. Interim applications (or Applications in a Case) seek interim or procedural orders pending the determination of final orders.

Figure 3.3: Family law applications filed by type, 2020-21

55% Divorce orders, 25% Application in a case (interim), 18% Final orders applications and 2% other applications
 

Figure 3.4: Final orders applications, 2016–17 to 2020–21

16,246 final orders filed, 15,613 finalised and 18,824 pending for the 2020-21 period
 

Figure 3.5: Interim orders applications, 2016–17 to 2020–21

22,112 interim orders filed, 21,904 finalised, 10,529 pending for 2020-21
 

The family law workload (excluding divorce) can be broken into three main categories based on the orders sought in the final orders application. In 2020–21, 50.3 per cent of family law applications related specifically to matters concerning children, a further 13.2 per cent involved both children and financial matters, and 36.3 per cent involved discrete financial applications.

Figure 3.6: Issues sought in final orders applications, 2020–21

50.3% children only, 36.3% financial only, 13.2% children and financial, 0.2% other applications
 

Figure 3.7: Divorce applications, 2016–17 to 2020–21

49,625 divorce applications filed, 47,697 finalised, 13,923 pending
 

Divorce

The Federal Circuit Court deals with all divorce applications filed (other than in Western Australia) and the work is largely undertaken by registrars. A divorce application only proceeds to a judge for determination if it is contested. Many applications are made by unrepresented litigants with the assistance and information in the form of online guides that allow them to navigate the procedural requirements.

In addition, in some localities, staff from the Court Network are available to support litigants as it is appreciated that for many litigants a court appearance can be stressful and unfamiliar.

During the year, 49,625 divorce applications were filed in the Court. This compares with 45,886 in 2019–20 (an eight per cent increase).

A significant number of calls to the National Enquiry Centre (NEC) relate to divorce proceedings, in particular providing information to assist eFiling on the Commonwealth Courts Portal (the Portal) and directing litigants to the website to complete the divorce checklist at How do I apply for a divorce?

The dynamic interactive checklist was created to assist litigants when applying for a divorce so there is less chance of errors in applications. The NEC also provides general divorce support in relation to applying for a divorce, service and information about court events, as well as administrative support for Portal users and assisting litigants and lawyers when they register and eFile applications for divorce.

The Court has also developed a fully electronic divorce file which permits the management of divorce applications in electronic format from filing to disposition. These initiatives meet a range of objectives including aligning with federal government strategies for digital administration and records management, and offering litigants and the legal profession streamlined services. The Court still accepts hard copy applications from litigants, lawyers and others who do not have access to technology and converts them to a digital record.

In 2020–21, over 93 per cent of all divorce applications were eFiled. Litigants and practitioners are being encouraged to eFile divorce applications in view of the benefit to litigants. One such benefit is the ability to select from a list of available hearing dates. There are also administrative benefits for registries not only in the reduction of hard copy files and accompanying storage, but also greater flexibility in the management of the divorce workload.

Brochures have been developed to assist those who may not be able to eFile their applications to seek assistance through a community legal centre. Public access computers are available in all registries and have been equipped with access to the Portal so that litigants can upload documents at registry locations. In addition, the website information has been revised to better assist litigants applying for a divorce. New features include interactive steps to assist applicants to better understand the legal requirements.

Even if paper applications are received, registry staff scan and upload the documents on the case management system. This ensures Portal access to all the documents on the divorce file (whether filed electronically or manually at the registry). Since 1 January 2018, divorce orders are no longer posted — they are accessed online via the Commonwealth Courts Portal. NEC staff register and link clients to their file on the Portal via phone, live chat or email (registerme@comcourts.gov.au).

Child support

The Court exercises some limited first instance and appellate child support jurisdiction.The child support review framework has proceeded from a court-based process to one that is now predominantly administrative.

Following the merger of the Social Security Appeals Tribunal, the Administrative Appeals Tribunal (AAT) now hears appeals from most decisions of the Child Support Registrar. Appeals to the Court are accordingly limited to appeals on a question of law from decisions of the AAT.

While the Court shares this review jurisdiction with the Federal Court, most appeals proceed before the Federal Circuit Court and are few in number. This is reflected in the number of child support appeals for the year, which was 30 — four less than were filed in the previous year.

A significant proportion of the enforcement workload of the Court is in relation to applications for enforcement of child support arrears in the Court’s family law jurisdiction. To facilitate this, discrete child support enforcement lists have been set up in the larger registries as an effective means of dealing with this workload.

Unrepresented litigants

The Court monitors the proportion of unrepresented litigants as one measure of the complexity of its caseload in the family law jurisdiction. Unrepresented litigants can have greater difficulty navigating the court system, and can also require greater assistance from the Court to follow the Federal Circuit Court Rules 2001 and relevant procedures. The Court collects data about the percentage of matters where a party is represented at some point in the proceedings, which is summarised in Figure 3.8 on page 27. It is important to note that, this graph does not describe the length of time for which a party retained legal representation. A litigant who was unrepresented from filing until the trial but engages legal representation at the trial stage is recorded the same as a litigant who had legal representation for the entirety of the proceeding.

In 2020–21, the percentage of final order applications finalised where both parties have had legal representation at some point during the proceedings increased, and the percentage of final order applications finalised where both parties were unrepresented throughout the entire proceedings decreased. However, at any given time, the number of matters where both parties have legal representation is likely to be much lower than 78 per cent. The increase may also relate to the operation of the Commonwealth Family Violence and Cross Examination Scheme. From 10 September 2019, parties who are not permitted to personally cross examine another party under section 102NA of the Family Law Act 1975 may retain private legal representation or apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme to obtain legal representation for a final hearing. The Scheme is not means or merits tested but applicants may be required to contribute to the cost of their representation. Applications are made through the relevant state or territory Legal Aid Commission.

Figure 3.8: Representation of litigants in final order applications at some stage in the proceedings, 2016–17 to 2020–21

78% in final order applications had both parties represented, 20% one party represented, 3% neither party represented in 2020-21
 

Child Dispute Services

In the 2020–21 financial year, Child Dispute Services (CDS) continued to assist families and the Courts by conducting preliminary and comprehensive family assessments, and providing social science expertise in the context of registrar led dispute resolution conferences.  

As the COVID-19 pandemic continued to have serious impacts on Australia, CDS became increasingly agile in adjusting its service delivery model so that it could continue to provide service while also keeping families and staff safe. As family consultants continued to hone their skills in conducting assessments and dispute resolution conferences by video or phone, it became increasingly apparent that the use of these technologies had value in keeping people safe, and increasing access to justice, more broadly than just in a pandemic environment. These lessons learned during COVID-19 pandemic will inform CDS’ practice going forward.

Ongoing professional development remains a high priority for CDS and in 2021, all CDS staff completed a comprehensive training package delivered by the Safe & Together Institute, a renowned international training organisation that specialises in the impact of family violence on children. Going forward, in addition to the internal training on family violence, this Safe & Together training will be undertaken by new staff when they join CDS and will be made available to those practitioners that are appointed to the role of Family Consultant under Regulation 7 of the Family Law Regulations 1984. CDS also continues to run its monthly professional development seminar program for family consultants. Across the 2020–21 year, seminars were presented on topics such as:

  • coercive control
  • inclusion, diversity and social change
  • experiences of the stolen generation, and
  • assessment of reflective functioning.

Circuit program

The Federal Circuit Court is committed to providing services to rural and regional areas of Australia. Judges of the Court currently sit in rural and regional locations to assist in meeting this commitment. These sittings are known as circuits. It is estimated that the work undertaken in the rural and regional locations equates to approximately 20 per cent of the Court’s family law workload.

In 2020–21, the Court sat in nearly 30 rural and regional locations as part of its extensive circuit program. Details of the circuit locations are included at page 18.

When on circuit, the Court sits in leased premises and state and territory court facilities. While the Court appreciates the hospitality of state and territory courts in enabling the Court to service regional and rural litigants, reliance on state facilities poses a number of challenges for the Court, including availability of courtrooms, hours of access, access to technology, court recording and resources such as telephone and video link facilities, and security arrangements. This was particularly the case during 2020–21 when the COVID-19 pandemic limited access to state court facilities.

The Court is aware of these challenges, not only for litigants and legal practitioners, but also staff, and continues to look for opportunities to improve facilities and resources, and thereby, the efficiency and value of circuits.

Judges of the Court travelled to circuit locations on 61 occasions (excluding Dandenong and Wollongong) throughout 2020–21. Due to the impact of COVID-19 and travel restrictions, a further 81 additional circuits were conducted electronically through the use of Microsoft Teams and telephone, rather than judges travelling to those circuit locations. The length of these circuits varied from single days to whole weeks depending on the demands of the circuit and the distance to parent registries.

In addition to attending circuit locations and conducting scheduled circuits electronically, judges conduct some procedural and urgent hearings by videoconference and telephone in between circuits as required. The technology provides litigants with greater access to the Court and assists in maximising the value of time spent at the circuit locations. As stated above, due to COVID-19, the Court has had a greater reliance on electronic hearings to conduct circuits. Feedback from the profession and litigants has been positive, particularly in relation to the time and cost savings for litigants in rural and remote locations who do not have to travel to circuit locations.

In addition to the above, there was a significant judicial presence in the Dandenong and Wollongong registries where there is a near full-time judicial presence.

eFiling also provides litigants and legal practitioners with greater access to the Court by enabling them to file documents from rural and regional locations as opposed to attending registry locations or using standard post.

The Court has experienced an increase in the workload pressure on numerous circuits with increasing volumes of matters as well as increasing complexity of matters. The Court has a policy of not increasing circuit frequency or durations without proper consultation, including having regard to competing workload demands across the country, in both registry and circuit locations, as well the budgetary pressures faced by the Court.

The Court continues to look at ways to improve the efficiency of circuits and access to justice for litigants and legal practitioners.

Initiatives in family law

Lighthouse Project

Introduction

In late 2019, the Courts received funding for a risk screening and triage pilot, known as the Lighthouse Project, to operate in the Adelaide, Brisbane and Parramatta Federal Circuit Court registries. On 3 December 2020, Chief Justice Alstergren officially launched the Lighthouse Project at the National STOP Domestic Violence Conference. The project pilot then formally commenced in the Adelaide registry on 7 December 2020, and in the Brisbane and Parramatta registries on 11 January 2021.

The Lighthouse Project plays a central role in the Court’s response to cases involving allegations of family violence and assists matters to be allocated to a case management pathway that is the most appropriate, with a view to improving the safety of litigants and children who may have experienced family violence. The procedures and eligibility criteria for supporting the Lighthouse Project fall under Practice Direction 3 of 2020 Lighthouse Project and Evatt List.

The project responds to multiple recommendations for the introduction of improved risk screening to improve family safety including:

  • the Australian Law Reform Commission’s 2019 report Family Law for the Future – An Inquiry into the Family Law System
  • the House of Representatives Standing Committee on Social Policy and Legal Affairs’ 2017 report A better family law system to support and protect those affected by family violence, and
  • Women’s Legal Services Australia’s Safety
    First in Family Law Plan
    .

The Lighthouse Project is world-leading in its approach, and is the first time such a process has been undertaken by a court on this scale. To date, the Court has received international interest in the project including from Danish, American and Singaporean family law bodies. The Lighthouse Project has also received recognition from the Queensland Government through inclusion on its inaugural Domestic and Family Violence Prevention Honour Roll.1 The Joint Select Committee on Australia’s Family Law System recommended that the pilot be expanded in its Second Interim Report on Improvements in family law proceedings.

Early findings from the external interim evaluation indicate that triaging litigants to different response pathways represents a significant evolution to the way the Court approaches risk-informed practice and how the court can best target its resources. It is already demonstrating how the court can differentiate its case management based on the needs and risk of litigants. Furthermore, early reports are finding that the Evatt List is a fundamental and welcome change to how the Court manages high-risk cases.

1 The Honour Roll can be found at https://www.justice.qld.gov.au/about-us/services/women-violence-prevention/violence-prevention/not-now-not-ever-together/dfv-prevention-honour-roll.

Overview

In essence, the Lighthouse Project involves three key features:

  • A specialist risk screen and web based application designed for the family courts.
  • Safety planning and service referral.
  • Differentiated case management based on risk level, with the Evatt List specifically designed for the highest risk cases.

The Lighthouse Project is critical as the completion of the risk screen allows for proper risk assessment, and therefore risk management. Many individuals underestimate their level of risk, and do not have safety planning in place, which is important given that a person’s risk profile can escalate at separation and upon commencing proceedings.

External stakeholder project consultation and communications

In the lead up to, and following the launch of the pilot, 51 formal presentations were delivered to external stakeholders, coupled with targeted consultation sessions. These presentations focused on an overview of the project, information regarding the Family DOORS Triage process, court management pathways and the Evatt List. These presentations also informed the development of the project, including the extensive guides and information on the website, and provided a productive and positive forum for consultation and feedback from external organisations including National Legal Aid, Law Societies, Bar Associations, Women’s Legal Services and men’s groups, state departments and academics.

Since commencement, the Lighthouse Project has scheduled regular stakeholder meetings with representatives of law societies, family law networks, state department representatives, legal aid commissions, national information sharing representatives and family/domestic violence representatives for the duration of the pilot.

In 2021, seven meetings were held in March and June 2021. The stakeholder meetings are an essential forum to provide updates on the project and assist in facilitating communication and feedback to and from stakeholders. Since February 2021, the project has also distributed a monthly newsletter, which provides an opportunity to share tips, data and insights, case studies and
key information.

Risk screening

In response to the Court’s commitment to the protection of vulnerable parties within the family law system, the Family DOORS Triage application was developed in conjunction with Relationships Australia South Australia and Professor Jennifer McIntosh. The Family DOORS Triage is an online risk screening questionnaire designed to consider safety risks that frequently arise in family law proceedings. These risks include family violence, mental health issues, high conflict and drug and alcohol misuse. A highly specialised team, including family consultants acting in the role of Family Counsellor, review the risks identified through the screen and triage matters into one of three case management pathways, high, medium or low risk. This process is confidential in accordance with Part IIA Family Law Act 1975.

As at 30 June 2021, the project had sent 1,817 risk screens to individual litigants across all three pilot sites representing 1,651 matters.

From this, the project has seen a very effective uptake in risk screen completion by litigants, meaning that almost seven out of 10 eligible filings have at least one party complete the risk screen.

Data shows that 43 per cent of risk screens are completed by litigants within 24 hours of being sent an invitation to screen, and 49.4 per cent of risk screens are completed two to five days after invitation. This is a positive outcome, indicating litigant’s responsiveness to assisting in self-identifying risk.

Nationally, of the risk screens completed by individuals:

  • 62 per cent are classified High Risk
  • 18 per cent are classified Medium Risk
  • 20 per cent are classified Low Risk.

Figure 3.9: All registries, risk rating summary for completed risk screens

62% high risk, 18% medium risk and 20% low risk for completed risk screens
 

High Risk matters

Litigants who have screened as High Risk are invited to attend a triage interview with a Family Counsellor. In triage interviews, the Family Counsellors explore the litigant's risk in detail and provide a brief risk assessment in relation to the litigant’s risk, situation and experiences. Family Counsellors identify the supports a litigant has in place or what supports may be beneficial.

As at 30 June 2021:

  • Family Counsellors conducted 598 triage interviews.
  • Family Counsellors conducted 200 case file reviews.
  • 56 per cent of litigants had one or more referrals made to support services by a Family Counsellor.

Through the triage process, the Family Counsellors collect data around the risk factors of litigants. Based on the triage completed by the Family Counsellors, 63 per cent of parties are assessed as having experienced family violence, and 50 per cent of litigants are recorded as having four or more risk factors present.

Early feedback from litigants indicate that the interview process has been a helpful and empowering experience. Litigants have reported positivity around the early responsiveness of the Court in hearing their views and experiences.

The Evatt List

The Evatt List is specially designed list that provides families that have been identified as the most vulnerable and at-risk with intensive support that focuses on safety and wellbeing. It is a case management process that responds to the individual needs of a family to minimise the risk of further trauma and harm. In order to be referred to the Evatt List, at least one of the parties to the proceedings must complete an online risk screen questionnaire – Family DOORS Triage – and return a High Risk Family DOORS Triage assessment.

In accordance with Practice Direction No 3 of 2020, when determining whether a case in the Lighthouse Project is appropriate for the Evatt List, the Evatt List Registrar will consider whether the case contains high risk features, including allegations of:

  • serious abuse or risk of serious abuse of a child of the proceedings whether it be physical, psychological or neglect
  • serious family violence or risk of serious family violence by a party to the proceedings whether it be physical, emotional/psychological or financial
  • exposure or risk of exposure to serious family violence by a party or a child
  • serious drug, alcohol or substance misuse which has caused harm or poses a risk of harm to a child or party
  • a party’s mental health issues which has caused harm or poses a serious risk of harm to themselves or others, including a child
  • a party who poses a potential risk of self-harm
  • recent threats or attempts to abduct a child, or
  • recent threats to harm a child or another person relevant to the proceedings, such as a new partner.

Benefits of the Evatt List include:

  • management of the case by a specialist team
  • case management starts before the first Court event to prevent systems abuse and reduce the number of court events, and
  • early information gathering is undertaken to ensure that the senior registrar making any interim decision has a more complete understanding of case.

Through the introduction of the Evatt List, court staff have developed a greater awareness and understanding of litigant risk.

A key element leading up to implementation was specific training delivered to all judges, senior registrars, registrars and legal and administrative support staff surrounding trauma awareness. Two sessions were delivered which focused on building trauma awareness and managing wellbeing when working with complex trauma. This is in addition to the court-wide family violence training initiatives including the Registrar Family Violence modules and Safe & Together Training led by David Mandel.

Early information gathering and exposure to high risk matters has provided court staff with additional opportunities to implement their learnings from the family violence training. Feedback indicated that registrars had applied the learnings from Evatt List matters to matters outside of the pilot, taking a more proactive approach to managing litigant risk.

Evatt List – All registry overview

As at 30 June 2021, there were 235 matters in the Evatt List across all three pilot sites. This comprises 67 matters in Adelaide, 91 matters in Brisbane and 77 matters in Parramatta. One of the aspects of the Evatt List focuses on early intervention and tailored case management. Evatt List trials are due to commence from November 2021.

At this early stage, 93 per cent of Evatt List matters have their first court event, which requires an appearance by parties, within 12 weeks of filing. Since commencement, senior registrars have conducted 137 interim hearings. The first court event is generally an interim hearing, and it is reported, through the interim evaluation, to be beneficial with many matters resolving. Senior registrars are noticing a trend in Evatt List matters settling on an interim, if not final basis at the first court event. It is anticipated that there will be further matters settled as the Evatt List case management progresses.

The potential for a fast-tracked Court process will hopefully alleviate stress for litigants and children. The early external interim evaluation results report show legal representatives reporting that the faster processing enabled by the Evatt List will mean that their clients are exposed to less harm during the course of their matter.

Figure 3.10: Evatt List case management

STEP 1

Within 3–5 days of screen

STEP 2

Within 8–12 weeks

STEP 3

Within 3–6 months

STEP 4

Within 6–9 months

STEP 5

Within 9–12 months

BEFORE FIRST COURT EVENT

  • Registrar reviews and confirms case for Evatt List.
  • Early information gathering from police, child welfare, other courts etc.
  • Orders report from a Family Consultant.

FIRST COURT EVENT

  • The Judge or Senior Registrar will address:
  • Any urgent issues.
  • Interim parenting arrangements.
  • What evidence and information is needed for trial.

SECOND COURT EVENT

A plan will be made for the trial and directions made to get the case ready. This may include a specialised report being ordered by the Court. Family dispute resolution might be considered if it is safe to do so.

COMPLIANCE CHECK

  • Make sure all the evidence is filed and available to court in readiness of trial.
  • If the case is ready it will be referred to a trial.
  • If it is not ready it will be referred to the Judge.

TRIAL BEFORE THE JUDGE

Table 3.4: Evatt List matters, nationally, 30 June 2021

Number of Evatt List matters nationally

Domestic/Family Violence Protection Orders

Independent Children’s Lawyer appointments

S69ZW Orders

State court file requests

Co-located official requests

235

129 (55%)

214 (91%)

171 (73%)

43 (18%)

184 (78%)

The current data shows that out of the 235 matters currently on the Evatt List, 55 per cent have either Domestic or Family Violence Protection Orders in place; 91 per cent have had an Independent Children’s Lawyer appointed; 18 per cent have had requests made for state court files; and over 70 per cent had requests made for information from co-located child welfare agencies or police placed in conjunction with the co-located official pilot running until June 2022.

These figures are important for understanding the way in which the pilot has sought to bring together all elements of the family law system and information from state-based agencies to best inform the Court at the earliest stages and assist in ensuring the most appropriate and safe orders are put in place.

Family Dispute Resolution

For cases where parties have screened and their case has been identified as suitable for Family Dispute Resolution, the early data indicates that they have settled on a final basis within three months of filing and do not require a court date.

As at 30 June 2021, over 182 matters were identified as potentially suitable for Family Dispute Resolution through the Lighthouse risk screening process.

Data is starting to show that there are opportunities for Family Dispute Resolution to occur before and after the first court date. Often in occasions where contentious issues have been dealt with at the first court event, this can allow clients to be more open to resolution through Family Dispute Resolution.

Next steps

The Lighthouse Project is currently undergoing an independent evaluation. The formal evaluation commenced in May 2021 and involved input from Court staff, the legal profession and litigants. An interim report will provide the Court with insights about the project’s progress and will assist in informing future iterations of the project moving forward.

The Lighthouse Project is continually adapting, learning and streamlining processes. It has been extremely satisfying to receive positive feedback from litigants regarding their experience of the project to date. The Court is currently considering how the project could be expanded nationally to other registries and to include matter types other than those seeking parenting orders only.

COVID-19 List

The Family Court and the Federal Circuit Court (the Courts) each established a court list dedicated to dealing exclusively with urgent family law disputes that have arisen as a result of the COVID-19 pandemic. The Lists were established in response to an increase in the number of urgent applications filed in the Courts from the beginning of the COVID-19 pandemic. The Lists commenced on 29 April 2020 to deal exclusively with urgent family law disputes that arose as a direct result of the COVID-19 pandemic.

On 20 January 2021, the List expanded its operation to provide for a broader range of circumstances to be included in the criteria for the List. The List was expanded to deal with urgent or priority family law applications which were filed as a direct result of, or if indirect, had a significant connection to, COVID-19. The continuation and expansion of the COVID-19 List provides families that are experiencing family law disputes that relate to the pandemic with an avenue to have that specific issue heard and resolved quickly.

The operation of the COVID-19 Lists is set out in Joint Practice Direction 1 of 2021.

The COVID-19 Lists are administered by the National COVID-19 List Registrars. Applications that meet the expanded COVID-19 criteria are given a first return date before a national registrar, senior registrar or a judge within three business days of being considered by the National Registrar if assessed as urgent, or otherwise within seven business days if priority but not urgent. Government funding has enabled the continuation of this initiative. The funding provides for senior registrar resources dedicated to hear interim contested issues in a more-timely manner.

The COVID-19 Lists operate electronically, meaning that the application may be heard by a judge, senior registrar or registrar from any registry. The COVID-19 List Judge, Senior Registrar or Registrar will hear the discrete COVID-19 application, or put interim arrangements in place to deal with the circumstances of urgency. Once that issue is dealt with, the remainder of the matter will be case managed by the docket judge or a registrar as appropriate.

The COVID-19 list has been particularly beneficial to litigants affected by COVID-19 in circumstances where:

  • there has been an increase in risk of family violence
  • there are concerns in relation to existing or proposed parenting orders
  • there is a dispute regarding vaccinations
    against COVID-19
  • medical issues have arisen
  • there are concerns in relation to travel arrangements or border restrictions; there are concerns in relation to supervised contact, or
  • there are urgent or priority financial and maintenance issues.

From commencement of the Lists on 29 April 2020 to 30 June 2021, 526 applications for the COVID-19 List were received. This includes applications for both the Family Court and the Federal Circuit Court. All applications accepted into the Lists were given a first court date within three to seven business days.

Priority Property Pools under $500,000 (PPP500) pilot

The Federal Government announced funding for a small claims pilot through the Commonwealth Government’s Women’s Economic Security package which is designed to improve the responsiveness of the family courts to family violence. The pilot will be independently evaluated by the Australian Institute of Family Studies. Adelaide, Brisbane, Melbourne and Parramatta are the nominated pilot locations.

The aim of the PPP500 pilot is to provide a simplified way of resolving property disputes which will minimise risk and legal costs, and best preserve the parties’ assets. The purpose is to achieve a just, efficient and timely resolution of PPP500 cases, at a cost to the parties that is reasonable and proportionate in the circumstances of the case.

The purpose will be achieved by identifying and narrowing the issues in dispute and assisting the parties to undertake:

  • Alternative Dispute Resolution (ADR) at the earliest opportunity, and
  • where ADR is unsuccessful, providing an opportunity for a less adversarial trial or a hearing on the papers.

A PPP500 case is an application for alteration of property interests pursuant to section 79 of the Family Law Act 1975 or section 90SM of the Family Law Act 1975 (as may apply) filed after 1 March 2020 in the Brisbane, Parramatta, Adelaide or Melbourne Registries, where the following applies:

  • the value of the net property of the parties (including superannuation interests) is, or is likely to be, $500,000 or less, and
  • there are no entities (such as a family trust, company, or self-managed superannuation fund) owned or in the effective control of either party that might require valuation or expert investigation, and
  • neither party in the proceedings seeks orders:
  • for parenting or any other order pursuant to Part VII of the Family Law Act 1975
  • pursuant to the Child Support (Assessment) Act 1989 (Cth) and/or the Child Support (Registration and Collection) Act 1988 (Cth), or
  • by way of an enforcement of an order or obligation whether a parenting or financial obligation.

In an effort to minimise costs, parties commencing a PPP500 case are only required to file an Initiating Application and a PPP500 Financial Summary in order to commence proceedings. There are also shortened timeframes and an emphasis on reducing the number of court events to ensure a quick and inexpensive resolution.

The case management of a PPP500 case has two components:

  • Registrar-led resolution: where a registrar can assist separating couples to reach agreement, in the shortest possible time, and
  • short-form judge managed PPP500 lists (limb two): applying procedurally simpler processes to the determination phase.

The PPP500 funded pilot has the following important features:

  • intensive monitoring of compliance with orders for production of documents and valuations
  • reduced delays in getting financial cases through the alternative dispute resolution process
  • expanded opportunities for parties to discuss and take ownership of their dispute resolution planning at any early stage
  • opportunities for settlement at an early stage
  • improved dispute resolution outcomes through close involvement in the preparation and case management of the case before ADR takes place
  • where possible, unnecessary court appearances are eliminated and the number of court appearances reduced, and
  • referral to appropriate services is made proactively.

Practice Direction 2 of 2020 – Case Management – Family Law (Priority Property Pools under $500,000) Financial Cases has been issued and is available on the Court’s website.

A Guide for Practitioners and Parties in Family Law Priority Property Pools under $500,000 cases is available on the Court’s website.

PPP500 commenced in relation to applications filed on or after 1 March 2020 in the Adelaide, Brisbane, Melbourne and Parramatta registries. As at 30 June 2021, 75 per cent of matters in PPP500 resolved in the registrar-led phase and did not require any judicial intervention. On average, matters that resolved without judicial intervention resolved with only 2.45 court events (including any dispute resolution event conducted by a registrar), meaning that most matters were finalised with only one court hearing and a dispute resolution event.

Of the total number of matters in the PPP500 List, only 5.6 per cent were referred to a judge because they did not resolve (others reasons for referral include, for example, parenting issues being raised).

Figure 3.11: PPP500 Results as at 30 June 2021

PPP500 results - 75% finalised without judicial involvement, 17% referred to a Judge - not resolved, 8% referred to a Judge - other reasons
 

Discrete Property List

The Discrete Property List is a registrar-run case management list for property-only applications filed in the Federal Circuit Court.

The Discrete Property List commenced as a pilot in Newcastle (commencing 12 February 2018 as the Financial Applications Pilot). As a result of the positive outcomes from the pilot, the Discrete Property List was rolled out to the Brisbane, Sydney, Parramatta, Melbourne and Adelaide registries throughout 2019–20. The Discrete Property List was further rolled out to the Canberra and Darwin registries in 2020–21.

The Discrete Property List aims to:

  • more closely monitor compliance with orders for production of documents and valuations
  • reduce delays in getting financial cases through the dispute resolution process
  • expand opportunities for parties to discuss and take ownership of their own dispute resolution planning at any early stage, and
  • improve dispute resolution outcomes through close involvement in preparation and case management of the case before a dispute resolution process takes place.
  • matters in the Discrete Property List are case managed by registrars up until an unsuccessful alternative dispute resolution event or where earlier transfer to the docketed judge is required such as:
  • parenting issues raised
  • jurisdictional issues raised
  • interim issues require judicial determination, or
  • to be listed for possible undefended hearing.

A Guide for practitioners and parties in FCC family law financial matters listed before a Registrar (The Discrete Property List) is available on the Court’s website.

As at 30 June 2021, 65 per cent of matters in the Discrete Property Lists resolved without judicial involvement. On average, matters that resolved without judicial intervention resolved with only 2.4 court events (including any dispute resolution event conducted by a registrar).

The Discrete Property List is an example of the benefits of early registrar intervention and case management, through which registrars can provide support to judges by resolving less complex matters and freeing up judicial time to focus on more complex applications and final hearings.

Registrar Assistance Pilot – Melbourne

To address the need for additional judicial support during the COVID-19 pandemic, and having regard to judicial and registrar resources, a Registrar Assistance Pilot was established in the Melbourne registry and commenced in June 2020 and continued throughout the 2020–21 period.

The pilot facilitates support for judges provided by registrars in key categories including in duty lists before the event, or during the event; alternative dispute resolution; and other suitable court work. The underpinning principle behind this list is to provide support for judges to create capacity of judges to be able to spend more time addressing matters requiring judicial determination.

The Registrar Assistance Pilot operates electronically and on a national basis with nominated registrars from across the country providing the assistance.

Due to the positive feedback received, the pilot was expanded during the reporting period to include judges from other registries in consultation with Case Management Judges.

National Arbitration List

Section 13E of the Family Law Act 1975 provides for the Court to refer Part VIII or Part VIIIAB proceedings or aspects of those proceedings to arbitration. A reference to arbitration may only be made with the consent of all parties.

To support the development and promotion of arbitration for property matters in family law, in June 2020, the Family Court and the Federal Circuit Court established a specialist list – the National Arbitration List. The Honourable Justice Wilson is the judge-in-charge of the National Arbitration List across both courts.

Since June 2020, 165 cases have been transferred to the National Arbitration List. A total of 94 cases have been finalised either by registration of an arbitral award or by settlement between the parties at the time of or prior to the arbitration. At 30 June 2021, there were 58 active proceedings in the National Arbitration List.

It is the practice of the National Arbitration List for all proceedings to be finalised by the publication of an arbitral award and by the registration of that award within four to six months of entry into the list. The statistics show that the list is operating well ahead of this estimate.

Upon entry of a proceeding in the National Arbitration List, the case is generally listed for a first return before the Honourable Justice Wilson within a week. On the first return, his Honour expects the parties to have selected an arbitrator from the AIFLAM list of accredited arbitrators and to have agreed on a date for the preliminary conference and arbitration of the proceeding.

There have been no appeals from any cases in the list. There has only been one application to set aside an arbitral award.

Further information on the National Arbitration List can be found in the Information Notice The National Arbitration List available on the Court’s website.

Co-location of state and territory child welfare authorities and police

In early 2020, state and territory child welfare officials and police were co-located in the busiest family law registries of the Family Court and Federal Circuit Court as part of a co-location initiative announced by the Federal Government. The co-location initiative is intended to improve the sharing of information between the state and territory police and child welfare authorities and the family courts, and ensure that this information is available to judges and registrars at the earliest opportunity. It is anticipated that the co-location initiative will lead to a more cohesive response to identifying and managing family safety and child protection issues across the family law, family violence and child welfare systems.

Greater information sharing between agencies can provide a clearer picture of the nature, frequency and severity of violence or other risks to children occurring within a family and trigger earlier intervention or a more robust system response. It is anticipated that improved information sharing can improve the Courts’ ability to assess risk, triage and prioritise cases, and make orders which protect children and victims of family violence to the greatest extent possible.

The co-location of state and territory child welfare officials in the Courts’ family law registries follows the co-location of an officer from the Department of Health and Human Services in Victoria, which has operated successfully and proven a valuable resource for judges and registrars. The process has provided additional benefits including:

  • early information for the triage of urgent cases
  • reduction in the number of subpoenas and orders pursuant to section 91B of the Family
    Law Act 1975
    , and
  • information flow between the Courts and the child welfare authority has improved the understanding within each entity of the other’s role.

Child welfare officials are co-located in most registries save for the Northern Territory. Police officials are co-located in most registries save for the Northern Territory and Victoria.

Information sought from co-located police officers may include information in relation to current or previous family violence orders, firearms licences, criminal convictions or pending criminal proceedings.

Harmonisation of the Family Law Rules 2004 and the Federal Circuit Court Rules 2001

The Courts are progressing the harmonisation of the Family Law Rules and the Federal Circuit Court Rules in so far as they apply in the family law jurisdiction of the Court, so as to create a single, harmonised set of rules. The Courts’ aim is to promote consistency of practice in the family law jurisdiction, and ensure as far as possible that there is a single set of rules that are clear and accessible for all users of the family law system. This is a project that has required the focus and dedication of Judges and staff of both courts, overseen by an independent Chair, firstly the Honourable Dr Chris Jessup QC and then the Honourable Ray Finkelstein AO QC, and ably assisted by two barristers, Emma Poole and Christopher Lum.

The working group’s efforts have produced a complete draft of the harmonised rules, which has been distributed to all judges, registrars and staff for several rounds of consultation, and distributed externally to more than 55 professional bodies and other stakeholders for external consultation between November 2020 and February 2021.

Compiling a draft of the harmonised rules is a significant achievement which had not been able to be accomplished in the past 20 years, and will benefit practitioners, litigants and the Courts in providing clarity and consistency about the Courts’ processes and procedures when exercising family law jurisdiction.

The harmonised family law rules are intended to be in force as and from 1 September 2021 upon the commencement of the Federal Circuit and Family Court of Australia.

Registrar delegations

The Federal Circuit Court Amendment (Powers Delegated to Registrars) Rules 2020 commenced on 26 September 2020. This provided for an expansion of the rules that delegate judicial power to registrars in the family law jurisdiction. This allows registrars in the Federal Circuit Court to provide greater support to judges by assisting with case management work and free up judicial time so that judges can focus on determining the most complex matters and hearing trials. This includes delegations to senior registrars who have been able to undertake interim hearings.

Notice of Child Abuse, Family Violence or Risk

From 31 October 2020, the former Notice of Risk used by the Court was replaced by the Notice of Child Abuse, Family Violence or Risk, a harmonised form also introduced in the Family Court.

While ensuring the Courts’ mandatory obligation to report allegations of child abuse, family violence or risks of child abuse or family violence is being fulfilled pursuant to sections 67Z – 67ZBB of the Family Law Act 1975, this new form also assists in ensuring that the Court is made aware of risks alleged to be present in each case as early as possible so that families and their children receive appropriate and targeted intervention in the family law system as far as is possible.

This aligns with the Court’s focus on early risk identification to prioritise the safety of litigants and ensure informed decisions can be made in the best interests of the child.

The notice also allows for data capture on 10 key questions relating to the presence of certain risk factors in parenting proceedings across both courts, including:

  • child abuse/risk of child abuse
  • family violence experienced by a party or a child, or a risk of family violence being experienced by a party or a child
  • drug, alcohol or substance misuse by a parent/party that has caused harm to a child or poses a risk of harm
  • mental health issues of a party/parent that have caused harm to a child or pose a risk of harm
  • risk of abduction of a child, and
  • threats of harm to a party or a child.

From 1 November 2020 to 30 June 2021, 12,420 notices were filed in the Court. Data from the Notice indicates that:

  • 55 per cent of parties allege a child has been abused or is at risk of abuse
  • 64 per cent of parties allege that they have experienced family violence
  • 57 per cent of parties allege a child has experienced family violence
  • 39 per cent of parties allege that drug, alcohol or substance abuse has caused harm/poses a risk of harm to a child, and
  • 40 per cent of parties allege that mental health issues of a parent/party have caused harm/pose a risk of harm to a child.
  • 79% per cent of parties allege that there is at least one risk factor present in their case
  • 67% per cent of parties allege that there is at least two risk factors present in their case
  • 58% per cent of parties allege that there is at least three risk factors present in their case
  • 44% per cent of parties allege that there is at least four risk factors present in their case

This is the first time that the Court has been able to record extensive data about individual risk factors and their prevalence. This data will be instrumental in informing the processes the Court develops to manage and respond to risk for vulnerable parties and children.

Report on migration

Migration law is a specialist area of Administrative Law in which the Court plays a supervisory role over decisions made by administrative decision makers under powers granted to them by legislation. The Court has jurisdiction to conduct judicial review of decisions made under the Migration Act 1958, which involves the issue of Constitutional writs where it is found that a decision was affected by jurisdictional error. In relation to protection visas, decisions are made and interpreted in the context of international conventions, such as the Convention Relating to the Status of Refugees (also known as the 1951 Refugees Convention), Convention Against Torture, the International Covenant on Civil and Political Rights, and the Convention on the Rights of the Child. The primary sources of cases are decisions of the Immigration Assessment Authority in relation to protection visa applications by people who arrived in Australia by sea without a visa; and decisions of the Administrative Appeals Tribunal (Migration and Refugee Division) in relation to other visa refusals and cancellations.

Over the last six years, the Court’s migration caseload has grown to now represent the second largest area of the Court’s jurisdiction (after family law). In 2020–21, migration matters represented 67 per cent of the Court’s filings in the general federal law jurisdiction. The Court received 5,236 migration filings and finalised 3,046 migration applications. The nature of migration work leads to a larger number of written judgments than any other area of the Court’s work (migration judgments represent approximately 29 per cent of the Court’s written judgments and approximately 44 per cent of the Court’s judgments published on AustLII in 2020–21). In 2020–21, 43 per cent of migration applications finalised were disposed of within 12 months.

Figure 3.12 shows a notable decrease (20 per cent) in the number of migration applications filed during the reporting period. This is likely attributable to the impact of the COVID-19 pandemic. Nonetheless, the current caseload places significant pressure on judicial resources, particularly given a number of judges who heard matters in the migration jurisdiction retired during the financial year. However clearance rates remained relatively steady (58 per cent in 2020–21 compared to 59 per cent in 2019–20) despite the significant changes to listing arrangements due to COVID-19 measures.

Figure 3.12: Migration applications filed and finalised, 2016–17 to 2020–21

5,236 migration applications filed and 3,046 finalised for 2020-21
 

As at 30 June 2021, 46 per cent of the Central Migration Docket (CMD) related to applicants for protection visas. Of the 54 per cent of non-protection visa related matters, the most significant portion related to student visa refusals and cancellations (50 per cent of the non-protection caseload), followed by partner visa refusals and cancellations (20 per cent) and skilled visa refusals and cancellations (19 per cent). The remainder consists of applications relating to family visas, business visas and short stay visas such as visitor, medical treatment bridging visas and training visas.

Table 3.5 shows the pending migration caseload as at 30 June 2021 by case type.

Table 3.5: Visa categories comprising pending Federal Circuit Court migration caseload, 30 June 2021

Visa type

% of total pending
migration caseload

Bridging

0.2

Business

0.3

Family

0.4

NZ – subclass 444 (Special Category)

0.1

Partner

10.5

Residence NEC

0.1

Humanitarian NEC

0.0

AAT – protection

24.1

IAA – protection

20.2

Other – protection

1.2

Return Resident

0.2

Skilled

9.7

Student

27.2

Temporary activity

0.3

Visitor/medical transfer

1.2

Other non-protection

3.2

TOTAL

100.0

Initiatives in migration

Migration case management

The Court has implemented a CMD to facilitate central case management of matters prior to allocation to a judge’s docket. This assisted the Court during the reporting period with the utilisation of hearings by remote access technology when access to court buildings was limited due to the COVID-19 pandemic. It has also allowed the Court to put measures in place to ensure judicial resources can address higher filings in particular registries. The CMD has also enabled the Court to identify cases requiring expedition and case cohorts so as to manage those identified cases appropriately on a national basis.

The CMD has reduced the use of judicial resources dedicated to interlocutory and case management processes, where that work can be undertaken by a registrar. Cases are assigned to judges when ready to be judicially determined. Listings are based on judge availability, utilising judicial capacity nationally. Although the Court is able to utilise the assistance of registrars at pre-hearing stage, the nature of the jurisdiction is such that most applications require the allocation of judicial hearing and writing time. The Court is mindful of the impact delays may have on matters proceeding expeditiously where there are substantive issues of law to be resolved.

The Court has continued to explore ways in which to facilitate the timely disposition of the migration workload. Feedback received from stakeholders through consultation has highlighted the need for provision of adequate judicial and other resources as being essential to the timely resolution of the migration caseload. In addition, the Court is working towards greater consistency for streamlining and standardising procedures.

In January 2021, two additional Judicial Registrars were appointed to the Court dedicated to supporting the migration workload.

Access to justice

Migration work presents additional demands on the Court and its administration that do not arise in other areas of the Court’s jurisdiction. The Court provides interpreters to unrepresented litigants who require them. Interpreters are provided for over 70 different languages, with the highest need for Tamil, Malay, Mandarin, Punjabi and Farsi (Persian). Applicants are nationals of more than 90 different countries, with a significant number being nationals of India, Malaysia and Sri Lanka.

Because 86 per cent of litigants in migration matters are unrepresented, including those seeking review of protection visa decisions, there is a greater need for pro bono representation or other forms of legal assistance, especially where legal aid is not available to protection visa applicants who are in migration detention. The Court has found it essential to set up a pro bono scheme (similar to that which operates in the Federal Court). The Court is grateful for the assistance and support from pro bono providers and practitioners, as they improve access to justice for the litigants and facilitate the fair and efficient conduct of the migration matters. The Court continues to liaise with local legal aid agencies and other legal services regarding the further expansion of these valuable schemes.

Report on general federal law

Table 3.6: General federal law applications filed by type, 2020–21

General federal law

Total

% of total

Administrative

51

2

Admiralty

6

0

Bankruptcy

902

36

Consumer

127

5

Fair work

1,352

53

Human rights

75

3

Intellectual property

30

1

Total

2,543

100

Due to rounding, percentages may not always appear to add up to 100%.

In 2020–21, 77 per cent of general federal law applications were disposed of within 12 months.

Administrative

The Court has original jurisdiction under the Administrative Decisions (Judicial Review) Act 1977.

The Court’s AAT review jurisdiction is generally confined to matters remitted from the Federal Court and excludes those appeals from decisions of the AAT constituted by a presidential member. However, in respect of judicial review of migration and child support first review, the jurisdiction of the Court is not subject to remittal.

As noted in previous annual reports, the Court considers there is scope for expanding the jurisdiction of the Court to encompass some review rights under section 39B of the Judiciary Act 1903 (Cth).

Excluding those judicial review applications filed in respect of migration, the number of administrative review matters that proceed before the Court are few in number (51 in 2020–21).

Admiralty

Although the number of applications in person filed under this head of jurisdiction is small (6 in 2020–21), it is an important jurisdiction conferred under s 76 (iii) of the Constitution. The admiralty and maritime jurisdiction conferred on this Court is a dispute subject matter that requires an appreciation and understanding of the United Nations Law of the Sea Conventions and the domestic legislation giving effect to maritime-related international treaties and conventions.

The work is undertaken by a discrete panel of judges who are required to maintain appropriate breadth of knowledge in admiralty and maritime law.

The jurisdiction of the Court is governed by the Admiralty Act 1988. Section 9 of that Act confers in personam jurisdiction on the Court for matters falling within the meaning of a maritime claim as defined in s 4. While confined to in personam disputes, the Court can also hear in rem matters referred to it by the Federal Court, which is not limited by quantum.

As proceedings commenced in personam in the Court can be transferred to the Federal Court, the Federal Circuit Court is a convenient forum for preserving time limitations in disputes concerning carriage of goods, charter parties, collisions, general average and salvage. The jurisdiction in personam is not limited by quantum.

The Act applies to all ships irrespective of domicile or residence of owners and to all maritime claims wherever arising. The admiralty rules set out standard procedures supplemented by the Rules of Court, and the Admiralty Rules 1988 (Rule 6).

In previous annual reports, the issues of enforcement of foreign judgments has been highlighted as an issue of concern to the Court, as much depends upon general principles of reciprocity. Not being a superior court, the ability of the Court to transfer where issues of enforcement arise is a useful power.

The Admiralty and Maritime Practice Direction, issued by the Chief Judge on 3 June 2019, has revitalised this important area of the Court’s general federal jurisdiction. It is available on the Court’s website.

The unlimited general federal jurisdiction of the Federal Circuit Court in the in personam matters conferred by the Admiralty Act 1988 is of great utility for litigants involved in maritime commerce disputes and their legal practitioners. The Court can also exercise jurisdiction in respect of matters remitted by the Federal Court.

The lower court costs and now streamlined and unified procedures for case management of these maritime matters, will simplify and make more accessible resolution of the in personam maritime disputes. The Court can readily accommodate interstate appearances by legal practitioners at the case management hearings by either telephone or video link and can make orders to facilitate the same.

While the numbers of maritime matters at this stage filed in the Court are not substantial, there is considerable importance in facilitating the fair, inexpensive and expeditious determination of maritime disputes.

The new case management procedures will still ensure that maritime matters ready for final hearing are promptly heard and determined by judges of the Court in the local registries where the matters are filed, except where exigencies within the Court require otherwise. The judges of the Court deal with a vast range of general federal law matters and the Court will continue to expand and enhance access to justice in this special area of admiralty and maritime jurisdiction.

Bankruptcy

The Court shares personal insolvency jurisdiction with the Federal Court, most of which proceed in the Federal Circuit Court. The Court does not have any jurisdiction in respect of corporate insolvency.

A significant proportion of bankruptcy matters are case managed and determined by registrars. This includes:

  • creditors’ petitions
  • applications to set aside bankruptcy notices, and
  • examinations pursuant to section 81 of the Bankruptcy Act 1966.

The Court appreciates the significant work undertaken by registrars who exercise extensive delegations in respect of the bankruptcy jurisdiction.

The Court received 902 bankruptcy applications in 2020–21, and finalised 944. This represents a significant decrease in bankruptcy filings of 52 per cent, compared with 1,872 filings in 2019–20. However, it is noted that, due to COVID-19, on 25 March 2020, the Commonwealth Government introduced significant temporary debt relief measures which increased the debt threshold required for creditors to apply for a bankruptcy notice and increased the timeframe for a debtor to respond to a bankruptcy notice from 21 days to six months. These temporary debt relief measures were extended until 31 December 2020 which will have had an impact on the bankruptcy filing figures for the first half of the reporting period.

In light of the shared personal bankruptcy jurisdiction, the Federal Court and the Federal Circuit Court have adopted harmonised bankruptcy rules:

  • Federal Circuit Court (Bankruptcy) Rules 2016, and
  • Federal Court (Bankruptcy) Rules 2016.

Figure 3.13: Bankruptcy applications, 2016–17 to 2020–21

902 bankruptcy applications filed and 944 finalised in 2020-21 period
 

Consumer

The consumer law jurisdiction of the Court is confined and there is a monetary limit on the grant of injunctive relief and damages up to $750,000. The number of filings under this head of jurisdiction is accordingly small (127 in 2020–21).

The Court has jurisdiction with respect to claims under the provisions of the Competition and Consumer Act 2010 (formerly the Trade Practices Act 1974) and the National Consumer Credit Protection Act 2009.

Consumer law now has a national framework following the commencement, on 1 January 2011, of the Australian Consumer Law. This cooperative framework is administered and enforced jointly by the Australian Competition and Consumer Commission and the state and territory consumer protection agencies.

Fair work

The Court has jurisdiction to deal with a broad range of matters under the Fair Work Act 2009. Legislative developments have included amendments to the Fair Work (Registered Organisations) Act 2009 by way of the Fair Work (Registered Organisations) Amendment Act 2016 (Cth), which included the conferral of jurisdiction on the Federal Circuit Court to impose civil remedies against persons taking action against whistle blowers by way of reprisal action (as defined).

Since the conferral of industrial law jurisdiction on the Court, the workload under this head of jurisdiction has grown. The Court received 1,352 applications in 2020–21, and finalised 1,539 applications during the reporting period. This represents a decrease in filings of 14 per cent, compared with 1,563 filings in 2019–20. However, the Court finalised 1,539 applications during the reporting period. This represents an increase of 17 per cent, compared with 1,319 finalisation in 2019-2020.

The Migrant Workers’ Taskforce Final Report was released on 7 March 2019. The taskforce was established on 4 October 2016 and was preceded by a significant number of high profile cases revealing exploitation of migrant workers. Among other things, the report stated that these cases exposed unacceptable gaps in Australia’s legal system designed to treat all workers equally, regardless of their visa status. Accordingly, the taskforce was set the specific task to identify proposals for improvements in law, law enforcement and investigation, and other practical measures to more quickly identify and rectify cases of migrant worker exploitation. The Government has subsequently agreed ‘in principle’ to all recommendations of the report.

The report makes 22 recommendations. Recommendation 12 of the Report provides ‘that the Government commission a review of the Fair Work Act 2009 small claims process to examine how it can become a more effective avenue for wage redress for migrant workers’. The report can be found at: https://docs.employment.gov.au/documents/report-migrant-workers-taskforce

Finally, the Court’s small claims jurisdiction continues to provide a ready means by which employees can, through the less formal process in section 548:

  • seek to recover employment entitlements up to an amount of $20,000 in connection with a dispute relating to casual conversion mentioned in subsection 548(1B) of the Fair Work Act 2009
  • seek orders in connection with a dispute relating to casual conversion.

The Court’s small claims jurisdiction was expanded in 2021 with the commencement of the Fair Work Amendment (Supporting Australia’s Jobs and Economic Recovery) Act 2021 (Cth) which introduced provisions in relation to casual conversion into Division 4A of Part 2–2 of the Fair Work Act 2009. Amendments to section 548 of the Fair Work Act 2009 confer power on the Court to determine disputes relating to casual conversion using the small claims process under that section.

The Court is committed to ensuring that small claims applications can be determined quickly and inexpensively. Information about the small claims lists operating in the Brisbane, Melbourne and Sydney registries is included on page 47.

Figure 3.14: Fair work applications filed and finalised, 2016–17 to 2020–21

1352 fair work applications filed, 1539 finalised in the 2020-21 period
 

Human rights

The Australian Human Rights Commission has statutory responsibilities under the following laws to investigate and conciliate complaints of alleged discrimination:

  • Australian Human Rights Commission Act 1986
  • Age Discrimination Act 2004
  • Disability Discrimination Act 1992
  • Racial Discrimination Act 1975, and
  • Sex Discrimination Act 1984.

The Australian Human Rights Commission Act 1986, formerly the Human Rights and Equal Opportunity Commission Act 1986 (Cth), establishes the statutory framework for making complaints of unlawful discrimination.

Once a complaint of unlawful discrimination is terminated, a person affected may make an application to the Federal Court or Federal Circuit Court alleging unlawful discrimination by one or more respondents to the terminated complaint.

The number of matters that proceed to the Court is relatively small. In 2020–21, there were 75 applications filed under this head of jurisdiction.

There is generally an overlap with other Commonwealth and state/territory laws that prohibit the same type of discrimination. For example, the Fair Work Act 2009 also deals with discrimination, harassment and bullying, in the context of the workplace.

Figure 3.15: Human rights applications filed and finalised, 2016–17 to 2020–21

72 human rights applications filed and 66 finalised for 2020-21
 

Intellectual property

The intellectual property (IP) jurisdiction of the Federal Circuit Court comprises proceedings arising under copyright, design, plant breeders, and trade marks Commonwealth statutes. In its associated jurisdiction, the Court’s jurisdiction includes any proceeding for the tort of passing off or any analogous claim for false or misleading conduct under the Australian Consumer Law. With the exception of patents and circuits layouts, the Court’s jurisdiction is largely concurrent with that of the Federal Court.

The IP work of the Court is undertaken by a discrete panel of judges within the Court’s specialist national practice areas in general federal law who are required to maintain an appropriate breadth and depth of knowledge in copyright, design and trade marks law, passing off and analogous claims.

Since 1 July 2018, the Federal Circuit Court has conducted the National IP list, promoting the Court as a forum for IP litigation, providing a streamlined and consistent national approach to the case management of IP litigation in the Court. The National IP list is conducted as a specialist list within the Court’s general federal law jurisdiction, and was developed from and extended the IP pilot operating in the Court’s Melbourne registry since 30 June 2017. Supporting the Court’s national IP initiative, Judge Baird is the inaugural judge in charge of the IP national practice area. All IP matters filed in the Court are provisionally docketed to Judge Baird, who case manages the matters in the National IP List commencing with an early first court date, through the interlocutory steps and to hearing.

Through the National IP list, the Court seeks to provide consistency in case management and interlocutory processes, to identify matters requiring early hearing dates, and to encourage cost effective and early identification and narrowing of issues in dispute. Improving convenience, and obviating the costs of in-person attendance, through the National IP List, the Court undertakes case management hearings on the papers, by telephone and by video link with multiple registries, encouraging electronic and effective case management. The Court encourages and facilitates the use of alternative dispute resolution for the resolution of IP litigation, including through the Court’s mediator registrars (who hold dual appointments with the Federal Court).

Figure 3.16: Intellectual property applications filed and finalised, 2016–17 to 2020–21

30 Intellectual property applications filed and 33 finalised in 2020-21
 

Guiding the conduct of IP matters in the Federal Circuit Court, the IP Practice Direction, Practice Direction No. 1 of 2018, applies nationally with respect to all IP proceedings commenced in the Federal Circuit Court after 1 July 2018. It is available on the Court’s website.

There was extensive consultation with stakeholders prior to the commencement of the Melbourne IP pilot, and Judge Baird has continued that consultation and engagement with the IP profession.

The Court is well placed to hear and determine IP disputes, especially straightforward and less resource intensive cases (one to three day hearings), and appeals from the offices of IP Australia, in a cost effective and streamlined way. The Court offers an accessible, responsive and less expensive alternative to IP litigation, particularly attractive to individual rights-holders and small and medium enterprises.

Establishing an effective framework for enforcement of IP rights was the subject of consideration by the Productivity Commission inquiry into IP arrangements in Australia. Recommendation 19.2 highlighted the Federal Circuit Court as a possible forum for enforcement where IP rights are being infringed or are threatened. Included in Recommendation 19.2 of the report, released by the Productivity Commission, was the extension of this jurisdiction to ‘…hear all IP matters…’, which would include patent disputes. This recommendation went on to state: ‘The Federal Circuit Court should be adequately resourced to ensure that any increase in its workload arising from these reforms does not result in longer resolution times’. See www.communications.gov.au/departmental-news/release-productivity-commissions-intellectual-property-report.

With the conduct of the National IP list, the number and diversity of filings in IP matters in the Federal Circuit Court has increased. It is a small, but an important and growing part of the Court’s jurisdiction and work.

Initiatives in general federal law

The Federal Circuit Court has grown to become Australia’s principal federal trial court. The Court’s jurisdiction and less formal legislative mandate is such that a significant number of parties present as unrepresented litigants. In family law, the Court is assisted by legal aid duty lawyer schemes. To address the needs of such litigants in the general federal law jurisdiction a number of initiatives have been established.

Pro bono scheme – Federal Circuit Court Rules 2001 – Part 12

A court-based pro bono scheme is in operation similar to that which operates in the Federal Court. Part 12 of the Federal Circuit Court Rules 2001 sets out rules in relation to the court-administered scheme. Referrals for pro bono have generally been confined to general federal law matters. With a significant proportion of migration-related matters involving unrepresented litigants, the Court has been able to facilitate assistance to litigants. Assistance is also provided in various states by organisations such as JusticeNet and Justice Connect. The Court appreciates the generosity of those members of the profession who agree to give their valuable time voluntarily to assist in such referrals.

Small claims lists – Brisbane, Melbourne and Sydney

The Fair Work Act 2009 makes provision for certain proceedings to be dealt with as small claims proceedings. An applicant may request that an application for compensation be dealt with under the small claims division:

  • If the compensation sought is not more than $20,000 and the compensation is for an entitlement mentioned in subsection 548(1A) of the Fair Work Act 2009.
  • in connection with a dispute relating to casual conversion mentioned in subsection 548(1B) of the Fair Work Act 2009 (see www.fairwork.gov.au/casualconversion).

When dealing with a small claim application, the Court is not bound by the rules of evidence but may inform itself of any matter in any manner as it thinks fit. A party to a small claims application may not be represented by a lawyer without the leave of the Court. Rules in relation to the conduct of proceedings in the Fair Work Division are found in Chapter 7 of the Federal Circuit Court Rules 2001.

The Court aims to minimise the number of events needed to dispose of such applications. Ideally, the Court aims to finalise these matters on the first hearing date.

In Brisbane, Melbourne and Sydney, the Court has dedicated lists before experienced registrars when an application seeks compensation of not more than $20,000, with the aim of disposing of such matters on the first date.

The main aims are to:

  • ensure that both parties attend Court at the first hearing with all relevant material. This is facilitated by having a notice with the listing that indicates the matter may be dealt with and determined on the first return date
  • provide information to applicants that advises them of the type of material they may need to provide in support of their claim
  • have registrar mediators available to mediate matters on the day of the hearing where appropriate, and
  • keep it simple – an application form with instructions which guides the applicant on a step-by-step basis, and a pro forma affidavit of service.

Litigants are provided with a fact sheet, along with other resources to assist them in the process. The Fair Work Ombudsman provides staff to assist at the lists on an amicus basis and various other material is available if additional claims are raised.

Applications in connection with a dispute in relation to casual conversion are listed before a judge due to this being a new jurisdiction of the Court. However, the same principles and aims of the small claims list are applicable to these matters in a listing before a judge.

Pilot to assist unrepresented litigants – bankruptcy lists – Melbourne and Adelaide

With the assistance of Consumer Action in Melbourne and Uniting Communities in Adelaide, the Court has, in conjunction with the Federal Court, been able to maintain a program of targeted financial counselling assistance to unrepresented litigants in bankruptcy proceedings. Since the latter part of 2014 in Melbourne and 2018 in Adelaide, a financial counsellor sits in the courtroom in every bankruptcy list. Since the COVID-19 restrictions, a financial counsellor has been available over the telephone. The registrar presiding is able to refer an unrepresented litigant to the financial counsellor for an immediate confidential discussion so that the litigant better understands his or her options when faced with the prospect and consequences of bankruptcy. Registrars from both Melbourne and Adelaide have reported favourably about the program.

The Court, together with the Federal Court, is exploring options to expand this assistance to bankruptcy lists in Sydney.

Appeals

Family law appeals

An appeal lies to the Family Court from the Federal Circuit Court exercising jurisdiction under the Family Law Act 1975 and, with leave, the Child Support Acts. An appeal in relation to such matters is exercised by a Full Court unless the Chief Justice considers it appropriate for a single judge to exercise the jurisdiction.

There was no percentage change in the number of appeals going to the Family Court from the Federal Circuit Court during the year (see Table 3.7). Appeals from the Family Court of Western Australia are included in the appeal figures from the Family Court of Australia. Appeals from family law Magistrates in Western Australia are included in the appeal figures from the Federal Circuit Court. This should be factored in when considering appeal numbers as a proportion of Federal Circuit Court filings.

Table 3.7: Notices of appeal filed, finalised and pending by jurisdiction, 2016–17 to 2020–21

Notices of appeal

2016–17

2017–18

2018–19

2019–20

2020–21

% change from 2019–20 to 2020–21

Filed

Family Court of Australia

145

189

133

198

144

-27

Federal Circuit Court of Australia

199

201

267

247

248

0

Appeals filed

344

390

400

445

392

-12

Per cent from the Family Court of Australia

42%

48%

33%

44%

37%

-17

Per cent from the Federal Circuit Court of Australia

58%

52%

67%

56%

63%

14

Finalised

Family Court of Australia

161

184

135

174

171

-2

Federal Circuit Court of Australia

216

186

244

274

253

-8

Appeals finalised

377

370

379

448

424

-5

Per cent from the Family Court of Australia

43%

50%

36%

39%

40%

4

Per cent from the Federal Circuit Court of Australia

57%

50%

64%

61%

60%

-2

Pending

Family Court of Australia

107

110

80

101

71

-30

Federal Circuit Court of Australia

101

110

144

112

102

-9

Appeals pending

208

220

224

213

173

-19

Per cent from the Family Court of Australia

51%

50%

36%

47%

41%

-6

Per cent from the Federal Circuit Court of Australia

49%

50%

64%

53%

59%

6

General federal law appeals

The majority of appeals and appellate-related applications in respect of general federal law proceedings are heard and determined by single judges of the Federal Court exercising the Court’s appellate jurisdiction.

Of the 815 appeals and related actions filed in the Federal Court in 2020–21, 539 were from decisions of the Federal Circuit Court, accounting for approximately 66% per cent of the overall appeals and related actions filed.

This compares with a total of 741 appeals and appellate-related applications from the Court in 2019–20, a decrease of over 27 per cent.

The vast majority of these appeals concern decisions made under the Migration Act 1958, with 484 of the appeals filed arising from migration judgments of the Court in 2020–21, compared with 677 in 2019–20.

The proportion of migration-related appellate proceedings is reflective of the general upward trend of the migration workload, with a large proportion of these matters proceeding to a defended hearing.

Figure 3.17: Source of appeals and related actions filed in the Federal Court, 2016–17 to 2020–21

247 appeals filed in the Federal Court, 539 in the Federal Circuit Court and 29 in other courts
 

Dispute resolution

General federal law

In general federal law, dispute resolution provisions are contained in Part 4 of the Federal Circuit Court of Australia Act 1999. The Court operates a docket management system, and referrals by judges are the most frequently used procedure in general federal law proceedings. Most mediation is undertaken by registrars of the Court, however some matters are referred to external providers.

Not all matters are equally likely to be referred to mediation. In practice, particular characteristics of some matters mean that referrals to mediation may occur infrequently if at all. Such matters include migration applications. The number of matters referred to mediation increased from 755 in 2019–20 to 1004 in 2020–21 (see Table 3.8).

Table 3.8: Number of matters referred to mediation, 2016–17 to 2020–21

MEDIATION

2016–17

2017–18

2018–19

2019–20

2020–21

Referrals

620

720

615

755

1,004

Table 3.9 shows the number of referrals to mediation by cause of action both as a number and as a percentage of filings. Overall, 12.9 per cent of filings were referred to mediation. As a percentage of matters, the cause of action most referred to mediation was admiralty at 100 per cent of matters referred, followed by intellectual property and fair work matters. However in terms of the number of matters referred to mediation, the vast majority are in the fair work jurisdiction.

Table 3.9: Filings and mediation referrals to a Registrar as a percentage of filings, 2020–21

CAUSE OF
ACTION

Filings

Referrals

Referrals as % of filings

Administrative

51

4

7.8

Admiralty

6

6

100

Bankruptcy

902

25

2.8

Consumer

127

26

20.5

Human rights

75

41

54.7

Fair work

1,352

881

65.2

Intellectual property

30

21

70

Migration

5,236

0

0

All filings

7,779

1,004

12.9

Table 3.10 shows the outcome of mediations conducted in the reporting period. Not all matters mediated in the reporting period will have been filed or even referred to mediation in the reporting period. Matters that are referred to mediation at the end of the reporting period may be mediated in the following reporting period.

In the reporting period, registrars conducted 940 mediations and partially or fully resolved 601 matters, or 64 per cent of matters.

Table 3.10: Mediation referral outcomes, 2020–21

CAUSE OF
ACTION

Adjourned – continuing

Finalised – not resolved

Finalised – resolved

Finalised – resolved in part

Total

Administrative

   

2

 

2

Admiralty and maritime

   

5

 

5

Bankruptcy

 

7

14

 

21

Consumer

 

4

15

 

19

Human rights

 

14

27

 

41

Fair work

3

303

517

8

831

Intellectual property

 

8

12

1

21

Migration

       

0

Total

3

336

592

9

940

Family law financial

In financial matters, the Court:

  • offers confidential conciliation conferences conducted by registrars of the Court
  • offers confidential mediation in appropriate matters via the administered appropriation, and
  • refers appropriate matters to privately
    funded mediation.

In 2020–21, registrars held 3,291 confidential conciliation conferences, resulting in 58 per cent
of matters being fully resolved by the next
court event.

Administered fund

The Federal Circuit Court receives an administered appropriation to source dispute resolution services such as counselling, mediation and conciliation from community-based organisations.

The Court is seeking to enhance the services provided to litigants and allow for greater flexibility in the provision of those services by utilising the fund to allow providers to provide counselling and mediation services to litigants locally in appropriate circumstances.

The major focus of the administered fund is to provide mediation services to litigants in property matters, particularly in rural and regional areas, in support of its circuit work. These services are currently provided by Relationships Australia (Victoria) who undertake property mediation where the provider is located within the same location as the litigants and are in a position to offer more timely interventions.

The use of the administered fund continues to expand as services are extended to more regional locations. This reduces the need for registrars to travel from registry locations, which impacts on the delays and services in the principal registries. It allows regional litigants to access mediation services in a timely fashion rather than waiting for registrar circuits.

In 2020–21, over 360 matters were referred for property mediation through Relationships Australia (Victoria). Of the 319 mediations that occurred in this financial year, 74.9 per cent were reported as having settled.

Family law parenting

Dispute resolution refers to a range of services designed to help parties resolve disputes arising from separation or divorce.

Under section 13C of the Family Law Act 1975, the Court may refer parties to family counselling, family dispute resolution and other family services at any stage of the proceedings.

Family Dispute Resolution is defined in section 10F as a process (other than a judicial process) undertaken by a family dispute resolution practitioner. Section 93D of the Federal Circuit Court of Australia Act 1999 provides for the CEO to authorise an ‘officer or staff member’ of the Federal Circuit Court (defined in section 99 to include a registrar and family consultant) to provide family dispute resolution or family counselling under the Family Law Act 1975. Registrars of the Court have received this authorisation.

Accordingly, in parenting matters the Court:

  • offers confidential family dispute resolution conferences conducted by registrars (or jointly by registrars and family consultants) of the Court
  • refers appropriate matters to Family Relationships Centres for Family Dispute Resolution,
  • refers appropriate matters to Legal Aid Commissions for Family Dispute Resolution, and
  • refers appropriate matters to privately funded Family Dispute Resolution or mediation.

In 2020–21, Registrars convened 540 confidential family dispute resolution conferences, in which 49.1 per cent of matters were fully resolved by the next court event. In addition, approximately 20 per cent of matters reached an interim or partial agreement at these conferences, meaning that approximately 70 per cent of matters were resolved in full or in part.

Judicial mediation

Practice Direction 1 of 2019 sets out arrangements for the conduct of judicial mediations in the family law jurisdiction of the Court. Judicial mediation is not intended to be a substitute for private mediation conducted by appropriately qualified mediators, but may be an option for appropriate matters. The Practice Direction sets out criteria for suitability for judicial mediation.

Complaints

The Court is committed to acknowledging complaints as soon as practicable and managing responses in an effective and timely manner. The Court’s complaint policy and judicial complaints procedure are available on the Court's website.

During 2020–21, there were 269 complaints received, which is a decrease from 2019–20 (286). Table 3.11 provides a breakdown of these complaints by category. This complaints figure should be considered against the total filings of the Court in the financial year, being in excess of 97,000 applications.

Table 3.11: Federal Circuit Court complaints by category, 2020–21

Complaint
about

Number received

Legal process and conduct
of proceedings

77

Overdue judgment

66

Child dispute services

61

Family registry

28

Conduct – Judge

14

Conduct – Registrar

13

Divorce

3

National Enquiry Centre

3

Privacy

2

Electronic filing

1

General federal law registry

1

It is noted the above information includes complaints about matters that cannot be dealt with under the complaints policy. This includes complaints about judicial decisions (which must be dealt with under the appeals process) and matters regarding the legislative regime and legal system generally.

Regardless, the number of complaints received is relatively small compared to the high volume of work the Court deals with. Judicial complaints in relation to overdue judgments represent less than 2 per cent of all matters where written reasons are delivered. That is, 66 complaints about overdue judgments compared to 3,320 settled judgments delivered. Alternatively, the 91 complaints relating to the legal process, conduct of proceedings and conduct of judges represents complaints in less than 0.4 per cent of all final order applications filed. That is, 91 complaints compared to family law final orders, migration and other general federal law applications, excluding bankruptcy.

The Court has a protocol that sets a benchmark of three months for the delivery of reserved judgments, and matters that are outside this benchmark are actively monitored by the Chief Judge’s chambers.

Judicial complaints policy

The Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012 (Cth) and the Courts Legislation Amendment (Judicial Complaints) Act 2012 (Cth) commenced on 12 April 2013.

The Judicial Complaints Act amended the Federal Circuit Court of Australia Act 1999, the Family Law Act 1975, the Federal Court of Australia Act 1976 (Cth), and the Freedom of Information Act 1982 (Cth) to:

  • provide a statutory basis for the Chief Justice of the Federal Court, the Chief Justice of the Family Court and the Chief Judge of the Federal Circuit Court to deal with complaints about judicial officers
  • provide protection from civil proceedings that could arise from a complaints handling process for a Chief Justice or the Chief Judge as well as participants assisting them in the complaints handling process, and
  • exclude from the operation of the Freedom of Information Act 1982 documents arising in the context of consideration and handling of a complaint about a judicial officer.

The Parliamentary Commissions Act provides a standard mechanism for parliamentary consideration of removal of a judge from office under of the Australian Constitution paragraph 72(ii). The Judicial Complaints Procedure of the Court is available on the Court’s website at:
www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/contact-us/feedback-complaints/judicial-complaints.

In 2020–21, the Judicial Complaints Procedure was reviewed and updated.

The Chief Judge, pursuant to section 12 of the Federal Circuit Court of Australia Act 1999, is responsible for the handling of complaints made about another judge. The Chief Judge may take any measures they believe is reasonably necessary to maintain public confidence in the Court including, but not limited to, temporarily restricting another judge to non-sitting duties.

Judicial workplace conduct policy

In 2020–21, the Court engaged in the development of a comprehensive new complaints handling model. The Chief Judge established a Joint Court Judicial Conduct Committee of experienced judges, chaired by Judge Kendall, who is highly qualified in the field of sex equality and anti-discrimination law, and supported by an independent committee member, the Honourable Jennifer Coate AO. This committee reviewed all practices and protocols relating to judicial conduct and complaints, and worked closely with the Federal Court of Australia entity that provides corporate services to the Courts.

The committee reviewed and updated the Courts’ Judicial Complaints Procedure, and developed the Judicial Workplace Conduct Policy. These policies cover both court employees and litigants who claim that they have been victims of poor judicial behaviour and set out the process for making a complaint about a judge. They are available on the Court's website.

The Court has communicated to all staff that it will not tolerate harassment of any kind. The Court is committed to ensuring a safe and respectful workplace for all Court employees and people who perform their work in the Court, and to maintaining a zero-tolerance policy to any misconduct.

The Courts understand that instances of poor judicial conduct may be distressing and has offered to all staff professional support and access to free and confidential support and assistance, through the Courts’ Employee Assistance Program. The Judicial Workplace Conduct Policy sets out what complainants may expect when having made a complaint under this policy, including being offered the supports they need to properly and fairly participate in the process, as considered by the Chief Judge; to be offered an apology if they wish, if there is a finding a judge has engaged in unacceptable conduct; and to be offered appropriate redress depending on the circumstances.

In April 2021, judges of both the Federal Circuit Court and the Family Court undertook sexual harassment training with leading international expert Professor Catharine A MacKinnon with a focus on harassment in the judicial setting.

Judgment publication

In 2020–21, 3,320 settled judgments were received by the Judgments Publication Office.

Table 3.12 provides a breakdown of judgments finalised by jurisdictional category.

Table 3.12: Federal Circuit Court judgments by jurisdictional category, 2020–21

Jurisdictional category

Number finalised

Family law

2,008

Migration

963

Industrial law

155

Bankruptcy

76

Practice and procedure

56

Child support (includes AAT)

26

Administrative law

12

Consumer law

10

Intellectual property (includes Copyright and Trade marks)

8

Human rights

5

Admiralty law

1

TOTAL

3,320

Publication of judgments is seen as an important way to serve the public interest and reflect the Court’s commitment to open access to justice. Efforts are made to publish as many judgments as practical while also applying legal publishing standards and complying with legislative requirements restricting the publication of private information related to certain proceedings. The publication of these judgments is also seen as a way to adequately reflect the work of the Court.

To maintain and improve this administrative function, the judgments team disseminates the Court’s decisions as widely as possible and in a timely manner. All judgments that are suitable for external distribution are published to AustLII (the primary free-access resource for Australian legal information). Members of the public can also monitor and link to the latest published judgments via the Court’s website.

Copies of unreported judgments are also distributed to commercial legal publishers (including LexisNexis, Thomson Reuters, Wolters Kluwer CCH Australia and Jade) for inclusion in case citation databases.

In 2020–21, 72 decisions of the Court were published in commercial law report series, including the Federal Law Reports, Family Law Reports, Australian Industrial Law Reports and Australian Bankruptcy Cases.

The Court also publishes a link to the AustLII version of the judgment on its own website.

A significant number of the Court’s decisions are delivered ex tempore at the conclusion of the hearing or soon after. Not all of these judgments are settled into a written form due to the additional time required for this task. Those that are settled are done so in response to a request from the parties or a notice of appeal, or if the judicial officer considers it appropriate to do so.

Efforts are made to increase the number of family law decisions externally published onto AustLII and commercial databases, however s 121 of the Family Law Act 1975 imposes an additional requirement on the Court in regard to these judgments. This section stipulates that published decisions of family law matters must not reveal, among other details, the identity of parties, children or associated persons to the proceedings. The Judgments Publication Office devotes a significant amount of time anonymising family law and child support decisions so that they are suitable to be published.

In 2020–21, approximately 859 family law decisions were published externally.

Changes to the Court’s jurisdiction in 2020–21

The following Acts affected the jurisdiction
of the Court:

A number of acts conferring jurisdiction relate to enforcement powers under the Regulatory Powers (Standard Provisions) Act 2014 and conferral of jurisdiction in relation to the recovery of debts to the Commonwealth.

Whilst the number of applications arising from some of the above Acts conferring additional jurisdiction is likely to be low, the Court reiterates concerns about the cumulative impact of a number of Acts conferring jurisdiction which is considered small or infrequent and thus has been conferred without additional judicial or other resourcing.  

Amendments to fee regulations

There are two fee regulations that apply to proceedings in the Court, one for general federal law proceedings and one for family law proceedings:

  • Family Law (Fees) Regulation 2012, and
  • Federal Court and Federal Circuit Court Regulation 2012.

Fee increases to items 103, 104, 209 and 210 of Schedule 1 of the Federal Court and Federal Circuit Court Regulation 2012 (applications in relation to dismissals in contravention of Part 3–1 of the Fair Work Act 2009) are calculated in accordance with Regulations 3.02 and 3.03 of the Fair Work Regulations 2009.