Annual Report 2008-09 Output 1.1
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Family law, federal courts and tribunals, civil procedure and alternative dispute resolution
Summary
The major focus in 2008–09 for Output 1.1 was access to justice, including:
- developing advice to the Government on a strategic framework for access to justice reforms
- reforming legislation to allow de facto couples, including same-sex couples, access to the federal family law courts on property settlement and maintenance matters
- reforming legislation to the civil litigation process to reduce the cost and complexity of litigation, and
- providing advice to Government on improving the federal courts system.
Other important achievements included:
- assisting the Government on a range of judicial and tribunal appointments, using transparent, merit-based processes
- establishing new family relationship services to help separated families reach agreement outside the courts, where possible
- introducing new accreditation standards for family dispute resolution practitioners
- reforming evidence law to promote uniformity in evidence laws across Australia, and in so doing increase efficiencies for the courts, legal practitioners and business
- implementing measures to improve trans-Tasman and cross-border legal cooperation
- appointing a record number of marriage celebrants, following the lifting of the cap on the number of celebrants in early in 2008–09, and
- initiating a range of measures to consolidate the Commonwealth’s responsibilities for ethical and viable intercountry adoption arrangements.
Major achievements
Federal courts and administration of justice
Establishing the Access to Justice Taskforce during the year was an important step in bringing together expertise and focusing on the task of developing a strategic framework for access to justice reforms. The taskforce is taking a wide view of the justice system, from access to information, alternative dispute resolution and legal assistance through to the role of courts and tribunals. The taskforce will report to the Attorney-General in early 2009–10.
As part of the Department’s focus on access to justice in 2008–09, it developed the Access to Justice (Civil Litigation Reforms) Amendment Bill 2009, which the Attorney-General introduced in Parliament on 22 June 2009. The Bill improves access to justice by streamlining case management procedures in the Federal Court, establishing efficient appeals pathways, and clarifying the role of the heads of court and broadening their responsibilities to ensure effective discharge of the business of the court. These reforms will help reduce the cost and complexity of litigation. The Bill is currently before the Parliament.
To improve the efficiency of federal courts, the Department developed the Federal Justice System Amendment (Efficiency Measures) Bill (No. 1) 2008, which the Attorney-General introduced in Parliament on 3 December 2008. The Bill improves the efficient operation of the federal courts by allowing the Federal Court to refer a proceeding, or one or more questions arising in a proceeding, to a referee for report. The Bill is currently before the Parliament.
The Department has been investigating, with the federal courts and the States and Territories, a more strategic and coordinated approach to Australian judicial training, development and assistance. This is part of the Department’s work on developing a framework for a more targeted approach to Australia’s engagement in law and justice sector issues in the Asia–Pacific.
In 2008–09, the Department assisted the Attorney-General and the Government appoint the new Chief Justice of the High Court, one justice of the High Court, four judges to the Federal Court, one judge to the Family Court and nine federal magistrates to the Federal Magistrates Court. The Department also helped with several appointments to the Administrative Appeals Tribunal, the National Native Title Tribunal and the Administrative Review Council.
The Department worked with the Department of Education, Employment and Workplace Relations to develop the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. This Act creates Fair Work Divisions of the Federal Court and Federal Magistrates Court.
The Evidence Amendment (Journalists’ Privilege) Bill 2009 was introduced into Parliament on 19 March 2009. It delivers on the Government’s commitment to strengthen journalist shield laws, as part of its election commitment to enhance transparency and accountability in government.
The Parliament passed the Evidence Amendment Act 2008 on 27 November 2008, and it came into operation on 1 January 2009. The Act amended the Commonwealth Evidence Act 1995 to implement most recommendations made by the Australian, New South Wales and Victorian law reform commissions in their joint review of the uniform Evidence Acts. The amendments promote uniformity in evidence laws. They include provisions to make it easier for children and people with a cognitive impairment to give evidence, to promote use of narrative evidence and to control cross-examination of vulnerable witnesses.
On 24 July 2008, the Australian Attorney-General and the then New Zealand Associate Minister for Justice, the Hon Lianne Dalziel, signed the Agreement between the Government of Australia and the Government of New Zealand on Trans-Tasman Court Proceedings and Regulatory Enforcement in Christchurch, New Zealand. The agreement significantly enhances cooperation between Australia and New Zealand in civil court proceedings, including expanding the range of judgments that can be enforced across the Tasman.
The Law and Justice (Cross Border and Other Amendments) Bill 2009 was introduced into Parliament on 19 March 2009. The Bill includes measures to support effective operation of the Cross Border Justice Scheme established between Western Australia, South Australia and the Northern Territory. The Bill also includes amendments to confirm the capacity of a prisoner in one State or Territory to give evidence by audio or audiovisual link in interstate proceedings, and extend the range of subpoenas that can be served in civil proceedings between Australia and New Zealand.
On 25 June 2009, the Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters 1965 was tabled in both Houses of Parliament. This represents the first step in the formal process for Australia’s accession to the Convention. The Convention will simplify and harmonise the procedures for transmitting and serving Australian court documents overseas, as well as the procedures for serving foreign court documents in Australia. This will help Australians enforce their legal rights in foreign jurisdictions, or against foreign nationals, more efficiently and cost effectively.
Family law and services
In 2008–09 the Department improved access to justice for de facto couples by developing the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008. The Act allows de facto couples access to the federal family law courts on property settlement and maintenance matters. The reforms apply equally to opposite-sex and same-sex couples. These amendments support the Government’s commitment to applying family law in a non-discriminatory and consistent way to opposite-sex and same-sex de facto relationships. The new de facto regime commenced on 1 March 2009.
To progress the aim of improving outcomes for families through an effective family law system, the Department hosted an Inaugural Family Law System Conference on 19–20 February 2009. Two-hundred people from key organisations across the family law system as well as interested academics and Australian Government agencies attended to discuss issues facing the family law system. The theme for the conference was The Australian Family Law System: Better Access to Justice.
On 1 July 2008, 25 new Family Relationship Centres and 14 Children’s Contact Services opened their doors, finalising a three-year roll out, in collaboration with the Department of Families, Housing, Community Services and Indigenous Affairs, of a range of new services to improve outcomes for parents and children going through family separation. During the year, the Department also established 14 new post separation cooperative parenting services, to help separated parents in high conflict in regional areas, and 18 services to support children affected by family separation. Details of family relationship services available to families can be found at http://www.familyrelationships.gov.au.
A major achievement for 2008–09 was introduction of new accreditation standards for family dispute resolution practitioners. The new standards replace interim standards that have been in place since July 2007. To help ensure family dispute practitioners across the country are able to qualify for accreditation under the new standards, the Department contracted Australian FDR Training Group to provide national assessment and training in the new standards.
During the year, 2,998 marriage celebrants were appointed, including a significant number who had been on waiting lists in anticipation of the cap on numbers ending on 31 August 2008.
Intercountry adoption
The Department has fully implemented most accepted recommendations of the House of Representatives Standing Committee on Family and Human Services’ report, Overseas Adoption in Australia. It also worked with the States and Territories to harmonise laws and processes and consider alternative models of service delivery. The Department also expanded Australia’s intercountry adoption programs and helped other countries develop safeguards for children.
Purchaser/provider arrangements
The Department continued to purchase call centre services from Centrelink under a memorandum of understanding to support the Family Relationship Advice Line. Centrelink provides the information and parenting advice components of the advice line, including monthly statistics.
Evaluations and reviews
Review of resourcing of family law courts in Western Australia
In May 2008, the Department began reviewing the resourcing of family law courts in Western Australia. The review was postponed at the request of the Western Australian Department of the Attorney General due to the Western Australian election caretaker period and change of government. At the end of the reporting year, the draft report was with the Western Australian Government for comment.
The review will enable the Government to comprehensively assess whether any changes will need to be made in resourcing and delivering family law services in Western Australia. Consultant, Mr Des Semple, assisted in the review, which is expected to be finalised following further consultation with the Western Australian Government.
Review of delivery of family law services
The Department, assisted by consultant Mr Des Semple, conducted a review into delivery, by the federal courts, of family law services from April to August 2008. The report of the review—Future governance options for federal family law courts in Australia: Striking the right balance—proposes restructuring the federal courts system by merging the Federal Magistrates Court into the Family Court and Federal Court.
The report of the review was provided to the Attorney-General in September 2008 and released for public comment in November 2008, along with a consultation paper prepared by the Department. The Government accepted the review’s key recommendations in May 2009. The Department, in close consultation with the courts and other key stakeholders, is preparing legislation to give effect to the restructure.
Review of the Legislative Instruments Act
On 14 May 2009, the Attorney-General tabled a report on the operation of the Legislative Instruments Act 2003. The Attorney-General appointed the members of the review committee, Mr Tony Blunn AO, Professor John McMillan and Mr Ian Govey, under section 59 of the Act to report on its operation. Overall, the report found that the Act is operating well by improving transparency and providing public access to accurate and authoritative information about the law. The report makes 46 recommendations for fine-tuning the Act’s practical operation, encouraging better consultation practices, promoting high drafting standards and ensuring legislative instruments are regularly reviewed.
Outlook
The Access to Justice Taskforce is expected to report to the Government early in 2009–10. This will provide a basis for future decisions on reform of the justice system, to promote access to justice and help overcome social exclusion.
Key priorities for 2009–10 for Output 1.1 include:
- improving the family law system’s response to family violence and child abuse
- implementing a range of initiatives to promote access to justice and improve the federal courts system
- strengthening mechanisms for resolving disputes outside the courts
- strengthening the transparency of government decision-making through reforms to the administrative law system
- working with States and Territories to develop and implement schemes to harmonise and improve:
- evidence laws
- judicial complaints mechanisms
- national judiciary including judicial exchange and dual commissions
- surrogacy laws
- service and execution of process, and
- statutory declarations and Acts interpretation laws
- working with New Zealand to implement the Trans-Tasman Treaty on Court Proceedings and Regulatory Enforcement, and
- improving intercountry adoption safeguards to ensure programs are ethical, viable and responsible and protect against abduction, sale and/or trafficking of children.
New arrangements between the Attorney-General’s Department and the Department of Families, Housing, Community Services and Indigenous Affairs for managing family relationship services will come into effect on 1 July 2009. The Attorney-General’s policy responsibilities for family dispute resolution and a range of family relationship services, including Family Relationship Centres, are unchanged but administration of the services and responsibility for service delivery will be consolidated in the Department of Families, Housing, Community Services and Indigenous Affairs.
Performance indicators
Table 4: Performance indicators, Output 1.1—Family law, federal courts and tribunals, civil procedure and alternative dispute resolution
| Key performance indicators | 2008–09 target | Result | |
|---|---|---|---|
| Quality advice provided to ministers and client agencies | Ministers and key agencies express a high degree of satisfaction as to the quality, effectiveness and timeliness of advice as measured by periodic feedback | Achieved The Attorney-General has commented on the quality and comprehensiveness of advice in his feedback to the Department. | |
| Development of legislation in accordance with Australian Government policies and priorities | Within agreed timeframes | Achieved The Department developed and introduced a number of significant pieces of legislation. The Department made significant contributions to development of legislation related to fair work and same-sex couples. | |
| High-quality, accessible family relationship services are delivered to clients | 2007–08 | 2008–09 | |
| 25 new Family Relationship Centres | 25 | 25 (bringing the total to 65) | |
| 18 new Supporting Children After Separation Program services | n/a | 18 | |
| 14 new Post-separation Cooperative Parenting Program services | n/a | 14 | |
| 14 new Children’s Contact services | 9 | 14 (bringing the total to 65) | |
| Targets achieved | |||
| Improve intercountry adoption in Australia by continuing to implement the accepted recommendations of the Overseas Adoption in Australia report | Progress of accepted recommendations relevant to the Department | Substantially achieved 16 of 25 accepted key recommendations have been fully implemented. The Department is actively pursuing the remaining recommendations, most of which require ongoing commitment. | |
| Effective processing of international family and civil procedure matters | Required timeframes met | Achieved An internal audit of the international abduction case program confirmed that cases were being managed in accordance with the law and Departmental guidelines. 165 requests for judicial assistance were handled in accordance with private international law arrangements (100 service requests and 65 evidence requests). | |
| Effective management of the marriage celebrants program | Statutory timeframes met | Achieved | |
| New applications for Marriage Celebrants Program | |||
| 2007–08 | 2008–09 | ||
| 1,808 | 2,871 | ||
| Applications processed | |||
| 2007–08 | 2008–09 | ||
| 1,519 | 2,808 | ||
| 2,998 people were registered as marriage celebrants. This included all those on the waiting list for registration as at 31 August 2008 when the cap on the number of people that could be registered ceased. | |||
| Provision of secretariat support for the Administrative Review Council, Family Law Council and National Alternative Dispute Resolution Council and the National Peak Overseas Adoption Support Group | Support provided within available resources | Achieved The Family Law Council conducted four meetings in 2008–09 speaking to visiting members of the legal profession, judiciary and social services and reporting to the Attorney-General as appropriate. References on Mental Health and Arbitration were completed. The National Alternative Dispute Resolution Advisory Council:
| |
| Effective administration of payments for membership of international bodies and grants to Australian organisations | Payments made in accordance with agreements | Achieved Payments made to Australian and international organisations in a timely manner, in accordance with Government priorities. | |
| Efficient and effective assistance to the Australian Government in making appointments to the High Court, Federal Court, Family Court, Federal Magistrates Court, Administrative Appeals Tribunal and National Native Title Tribunal | Compliance with government appointments policy | Achieved The Department implemented the Government’s new transparent appointments policies for appointments of judicial and statutory office holders. | |
| Administered items | Results | ||
|---|---|---|---|
| Family Relationships Services Program | Achieved Services provided by community-based organisations funded under the program. | ||
| 2007–08 | 2008–09 | ||
| Number of clients* | 106,288 registered clients plus 91,444 calls to the Advice Line, 971 telephone dispute resolution clients through the Advice Line and 144,064 contacts with Family Relationship Centres | 120,722 registered clients plus 81,878 calls answered by the Advice Line, 3,969 telephone dispute resolution clients and 154,158 contacts** with Family Relationship Centres | |
| Budget price: $162.684 million | Actual price: $161.634 million | ||
| Family Court of Western Australia | Achieved The Government contributes to the operating expenses of the Family Court of Western Australia to ensure access to the court in family law and child support matters. In 2008–09 the Government provided one-off payments of $556,000 for appointment of a Family Law Magistrate and $300,000 for circuits conducted in regional areas. | ||
| Budget price: $14.071 million | Actual price: $14.025 million | ||
| Payments for services under the Family Law Act 1975 and the Child Support Scheme legislation | Achieved In accordance with individual agreements with the States the Australian Government promotes an accessible system of federal civil justice by providing funds for services under the Family Law Act 1975 and Commonwealth child support legislation by State courts of summary jurisdiction. | ||
| Budget price: $2.031 million | Actual price: $2.003 million | ||
| Payments to Law Courts Limited for contributions to operating and capital expenses | Achieved The Department pays 47.5% of the operating expenses of the Law Courts building in Sydney. | ||
| Budget price: $39.954 million | Actual price: $39.954 million | ||
| Judges’ Pensions Scheme—superannuation surcharge | Achieved. These funds enable the Department to pay superannuation surcharge debts arising in respect of federal judges under the Superannuation Contributions Tax (Assessment and Collection) Act 1977. The Department was not required to make any superannuation surcharge payments in respect of Judges’ pension amounts. | ||
| Budget price: $0.257 million | Actual price: Nil | ||
| Payments for grants to Australian organisations | Achieved Payments made to 10 organisations for 12 projects or activities. | ||
| Budget price: $1.411 million | Actual price: $1.411 million | ||
| Payments for membership of international bodies | Achieved Membership payments made to three international bodies; voluntary payments made to three international bodies for specific projects or activities. | ||
| Budget price: $0.664 million | Actual price: $0.667 million | ||
Notes:
* Attorney-General’s Department component only. The Department of Families, Housing, Community Services and Indigenous Affairs reports on client numbers for its component.
** Telephone and walk-in contacts with Family Relationship Centres. A proportion of these contacts may become registered clients.
| Special appropriations | Results | |
|---|---|---|
| Judges’ Pensions Act 1968 | Achieved The Judges’ Pensions Act 1968, administered by the Attorney-General, provides for payment of pensions to former judges and some former statutory office holders. All payments have been made in accordance with advice provided, entitlements and agreed arrangements. | |
| Budget price: $62.500 million | Actual price: $54.672 million | |
| High Courts Justices (Long Leave Payments) Act 1979 | Achieved Funds provided in accordance with legislation and approved arrangements. | |
| Budget price: $0.827 million | Actual price: $0.994 million | |
Our people
Protecting women and children from family violence and child abuse
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Toni Pirani, Family Law Branch, Access to Justice Division.
Delivering safer outcomes for children and victims of family violence
The Department has led a project that will help the family law system deal better with cases involving family violence.
The Department consulted a range of stakeholders to gather information about how the family law system operates in practice and examined ways of improving outcomes in the community.
‘The project, which began in 2008, will deliver safer outcomes for children and victims of family violence accessing the family law system, and is a key deliverable for the Department,’ explained Toni Pirani, project leader in the Family Law Branch.
‘Family law raises very emotional issues and people hold widely differing views. The project team worked with many stakeholders to develop options for change, and a key challenge of the project was managing the expectations of those groups.
‘Working in the area of family law, I’m reminded daily of the importance of family and the serious impacts that relationship breakdown can have, particularly on children.
‘One highlight for me was talking to people who deal with these issues every day. Despite the range of different stakeholder views, I was surprised to find areas of broad agreement about what needed to change.
‘I really enjoy working in a role that combines legal and social policy. Family law is an area where there isn’t a straightforward legal answer to most problems,’ Toni explained.
Toni added that by focusing more broadly on how people can be supported, through counselling, alternative dispute resolution and specialised programs, families will see real improvements in outcomes.
The Attorney-General will announce project measures in July 2010 as part of a National Action Plan to address violence against women and children.