George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Link to this | Hansard source

Last August, the government received a report entitled Future governance options for federal family law courts in Australia, prepared by Mr Des Semple. The terms of reference of the Semple review included consideration of ‘governance options to achieve a more integrated family law system’, ‘structures and management processes necessary to improve the efficiency, effectiveness and integration of service delivery across the family law jurisdiction’, and ‘potential changes in judicial structures’. The principal recommendation of the Semple Review was the abolition of the Federal Magistrates Court; the absorption of most of the federal magistrates into the Family Court, where they would constitute a second, lower tier of that court; and the assignment of the remaining federal magistrates to the Federal Court.

Last Tuesday, the Attorney-General announced that the government had decided to accept the recommendations of the Semple report, and last night’s federal budget reflected the proposed abolition of the Federal Magistrates Court and its integration into the structures of the Family Court and the Federal Court. The opposition believes that this decision is a grave mistake. In our view, if the Rudd government proceeds with its plan to abolish the Federal Magistrates Court and drive all family law cases into the more expensive Family Court, the result will be increased costs, longer delays and less accessible justice.

The Federal Magistrates Court was established by the Howard government in 1999. Its purpose was to take the pressure off the other two Commonwealth trial courts—the Federal Court and the Family Court—by creating a lower-level court to deal with smaller cases, while freeing the hands of those courts to concentrate on larger and more complex cases. That has been the experience of the FMC, which is today the busiest of the federal courts, with 61 judicial officers. In the years since its creation, the FMC has won an enviable reputation for its no-nonsense, pragmatic, efficient approach to dispute resolution, which, in the manner typical of lower courts, has avoided undue technicality while delivering accessible justice to the parties who have come before it.

Inevitably, because the family law jurisdiction is the busiest Commonwealth jurisdiction—in other words, there are more family law cases commenced in federal courts than any other type of case—most of the work of the FMC has been family law work. According to the Semple report, 79 per cent of family law cases are now dealt with by the FMC rather than by the Family Court. The main reason for that is that the FMC has earned a good reputation for more efficient, less costly, swifter dispute resolution.

As all honourable senators are acutely aware, many of the most difficult and vexed constituent inquiries we receive are from people who are involved in marriage breakdowns and are seeking remedies from the family law system. The issues arising from family breakdown—in particular, those concerning access to and custody of children—are always distressing. They demand prompt, accessible, sympathetic resolution. It has been my experience from talking to people in those circumstances—and I know from my colleagues both in this chamber and in the other place that is has been their experience as well—that they would much sooner have their matters dealt with by the Federal Magistrates Court than be ensnared in the more complex and lengthy processes of the Family Court.

In 2003, the House of Representatives Standing Committee on Family and Community Affairs, chaired at that time by my friend Mrs Kay Hull MP, the member for Riverina, held an inquiry into child custody arrangements, the report of which, entitled Every picture tells a story, was delivered in December 2003. The deputy chair of the committee was the member for Fowler, Mrs Julia Irwin. The report was unanimous.

That report in fact recommended the creation of a new tribunal, which would be less legalistic than the existing system. Of the two courts exercising family law jurisdiction at the time, the committee certainly had a more favourable view of the Federal Magistrates Court than of the Family Court. In the end, the government did not adopt the recommendation to establish a new tribunal, but the report of the committee was seminal to the former government’s thinking when it introduced the Family Law Amendment (Shared Parental Responsibility) Bill 2005. In speaking on the second reading of that bill on 28 February 2006, Ms Hull told the House of Representatives:

I want to take the time to pay tribute to the Federal Magistrates Court and put in a plug for the court. In my observation—and I have done a huge amount of observation of these cases in the Parramatta family law court, the Sydney family law court, the Cairns family law court and the Federal Magistrates Court—the Federal Magistrates Court is doing a mighty job already of taking on the interests that the old committee—

that is, the House of Representatives Standing Committee on Family and Community Affairs—

raised in Every picture tells a story and is already putting these into place and delivering very good outcomes. But what it needs is more funding. I would like to see all of these cases going through the Federal Magistrates Court where possible, because I think it is the perfect body to be able to really deliver what the committee intended in the first place … If you are not going to have a tribunal, the very next best thing is the Federal Magistrates Court.

And so it has proved. The Federal Magistrates Court is indisputably the first choice of those involved in family law disputes—hence, the throughput of family law cases today exceeds that of the Family Court by a factor of four to one.

One would have thought that, if the Federal Magistrates Court is the preferred venue for those most immediately affected by family law disputes, the very last thing a review of the structure of the courts exercising family law jurisdiction would want to do is to abolish it. But that is what the government is now proposing to do. Indeed, in a sense, the Federal Magistrates Court has been a victim of its own success. Because most family law litigants would prefer their matters to be dealt with by the FMC rather than by the Family Court, the government now says that the integration of the FMC into the Family Court is necessary in order, in the words of the Attorney-General’s press release last week, to avoid ‘confusion amongst litigants’ and to create a ‘one-stop shop’ in family law matters. The confusion that is said to exist arises from the fact that there is now substantial jurisdictional overlap, in relation to family law matters, between the FMC and the Family Court, so the courts are, in a sense, in competition with one another in the provision of the same service. Even if that be the case, then surely the clear—indeed, overwhelming—preference of the litigants to have their matters disposed of in the FMC tells us something. It is certainly not an argument for the abolition of that very court. Such inefficiencies as arise from jurisdictional overlap can, in the opposition’s view, be better dealt with by delimiting the respective jurisdictions of the two courts more clearly—reserving for the Family Court appellate and more complex trial matters—than by the simplistic expedient of abolishing the court which is the workhorse of the family law jurisdiction.

In fact, the Semple report does essentially recommend that—reserving for the existing Family Court judges appeals and jurisdiction over more complex trials—but with this crucial difference: most of the federal magistrates would be absorbed into the Family Court itself. With all due respect to the latter court—and in particular to Diana Bryant, the Chief Justice, with whom I have had discussions about the court—it is inescapable that that court does not enjoy the reputation which the Federal Magistrates Court does for prompt, less costly resolution of disputes. The opposition is gravely concerned that, if most of the federal magistrates are absorbed into the Family Court as a lower tier of that court, governed by the Family Court Rules, subject to the Family Court’s administrative structures and ineluctably affected by its culture, the efficiencies which have become the hallmark of the Federal Magistrates Court will gradually but inevitably be lost. That is the real fear of many of the stakeholders with whom I have spoken.

Although, in addressing the Semple report, I have emphasized the opposition’s concerns about the potentially serious damage it will do to the efficient resolution of family law disputes, I should add that we have other serious concerns about the government’s decision to adopt the Semple report as well. It is widely known within legal circles that the federal judiciary is deeply divided about the Semple report. The Family Court is strongly in favour of it—and one cannot help but detect more than a whiff of judicial empire building in the Family Court’s eagerness to take over most of the Federal Magistrates Court. The federal magistrates are deeply divided over the issue. The other court directly affected by the proposal, the Federal Court, does not want a bar of it.

One of the many errors in the Semple report has been to approach a question which directly affects three courts —the Family Court, the FMC and the Federal Court—but only take into account the needs and interests of two of them. As the terms of reference—indeed, the very title—of the Semple report indicate, its entire focus is upon family law. But family law is not all that the Federal Magistrates Court does. It deals with a large number of other federal law matters: bankruptcy, immigration, administrative law, copyright, consumer protection, trade practices and industrial law among them. Semple barely considers the consequences upon those other areas of the abolition of the FMC. Constrained by his terms of reference—and I should say, in fairness to Mr Semple, that he was not the author of those terms of reference—he approaches the matter exclusively from a family law point of view. His answer to the question, ‘What is to happen to those federal magistrates who deal with matters other than family law?’ is to suggest that they be integrated into the Federal Court as a division of that court. Yet, as emerged during the February estimates when I asked officers of the Attorney-General’s Department about the conduct of the Semple review, the Federal Court was scarcely consulted in the process. Rather, it was not until 11 February 2009—that is, six months after the Semple review had been delivered to the government—that the Chief Justice of the Federal Court, Chief Justice Black, wrote to the Attorney-General stating that, so far as the Semple report’s recommendations affecting the Federal Court were concerned:

… I do not support the recommendation and it is opposed by the judges of the Federal Court.

What kind of decision-making process is it which proposes a serious alteration to the constitution of a court, the Federal Court, without proper consultation, almost as an afterthought, and reduces that court to expressing its views after the report has already been written? From a process point of view alone, the Semple inquiry has been deeply unsatisfactory.

Finally, it is said by the Attorney-General that the abolition of the Federal Magistrates Court will save money by reducing three courts to two. But the number of cases will not change, and the savings are in any event derisory. By the government’s own estimates, the saving will be just $7.8 million over four years. To put that figure into context, the total funding for the Attorney-General’s portfolio, according to the portfolio budget statement tabled with the budget last night, was $5,080,165,000 for 2009-10. The savings brought about, on the government’s own estimates, by the implementation of the Semple review would be 0.038 per cent of the budget of the Attorney-General’s Department and its agencies for the coming year.

At what price is this scant saving to be achieved? How great will the additional costs to family law litigants be, as they wait longer to have their matters dealt with in a more complex, less efficient, more expensive court? And, beyond the extra legal costs, how can we calculate the emotional costs for people at the most vulnerable time of their lives?

The opposition is of the view that the government has made a grave mistake in adopting the recommendations of the Semple report. Like so much else the Rudd government does, it is likely to damage the very people it claims to be helping. The Federal Magistrates Court has been one of the most successful reforms to the Australian judiciary in our lifetimes, and the litigants have voted with their feet in choosing it as their court of preference in resolving, in particular, family law disputes. The government should leave it alone.