(1) What is the process by which Family Court matters are assessed for listing in the Family Court and local courts in (a) NSW and (b) Australia.

(2) How many applications to the Family Court and local courts in (a) NSW and (b) Australia were there for family law related matters for years 1998 to 2000, inclusive.

(3) How many of those applications are refused for want of being considered vexatious, oppressive, unjust or administratively incomplete such as including an insufficient filing fee, having a defective application form or having insufficient evidence or affidavit.

(4) What Court Rules, policies and guidelines is the Registrar of the Family Court and local courts bound by in respect of adjudicating what threshold must be reached in order to determine whether there exists a prima facie case that a matter ought to go to trial.

(5) What is the average cost of litigation for litigants commencing principal or ancillary relief orders in the Family Court.

(6) How many contraventions of child orders have occurred in (a) 1998, (b) 1999 and (c) 2000.

(7) Has the number of contraventions of child orders increased, decreased or remained the same over this period.

The Family Court of Australia has been consulted and provided the information detailed at Attachment A.

State and Territory authorities have also been consulted in relation to the `local courts' aspect of the question. The responses received are consolidated at Attachment B.

Attachment A

Family Court of Australia Response

(1) There is no assessment process in respect of the allocation of the first return date allocated on the filing of an application for orders. This process is regulated by the Family Law Act 1975 (the Act) and Rules. The Act prescribes the jurisdiction of the Family Court of Australia (FCoA) and hence the nature of the orders that can be sought from the Family Court, and the Family Law Rules provide for the allocation of court dates (listing). The allocation of the court date is dependent upon the nature of the orders sought in the application. The Rules do provide for an earlier listing in circumstances where urgency can be demonstrated.

The Family Court, through its Rules and Case Management Guidelines, provides parties with the opportunity to consider the resolution of their dispute through primary dispute resolution processes and without recourse to further litigation. Matters which do not resolve at a primary dispute resolution event are referred to a Pre-Hearing Conference conducted by a Deputy Registrar for the allocation of dates for final hearing.

(2) The following are the number of applications lodged with the Family Court of Australia (excluding the Family Court of Western Australia (FCWA)) in the calendar years 1998, 1999 and 2000.

Note: NSW figures are a subset of the FCoA figures. NSW includes the applications filed at Sydney, Parramatta and Newcastle registries. These numbers may include applications of non-NSW residents as an applicant may file at any registry, not just the state in which they reside.

The Federal Magistrates Service commenced accepting applications for various family law matters on 1 July 2000, hence the number of applications for 2000 is marginally lower than for the previous two calendar years.

(3) The Family Court does not keep data about applications pertaining to these categories.

(4) The Act does not require parties to establish that a prima facie case exists (except in applications which are quasi-criminal in nature). Accordingly, there are no provisions in the Rules, policies or guidelines of the Court that require a Registrar to determine whether a prima facie case exists before a matter proceeds to trial. The Court has in place processes by which the parties are assisted by a Deputy Registrar in identifying the issues in dispute, and directions made for the trial management of that case, but there is no adjudication by the Court or Registrars prior to hearing as to the merits of the application. Registrars consider the ambit of the dispute and the nature of the relief sought by the parties when making directions for trial management. Such directions include consideration of the amount of hearing time to be allocated to each case. In cases when a party considers that the other party's application to the Court fails to meet any threshold test as to jurisdiction or merit, an application to the Court to dismiss the application can be made.

(5) The average cost of litigation for litigants commencing principal or ancillary relief orders in the Family Court is unknown. However, the current fee structure applied to applications lodged with the Family Court of Australia is as follows:

Application for Final Orders—$158

Application for Divorce/ Nullity/ Declaration of validity—$526

Application for Notice of appeal to full court—$648

Application of notice of appeal from court of summary jurisdiction—$648

Final Hearing Fees (required if client has a final hearing before a judge)—$316

These fees are adjusted for CPI on 1 July each year. Many clients receive exemptions or waivers from paying the application fees. This can be as a result of, for example, holding a health care card, being a recipient of a social security payment, being under 18 years of age or being able to prove financial hardship.

(6) The number of contraventions of child orders is unknown as many would not come to the notice of the Court. However, applicants may lodge a Contravention of child order application (form 49) in the event of a contravention. The following data shows the number of applications lodged which sought a determination for the contravention of child orders.

(7) There has been a marginal increase during this period in the number of applications for contravention of child orders.

Attachment B

State and Territory Responses

(1) New South Wales:

The Registrar of the Local Court is responsible for the listing of applications under the Family Law Act 1975 before the Local Court. The Registrar of the Local Court is required to comply with Family Law Rules. Order 7 rule 2(a) specifies a return date not earlier than 21 days. The time for listing takes account of the time for service of the application on the respondent. Applications requiring urgent ex parte orders are usually placed before the court as soon as possible.

Victoria

In Victoria, family law matters are filed in the Magistrates' Court. At the time the application is filed a return date for the application is fixed. There is never any assessment made of whether a matter is ready to be heard before it proceeds to court. Most matters are resolved and orders made with the consent of parties to the matter. Contested matters are generally transferred to the Family Court of Australia.

Queensland

In Queensland, family law matters are filed in the Magistrates' Court. Upon filing the matter is registered and set down for mention before a Magistrate. Urgent matters are brought before a Magistrate immediately. If a matter is not urgent, it comes before a Magistrate on the next available date, usually within 4 to 6 weeks.

Western Australia

In the Family Court of Western Australia (FCWA), registry staff (counter officers) assess matters for initial hearing. Matters of a similar type are usually listed for an initial hearing in multiple lists before Magistrates as prescribed by the Family Law Rules and the Court's Case Management Guidelines and Directions (CMG&D). The Rules provide applications for principal relief (divorce) to be listed:

The Court's CMG&D provide that joint applications be listed for hearing as close as practicable to four weeks from filing, and all other applications as close as practicable to ten weeks from filing. Applications other than for principal relief are to be listed as near as practicable to 42 days after filing unless interim orders are sought, in which case the application is listed not earlier than 28 days after filing.

The only matters listed for first hearing before Judges are those matters that are outside the jurisdiction of Magistrates and include appeals from courts of summary jurisdiction and applications for review of decisions of Registrars. If a litigant seeks a listing of an application earlier than the time prescribed by the Rules, the request is assessed by a Registrar of the Court, a Duty Registrar, or by a senior member of the Court staff.

In the Magistrates' Courts outside the metropolitan area, members of the court staff list all matters for hearing as prescribed by the Family Law Rules. (The FCWA has exclusive jurisdiction in family law matters in the Perth metropolitan area.)

South Australia

Tasmania

No significant response received due to the accessibility of the Family Court of Australia's registry and sub-registry in Hobart and Launceston, respectively.

Australian Capital Territory

Matters lodged with the ACT Magistrates Court must comply with the requirements as to form and substance as prescribed in the Family Law Act 1975 and related legislation. In certain circumstances, a filing fee is applicable. After lodgement, a first return date, where the matter is to be listed for mention only, is fixed with the documents being issued for service upon the respondent. Applications for child support are fixed for Order 24 (Conciliation) conferences in accordance with a practice direction issued by the Chief Magistrate. If no agreement is reached at the conference, the matter is listed for hearing before the Court.

Matters not listed for conference are set down for hearing if contested.

Northern Territory

Applications are filed in accordance with the Family Law Act 1975 and Rules. Urgent applications for “interim” custody or injunctive relief matters will be listed in consultation with the Listing Registrar for a time before the magistrate.

(2) Applications lodged, other than with the Family Court of Australia, in NSW and elsewhere in Australia were as follows:

(3) State and Territory local courts do not maintain statistics about applications pertaining to these categories.

(4) New South Wales

The Registrar of the Local Court does not exercise discretion as to whether an application will be listed before a Magistrate.

Victoria

Family law matters in the Magistrates' Court of Victoria are generally resolved by the filing of consent orders. Therefore, there are no trials nor any necessity to determine whether matters should go to trial. Matters likely to involve dispute are transferred to the Family Court of Australia for resolution.

Queensland

In the Queensland Magistrates Court the Registrar has no judicial function. The matter is determined by a Magistrate.

Western Australia

The determination of whether or not there is sufficient evidence to proceed to trial is a matter of judicial discretion. Registrars of the Family Court of Western Australia and Clerks of Local Courts do not have authority to determine that issue. A party who considers that a matter should be dismissed summarily prior to trial is entitled to make a formal application to the Court and to seek a listing before a judicial officer.

South Australia

The same guidelines as for the civil jurisdiction apply ie if the parties are unable to reach a mutually acceptable outcome, the matter is listed for trial.

Tasmania

No information supplied.

Australian Capital Territory

Rules of the Family Court of Australia provide guidance to the Registrar of the ACT Magistrates Court.

Northern Territory

No information supplied.

(5) State and Territory courts do not have access to data relating to the cost of litigation to parties in family law matters.

(6) Western Australia

The Family Court of Western Australia does not record statistics of the number of findings of contravention of child orders. The Court does, however, maintain statistics of the number of applications filed for contravention of a child order which, for the relevant years, were as follows:

1998: 298

1999: 268

2000: 233

New South Wales, Victoria, Queensland, South Australia, Tasmania, Australian Capital Territory, Northern Territory

No information is maintained on contravention of child residence and contact orders in these States and Territories.

(7) State and Territory local courts do not maintain statistics on contraventions of child orders.