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Wednesday, 8 November 2000
Page: 22406


Mr McCLELLAND (12:48 PM) —While the opposition supports the Jurisdiction of Courts (Miscellaneous Amendments) Bill 2000, there are some points we would like to place on the record regarding the establishment of the Federal Magistrates Service. The intention of the bill is to rectify some potential invalidities or irregularities that could occur in respect of the transfer of proceedings between the Federal Magistrates Service and the Federal Court or the Family Court and, in reverse, from the Family Court or Federal Court to the Federal Magistrates Service. We understand that the Attorney-General has received advice that there is some doubt as to whether the transfers between those respective courts can occur under the feeder legislation—for want of a better description—to these courts: the Administrative Decisions (Judicial Review) Act, the Family Law Act and the Trade Practices Amendment Act.

We agree that there needs to be clarification of those matters and we also agree with the need for schedule 2—that is, the safety net provisions contained in the bill—to validate any decisions or orders that may have offended the requirements of the current legislation. We might add, however, that we believe there may be a constitutional issue that does arise as to the extent to which the parliament can validate orders that have already been made, particularly with respect to orders for the dissolution of a marriage. We have questions as to whether that is effectively an administrative action rather than a judicial decision dissolving those marriages, but no doubt that is something the Attorney-General's Department has considered or will consider. I do not want to make a point about an embarrassing oversight. These sorts of things can happen no matter which political party is in power. I think the important thing is to rectify these matters so that litigants before the courts do not waste money in litigating issues that ultimately result in the outcome of the proceedings being set aside or found to be a nullity.

The point I want to make in my contribution concerns not so much the technical issues relating to the establishment of the Federal Magistrates Service but, rather, the practical issues. Fundamentally, those practical problems have been the result of the creation of an artificial seam where one is unnecessary; that is, the creation of a Federal Magistrates Service as a separate and distinct court from the Federal Court and the Family Court has created problems in respect of the use of the premises, the use of libraries, for instance, the interactive use of staff and the storage and transfer of files. No doubt, as the service continues to function, many other areas of administration will become involved. Albeit this was in the middle of the year, and hopefully some teething problems have been struggled through, I would point out that there was a Financial Review reference—reported on 23 June 2000—to an interview with the Chief Federal Magistrate, Ms Diana Bryant QC. Justice Bryant is reported as saying:

“We are all in a `federal judiciary family' but like all families there's a power struggle,” she said.

Ms Bryant said that while in Adelaide trying to set up the magistracy she “foolishly” mentioned sharing the existing library, and she admitted the rules and procedures of the court, along with the filing fees, had not been finalised.

I understand the rules and procedures and filing fees are being resolved; but clearly there is a reference there, if you like, to the respective empires being protective of their own turf. That is regrettable when what we are about is trying to ensure that Australian citizens have access to cheap and efficient justice irrespective of the source of that justice. Again, creating this artificial division, we believe, is unnecessary and has more to do with the desire of the government to avoid public headlines regarding decisions of the Family Court. That is not the way to create these institutions that are so vitally important to Australians receiving justice.

The clashes which have occurred—and which we believe will inevitably occur—between the competing jurisdictions are particularly important in the context of a reduction in the Family Court's budget. The Family Court's budget has been cut, as a result of the establishment of the Federal Magistrates Service, by some $15.4 million over four years. That has resulted in the loss of some 80 jobs. If you leave aside the entrenched costs of the Family Court, as was indicated in a memorandum of the chief executive of the Family Court of 10 May 2000, this cut of some $15.4 million is effectively a 10 per cent reduction in the operating budget of the Family Court. As the chief executive officer indicated, it would have significant repercussions for the staffing and delivery of services of the Family Court. That has proven to be the case.

For instance, I was recently in the federal electorate of Capricornia, in the city of Rockhampton. It appears that the cuts to the Family Court's budget have resulted in a reduction in registry hours from a full-time operating registry to two days per week during non-circuit weeks, although it will operate on a full-time basis during circuit weeks, which I understand is approximately half the year. The person who staffed the registry has said: `What sort of a job is that for me? I have a full-time job half the year and half a job for the remainder of the year. Where does that leave me?' It appears that she has very quickly been snapped up by a legal firm up there because of her reputation for competence and assistance to members of the public. It is regrettable that the Australian public has lost a very loyal public servant who has been of great benefit to the local community in that area. I should say that `local community' is a very broad term when you are looking at the electorate of Capricornia and the surrounding areas. People came from hundreds of miles away to obtain services from the Family Court registry located in Rockhampton.

There are going to be real problems for the community up there because of the loss of that staff member. How will a person travelling from 100 miles away know whether the registry is going to be closed or open before they leave? This registry had really made a contribution in assisting people to complete documentation—for example, to direct them to other support services that were available to reduce the extent of trauma associated with marital breakdown and generally to provide a very valuable and valued public service up there.

There are also going to be problems as to what is going to happen now with documents that have been filed in Townsville because the Rockhampton registry is not open. If these documents are filed at a time which is close to when the circuit is going to be in the city, there is a real prospect of disruption to proceedings as a result of documents going astray. So, despite the government's protestations and the Prime Minister's Nyngan declaration that there would be no further depletion of services to regional and rural Australia, the establishment of this Federal Magistrates Service has indirectly resulted in that occurring because of the reduction in resources to the Family Court of Australia.

Although obviously the loss of that registry resource is important, of more crucial importance is the issue of counselling. That was flagged, perhaps, by the Chief Federal Magistrate, Justice Bryant, in the interview which is reported on 23 June. She is reported as saying that she was still dealing with the vexed problem of alternative dispute resolution and how to offer it effectively within the budget—that is, the budget of the new Federal Magistrates Service. I understand that, while it was initially intended that the Federal Magistrates Service would have access to the counselling facilities of the Federal Court, and perhaps to the counselling facilities offered by non-government organisations, there is, as she points out, a question of resourcing the Federal Magistrates Service to provide that counselling service. If they do not have the money, they clearly cannot pay for that service. Again, because of the difference in the courts, presumably if the Federal Court counsellors were going to be involved there would be some payment required from the Federal Magistrates Service to the Federal Court for those hours. Or if non-government organisations were going to be used by the Federal Magistrates Service, presumably there would be some payment required from the Federal Magistrates Service.

To date, it looks as though that has not been sorted out. It has been reported to me that the Federal Magistrates Service simply is not offering that counselling—those important alternative dispute resolution facilities—to people who file documents before the Federal Magistrates Service. That is significant because of the effect that the establishment of the Federal Magistrates Service has had on the Family Court—namely, a reduction of $15.4 million in the Family Court's operating budget. As was indicated by the chief executive officer of the Family Court, as a result of that 10 per cent reduction—and I quote from his 10 May memorandum:

It is likely that we will need to reduce the amount of voluntary counselling that we provide, with the result that some counselling positions will go.

In Rockhampton, for instance, that has been the outcome. The counselling services will be entirely contracted out to private service providers—to non-government organisations. I met with a number of those non-government organisations when I was in Rockhampton. They are staffed by extremely decent, competent people. The organisations do a tremendous job. But there is a real issue as to whether they are going to be able to perform Family Court counselling properly, and certainly as to whether they will be able to provide the service that is needed as part of the Family Court proceedings. There is a real resourcing issue: what will they be paid to undertake this counselling activity? What is the extent of training that is being undertaken by their counsellors? The Family Court counsellors have been selected after a rigorous selection process and then have an extensive in-house training program. We are entitled to ask: will that sort of training and selection process be applied in respect of the non-government organisations?

Also, in resolving family law disputes, it is naïve to assume that some knowledge of family law is not required and, indeed, some knowledge of the likely outcome of proceedings. How can you attempt to resolve a residence or an access matter between a couple when you are not familiar with the likely outcome of that matter, should the people involved go to court? More often than not, these matters are resolved when someone who is properly informed and has the respect of the litigants is able to say, `You have to be sensible here. No-one likes the outcome of the Family Court process because, by definition, you walk away with less than the combined assets you had as a husband and wife; indeed, you walk away, more distressingly than that, with less time with your children because of the different orders made about residence and access to your children.' By its very definition, the Family Court process ends up with people who are dissatisfied because they have less than they started off with, having regard to the nature of the breakdown in the relationship.

What has been vitally important has been the ability of counsellors to say, `I know you're not happy about this and you don't want to see that happen, but if you go on to litigation, this is going to be a likely outcome.' The counsellors with these non-government organisations who have not had that sort of experience are going to be at an extreme disadvantage—or, more specifically, people using that counselling service are going to be at an extreme disadvantage in terms of receiving any meaningful guidance from the counsellor. There are also issues as to who will be available to assist the non-government organisations to reduce any agreement to a written form should they be able to succeed in bringing the parties to an agreement. There are also issues relating to a support network for these counsellors in the non-government organisations.

The Family Court counsellors, as you would expect, have developed an extensive support network in respect of the quite intense and personal problems that they confront. They are able to consult with their colleagues as to ideas that have been tried and proven to be successful in the experience of these other counsellors. But this is going to be an entirely new territory for these non-government organisations, which will not be able to tap into such a network of support.

One of the vital roles played by Family Court counsellors is the provision of family reports to judges. Judges rely extremely heavily on those family reports because they are getting input presumably from someone they respect who has had the time to spend with the respective parties to the marriage break-up and, more importantly, with their children. Do we lose that important area of input into the Family Court process because of the contracting out of these counselling services? It is very much penny-wise and pound-foolish to look at saving money in the area of counselling. The Attorney himself recognised, when he commented on the Family Court of Australia's annual report for 1999-2000 as recently as 27 October 2000, that:

The use of primary dispute resolution processes resulted in only 6.5 per cent of all matters filed with the court being finalised by judgment during 1999-2000.

That is an outstanding result from these primary dispute resolution processes. Only 93.5 per cent of cases went to trial because of the success of these settlement processes. The proof of the pie is in the eating. These counselling services have had dramatic success in resolving matters without going to litigation. So to diminish the resources available to them and their opportunity to assist parties to come to a resolution outside the judicial process is, as I say, penny-wise and pound-foolish simply because it is more than likely that you will end up with more court hours and paying for the cost of judicial time, an associate, a court reporter, a court officer and even the rental space of those courts. So it is just foolish.

In addition, there will inevitably be additional expenses to the community. The longer that family disputes go on unresolved, the greater the need will be, for instance, for a whole range of additional social services to cope with children who, more often than not, are the ones who suffer trauma in situations of marriage break-up where there is hostility. Indeed, in worst case scenarios, there will also be the need for the intervention of police services if there is a build-up in aggression to the point where domestic violence ensues. Again, we are all familiar with such situations. It is fair to say that those comments are not sensationalist because we are well and truly aware of the need for police to come out in domestic violence situations. The police themselves regard that as one of the most dangerous activities that they confront. But all the time that matters are not resolved, the victims are very much the children. So this disjunction that is creating this artificial division between the Federal Magistrates Service and the Family Court, with the accompanying diminution of resources to the Family Court, has already had significant effects, particularly in rural and regional Australia.

I was particularly encouraged by my discussion with the Rockhampton practitioners, all of whom appreciated the value of these counselling services, despite the fact that the lawyers did not play a part in attending those counselling proceedings and were cut out of the action from a financial point of view. They all recognised that it was in the interests of their client to achieve a conciliated outcome through an effective counselling process, rather than for the matter to be resolved by litigation.

It was put to me—and I have to say that I agree with it—that the mere fact a litigation is commenced invariably results in the inability for that matter to settle. As soon as you are required to put down in affidavit form the various accusations and imputations against the other party, particularly in the context of residence and access to children, you automatically inflame the situation so that it takes months to resolve. They put to me the vital importance of counselling at an early date—a suggestion that we will take on board in our policy development, and one that the government may take on board. It was put to me that, other than in matters of urgency of domestic violence or perhaps an abduction, it may well be of benefit to require parties, before they commence proceedings in the Family Court, to file a certificate of attempted resolution through an alternative dispute resolution mechanism, where it is not necessary to up the ante by setting out in writing the various accusations, airing the dirty laundry and aggravating both parties. That is certainly something to bear in mind. I make those points not as an aside but to say how directly important counselling services are in this area.

We are having a situation where, because of the depletion of the resources of the Family Court, those counselling services are being contracted out in circumstances where I do not believe that contracting out is going to deliver services effectively. At the same time—and this is a vitally important point—it does not appear that the Federal Magistrates Service has the resources to tap into these counselling services. I might add that the ridiculous situation is now occurring in Rockhampton where, after losing their staff member of the registry because of the reduction of registry hours, there are apparently negotiations occurring as to whether the Federal Magistrates Service will place some additional demand on the registry such that it could be at least partially reopened during those non-sitting periods.

You have had a reduction or sucking out of assets result in reduced services for the community. Perhaps commonsense is prevailing so the wave is starting to come in a bit in terms of people resolving these practical differences that exist between the way in which the Federal Magistrates Service and the Family Court conduct themselves.

That is very relevant in terms of the way circuits are conducted. If you lose 10 per cent of your operating budget the inevitable consequence for the Family Court is that they are going to have to reduce the amount of circuit time they undertake—and circuits are vitally important to the delivery of justice to rural and regional Australia. To what extent will the Federal Magistrates Service be able to fill that void? They already have intense demands in the capital cities for their services. The Chief Federal Magistrate has indicated that she herself has some resourcing questions if their workload increases, as one would expect it will. That has to put into question the extent to which the Federal Magistrates Service will be able to undertake circuit work. What is going to be the mechanism for coordinating circuits undertaken by the Federal Magistrates Service as opposed to the circuit work undertaken by the Family Court? They are vitally important questions because, for a start, when is the Rockhampton registry going to be open? Is it only going to be open during the circuit weeks of the Family Court or will it be open separately or in addition during the circuit weeks of the Federal Magistrates Service? This is a vitally important question not only for the registry staff but also for people wishing to use the registry.

Put yourself in the position, as it was explained to me, of these practitioners. What body, what court, do they commence the proceedings in? Do they commence the proceedings in the Family Court, where they know there is going to be at least some access to counselling, albeit, it now appears, through the contracting out arrangement? Or do they commence it with the Federal Magistrates Service, where it was conceded that, because of the fewer matters in that service, they will get a more expedited hearing date, but they will not have the opportunity for the counselling services that are available? Again, what court they commence it in will depend very much on the extent to which circuits will be undertaken by the Federal Magistrates Service. These sorts of things just have not been worked through. It is already having an effect on rural and regional Australia. It is certainly having an effect on the administration of justice.

This is frustrating because there were alternatives. We argued, and it indeed is still our position, that it would have been preferable to include what we acknowledge as a required magistrates level of justice within the existing Family Court and Federal Court structures. A good example is how the Western Australian Family Court operates, where, yes, there is a magistrates service incorporated within that court but it very much operates as the one unit, where magistrates and judges alike work off the one docket system so matters flow freely between them, depending on the level of complexity, urgency and the like. Incorporation of the Magistrates Service within the existing family and federal courts would have avoided these unnecessary, practical problems that I have referred to—problems because of the artificial and unnecessary division between the jurisdictions, particularly in the Family Court area.

Another alternative, or an additional avenue that would have been available, was proposed by three state Attorneys-General. Jan Wade in Victoria, Matt Foley in Queensland and Jeff Shaw in New South Wales all said, `Why are you creating this additional service? We have magistrates all through our states in regional and rural areas. Why don't we look at sitting down with an agreement for dual commissions to appropriately trained magistrates'—they concede that not all magistrates would have the training—`so that we could literally get these sorts of services out into the bush?' That was totally ignored by the government. Again, one has to question the merits of this ridiculous step of spending some $27 million to establish an entirely separate court, which has caused fractures and unnecessary divisions in the delivery of justice. As a New South Wales Law Society Journal concluded:

From the Federal government's perspective, however, the best use of the $27 million will be the disappearance of the Family Court from television current affairs programs and the front pages of the press.

One suspects that that is the motive of the government, but it is not sufficient for the administration of justice. (Time expired).

Debate (on motion by Ms Worth) adjourned.