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Legal and Constitutional Affairs Legislation Committee
Federal Court of Australia

Federal Court of Australia


CHAIR: We now move on to the Family Court of Australia and the Federal Circuit Court. I welcome the CEO and the principal registrar and others. Would you like to make an opening statement?

Mr Foster : No, thank you.

Senator JACINTA COLLINS: Mr Foster, there has been commentary recently about a blow-out in wait times in the courts. Could you update the committee on those issues?

Mr Foster : Yes, I certainly can. In relation to that, perhaps I can give you some filing numbers as well. There is a relationship, obviously, between filing and delay. Perhaps I could go back over the last five or six years, very quickly, to give you some indications of the numbers. In 2010-11 the Family Court had 3,249 applications for final orders. The Federal Circuit Court had 17,515 for a total of 19,426. In 2011-12 it was 3,271 and 17,412 for a total of 19,326. In 2012-13 it was 2,807 and 17,364 for a total of 18,999. In 2013-14 it was 2,923 and 17,565 for a total of 19,279. In 2014-15 it was 2,936 and on the Federal Circuit Court 17,685 for a total of 19,480. The projected 2015-16 figures are 3,200 and 18,000 for a sum of 20,000. So those numbers for applications for final orders are almost the same as what the courts were experiencing back in 2000.

There was a massive drop in application for final orders when the Family Relationship Centres came in. Since that time the workload has increased again back to that of nearly 15 years ago. I do not think there is a judge who works in—and these are family law figures only; not general federal law—this jurisdiction who would not say that the work has become much more complex than it was. It is much more complex. I think that is one of the factors that impacts on delays.

The average time from lodgement to first day of trial in the Family Court is currently 15.9 months, and it was 13 months in 2014-15. In the Federal Circuit Court the average time from lodgement to first day of trial is 15 months, and in 2014-15 it was 14.1 months. That average can be affected by a number of significant factors. One is the complexity which I have mentioned. In many, many cases now there are allegations of family violence. It is the level of conflict between the parties which has increased significantly that is part of the complexity. Proceedings in other courts, significantly criminal courts, delay matters in our courts, and obviously the availablility of judicial rerources. They are probably the most significant issues.

The courts regularly monitor and review aged cases—those that are over 24 months old—and try and bring them to some sort of conclusion, to make sure that, one, they are not actually concluded but still on the system. Some of those aged cases can affect those average times from lodgement to first day of trial. That is basically a snapshot of where we are up to.

Senator JACINTA COLLINS: The first point you made in terms of your figures is that with the establishment of Family Relationship Centres there was some significant change, but you have gradually returned to what the picture was before those centres were established.

Mr Foster : From 1999-2000 to 2007-08 there was a reduction of 21 per cent of applications for final orders in the courts. That figure has now been seen about an 11 per cent reduction of the figure we had back in 2000. So the workload has crept up again, but the work is much more complex and difficult than it was a decade ago.

Senator JACINTA COLLINS: But it has not quite returned to what it was at previous times.

Mr Foster : No.

Senator JACINTA COLLINS: But it also makes sense, then, to look at what is occurring within Family Relationship Centres at the same time, too.

Mr Foster : I would have thought so. But that is a matter for someone else, not for us.

Senator JACINTA COLLINS: No, I understand. I will not ask you about that aspect. Going to the issues around judicial resources: can you provide me with a snapshot of what has happened in recent years in that respect?

Mr Foster : At the moment the Family Court currently has 32 judges, including the Chief Justice, with one vacancy in Brisbane. The Federal Circuit Court has 63 judges, including the Chief Judge, with two vacancies: one in Sydney and one in Melbourne. So there is a current total of 95 judges and I think 14 or 15 of the judges in the Federal Circuit Court are dedicated solely to general federal law, so there is still a significant resource dealing with family law matters in the federal system.

Senator JACINTA COLLINS: Let me understand that: of the 63, there are how many who are limited to—

Mr Foster : Of the 63, there are 15 judges in the Federal Circuit Court dedicated entirely to general federal law and 47 in family law.

Senator JACINTA COLLINS: Those 47 are dedicated entirely to family law?

Mr Foster : They are.

Senator JACINTA COLLINS: Okay, so there is a clear demarcation there; we do not have any judges doing both.

Mr Foster : There are, but it is at the margin. To be absolutely specific: there are 46.8 FTE in family and 15.2 in general federal law. I just rounded them up for you for simplicity.

Senator Brandis: On that point, Senator Collins, one of the objectives I have had in appointing judges or recommending judges for appointment to the Federal Circuit Court is to broaden its skills base so as to recruit judicial officers who can do both family law and general federal law work. The siloing of the judges into exclusively family law work or exclusively federal law work is not something I want to encourage or perpetuate, and, with that in mind, I have, among other criteria, had regard to the range of professional experience of recruits.

Senator JACINTA COLLINS: I understand that, Senator Brandis, which is why I am surprised that, at this stage, they are being described as entirely dedicated to one or the other.

Senator Brandis: Historically, that has largely been right. I do not disagree with anything Mr Foster has said. It is the case that the vast majority of cases that Federal Circuit Court judges do are family law cases. That is merely a reflection of the case flow and case volumes in that jurisdiction compared to other federal law jurisdictions. But, that said, it has always been my view—this goes back to the days when my party was in opposition and I was in the position you now occupy in this estimates committee—and I put this view on the record quite often, that the Federal Circuit Court should become, is becoming and will continue to become the great trial court of the federal judiciary: so the very large and complex matters in non-family law matters go to the Federal Court of Australia; the large and complex matters and appellate matters in family law go to the Family Court of Australia; and the vast bulk of cases that do not answer the description of 'large and complex' are dealt with by the Federal Circuit Court. That, Senator Collins, is largely similar to the experience of state courts, where the intermediate level courts—the district courts or county courts depending on which state they are in—do most of the trial work and the Supreme Courts only do the large and complex trials and the appellate work.

Senator JACINTA COLLINS: Going back to the total of 95, can you compare that for me over the earlier years? You described the trends in the other figures. What year did you commence with?

Mr Foster : That number of judges—I was talking about currently, Senator; I did not have any historical data.

Senator JACINTA COLLINS: No, I understand that. But I am asking, when you were talking about your case numbers, you went back to what year?

Mr Foster : I went back to 2010 and 2011.

Senator JACINTA COLLINS: Can you start there on the number of the judiciary?

Mr Foster : I do not have those numbers with me. I would need to take that on notice.

Senator JACINTA COLLINS: Is that something that would take long?

Mr Foster : No, it will not take long. We have got information, I just have not got it here.

Senator JACINTA COLLINS: Okay. As there are other senators who have questions to ask too, perhaps we could revisit that later this session? If that is possible; if not, then take it on notice.

Mr Foster : Okay, thank you. I think I can give you the number of Family Court judges, going back. But I have not got the Federal Circuit Court numbers.

Senator JACINTA COLLINS: Why don't you wait until you do, because I would like to be able to compare apples with apples, to the extent it is possible.

Mr Foster : Okay. I probably would need to take that on notice then, Senator, if that is okay.

Senator JACINTA COLLINS: Sure. It is only in the sense that I want to build a picture of the resource constraints, and to have a sense of the trend in that respect.

Mr Foster : Sure, I understand.

Senator JACINTA COLLINS: In terms of judicial appointments, the Attorney-General announced on 2 February this year, Brisbane judge and current visiting Rockhampton circuit judge, Judge Anne Demack, will now sit permanently as a Federal Circuit Court judge based in Rockhampton from 7 March. May I ask what consultations were undertaken with the Queensland government prior, to this announcement, to ascertain whether the Rockhampton courthouse could accommodate the judge and her support staff on a permanent basis?

Senator Brandis: Senator, issues of court management are of course a matter for courts to consult other courts. I am actually familiar with the courthouse, Senator, and I can tell you that there is a vacant courtroom which will accommodate Judge Demack when she commences to be based in Rockhampton. But it is not appropriate for the Commonwealth to speak to the court in another jurisdiction. That is a matter either between courts or between departments.

Senator JACINTA COLLINS: Let us take this particular case: will any modifications need to be made to the existing Queensland government courthouse to accommodate the judge?

Senator Brandis: I think there will need to be some modest modifications, but there is a vacant courtroom and a vacant visiting judge's chambers which, at the moment, are used primarily by the Federal Circuit Court judge who circuits to Rockhampton from Brisbane. But now that circuit will no longer be required because there will be a Rockhampton-based judge.

Senator JACINTA COLLINS: Mr Foster, has any of that court-to-court consultation occurred?

Mr Foster : Yes. I wrote to the Deputy Director-General of the Department of Justice and to the Attorney-General on 13 November last year, setting out what our requirements would be if and when a permanent judge was appointed to Rockhampton. I received a response on 7 January saying, 'services are limited but basically we do have some capacity; there would need to be some work done', and 'we should start talking about it'. And so I have had one conversation with a member of the department up there since that time. We will now start talking to them in a more serious way. Now that the Attorney has made the announcement, we know certainly that this is going to happen, and we can accommodate it.

Senator Brandis: And I might add, beyond that, I am told by Chief Judge Pascoe that he has also had conversations with the Chief Justice of Queensland at court-to-court level.

Senator JACINTA COLLINS: Who bears the cost of those works?

Senator Brandis: The building is a Queensland government building, but it is a building that already accommodates the federal judiciary in the manner I have indicated. So the arrangement is not entirely dissimilar to the arrangements in Sydney, where there is a building in Phillip Street shared by the Supreme Court of New South Wales and the Federal Court of Australia, and judges from both courts have chambers in that building and they conduct courts in the building. There will, I expect—and I have indicated this—be some cost to the Commonwealth. I expect it to be a modest cost, because I understand that there will be some work required to configure the court but I am told that it is a modest amount of work.

Senator JACINTA COLLINS: Then those costs—from what you are saying, Attorney, similar to New South Wales—would be shared in some negotiated way. Is that correct?

Senator Brandis: I expect so.

Mr Foster : Can I say something?

Senator Brandis: Yes, Mr Foster.

Mr Foster : They are now, Senator. We have been at the Rockhampton courthouse for several years. We have a registry in there with staff in it, and we share their security costs. It is of great benefit both to the Commonwealth and the state in terms of costs. It is similar to the arrangement we have in Darwin, where we now have the resident Federal Circuit Court judge in the Supreme Court building in Darwin, and our registry up there is in the Supreme Court building. We got out of leased premises and saved a significant sum of money, and the Northern Territory converted our premises into a juvenile justice centre. So there were benefits for both state and federal governments. I think it is a really good model—it is one that I think we should explore more and more as far possible to get out of leased premises and into proper facilities that the states provide and we pay a modest amount of money to be there. It is a really good deal, in my view.

Senator Brandis: Do we do this in Launceston?

Mr Foster : In Launceston? No, we do not.

Senator JACINTA COLLINS: I am conscious of time, but I will finish this set simply with some quick questions around replacing Judge Demack in the Brisbane registry. What is happening there?

Senator Brandis: There is not a vacancy in the Federal Circuit Court in Brisbane. Judge Demack will not be replaced in Brisbane. She will be based in Rockhampton, though she will not be sitting exclusively in Rockhampton. She will circuit to centres in Central Queensland, including Mackay, Gladstone and Emerald. She will also, on occasions, undertake work in Brisbane. At the moment, she is in Brisbane circuiting up to Rockhampton, but that will be reversed so that her base, as I say, will be in Rockhampton.

There will be a family court judge appointed in Brisbane, the announcement of which will be made shortly. Lest you want to tackle me after the word shortly as you did this morning, Senator, the name of that particular new Family Court judge in Brisbane was approved by Cabinet last night, so it is merely a matter of going to ExCo.

Senator JACINTA COLLINS: So that will be an additional Family Court judge for Brisbane—

Senator Brandis: It will be a replacement for Justice Bill, who retired last year.

Senator JACINTA COLLINS: I am coming to that one in a bit, so I am happy to cede to other senators for the moment.

CHAIR: I will pass to Senator Heffernan, but, before I do and as part of his time, I just have a question on the central judge. Minister, is that the first time there has been Federal Court judge in Rockhampton?

Senator Brandis: Federal Circuit Court judge. Yes it is, Senator Macdonald. There has, as you know, always been a central Supreme Court judge—that is Justice McMeekin—and there has for a long time been a resident District Court judge, and that is Judge Burnett, but there has never been a resident Federal Circuit Court judge. Given that we were talking before about how the large share of the work of the Federal Circuit Court is in the family law jurisdiction, that will be a huge benefit to people in Rockhampton because, more often than not, their family law matters have to be dealt with in Brisbane, because the opportunity of judges from Brisbane to circuit to Rockhampton was relatively limited. This will be a great saving of cost and time to people in Central Queensland.

CHAIR: I would have thought the Central Queensland community would have been ecstatic at the announcement.

Senator Brandis: When I made the announcement with the member for Capricornia, Ms Landry, in November of last year, I think it is fair to say that they were delighted, and the Central Queensland Law Association and the Rockhampton bar were particularly happy for understandable reasons.

CHAIR: Surely the Queensland government must be very supportive of this, because having this additional judge in the Central Queensland area is something that, I would assume, the local state members were very supportive of.

Senator Brandis: I had hoped so. I did receive a rather hostile letter from the Queensland Attorney-General, Ms D'Ath, who did not appear to be supportive of what the Commonwealth was doing. I do not understand why, but I do not want to be political about this, Senator Macdonald, because I just want these arrangements to get underway as smoothly as possible as soon as possible.

CHAIR: I understand that you would not, Minister, but it seems incredible to me that the state government would not be bending over backwards to enhance the legal services to Central Queensland.

Senator Brandis: I do think that everyone else is cooperating. The state courts are cooperating. The Central Queensland legal community and the community more broadly are very happy about it. The Federal Circuit Court has of course been very cooperative. The Chief Judge, John Pascoe, has been a collaborator of mine on this project for some little time now, and he is delighted about it. So the only element in this who seems to be uncooperative is the Queensland State Attorney, but I hope she will see the light and understand why people in Central Queensland do need this.

Senator JACINTA COLLINS: Perhaps it is a lack of consultation.

Senator Brandis: You have heard what Mr Foster has said about consultation.

CHAIR: Yes, I did hear that.

Senator JACINTA COLLINS: Not with the government.

CHAIR: Minister, can I just say, congratulations, and I am sure I say that on behalf of Senator Canavan, who is based in Rockhampton, and Michelle Landry, who as you rightly say is the local member. It has been great work from all of you, and congratulations.

Senator O'SULLIVAN: Is Justice Demack related to just the Justice Demack who sat there on the Supreme Court?

Senator Brandis: Judge Anne Demack is the daughter of the great Justice Alan Demack, yes.

CHAIR: And of course Senator O'Sullivan spent a long time in the law system.

Senator O'SULLIVAN: I have a lot of empathy for Justice Demack, I can assure you.

Senator Brandis: Senator O'Sullivan, no doubt in your former career you would have appeared in that old Supreme Court building very often, as did I when I was counsel at the bar!

Senator HEFFERNAN: I want to briefly touch on the Family Court. I obviously want to go to the royal commission and the Attorney-General's Department later. I can confirm, Mr Attorney, that a law firm from Parramatta has contacted me in recent days with an urgent plea to support the Family Court situation in the Parramatta district. As you know, I am well-removed from the legal system. There is an inadequacy there—whether it is being met or not. But can I just put in a little plea for Parramatta.

Senator Brandis: I am very well aware of that. Can I tell you what the position is. We appointed another judge to Parramatta, Judge Newbrun, in February of last year. As Mr Foster said, I think just before you came in, there are 65 positions on the Federal Circuit Court. That is a statutory ceiling, so we cannot go above that. There are two current vacancies that were filled last night by cabinet—they have to go to ExCo, so they will be announced very shortly. Those vacancies are in Sydney and Melbourne—and the Sydney Registry at the Lionel Bowen Building, not in Parramatta.

I need to make this point because there has been a lot of public discussion about this in relation to Parramatta, and also I know in relation to Wollongong and elsewhere. The allocation of judges to registries is primarily a matter for the court. It is not something I as the Attorney-General can direct. Judges have to be allocated, obviously, from the existing number of judges. There are shortages here, but there is a limited number of judges. One feature of this court, unfortunately—and I might invite Mr Foster to comment on this if he wishes to—is that an unusually large number of judges are on sick leave, because they have fallen ill. Because they do not get the normal pension arrangements of all other intermediate or superior court judges—in other circumstances, someone like that might decide to leave the court and create a vacancy—but there is an unusually large number of the 65 judges who are on long leave at the moment. I was told by the Chief Judge the other day that it is about eight at the moment. Mr Foster might care to add to my remarks. For a court to have more than 10 per cent of its members not well enough to sit, but still on the establishment of the court, is unusual.

Mr Foster : Can I just add, Attorney, that I think it reflects on the maturing of the court. The court is now nearly 16 years of age, and the workload of the court has been pretty much enormous since day one, and it has grown since then. The pressure on the magistrates and judges and the work that they do, in my view—and I have been in the system and have watched it since 2000, when the Federal Circuit Court commenced—has been enormous. I think the illnesses these people suffer is a reflection on some of the commitment they have had to this particular task.

It is not for me to talk about judges' pensions, but a lot of them are unable to work and would probably move on and would be replaced if there were different arrangements in place for their terms and conditions. As the CEO of the court it is not for me to promote that, Attorney. But I certainly endorse what the Attorney is saying. Around eight are just not capable of working to the full extent and have serious illnesses. I think it is a reflection on the pressure they put themselves under. When judges have 500 or 600 matters in their dockets, that is an intolerable workload.

Senator HEFFERNAN: It is nearly as bad as farming! I realise the difficulty of the Family Court, and the death threats that come with it et cetera. I also appreciate the fact that judges might well have expertise in an area that involves family disputes, but not the expertise in whether the children are or are not being abused, and the use of the law to outsmart the truth, with parents saying one kid is being abused and vice versa—all of that stuff. I want to go to an issue that has been raised with me about a medico legal report writer, Dr Christopher Rikard-Bell, who told ABC National in June 2015 that he has written over 2,000 reports in his 25 year career. These were to assist the court. He said he is often called by the court to assess allegations of physical and sexual abuse. But he then went on to say that he is not specifically trained in child sexual abuse and/or assessments. As I understand it, evidence rules require specialised knowledge by training, skill or experience. His internet public profiles for clinical work do not reflect specialisation in child sexual abuse assessments. Contrary to accepted research, this particular gentleman believes 90 per cent of Family Court child sexual abuse cases are unfounded. This confirmation bias is reflected in his practice of asking a child, in front of the alleged perpetrator, about any worries or fears concerning that parent. I think that is barmy. This is cruel and contrary to accepted clinical practice.

Dr Rikard-Bell nominated Richard Gardner as a role model, and as very relevant. The Family Court publicly decried the parent alienation theory that Gardner invented when he relabelled child sexual abuse symptoms as signs of a mother alienating a father from a child for no good reason. Gardner said:

… the child has to be helped to appreciate that we have in our society an exaggeratedly punitive and moralistic attitude about adult-child sexual encounters.


Older children may be helped to appreciate that sexual encounters between an adult and a child are not universally considered to be reprehensible acts. The child might be told about other societies in which such behavior was and is considered normal.

My God, this reminds me of Justice Garry Neilson. Gardner continues:

The child might be helped to appreciate the wisdom of Shakespeare's Hamlet, who said, "Nothing's either good or bad, but thinking makes it so."

If the Family Court is going to rely on Dr Rikard-Bell's opinion to assess child sexual abuse, and his opinions are not based on specialised knowledge and are clearly out of step with research, how can this be in the child's best interests?

Ms Filippello : I am not familiar with the article to which you have referred.

Senator HEFFERNAN: You can take it on notice if you like. This is just the tip of a very big iceberg I am about to climb.

Ms Filippello : Perhaps if I can address the more general issue that comes out from your question, and that is the role of the expert witness. Dr Rikard-Bell, and any psychiatrist who appears before the court, is appearing provided they meet the criteria as an expert witness. The court, through its rules, tries to minimise the exposure of families to the need to attend on reports and would normally appoint a single expert for the particular family. The rules themselves are very explicit as to the nature of the material that is provided to the expert. The instruction to the expert must be in writing, and the material that the expert has relied upon also needs to be disclosed. The expert's brief is also articulated in that letter. In addition, the expert's qualifications to undertake the work that is required of him or her is also to be disclosed.

Senator HEFFERNAN: Thank you very much for that, but in the system, if you have people giving advice—and I appreciate the huge workload in the Family Court—if you have people who think that there is some question mark over what is so bad about sex with children, which is what is in some of this, how in God's name do they get into the system? Rikard-Bell made public his lack of specialisation. His disbelief in sexual child abuse cases is dangerously out of step with research, noting the court must be aware of the radio interview. Are you aware of that Radio National interview?

Ms Filippello : No. I apologise. I do not. But I can certainly read the context of that.

Senator HEFFERNAN: You cannot cover everything. I appreciate that. But maybe, as a consequence of today, we might familiarise ourselves with some of these circumstances. I appreciate, Mr Attorney, the difficulty of all of this. In the child's best interests was the name of the radio interview. The question is: what steps to do something about it will be taken by the Attorney-General or the Chief Justice to give judicial notice or otherwise instruct all Family Court judges to not rely on the unsafe opinion of a person with those views?

Ms Filippello : It is probably appropriate that we take that particular question in relation to that particular issue on notice. But, in relation to expert witnesses, they are cross-examined in court by both parties, and the opinion that they express may not necessarily be the opinion accepted by the court.

Senator Brandis: Can I add to that—sorry to interrupt, Ms Filippello—that they cannot just be cross-examined about their evidence; they can also be cross-examined about their expertise. So, if a person puts themselves forward as an expert in a particular field, their expertise and their professional credentials as an expert can also be challenged or called into question by cross-examination.

Senator HEFFERNAN: I appreciate that. I am wondering whether, as part of today's revelation, it could be confirmed if the cases mentioned in that particular program—In the child's best interests, Radio National June 2015—are cases assessed by one Dr Rikard-Bell. It troubles me. This is, at the very best, a very difficult situation for the Family Court. I appreciate the technicality of evidence received. I have got 20 pages here of the technicalities to which you just correctly referred, Mr Attorney. But I have a series of technical questions about what appear to be, to the independent people standing at the back of the room, as it were, miscarriages of justice because of the reliance on expert opinion. I have to say I am disgusted and appalled at part of the mindset. I do not know who Richard Gardner is from a bar of soap, but, if that is his opinion, he fits into the same category as one Justice Garry Neilson, who I reported to the New South Wales Judicial Commission. The commission found that he was at fault. He has been taken away from a certain section of law. He is still a judge. But he was the person who thought, and he said to the judicial commission hearing, 'I'm sorry; I was thinking out aloud' when he said that he did not think it was any big deal—those are my words, not his, but it is there in the transcript, that it was all right for adults to have sex with children as long as it is consensual and there is nothing wrong with this particular person, who was appearing in the court before him on a charge of raping his sister—he thought that was an out-of-date law and should no longer be. It is a disgusting proposition.

So, I just wondered whether this person here has the same mindset. And I could give you the nickname of the other guy in the trade, as it were. But I will leave it there, if I could, Mr Attorney. It has just given us something to think about. I sincerely believe—and later today I will provide evidence of why—we should assist the federal jurisdiction of the law, the federal court system, with a federal judicial commission. The New South Wales Judicial Commission does some pretty good work.

CHAIR: Senator, is there a question?

Senator HEFFERNAN: My question will be, to give preamble notice—

CHAIR: Perhaps I could just indicate that your time has finished, but I will come back to you later on if you want to question further.

Mr Foster : I would be quite disturbed if there was suggestion by the senator that the behaviour of the judge he mentioned, which is not a Family Court judge, was consistent with any behaviour of any Family Court judge. I would be very concerned. I did not quite understand what you were getting at, Senator.

Senator HEFFERNAN: No, that is not what I am saying—not for one tiny second.

Mr Foster : Okay; fine.

Senator HEFFERNAN: What I am saying is that Mr Gardner appears to have the same view, and Mr Rikard-Bell, who has given 2,000 reports, thinks that is okay. I will leave it there.

Mr Foster : We will certainly need to—that is going to require quite a lot of discussion, with the Chief Justice and others—

Senator HEFFERNAN: I am happy to assist in any way and will appreciate the sensitivity.

CHAIR: Senator Heffernan, Mr Foster was speaking. What were you saying, Mr Foster?

Mr Foster : It is going to require quite a lot of discussion, obviously with the Chief Justice and others in the court, to respond properly to those comments and your direct questions. But I would just be really disturbed if anyone thought that you were suggesting that there was a Family Court judge who held these views—

Senator HEFFERNAN: Not for a minute.

Mr Foster : because that is just not true.

Senator HEFFERNAN: Not for a minute.

CHAIR: The secretary has just indicated to me that if there is an adverse reflection on any person at any of the committee hearings they are given the opportunity of responding. But that is something the committee can deal with later.

Mr Foster : I am confident that the senator is not referring to any existing Family Court judge.

Senator HEFFERNAN: Not for a minute.

CHAIR: No. I agree with you. That was my understanding, too.

Ms Filippello : I would also be concerned about any reflection on Dr Rikard-Bell, without taking that matter any further.

Senator HEFFERNAN: I am just saying, basing it on a radio interview—and I am unqualified; I am bringing it as a matter of my duty of care to constituents—that I am seriously aware of the smart alec use of the law in the Family Court, where a smart lawyer will use the law to avoid the truth.

CHAIR: As I said, your time has finished, but I can come back to you, if you want to wait.

Senator HEFFERNAN: Thank you very much. I just want to make out the case in the—

CHAIR: Well no, you do not make out cases here; you ask questions.

Senator HEFFERNAN: Yes, I ask the questions; righto.

CHAIR: But Ms Filippello, I hear what you say, and, as I also indicate, there is a procedure that can be followed.

Proceedings suspended from 15 : 14 to 15 : 33

ACTING CHAIR ( Senator Jacinta Collins ): For the benefit of the committee: Senator Macdonald has asked me to chair briefly until he returns. I hope you are happy with that, Senator Brandis!

Senator Brandis: [inaudible]

ACTING CHAIR: Well, it is just that you have challenged me on this arrangement in the past, so I just wanted to let you know what Senator Macdonald had asked me to do. Now, I have some further questions going back to appointments. I think earlier, Senator Brandis, you referred to Chief Judge Pascoe's project, in a sense, and you commented that essentially it is the court's decision as to where to allocate judges.

Senator Brandis: Yes.

ACTING CHAIR: Presumably that would also apply despite all the grand hurrah about Rockhampton. You did at least give Chief Judge Pascoe some credit in having a project about such things.

Senator Brandis: Well, this is a good story, so let's not be disobliging here. I have a very close working relationship with Chief Judge Pascoe, as I do with the other three heads of jurisdiction, and we speak very often. He is very often on the phone to me or to Mr Lambie, of my office. We speak about appointments. We speak about matters of, shall we say, domestic concern within the court. We speak about the allocation of judges. It is my practice to follow the advice of the head of jurisdiction about these matters. We did speak about Rockhampton, just as we speak about the allocations across the country. Ultimately I respect the fact that these are his decisions, but I also am grateful for the fact that he will take into account my views as well. So, it is a collaborative dialogue between two branches of government. That is the way it works.

ACTING CHAIR: I think Senator Heffernan raised the issues around Parramatta—

Senator Brandis: Yes.

ACTING CHAIR: and please let me know if my understanding is not accurate. Since early 2014 three judges have left the Parramatta registry of the Federal Circuit Court. One judge was transferred to the Melbourne registry, and two others retired. There has been one replacement—the one you mentioned earlier, Judge Newbrun, who was appointed in February of last year. When will Judge Donald, who retired six months ago, be replaced?

Senator Brandis: Well, there are no vacancies now, because, as I say, the last two vacancies were filled by cabinet last night and they just await the Governor-General's approval at the next meeting of Executive Council, and they will be announced. But there are no vacancies. One of the two people appointed by cabinet last night is a New South Wales appointment—a Sydney appointment, in fact. But it is my understanding from the Chief Judge that he intends that that judge will sit in the Lionel Bowen Building in the CBD, not in Parramatta.

ACTING CHAIR: So, the appointment that goes through cabinet and Ex Co is specific about the location? Or not?

Senator Brandis: No, it is not. I am just telling you what I have been told by the Chief Judge as to his intentions. I should also say that there is some flexibility here. I think the judges who are based in the CBD do go out to Parramatta on occasion, but maybe Mr Foster would know more about this than I do.

Mr Foster : Well, not just Parramatta: the judges in the Circuit Court move around quite a lot from different locations, depending on various workloads. The problem is that Judge Donald is on long leave, so there is a funding issue.

ACTING CHAIR: Oh—so it is not a replacement issue then.

Mr Foster : No. He has to complete his long leave, and he has not as yet resigned from the court either, so there is no capacity to replace him at this stage.

ACTING CHAIR: That is where I was seeking corrections, if they were appropriate, which is that two have not retired.

Senator Brandis: And that goes back to the issue that both Mr Foster and I mentioned before, that this court has more than 12 per cent of its judicial officers on leave for illness. And although there has been some comment in the press about delays in appointment, the overwhelming reason that there are these pressures on the system is that the court is running at about 85 per cent capacity, with now a full establishment of judges.

ACTING CHAIR: So, the other judge that I thought was retired—is there another one who is also on long leave?

Mr Foster : Where?

ACTING CHAIR: In Parramatta.

Mr Foster : No.

ACTING CHAIR: So, one was transferred to the Melbourne registry, and the other two retired. One was filled by Judge Newbrun, I presume.

Senator Brandis: And the other one is the one who is on long leave, Judge Donald, who is not retired.

Mr Foster : There is Judge Dunkley and Judge Harman; they are the other two judges at Parramatta. So, there are Judges Dunkley, Harman and Newbrun, with Judge Donald on long leave.

ACTING CHAIR: Are you aware that family law practitioners report that interim hearings at the Parramatta registry are taking, in some cases, more than a year to be heard?

Senator Brandis: I have seen those reports, and I do not doubt them. There are pressures on the system. I wish I had more judges. I wish the aggregate number of judges on the court was greater, but there are resource implications, of course. I wish I could offer these judges a pension like the pensions that intermediate level state and territory judges receive so as to regularise the arrangements of this court.

ACTING CHAIR: Are you also aware that judges are declining to allocate final hearing dates, as they would be too far into the future, in some cases not until 2018 or 2019?

Mr Foster : Yes.

ACTING CHAIR: The other one you mentioned earlier, in terms of Chief Judge Pascoe's project, is Wollongong. What is occurring in relation to Wollongong

Mr Foster : There is a judge from Sydney, Judge Altobelli, who circuits to Wollongong on an almost full-time basis. We have just made arrangements with the state courts in Wollongong to have access to one of their courts. In our facility in Wollongong, we only have one courtroom. We have made arrangements to use the state court facility in Wollongong, so the Chief Judge will now, from time to time, allocate two judges to Wollongong on a circuit basis. In effect, there will be a full-time judge in Wollongong. There has never been a full-time judge in Wollongong, but there is a significant workload there.

ACTING CHAIR: In effect, there will be one now?

Mr Foster : There will not be a resident judge, but, in effect, there will be a full-time judge in Wollongong because, from time to time, the existing circuit by Judge Altobelli, which is significant, will be topped up by another judge.

Senator Brandis: I think what Mr Foster is trying to convey to you is that there will not be a resident judge, but, because of the two who circuit to Wollongong, there will effectively be, at all times, a judge sitting in Wollongong.

Mr Foster : It will be pretty much full-time, anyway.

ACTING CHAIR: Okay. That is similar to the good news story about Rockhampton?

Mr Foster : I think so.

ACTING CHAIR: So the member for Cunningham and the member for Throsby, who have both been advocating for months in relation to their areas, should equally feel that there has been a response from the government?

CHAIR: And Senator Fierravanti-Wells too, I suggest

Senator JACINTA COLLINS: I have not seen her.

Senator Brandis: The only politician who has raised the matter of Wollongong with me is, in fact, Senator Fierravanti-Wells.

Senator JACINTA COLLINS: I am not necessarily sure what raising it directly with the Attorney means, given we were told by the Attorney that it is actually the courts that determine such matters.

Senator Brandis: It is the courts that have the ultimate say, but, as I said to you, I always have discussions with the Chief Judge. This is a collaborative exercise between him and me, with me always respecting that, in the end, it is his call.

Senator JACINTA COLLINS: Indeed, he has made a call for Wollongong as well. Attorney, your office has continued to say that the government is injecting $22.5 million into the courts, despite the lack of progress around court fee matters. Is that money coming from elsewhere now?

Senator Brandis: I think Mr Moraitis or, perhaps, Mr Manning is best placed to respond to that.

Mr Manning : The money is coming from consolidated revenue.

Senator JACINTA COLLINS: Despite the court fee issue not progressing, the money has come forward from consolidated revenue?

Mr Manning : That is right.


Senator O'SULLIVAN: Attorney, are you able to tell us the number of judges appointed under this term of government and to which courts they have been appointed? I am not sure the information will be readily available, but can you talk about the gender balance of those appointments as well?

Senator Brandis: Yes, I can. Including the appointments agreed to by cabinet last night, which are yet to be announced, this government—that is, the coalition government elected in 2013—has appointed 22 judges to the federal judiciary: two judges to the High Court, seven to the Federal Court, two to the Family Court and 11 to the Federal Circuit Court. Of those 22 judges, seven were drawn from the ranks of Queen's Counsel, two were solicitors, three were recruited from other courts—Justice Gordon of the High Court who was recruited from the Federal Court of Australia, Justice Nettle of the High Court who was recruited from the Victorian Court of Appeal, and Justice Edelman of the Federal Court who was recruited from the Supreme Court of Western Australia. The balance, whatever that adds up to, was recruited from junior barristers. In regard to the gender balance of the 22, there have been seven women and 15 men, so approximately 32 per cent of the judges appointed by this government have been women, which is a somewhat higher percentage than the representation of women at the middle and upper levels of the bar, and 68 per cent have been men.

Senator JACINTA COLLINS: Almost all of them will be women, the ones we get to hear about that have been before cabinet.

Senator Brandis: There were some women appointed last year.

Senator JACINTA COLLINS: Some women. A significant number of women from past figures.

CHAIR: We are not embarking on—

Senator JACINTA COLLINS: We were encouraged to.

CHAIR: We are not going there.

Senator O'SULLIVAN: Let me say, you should be congratulated on that gender balance with those appointments, Attorney. Thank you, Chair.

CHAIR: Thank you, Senator O'Sullivan. Senator McKim.

Senator McKIM: Attorney, I was going to lead with issues around resourcing and delays in the Family Court and in the Federal Circuit Court. I have listened really closely to your comments today and also to the comments of Mr Foster. I wanted to put something to you and invite you to respond. Haven't both you and Mr Foster actually made compelling arguments for an increase in the statutory ceiling of 65 Federal Circuit Court judges on a change in the pension arrangements pertaining to Federal Circuit Court judges? Wouldn't you agree that addressing and changing those two matters, which I think you have rightfully raised as some of the blockages that need clearing, would release more potential to clear the backlog of cases that is currently at shameful levels?

Senator Brandis: Senator McKim, there is a lot one would like to do. I have said many times that, in my view, the pension arrangements of Federal Circuit Court judges ought to be regularised. They are the only intermediate level judges in Australia who do not have a pension. They are participants in a kind of public-service-like superannuation scheme. It presents problems in recruiting judges to that court. It present problems in keeping judges on that court. There have been cases where Federal Circuit Court judges have gone to state courts where they have pension arrangements. And, as I said in my observations earlier in the afternoon, it is really the main source of pressure in the system because you have a situation where judges fall ill. If those judges had a pension, it may well be that they would choose to retire, but because they do not, some of them are not in a position to do so. It is a problem at many levels.

Unfortunately, Senator McKim, when the government was elected we found ourselves in a very difficult budget position so we promulgated some budget rules, and foremost among those budget rules is no new spending without offsets from within the portfolio. There is basically not a lot of money in the Attorney-General's portfolio. By comparison with other departments of state it is a relatively small portfolio, and we have found economies. You heard about the economies that we sought to find in the Office of the Information Commissioner. We have had to find economies in the legal assistance budget, which I did not want to have to do, frankly, but it was necessary to do that to contribute to the task of budget repair. At the moment for that simple prosaic, but overwhelming, financial reason there is just not the money in the portfolio to make that possible.

Senator McKIM: So your evidence to the committee is that it is your own government's rules that are preventing you from addressing this crisis.

Senator Brandis: Well, Senator, any responsible government has budget rules and, as I said, pre-eminent and foremost among the budget rules is no new spending without offsets.

Senator McKIM: Thank you, Attorney. Is it still government policy to increase Family Court fees?

Senator Brandis: The government's policy has not changed.

Senator McKIM: Okay. So that remains your policy, your intent to reintroduce the necessary legislative instruments prior to the next election?

Senator Brandis: That is our current intention.

Senator McKIM: That is your current intention, so you will try again to stick another $350 on family courts.

Senator Brandis: That is our current intention for the same reasons, in effect, as I explained in answer to your previous question. The money has to come from somewhere, Senator.

Senator McKIM: I want to ask you about the rules around the cross-examination by the alleged perpetrators of domestic violence victims in the Family Court. Attorney, you would be aware that the Productivity Commission recommended in December 2014 that the law be changed and that you have not yet responded to that report. You would also be aware that rules to prevent alleged perpetrators of domestic violence from cross-examining their victims in court do exist in every state and territory but not yet in the Family Court. Do you intend to take any action on that issue during this term of government?

Senator Brandis: Well, this term in government does not have very long to run, Senator, and no legislation to that effect is proposed between now and the end of this term of parliament. Can I say that this is a very difficult issue, Senator, because one has intention to very important values. One is, obviously, the Senate considerations that you refer to, in the need to protect the complainant from the trauma of being cross-examined by a perpetrator. The other value though is what has always been acknowledged by the common law as one of the basic rules of natural justice and that is the right of an accused person to confront their accuser and to question their accuser. So there are these two very important principles intention.

The cross-examination of vulnerable people is an extremely delicate thing. I say that from my own experience. Years and years ago, when I was at the bar, I actually had to cross examine a young child when I was acting for an accused person. It is a very, very difficult thing to do and requires very fine judgement as to how one goes about it. From a policy development point of view it may be that the officers of my department. who deal with this matter, may wish to comment but the government in their remaining days, because there are literary days left in this parliamentary term, are not proposing to introduce a bill dealing with that topic. That is not to say that it is not under careful consideration.

Senator McKIM: I am not sure whether the officers of the department wish to add anything to the Attorney's response.

Mr Hall : As the Attorney points out, the government and the department are very well aware of the complexity and sensitivity around cross-examining vulnerable witnesses. Of course one of the challenges in family law is that, unlike a criminal proceeding where the person being cross-examined is vulnerable as a witness and often a party, it raises issues around the way evidence should be adduced in a situation like that which creates a complexity.

I should say a couple of things. Firstly, in terms of policy development, a family violence bench book is being developed. This will assist both the Family Court and state and territory courts with information to give them additional expertise about how to deal with vulnerable witnesses and family violence cases. In addition, the Attorney has asked the department to consult with stakeholders around possible options for how cross-examination of witnesses in this situation could dealt with in a new and improved way. We are putting together a round table of experts, including members of the Family Law Council, the Chief Justice of the Family Court and others in the coming weeks, where those various options and ideas will be canvassed, and we will be able to report back to the Attorney-General about that.

I should also point out that the Family Court and the family law act does have a number of provisions that enable judges to protect vulnerable witnesses. Without perhaps going through those in detail, there is the opportunity to provide evidence via video link. There is also the less adversarial trial process, which enables judges in, I guess, a more inquisitorial less adversarial way to manage the proceedings in a way that protects vulnerable witnesses. These are the sorts of things, of course, which could be addressed in the bench book in terms of how judges exercise those provisions. That is a brief summary.

Senator McKIM: Thanks, Mr Hall. I will just follow up on that. If the Attorney thinks it is more appropriately directed to him, I am sure he will jump in. In the round table process that you have just been through, I am not sure if there are terms of reference or something like that; perhaps I could rephrase the question like this: is the round table able to consider implementing a regime which would prevent perpetrators of domestic violence from cross-examining their victims or is it simply confined to consideration about how that might be governed, if you like, by the courts to make it a less stressful process for the victim?

Mr Hall : I think all of those options are on the table. The round table has not been held yet and the members have not convened yet. There is, of course, quite a lot of work happening at the moment through the Family Law Council's current terms of references and recent information from the Australian Institute of Family Studies, which need to inform this whole area. No option has been shut off. There are not so much a terms of reference as, at this point, an opportunity to gather ideas together.

Senator McKIM: Thanks, I appreciate that. This one is for the Attorney. Is it your intention that the government respond to the Productivity Commission's 2014 report on access to justice during this term of government?

Senator Brandis: We would expect to. There are a number of reports and studies in relation to family law matters, some of them that have been commissioned by me from the Family Law Council, and you have referred to the Productivity Commission. The Australia Law Reform Commission has examined matters in the recent past as well. So there is a range of advice and views for law reform coming to government from different agencies or law reform entities which the government is considering and all are responded to, or will be responded to, in due course.

Senator McKIM: I think you said it is your intention to respond during this term.

Senator Brandis: Yes.

Senator McKIM: Perhaps this one is for Mr Hall because I think this is a technical question. I am not allowed to ask hypothetical questions, as I found out this morning. Would a decision to prevent perpetrators of domestic violence from cross-examining victims in court require legislative change or might it be able to be achieved simply through changes to the court rules?

Mr Hall : It is probably not appropriate for me to provide, I guess, what would be legal advice, although, as a general proposition, a significant change is likely to require some kind of legislation.

Senator McKIM: Thank you. I would like to move onto a separate issue now. I am asking these questions on behalf of my colleague Senator Waters, who is not able to be here today. Women's Legal Services Australia have identified a trend around clients experiencing family violence not always feeling as though they are listened to by Family Court writers and their sense on occasion of feeling traumatised and humiliated by the assessment process.

Senator Brandis: What do you mean by 'Family Court writers'?

Senator McKIM: People who write reports, as I understand it.

Senator Brandis: Expert reports?

Senator McKIM: Yes. And their feelings around that. The Family Court, as I understand it, at previous Senate estimates have said that they were not aware of that issue. Presumably you are now aware of the issue. I just wanted to, firstly, ask whether anything has been done about that or if there has been any consideration given to that since Senator Waters raised that with you last time.

Ms Filippello : I am not sure whether, when that question was taken on the last occasion, the committee was informed of the Family violence best practice principles. That is a document that provides guidance for the practitioners and court staff. It is a guide for the judiciary and members of the public in dealing with matters which involve family violence. We have also developed a plan which is in implementation, 2014-16, and that addresses issues of that nature as well. But, in particular, in relation to the family consultants, their background and training is such that they are either psychologists or social workers with tertiary qualifications, and they have studied extensively at a postgraduate level—and some have doctorate degrees. Part of their induction program with the court is that they have clinical induction with us as well as having had clinical training in excess of five years prior to appointment.

One of the key areas that the court gives consideration to is family violence. The court has set up Australian Standards of Practice for Family Assessments and Reporting, with particular reference to family violence. When a family consultant prepares a report, before that report is released it is referred to the senior family consultant within the court, who ensures that the relevant issues have been properly addressed before it is released for publication to the parties and to the court. That report is normally released upon an order of the court.

Senator McKIM: Sorry to interrupt. Did you mention Professional Directions for Family Consultants?

Ms Filippello : Yes, that is correct. Australian standards of practice.

Senator McKIM: Are they publicly available?

Ms Filippello : They are available, yes.

Senator McKIM: On your website?

Ms Filippello : Yes, they are. It is available on the Family Court website.

Senator McKIM: Thank you very much. Do they apply only to internally employed staff, or do they also apply to external consultants?

Ms Filippello : All of our consultants who are psychologists are registered psychologists. Anyone who is employed by the court for the purpose of preparing a report is bound by those guidelines.

Senator McKIM: Whether they are employees or consultants?

Ms Filippello : That is right. They are referred to as regulation 7 family consultants. They may be persons who are in private practice who are retained by the court for the purpose of preparing a family report for the court. They, too, would be bound by those reporting guidelines.

Senator McKIM: Thank you. I appreciate that response. Did you mention the Australian Standards of Practice for Family Assessment and Reporting?

Ms Filippello : Yes, that is the title of those guidelines.

Senator McKIM: I see. So that is the title, and you are shorthanding that to 'professional directions', are you?

Ms Filippello : Yes.

Senator McKIM: So it is the same thing.

Ms Filippello : The same document.

Senator McKIM: Thank you.

CHAIR: Your time has finished for the moment, Senator McKim, unless you are almost finished.

Senator McKIM: I will come back, but I may not need a full 15 minutes.

CHAIR: I will pass to Senator Madigan, but on the way Senator Collins has a couple of brief questions.

Senator JACINTA COLLINS: Thank you, Chair. In fact, on that point I also had another question about the family violence standards. Sorry, were they family assessment standards or family violence standards?

Ms Filippello : Is that in relation to the family consultants?

Senator JACINTA COLLINS: No, the standards you were just referring Senator McKim to.

Ms Filippello : Yes, they are for family consultants.

Senator JACINTA COLLINS: They are not specifically for family violence?

Ms Filippello : They include family violence.

Senator JACINTA COLLINS: And who developed them?

Ms Filippello : The Family Court, in consultation with other experts.

Senator JACINTA COLLINS: Can you take on notice who those experts were.

Ms Filippello : Yes, certainly.

Senator JACINTA COLLINS: It may be available online, but I was interested in that point as well. Now, just very briefly, since Senator O'Sullivan raised the judicial appointments issue, it might save me coming back to this if I ask a further question. Attorney, you mentioned federal appointments that cabinet dealt with. How many appointments were there?

Senator Brandis: Five.

Senator JACINTA COLLINS: Is it true for the figures ahead of these five appointments that you have appointed as many men who attended Magdalen College—your college at Oxford—as you have appointed women overall? Would that be correct?

Senator Brandis: I do not know, Senator.

Senator JACINTA COLLINS: Perhaps you could take it on notice for me.

Senator Brandis: Okay.

Senator JACINTA COLLINS: Thank you.

Senator Brandis: I do try to appoint the cream of the bar to the judiciary.

Senator JACINTA COLLINS: Does Magdalen College take girls?

Senator Brandis: Yes, Senator.

Senator JACINTA COLLINS: Very good.

Senator MADIGAN: How many children were involved in or affected by Family Court judgements in the 2010-15 period?

Mr Foster : I will have to take that on notice; I have no idea. I am not even sure that we can provide an answer easily. I am just imagining the complexities of trying to extract that data from our database; it might be extremely difficult. That period of time is a long period of time to find the number of children affected. And they are affected in a number of ways—there are interim orders, of which there are about 25,000 a year; there are applications for final orders, of which there are about 20,000; and there are other sorts of orders that impact upon children across the board. It is a very wide question. We deal with about 200,000 individuals in a year, excluding children, so it will be a very large number. I have no idea how we will find that number out, but we will do the best we can.

CHAIR: Senator Madigan, you obviously have a purpose for asking the question, but is there any way you could perhaps confine or narrow the thing? From what the CEO says, they are going to spend the rest of their days trying to work this out.

Mr Foster : There are 14,000 divorce orders as well as about 13,000 consent orders, so we are talking about huge numbers of applications.

CHAIR: Anyhow, it stands that it has been taken on notice, but I cannot imagine—

Mr Foster : I am not sure that we can actually answer the question, but we will take it on notice.

CHAIR: Neither do I. That is why I am suggesting you might want to try to confine your question to a more manageable thing that might get you an answer, Senator Madigan. It is up to you, of course, but I am trying to be helpful.

Senator MADIGAN: My questions pertain to whether the Family Court keeps statistics on the effects of the court on children.

Mr Foster : That is more of a research project, I think, Senator. The court makes an order, but like any other court in the land judges get no report back about the impact of their order. In the criminal jurisdiction and in family law they make an order and unless that matter is brought back before the court they will have nothing further to do with that particular matter. In terms of whether it has a positive or negative outcome they will probably never know.

Senator MADIGAN: So I would be right in assuming that you would have no statistics about how many of these children do not have substantial ongoing contact with one parent according to court orders?

Mr Foster : They also vary so much. There can be an interim order made for children who are two or three years old, and five years down the track when they become eight or nine years old, there is another order made. Those orders are changed with different contact time rules. So no, we do not have specific data on how much time individual children would spend with different parents.

Senator MADIGAN: Does the Family Court have any information, if court orders were adhered to, on the welfare of those children consequent to court decisions? Do you do any follow-up to see what is happening?

Ms Filippello : In some matters, the court does make an order that the family consultant meet with the children to explain the orders and the reasons that the judge made those orders. But, unless the judge has made an order either requiring the family consultant to continue to maintain their relationship with the family or ensuring that the independent children's lawyer continues for a period of time rather than being discharged on the order, the court has very little further to do with that family unless there has been noncompliance with an order.

Senator MADIGAN: So there are no figures on whether court orders were adhered to?

Ms Filippello : We would have details in relation to applications for enforcement if those applications are brought. We certainly would have that detail.

Senator MADIGAN: Would you be able to supply that to the committee on notice?

Mr Foster : We can do that.

Ms Filippello : Yes, we can take it no notice.

Senator MADIGAN: Does the department or the court have any data, or have you collected any data, on the numbers of children that have attempted self-harm or suicide or experienced serious mental health disorders or conditions subsequent to Family Court interventions?

Mr Foster : No. These are probably matters, I think, that would be subjects of some sort of significant research project. I do not know that it is a role of the court to do this sort of research. These questions that you are asking have significant resource implications to try to provide an answer. We do not have a database that would tell us that. It would be a manual examination of files and following up with the particular families in some way. So it would be a significant research project, I would think.

Senator MADIGAN: So the department has no interest in the effects of its intervention?

Mr Foster : No, the court obviously hopes that the orders that it makes are effective and work. But, with the amount of work that the courts do, there is no capacity for them to call the families back and say, 'How are you going?' So, once the order has been made, the judge would have no more relationships or contact with that family, and nor does the administration of the court.

Senator MADIGAN: Thank you.

Ms Filippello : Just in relation to the previous question raised by Senator McKim, the chief justice has written to Cathy McGowan—and I have a copy of that letter—in relation to the issue of cross-examination of a witness by abusers.

Senator McKIM: Are we able to have that tabled, Chair?

Senator Brandis: We will tender this—sorry, it is in the wrong forum! We will table this.

Senator McKIM: We will mark that as exhibit A.

Senator Brandis: We will table the letter.

CHAIR: It is a letter from?

Senator Brandis: It is to Ms Cathy McGowan, the member from Indi, from the Chief Justice of the Family Court, the Hon. Diana Bryant.

CHAIR: There is nothing private or confidential in it?

Ms Filippello : No.

CHAIR: Okay. Thanks for that, Ms Filippello.

Senator McKIM: Thank you for that, Attorney—ultimately. I appreciate that very much. Can I just go back to the other matter I was raising, which was around the report writers, as I think I inaccurately classified them. You have talked about the guidelines.

Ms Filippello : Yes.

Senator McKIM: I am shorthanding them there. When were those guidelines brought into effect, if I might ask?

Ms Filippello : I would have to say that the most recent ones were 2003, from recollection—sorry, 2013. But there has been a version of that document around for some time.

Senator McKIM: So 2013 is the latest version.

Ms Filippello : Yes.

Senator McKIM: So they were already in place, if you like, when Senator Waters raised her concerns at previous estimates. So has the court done anything at all subsequent to Senator Waters raising these matters, which were concerns conveyed to her, whilst these guidelines were actually in place?

Ms Filippello : Could I just clarify: although the guidelines are in place, they are revisited. If there are particular areas within the guidelines that need to be reconsidered given the more recent practice evidence that is available, then the relevant principle of—family consultants would actually revisit those guidelines and update them.

Senator McKIM: Can I ask whether there are any training programs associated with the guidelines?

Ms Filippello : Yes, there is. There is quite extensive training. Perhaps we could provide that to you on notice.

Senator McKIM: I am happy for you to take that on notice.

Ms Filippello : Yes. But I can indicate to you that, in addition to the guidelines that are in place, there is regular training conducted through the court by regular seminars—they have monthly internal seminars and they deal with various topics, including, more recently, the forensic examination of violence in a family law context, post-separation arrangements and high-conflict families, men's behaviour change programs—do they work and what should we do? It is certainly that type of training that occurs quite frequently. In 2014-2015, there was a series of three family violence clinical training modules that were delivered to all clinical staff. These modules focused primarily on personal and professional biases that can impact on clinical practice, in particular with an emphasis on balanced, robust and thorough examination, and reporting of family violence.

Senator McKIM: Thank you. Can I ask whether the court has any plans to implement a complaints process to enable someone to register a complaint in relation to family consultants?

Mr Foster : We have for very many, many years had a very transparent client feedback and complaint process, the details of which are on our website. They are easily accessible. But, if you would like, I can send you a copy of—

Senator McKIM: No. That is fine, Mr Foster. I appreciate that, but we are happy to have a look at that off the website.

Mr Foster : We have, basically, a retired registrar, who works with the deputy chief justice, that deals with complaints about the judiciary. We also have an officer who deals with complaints of a non-judicial nature on a full-time basis. Both courts—the Federal Circuit Court and the Family Court—have well-regulated, well-planned, transparent complaint procedures. Every time we come to estimates we bring a report on what the complaints had been. This is the first time we have been asked this question for some time.

Senator McKIM: Perhaps, then, I could follow up, Mr Foster. Are you able to provide figures around the number of complaints, particularly relating to, what I think are called, family consultants—the report writers.

Mr Foster : Yes, we can. I can give to you—on notice, I will send it to you—the number of complaints for a particular period of time, the nature of those complaints and what happened to them.

Senator McKIM: Are they broken down into categories of—

Mr Foster : Administrative, procedural, privacy, security, transcripts—there is a range of different categories.

Senator McKIM: Thank you, I appreciate that. So you will provide that are notice?

Mr Foster : We can provide that on notice for both courts.

Senator McKIM: Thank you. Can I confirm: with the complaints process that you have just taken us through in broad terms, are external consultants—so people who are in private practice but are consulting to the court in terms of report writing—able to be complained against within your process, or is it limited to employees of the courts?

Mr Foster : They can be, but it would depend on the nature of the complaint. If there is an issue with a family report, that is really a matter for the court to make some determination about whether they are happy about it or not.

Senator McKIM: I understand that. I was more considering an issue of an allegation made that it is the behaviour.

Mr Foster : No, we would investigate that.

Senator McKIM: Even if it was not—

Mr Foster : Even if it were reg. 7. There are a number of reg. 7s where we have terminated our arrangements with them for various reasons, and we review the reg. 7 appointments on a regular basis because there are many of them.

Senator McKIM: Thank you. Are you familiar with reporting last year in The Monthly and the ABC's Background Briefing which called into question the practices of some prominent Family Court report writers that are operating in private practice?

Mr Foster : No.

Senator McKIM: There was some reporting done by The Monthly and Background Briefing. Perhaps I could ask you to take on notice this question. Are you satisfied that the concerns raised in those reports have been adequately addressed?

Mr Foster : Was that an article in The Monthly in November or October?

Senator McKIM: Yes, I believe so.

Mr Foster : I have seen that. What is your specific question?

Senator McKIM: Are you satisfied that the concerns raised in those reports have been satisfactorily addressed?

Mr Foster : I think we can always improve, but we can only do as much as we possibly can. We have good protocols in place. We have good recruitment processes. We have good supervision. We are a court that is very easy to complain about. People come to us with a fixed view.

Senator McKIM: A bit like parliament, perhaps!

Mr Foster : I'm not sure about parliament; no one would complain about parliament! But we are a court that is very easy to complain about, and people do have a certain amount of baggage to their complaints. But we take every complaint seriously and deal with it in an appropriate way. Sometimes you only get one side of the story as well, obviously.

Senator McKIM: I accept that. Would you take on notice the question and provide a brief response to the committee around that article in The Monthly and ABC's Background Briefing and whether or not you believe they have been satisfactorily addressed?

Mr Foster : We will do that.

Senator McKIM: Thank you. The Women's Legal Services have raised with us some of the issues that I have raised today. Do you have a relationship with the Women's Legal Services and other stakeholders in this area that allows them to feed directly into you in terms of the consultation process to allow you to satisfy yourself that their concerns are being heard and addressed?

Mr Foster : Yes. The Chief Justice chairs a stakeholder committee which involves Women's Legal Services, legal aid and a whole range of non-government organisations. The Chief Judge is also a member of that group, and they meet on about a quarterly basis. Presentations are made. Child support are there. Anybody who has got an interest in the broader context of family law has representation there. We also have lots and lots of contact and meetings with all sorts of different groups. Our registry managers as part of their role meet regularly with relationship centres et cetera. So there is quite a significant network of contact with the broader family law community.

Senator McKIM: Thanks. I should clarify something I said. I have made an assumption there. I am asking these questions on behalf of Senator Waters, as I said, and the brief does not say the Women's Legal Services raised them with us; it simply says that they have been raised by Women's Legal Services. I wanted to clarify that for the record.

CHAIR: If you have finished, I think that completes our inquiry into the Family Court and the Federal Circuit Court. Thank you very much.