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Thursday, 24 June 2010
Page: 6518

Mr McCLELLAND (Attorney-General) (10:15 AM) —I move:

That this bill be now read a second time.


This bill restructures the Family Court and the Federal Magistrates Court to eliminate confusion for litigants and to reduce current inefficiencies and duplication in the administration of these courts. It does this by amending the Family Law Act 1975 and the Federal Magistrates Act 1999 to merge Federal Magistrates exercising family law jurisdiction into a lower level division of the Family Court of Australia, whilst maintaining their existing terms and conditions.

This bill, along with the Military Court of Australia Bill 2010, which I will shortly move this day, sets out the future shape for the federal courts system. These bills, together, ensure the most appropriate outcomes for parties who need the assistance of the federal courts can be obtained.

The measures in the bill reflect recommendations made in the report, Future governance options for federal family law courts in Australia—striking the right balance, which was released in November 2008. The report found that current arrangements for delivering federal family law services have led to confusion among litigants, conflicts over resources, administrative inefficiencies, are financially unsustainable and impede access to justice and the efficient delivery of family law services by the family law courts.

One of the principal recommendations of the report was that Federal Magistrates exercising family law jurisdiction should be merged with the Family Court of Australia.

Nearly all submissions in the public consultation process on the report’s recommendations supported merging Federal Magistrates exercising family law jurisdiction into the Family Court.

The Australian Institute of Family Studies’ findings in the Evaluation of the 2006 family law reforms, which was released in January this year, are consistent with this restructure of the Family Court. In particular, the report noted concerns that the parallel operation of the family law jurisdiction in the Federal Magistrates Court and the Family Court has implications for fairness due to the differences in court processes. Concerns were also expressed about the operation of transfers between courts.

The simplification of the federal family law system was also recommended in the House of Representatives Standing Committee on Family and Community Affairs’ report, Every picture tells a story: inquiry into child custody arrangements in the event of family separation. These reforms will ensure that there is one federal court with family law jurisdiction to support the delivery of judicial determination in the best interests of the child. It will ensure a proper assessment of the needs of each case and a coordinated referral to the appropriate decision maker.

As one of the most important justice institutions in Australia, the courts play a central role in ensuring fair, simple, affordable and accessible justice and as such need to be available to all Australians.

The Access to Justice Taskforce report, A strategic framework for access to justice in the federal civil justice system, which was released in September last year, outlined the need to improve access to justice in the federal courts by requiring the change of culture within the federal court system towards a system where effort and resources are directed at resolving disputes at the earliest possible stage and by the simplest means possible. A key part of the government’s agenda is to improve access to justice and this bill is vital to the achievement of that goal.

A single federal Family Court

The bill creates a single Family Court comprising two divisions, the Appellate and Superior Division and the General Division. The Chief Justice of the Family Court will be responsible for ensuring the effective, orderly and expeditious discharge of the business of the Family Court as a whole, assisted by an administrative head in each division.

The Appellate and Superior Division will handle complex first instance family law and child support cases and appeals. All existing Family Court judges will become members of that division. Existing members of the appeal division of the Family Court will become appellate judges within the Appellate and Superior Division and will continue to exercise the functions they had as members of the appeal division.

The General Division will deal with less complex family law and child support cases and will have the same family law jurisdiction as the Federal Magistrates Court currently has. This will ensure that family law disputes continue to be handled at the lowest appropriate level.

Federal Magistrates handling family law matters will be offered appointment to the Family Court as judges in the General Division.

The bill provides that new judicial appointments made to the Family Court must be assigned to the Appellate and Superior Division or the General Division. Judges of the General Division will have the same statutory terms and conditions of appointment as existing Federal Magistrates.

First instance matters will be able to be transferred between the two divisions to ensure that matters are heard at the lowest possible level.

The bill will facilitate the retention of the successful culture of the Federal Magistrates Court in the Family Court. The bill transports a number of procedural processes currently found in the Federal Magistrates Court to the General Division of the Family Court. In addition, a number of provisions are also included in the Family Law Act to ensure more active case management across the whole court.

Common rules of court are to be made by a majority of each division and each division may make rules in relation to the specific case management procedures of that particular division.

The restructure will also make it easier to transfer matters between judges. This will enable judges to help fellow judges with their workload.

In addition to financial and management efficiencies, the restructure will also achieve more effective use of family consultants and organisation of circuit work to rural and regional Australia.

Retaining the Federal Magistrates Court to hear general federal law matters

The Federal Magistrates Court will be retained to hear general federal law matters and provide an appropriate pool of judicial officers from which commissions to the new Military Court of Australia could be made. The Federal Magistrates Court will exercise general federal law jurisdiction.

A single administration

The restructured Family Court will ensure a single administration for family law matters. A single court, and a single administration, will eliminate the conflicts over resources that have occurred in the past.

The bill will also create efficiencies by facilitating the administration of the Federal Magistrates Court by the Federal Court. This is consistent with the government’s objective of delivering cost-effective services and examining shared service initiatives with respect to departments and agencies.

Jurisdiction of the Federal Magistrates Court

The bill removes family law and most child support jurisdiction from the Federal Magistrates Court. This jurisdiction will now be exercised by judges in the General Division of the Family Court. The Federal Magistrates Court will, however, continue to hear (1) matters before the court that have been part heard but not concluded before the day on which the bill comes into effect, as well as (2) proceedings transferred to the court by the Family Court on or after that day.

Other amendments

The bill repeals the office of judicial registrar as there is no intention to appoint future judicial registrars. However it preserves the office and entitlements of the two serving judicial registrars and provides that they will continue to perform the same functions and exercise the same powers as they do now.

The bill amends the Judges’ Pensions Act 1968 to make clear that judges of the general division of the Family Court are not entitled to pensions under that act.

The bill also removes redundant offices from the Family Law Act and other legislation and will change some titles to reflect the names used in the Federal Court.

AAT Amendment

The bill also makes a minor amendment to the Administrative Appeals Tribunal Act 1975 to expand the regulation-making power to allow the AAT the discretion to impose a fee on decision-making agencies where the AAT makes a determination which is not in their favour after a full hearing. The amendment implements recommendation 10.5 of the access to justice task force report, to which I have referred.


In conclusion, I would also like to acknowledge the outstanding work of officers of the Attorney-General’s Department, and the government’s legal advisers, who have worked hard to develop this legislation. I thank them for this work.

This bill is a major step in achieving the government’s goal of improving access to justice and making the federal courts user friendly for all Australians. It will provide a one-stop shop for family law litigation and, importantly, ensure that people can appropriately access assistance. Further, it will make better use of public resources provided to the courts and will result in the elimination of administrative duplication and reduction in inefficiencies and enable the seamless handling of family law matters. I commend the bill.

Debate (on motion by Dr Southcott) adjourned.