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STANDING COMMITTEE ON LEGAL AND CONSTITUTIONAL AFFAIRS
23/02/2009
ATTORNEY-GENERAL’S PORTFOLIO
Family Court of Australia

CHAIR —I now welcome officers from the Federal Court of Australia. Mr Foster, do you have an opening statement you wish to provide to the committee?

Mr R Foster —No, I do not, thank you, Chair.

Senator BARNETT —Mr Foster, you must be pretty busy at the moment. You are both Chief Executive Officer of the Family Court and Acting Chief Executive Officer of the Federal Magistrates Court.

Mr R Foster —Yes, I am and, yes, it is very busy. But it is not just me; it is busy for a number of colleagues as well.

Senator BARNETT —A number of other colleagues have dual roles as well?

Mr R Foster —Mr Harriott is the Chief Financial Officer of the Family Court and also the Acting Chief Financial Officer of the Federal Magistrates Court.

Senator BARNETT —Are there any other acting officers who have a dual role?

Mr R Foster —The Manager of Human Resources from the Family Court is also the Acting Manager—

Senator BARNETT —Could you identify—

Mr R Foster —Donna Simotas is also the Acting Manager of HR for the Federal Magistrates Court.

Senator BARNETT —So we have got four people who have a dual role—

Mr R Foster —They are three primary roles—

Senator BARNETT —Was it three?

Mr R Foster —There is Mr Harriott, who is the CFO for both the Federal Magistrates Court and the Family Court of Australia, and Miss Semotus, who is the HR Manager for the Family Court of Australia and Acting HR Manager for the Federal Magistrates Court. But there are a number of other dual roles and functions. The functions have been transferred directly from the court. For instance, a number of people in finance are performing roles for both courts, there are a number of people in property, in contracts and in information management services—quite a number of people are functioning across both jurisdictions at the moment.

Senator BARNETT —This is an area we would need to pursue. Can you outline to the committee when these dual roles commenced and the terms and conditions of any commencement briefing you received from the minister’s office.

Mr R Foster —Certainly. This is probably a little confusing because I am speaking in my role as the CEO of the Family Court but you are asking questions about roles in the FMC. If you do not mind mixing it up, that is fine by me.

Senator BARNETT —That is okay. We realise you are coming back in a few moments on FMC but you have dual roles so we are happy to do that—no problems.

Mr R Foster —My appointment as the Acting CEO came about in November last year. The Acting CEO of the Federal Magistrates Court has been on extended sick leave. The Chief Federal Magistrate asked the Chief Justice whether she would be prepared to let me act as the CEO of the Federal Magistrate’s Court. She agreed to that, as I did. So I took up that position in November lat year.

Senator BARNETT —Do you recall the date?

Mr R Foster —Offhand, I cannot. I thought you might ask me that, but I cannot remember. I can take that on notice. At a meeting of the Family Law Courts Board on 6 October 2008 the question of the Federal Magistrates Court’s financial system MYOB, mind your own business, was raised because there was great concern by the then CEO of the Federal Magistrates Court that that system was not providing adequate safeguards to the court and providing financial information, et cetera. That is understood because MYOB is basically a system designed for small business, not for a complex organisation such as the Federal Magistrates Court. So the board agreed at that meeting—

Senator BARNETT —The board of?

Mr R Foster —The Family Law Courts Board, which consists of the Chief Justice, the Chief Federal Magistrate and the two CEOs of the courts. The board made a decision that the two executive directors of finance would get together, come to a set of recommendations to get the financial management system of the Federal Magistrates Court off MYOB and onto Finance 1, which is basically the standard government accounting system for organisations, run by the Family Court.

Senator BARNETT —So the MYOB system as used by the Federal Magistrates Court was inadequate and the board deemed the need for remedy measures?

Mr R Foster —That is right, and it was agreed that it would be transferred over to Finance 1 but then run by the Family Court of Australia. That decision was made basically in October 2008 and that transfer has now been effected. So the financial system of the FMC has been taken off MYOB and placed onto Finance 1. It is a separate system but is managed by the Family Court of Australia.

Senator BARNETT —Was this put to the board by the Federal Magistrates Court CEO?

Mr R Foster —Yes, it was. It came about because of a letter that the then CEO wrote to the Attorney-General’s Department expressing some concerns about the reliability of the financial system and the data it could provide. As a result of that, it was suggested that perhaps the Family Court could run its financial system and the board made that decision based on that information.

Senator BARNETT —Was the board instructed by the minister to assess that? This is the Family Law Courts Board, is it not?

Mr R Foster —That is right.

Senator BARNETT —It is not the Federal Magistrate Court.

Mr R Foster —No. It is the Family Law Courts Board, as I said, made up of the members whom I previously mentioned. There was, from my knowledge, no discussion at all with the Attorney-General about it. There was liaison with the department but not directly with the Attorney-General. It just seemed like a sensible decision to make.

Senator BARNETT —Can you table that letter?

Mr R Foster —I would have thought so.

Senator BARNETT —Thank you.

Mr R Foster —Yes, happy to do that. I have not got it with me, but I am happy to do that.

Senator BARNETT —I am trying to work out the interlinking between the Family Court and the Federal Magistrates Court and when this sort of takeover or intermingling got underway.

Mr R Foster —It got underway basically after that meeting in October 2008.

Senator BARNETT —The stimulus was the financial system inadequacies?

Mr R Foster —Exactly.

Senator BARNETT —Right. And then what happened?

Mr R Foster —Because we were taking over, basically, the financial system, it also made a lot of sense—because it is linked to the payroll—for the payroll to come over. So it was agreed the payroll system would come over as well.

Senator BARNETT —When did that come over?

Mr R Foster —It has only just come over. In fact, the Family Court did the first pay run for the Federal Magistrates Court the pay before last, which was 5 February. So that has now happened.

Senator BARNETT —So the Federal Magistrates Court judges are now being paid by the Family Court financial controllers, effectively?

Mr R Foster —That is right, yes.

Senator BARNETT —From 5 February?

Mr R Foster —Yes.

Senator BARNETT —All right. Let’s just keep going. What else happened?

Mr R Foster —Human resources: it was agreed at the same time that the management of human resources should also go to the Family Court, and that process is still happening. We would expect to have that completed by basically the end of this month. All we are doing is reviewing some of the HR files to make sure that they are in reasonable shape before the Family Court accepts them.

Senator BARNETT —And when did that commence—in and around November?

Mr R Foster —All this started around the same time, with different projects to do these different tasks.

Senator BARNETT —Right.

Mr R Foster —Property: the management of property happened immediately because the property manager from the FMC was on a contract and the contract was not renewed. So that was really a simple task for the property people in the Family Court to take over the management of the property for the Federal Magistrates Court, and that has been happening since.

Senator BARNETT —And that happened in November as well?

Mr R Foster —That basically happened in November.

Senator BARNETT —All right.

Mr R Foster —Contracts—a similar thing: that has basically been happening since November as well. If a contract comes up in the FMC then we test it with what is happening in the Family Court to see if it is or is not sensible to have separate contracts, and we make decisions accordingly.

Senator BARNETT —Any other functions?

Mr R Foster —The only other area was in relation to the information that comes out of our case-track system. Subsequent to this board meeting decision, the then acting CEO wrote to me, asking: could the Family Court take over the management of their information in relation to workload of courts and what have you. They agreed to provide a—

Senator BARNETT —Sorry; who wrote to you?

Mr R Foster —The acting CEO.

Senator BARNETT —But you are the acting CEO.

Mr R Foster —No, this was then. This was back before I was appointed as Acting CEO. It was Mr Glenn Smith.

Senator BARNETT —When would that have been—October or November?

Mr R Foster —That was probably towards the end of October, but, again, I would need to check that date.

Senator BARNETT —So the management of case load systems was transferred around that time, in November?

Mr R Foster —It basically happened at the same time, but the resources did not come with it. The Family Court is now trying to find resources to do that function, but we are doing it within existing resources at the moment. So it all happened pretty quickly.

Senator BARNETT —Any other functions?

Mr R Foster —No.

Senator BARNETT —Sounds like they do not have much to do over there at the Federal Magistrates Court now.

Mr R Foster —They have still got all their client service areas. The registries, generally, as you would be aware, have been run by the Family Court since the Federal Magistrates Court was established, so that work is still happening. But all the work in the federal magistrates chambers, all of their court workload, which is about 80 per cent of the filings of the courts, continues. So it is really only that area of corporate service function that has been transferred from one court to the other.

Senator BARNETT —When were you appointed Acting CEO? I know we are crossing over a little bit to the Federal Magistrates Court.

Mr R Foster —You asked me that question earlier; I said I would take it on notice. It was in November, but I do not know the exact date. I cannot remember.

Senator BARNETT —So when were these decisions made? Was there liaison with the Attorney-General’s office? Did he sign off on this transfer of functions?

Mr R Foster —Not with the minister’s office directly, but we liaised with the department, and so they were across the things that we were doing or contemplating doing.

Senator BARNETT —And that occurred around October or November? Can you assist us with when that was?

Mr R Foster —It was around that time. When the letter was written by the previous CEO to the department about problems with MYOB some discussions began to take place about the best way forward.

Proceedings suspended from 10.30 am to 10.45 am

CHAIR —We have officers of the Family Court of Australia with us. Senator Barnett, would you like a rest while I go to Senator Fielding?

Senator BARNETT —I am just finishing a particular topic. I would not mind finishing this topic and then I am happy to pass over to Senator Fielding. Thank you again, Mr Foster, for your informative responses. It is most appreciated.

Mr R Foster —I have got a date for my appointment, by the way. It was 25 November 2008.

Senator BARNETT —25 November 2008 when you were appointed?

Mr R Foster —Acting CEO of the Federal Magistrates Court.

Senator BARNETT —Who made that appointment?

Mr R Foster —The Chief Federal Magistrate has power under the act to make an acting appointment.

Senator BARNETT —I will ask you in your future capacity—and you can get ready for the question—when you will be appointing a new CEO. If you want to answer that now, you can; otherwise, we can wait.

Mr R Foster —My appointment is until further notice.

Senator BARNETT —We will deal with that under the next area. To finish all this, thank you for confirming the advice that there have been transfers of various functions—in fact a whole multitude of functions—starting in October last year and then in November and continuing. I ask you and the minister, if she would be willing, to respond to the fact that the Semple review came down in December, and the government’s response to the Semple review was in February. So all these transfer of functions occurred in advance of the report and recommendations of Semple—in fact, well in advance of the government’s official response. So it appears that there have been actions following through on a particular policy position well in advance of those two reports.

Mr R Foster —The important point to acknowledge is that this is a transfer of corporate service function, but it is just the Family Court doing it on behalf of the Federal Magistrates Court. It is basically services provided free of charge. While it is being done by the Family Court, it is being done for the FMC. It is still the FMC’s responsibility to ensure that this work happens, and in my role as acting CEO. It is not a takeover by the Family Court is the point I am making. It came about because of the letter that the previous CEO wrote to the Attorney-General’s Department dated 15 August—the letter I am trying to get to table now—where he set out some serious concerns about the viability of the ongoing financial systems. That went to the Family Law Court’s board meeting on 4 September. The board considered it and then asked for a report back to it by 6 October about how we might move this forward.

Senator BARNETT —The letter was dated 4 September?

Mr R Foster —The letter was dated 15 August 2008 from the then CEO to Mr Ian Govey of the Attorney-General’s Department.

Senator BARNETT —You have mentioned a board meeting?

Mr R Foster —The board meeting on 4 September last year considered the CEO’s letter and then asked for a report from the various executive directors corporate by 6 October about what opportunities there would be for a shared service in this regard.

Senator BARNETT —They then got that?

Mr R Foster —They got that and then made a decision on 6 October of what I have talked about—the transfer of some of that corporate service function to the Family Court subsequent to that meeting on 6 October.

Senator BARNETT —And that was the board meeting on 6 October?

Mr R Foster —Exactly.

Senator Wong —I am not sure this has been traversed in evidence—I might have missed this answer, Senator Barnett, and if so I apologise—but I understood that the Family Law Courts board is made up of representatives both of the Family Court and the Federal Magistrates Court. So both representatives, therefore, of the FMC were involved in the decision to appoint Mr Foster in his acting role.

Senator BARNETT —Minister, would you care to respond to the question I asked earlier regarding why the functions have transferred, the merit of that and if the government was aware of it and supportive of it—notwithstanding that the Semple report had not been tabled and notwithstanding that the government’s response had not been tabled?

Senator Wong —Perhaps we will take that question in two parts. The first is what was the government’s involvement or the Attorney-General’s involvement in the appointment of Mr Foster in his dual role. I will ask Mr Govey to assist.

Mr Govey —The department was informed of the proposal in relation to Mr Foster’s acting appointment. My understanding is that the Attorney-General was also informed of it. But, of course, we all took the view that it was a matter for the Chief Federal Magistrate in consultation with the Chief Justice of the Family Court.

Senator BARNETT —I am not just talking about the appointment of an acting CEO; I am talking about the transfer of functions, which is substantial, as outlined earlier in evidence.

Mr Govey —That was the first part. The second part was, I guess, very similar. Again, we were involved, obviously because of the letter that was sent to me from the Federal Magistrates Court about the concerns that were being raised about the administration and their capacity to provide financial reports. We wrote back and suggested that that was something that they might like to look at. In that sense, it was separate from the issue of the Semple report, because it was something that they were doing themselves within their existing administrative structure. The Semple report recommends a complete merger of the two courts, but, as I say, this was something that was happening separately from that and was an initiative of the courts themselves.

Senator BARNETT —Indeed, Mr Govey, but it looks very much like a fait accompli, with respect. Was the department aware and was the minister aware of the full range of functions that have been transferred and were transferred from October, November and since?

Mr Govey —The department was aware and the I think the Attorney-General was aware in general terms, but I am not sure of—

Senator BARNETT —Did you brief the minister?

Mr Govey —I would need to check exactly the level of briefing that was provided. We certainly briefed in general terms.

Senator BARNETT —When?

Mr Govey —I do not have those details. I will take that on notice.

Mr R Foster —I can now table the CEO’s letter of 15 August.

Senator FIELDING —I want to focus on the legislation that was passed a few years ago: the Family Law Amendment (Shared Responsibility) Act 2006, which was for a presumption of equal, shared parenting and responsibility for children after a divorce. Would the court update the committee on how that legislation is being implemented?

Mr R Foster —Certainly. In fact, from the commencement of the legislation, the Chief Justice decided that the court would, for the first time, endeavour to keep statistics on the kinds of orders that were being made, with a view to understanding the results that were being obtained by the parties coming to court. In addition to cases where judges were making a decision, statistics have also been recorded of matters coming to court but in which the parties reach their own agreement without the necessity of a decision from a judge. The collection and analysis of that data has been complex. Parenting orders are not particularly straightforward by their nature and can often involve some complexities, which complicates the recording process. Thus, it has taken some time for the court to be in a position to be satisfied that the reports are accurate and meaningful.

That point has now been reached, and an analysis of the 2007-08 shared parental responsibility statistics is now available. Some years ago, the court collected some statistical information, although not in the form or as detailed as that which is now being collected. For that reason, in some cases the court is able to draw a comparison between what was happening eight years ago and what is occurring now. There is a range of statistical information that the court now has in its keeping.

Senator FIELDING —Could you table those?

Senator Wong —Could we take that on notice? The document contains a range of advice, plus the figures. I am certainly comfortable with you having the data. We can provide that shortly.

Senator FIELDING —That is something that you would take on notice to come back the next day? Obviously you have the statistics there, so you could probably pull out the stuff that is statistical and take out the stuff that is not—

Senator Wong —We will endeavour to do that as quickly as we are able.

Senator FIELDING —As you know, and we all know, the legislation says ‘ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives’. You say you are monitoring it. How do we know whether it has been successful at achieving that goal? Back in 2006, that legislation was put through on the basis that it would substantially change the situation. At the time, there were reports that, when a kid went to the Family Court, 98 per cent of the time they effectively lost one of their parents. I use the word ‘effectively’ because it was pretty adversarial. You knew when you went into the Family Court that you would end up with one parent getting the kid and one not. That was where it was at. You have some statistics there that no-one else has seen. How do we know that it is working? Can you outline it to us?

Mr R Foster —There are some comparative statistics. Fortunately, the court did collect some detailed statistics—not in exactly the same format as shared parenting. It does enable some comparisons between what happened previously and what is happening now. I think this information, once I can table it, will clearly show there has been a change.

Senator FIELDING —I suppose you know that. Until we see the statistics, we unfortunately cannot make any comparison. I am not doubting them; I am just saying it would be really nice to get the statistics so we could at least have a decent chinwag about it.

Ms Leigh —I have some relevant information. The point you raised about assessing how the act is working is precisely a point to which we have turned our minds. The government has commissioned research in this area. I think it is the first time that hard, factual evidence has been sought to assess whether an act is actually delivering the outcomes that were sought. There are a few different pieces of research being developed in this area. First of all, specifically in relation to shared care, last year the department funded a research project to examine the developmental outcomes for children involved in different shared care arrangements so that we could look at different arrangements and how they impact on the children. We are currently assessing a tender response for further research on the characteristics of shared care parenting arrangements that work in the best interests of the child in order to identify what aspects make shared care work well. So that is two pieces of research.

In addition, all the amendments to the Family Law Act are subject to evaluation by the Australian Institute of Family Studies—that is, extensive evaluation being undertaken by the institute on each of the components of the family law reforms: the changes to the law, the new services that have been put out in conjunction with the changes to the law, the expanded early intervention services and the expanded post-separation services. They have developed an evaluation framework that sets out the strategy for evaluating the family law reforms, and that is available on the department’s website. I would be happy to get you the details of that site.

Senator FIELDING —That act has been in place for how long now, exactly?

Ms Leigh —It came into effect on a rolling basis. The general principles were introduced and then, because the services that back up the act were being rolled out over a three-year period, the act itself was rolled out over a three-year period. So compulsory dispute resolution only came into effect in July last year.

Senator FIELDING —Right.

Ms Leigh —So, to have any meaningful assessment of the impact of the legislation, you need to be able to assess how it has operated since compulsory dispute resolution and the full range of services were put in place. So it is actually still early days to make that assessment.

Senator FIELDING —I understand that. It is a very tricky area. It is not easy; I am not suggesting that for a second. It is highly emotive. I just know that there was a lot of talk and debate, when this legislation was passed, about how this would change things quite substantially moving forward, and I think there was a general desire and will on everybody’s part to have this idea of shared parental responsibility. So I was pretty keen to get a feeling for how it is going. I wanted to know, for example, how often in cases of divorce do courts not grant shared parenting arrangements, and in what percentages. I would have thought that some of that would have started coming through the courts—it has been rolled out early—so we could see the statistics and see if they have changed.

It is a difficult situation when there is a divorce and there are kids involved, and, when you do go to the Family Court and, effectively, the kid loses a parent along the way, there have got to be pretty significant reasons for that. That percentage of 98 per cent—someone disputed it; it could be 95 per cent, but I do not want to go there—is quite a high, significant percentage. Previously, when a divorce went to the Family Court, a kid would end up effectively losing a parent. That causes greater problems, in that the situation is already very adversarial before you even start the process. When the relationship of a couple breaks down or is about to break down, they could start to think, ‘What’s going to happen? I’m going to lose the kid as well,’ and then the pressure that mounts creates what is very much an adversarial approach before they even get to the courts.

So this legislation is extremely important, and I am after some indication that the outcome is substantially changing—that that percentage has not just dropped from 98 per cent to 94 or 93 per cent. It has got to be a substantial change, I think. And that signal needs to be sent out to the public that you no longer end up with the winner taking all, basically, when you separate or get a divorce.

Mr R Foster —All I have got with me is an analysis based on 1,448 finalised litigated cases and 2,719 early-agreement consent cases, so it is a pretty significant database. But I have not got the comparative data with me. All I have got is the outcomes of what is happening in the courts with that number of cases in relation to the legislation.

Senator Wong —Senator, as I understand it, just so we can be clear, you seek what information we have which would enable—with the caveat, obviously, that it is early days—a comparison or assessment to be made as to whether or not the change in the legislation has resulted in a different pattern of type of order. Is that a reasonable summary of what you are seeking?

Senator FIELDING —Correct. I have got a number of questions that are very specific, number based as well. I would like to get the information that you have got as well, but I can—

Senator Wong —The reason I was trying to make sure that we understood was that I do not think the data that Mr Foster has provides you with that information. That is why we would have to take that on notice. He has some information relating to a particular dataset but it is not clear to me from what he has shown me or from his evidence that he has a comparative set of evidence.

Senator FIELDING —Maybe I can clarify that a bit further. I am starting from the premise that there was a heck of a lot of debate and I think there was agreement on both sides of politics about wanting to see some significant change in the shared parenting responsibility, and I will not go back there. For example, if I were to ask for the number of equally shared parent responsibility orders made in adjudicated matters, would that clarify the issue? That is a specific question. Do those stats that you have got there answer the question or not?

Mr R Foster —Not really, not in its entirety.

Senator FIELDING —The reason that I am after that number is that previously it was such a high percentage—90-plus per cent—that a kid would effectively lose one of their parents and there was concern in the community that that had to change. Obviously we are not saying that 100 per cent of the time there should be shared responsibility, but there should be a very strong, substantial reason why you would not have a shared responsibility, not just a matter of little issues, and in that way it stops the adversarial effect.

Seriously, it torments parents in a divorce when they face a situation where they might lose their kids. The amount of psychological pressure on people makes them crack especially when it goes on for a long period of time. If you think for just one night that you are going to lose your kids forever, that is bad enough for one night—but seven nights, one week; 30 nights, one month; 365 nights, one year? No wonder people crack and break. So we need to start sending the signal that you are not going to lose your kids unless there is a substantial reason. I start from the basis that if someone’s husband or wife dies no-one ever questions whether the other parent is good enough to be a parent. It is automatically assumed that they are. This is a very passionate issue here and the stress it places on human beings is such that I do not think I could withstand the pressure for a year or six months of knowing that I may lose my kids—

CHAIR —Senator Fielding, do you have a question?

Senator FIELDING —I do have a question. The questions are about the statistics and the need to start getting these numbers out early. They are factual cases. Out of all the cases that have been adjudicated in the last year how many have been shared responsibility—fifty-fifty or sixty-forty? Or is it ninety-ten? That is not shared responsibility really—that’s Clayton’s shared.

Mr R Foster —As I have said earlier, the court some years ago did collect some data which could be used for comparative purposes. It is not an identical set of data for a whole lot of reasons. This set of data which I have was asked for by the Chief Justice when this legislation came in being, so we have been collecting it for sometime. It is only in relation to the Family Court, so it is actually a small collection, and the numbers I think I told you about. There were nearly 1,500 finalised cases at 2,700 orders by consent. So it is a reasonable set of data but it is not a complete set of data, as you are asking for. So much more work in relation to the stats needs to be done not only for the Family Court but also for the Federal Magistrates Court to get this set of data. But we can do some comparisons and, as I understand it, there is shown to be a change in the orders that impact specifically on fathers, and I do not know that I can take it much further at the moment.

Senator FIELDING —The comparisons, as you say, maybe difficult to make, but it is an actual factual question. Since this law has come in, and in some courts that has been at least a year and may be more than that, out of those cases that have been adjudicated you must know—it is a factual question—how many have been shared responsibility? You must know. It is not as if you have to say, ‘We do not know the figures because we did not count them in the past.’ You must know. They court rulings. They are adjudicated rulings.

Mr R Foster —We do. We are now counting them. I have a set of data that does exactly that. But to say categorically: has the situation changed significantly from previously, the datasets do not match. I think that is the research that the department has been talking about and I guess that is much more detailed than this set of data that I can provide on notice.

Senator Wong —Senator, we do understand the question you are asking, and it is a reasonable question to ask whether the act has had an impact. I again refer you to Ms Leigh’s evidence, which was that the provisions did not fully commence until 1 July 2008, so we have not had a very lengthy period. I think the evidence from Mr Foster is that the information he has to date does not enable a reasonable comparison to be made. The government obviously will want to know what the effect of the provisions in practical terms is and that is the basis of the research that the department has commissioned. If we are able to assist in an earlier time frame with that kind of data we will. I just again make the point that this has not been in place for very long. These provisions were fully operative from 1 July last year. Obviously it has been less than a year, but in any event we will endeavour to assist in whatever way we are able to.

Senator FIELDING —I will just share with you the type of information I was after. That way you can handle it. Then I will place some questions on notice, if I can. I would like to know the number of equal shared parenting responsibility orders made by consent. Some are adjudicated and some are by consent. I would like to know the number of equal time orders issued in adjudicated matters and the number of equal time orders made by consent. That is to give you a bit of a flavour. It is specific. I would be interested in having the comparison later on, because I do not want to get caught up in that now. You might say that you cannot compare and that the numbers are different. I understand that issue. But I am after actual cases that have been adjudicated. I have a number of other questions I will put on notice to help you with that from there.

Mr R Foster —Thank you.

Senator FIELDING —While I have got you here, given that they are actual cases, how long would it take you to come back with that information?

Mr R Foster —We have the data now. It is so new that it was only signed off by the Chief Justice as late as last week. That is how new this data is.

Senator FIELDING —So would you be able to provide the answers by the end of the week if I gave the questions to you today?

Mr R Foster —I would not have thought there was a problem with that, quite frankly.

CHAIR —The time for the receipt of answers to questions is 14 April, Senator Fielding. That is the time the committee has set for questions on notice to be returned to us.

Senator FIELDING —But if the department said that they can get them by the end of the week then I think we should get them back earlier.

CHAIR —The position of the committee is that they could try and do that but they are only obliged to provide them to us by 14 April.

Senator FIELDING —I am not going to cause problems.

CHAIR —If they can do something earlier than that, well and good, but they are obliged to give them to us by 14 April.

Senator FIELDING —The end of the week would be great, if you can. They are genuine questions.

Mr R Foster —Absolutely.

Senator BARNETT —I have three very brief questions. As of today, or the most recent time frame, what is the average waiting time for a case to be heard? Secondly, what is currently the longest waiting period for a case to be heard?

Mr R Foster —On average, for all final order applications in the Family Court for 2008-09 it was taking 8.1 months. That is from filing to disposal.

Senator BARNETT —How does that compare with 2007-08?

Mr R Foster —For 2007-08 it was 8.5 months.

Senator BARNETT —What about 2006-07?

Mr R Foster —I do not have that figure with me.

Senator BARNETT —What is the longest waiting period?

Mr R Foster —I am not certain of that. For various reasons it could be a couple of years. I have no idea what the longest case is.

Senator BARNETT —Can you take that on notice?

Mr R Foster —I can take it on notice and try and find the oldest case in the system.

Senator BARNETT —Could you find out the top 10 and the nature of the matters? Could you take that on notice and advise the committee?

Mr R Foster —I can take it on notice and do the best we can. I am not sure that I can identify that across the system.

Senator Wong —What do you mean by the top 10?

Senator BARNETT —The longest waiting period for a case to be heard.

Senator Wong —The ones where there has been the most length since filing and determination?

Senator BARNETT —Correct.

Senator Wong —And how far back? Since the commencement of the court?

Senator BARNETT —As of now.

Senator Wong —If you want the top 10—the ones that have taken the longest—would you go back to the commencement of the court?

Senator BARNETT —No, as of today.

Senator Wong —That means cases that are still open.

Senator BARNETT —Correct.

Senator Wong —That is not what you said before. I asked: filing until determination, which assumes they are closed. What you are actually asking for are cases that have not yet been determined—the ones that have had the earliest filing date, as at today.

Senator BARNETT —You have asked the question very well, Minister.

Senator Wong —Two or three sets of data have been requested, I think it is fair to be clear about what you are asking.

Senator BARNETT —Sure. The time from filing, the length of duration of the case, whether it has been determined otherwise.

Senator Wong —Whether it has been determined or otherwise?

Senator BARNETT —Yes.

Senator Wong —Then we are back to the same problem. Because then you could go back to 1976, when the Family Court was set up, and you could work out what took the longest from filing to determination.

Senator BARNETT —I said, ‘as of today’. That has not changed.

CHAIR —If they have been terminated they are not on the books today.

Senator Wong —Exactly. That is the point. There is a logical problem with what you ask.

Senator FIELDING —I can see where you are coming from.

CHAIR —Senator Barnett needs to clarify his question so the officers clearly know what it is that he is asking of them.

Senator Wong —I submit that it is an unreasonable burden to ask them to go back 30 years.

Senator BARNETT —I think Mr Foster knows the intent of the question: the longest length of time for a hearing whether it has been determined or otherwise, in the last 12 months—this financial year.

Mr R Foster —We will do the best we can.

Senator BARNETT —Thank you. My final question is in relation to vacancies. Are there any current vacancies and if so where?

Mr R Foster —There are currently 35 judges of the court, including the Chief Justice, and there is only one position that is under process at the moment and that is Justice Mullane in Newcastle. There is a process in place to appoint a judge to Newcastle.

Senator BARNETT —I saw a reference in the media to that recently. Is that imminent?

Mr R Foster —That is probably something that you will need to ask Mr Govey.

Mr Govey —The position is that the vacancy in Newcastle has been advertised and the Attorney-General appointed a panel to consider applications and nominations that were received. That process is currently under way. The panel has not yet completed its report to the Attorney-General.

Senator BARNETT —There are no other vacancies?

Mr R Foster —No.

Senator FIELDING —The figure of 8.1 months is down from the figure of 8.5 months for the previous year. That is the time from filing to adjudication. Is that right?

Mr R Foster —Filing to disposal.

Senator FIELDING —It is good that it has come down but 8.1 months is still 240 nights. Is that something that you are happy with? That is the average, by the way.

Mr R Foster —There is a delay and there is a time which is an appropriate delay. Parties need time to prepare their case. There is a range of issues about why things are delayed in courts. Is this an unusual or extraordinary delay? If cases were being completed within nine months of filing I would have thought that is a pretty good outcome, personally. That is for the average number of cases. Some will be done in a lot less time. Certainly those matters that are done by consent would be done in a much shorter time frame. Some of those that are much more complex would take longer to do. Bearing in mind the workload shift between the two courts, about 80 per cent of all family law filings are now in the Federal Magistrates Court, so the Family Court has about 20 per cent of the filings, which are really the most complex and difficult cases. So, on average, to be dealing with those, in 8.1 months is probably reasonable. Is it best practice? Possibly not but it is the best we can do with the resources we have.

Senator FIELDING —Do you know what best practice is?

Mr R Foster —It varies from court to court. There are not too many places like the Family Court of Australia to compare it with. Each individual’s case will have individual and different requirements. Obviously, the court’s desire is to meet the needs of the people that come before it, and especially the needs of the children, and make timely orders that are appropriate as expeditiously as possible. But there is a process that you need to go through to get to final decision making.

Senator FIELDING —I do not think it is an easy thing at all. In my mind it seems too long but I am certainly not an expert in that particular area at all. That is the reason I was asking the question.

Mr R Foster —One of the positive things is that we are actually disposing of more cases that are coming in, so you would expect that time frame to come down even further. We are dealing with an existing backlog and, as I said, with the most complex cases. I think those figures are a much better reflection of what the Family Court is doing now than it was doing, say, two or three years ago.

Senator FIELDING —Obviously there is a backlog and there are some delays. The eight months is an average. There are some cases that will need to take a lot longer and some cases will take a lot less time but the average is eight months. Do you think something like four months is about right for an average? Would that be ideal? The reason for the question, by the way, is that these are very highly emotive cases and that is a long time for people to be under stress and pressure. Obviously the length of time does play on people’s minds.

Mr R Foster —Outputs are still saying that 75 per cent of matters be determined within 12 months and I think we are doing better than that now—whatever the figure is. I mean, how long is a piece of string, quite frankly? As soon as possible and as expeditiously as possible. But, as I keep stating, there is a certain period of time that is not delay in the courts. It is necessary time for parties to prepare themselves, present their cases appropriately. It is what is over and above that necessary time that is delay. It might be anything over six months. It is really a matter of judgment.

Senator FIELDING —Do you get any complaints about the length of time it takes? Do you record those?

Mr R Foster —We do have an extensive complaint system and we do keep details of what people complain about—delays in the delivery of judgment or getting to trial and a range of—

Senator FIELDING —Could you provide statistics on those complaints?

Mr R Foster —Yes.

Senator FIELDING —Thank you.

Senator MARSHALL —What is the actual number of days in court—the number of days for the hearing in the court situation?

Mr R Foster —The average number of days?

Senator MARSHALL —Yes.

Mr R Foster —It is around 3.5 to four days in the Family Court of Australia. That is average hearing days for a trial.

Senator MARSHALL —What is the average time for a decision to be made?

Mr R Foster —The standard is that any judgment that is in excess of three months after the finish of the evidence in the final hearing is a delayed judgment. So we keep data on those that are greater than three months and those that are between three and six months.

Senator MARSHALL —So what is the data?

Mr R Foster —As at 31 December 2008 there were 107 judgments reserved outstanding, 53 of which were older than three months. This has reduced since the end of June 2008 when there were 113 judgments reserved outstanding, 70 which were older than three months.

Senator MARSHALL —And what is the process to speed that up? You said that there are some outstanding beyond six months—you did not give me those figures but you might. What is the process for resolving those or bringing them to conclusion?

Mr R Foster —There is a monthly report that goes to the Deputy Chief Justice which lists every outstanding judgment. If it becomes an issue within a particular registry then the Deputy Chief Justice would raise that matter with the particular judge concerned.

Senator MARSHALL —So does there have to be a reason, like it is an overly complicated matter, or can the reason simply be, ‘We’re overworked, we’re too busy, we don’t have enough time’?

Mr R Foster —I do not think there is any one reason. There are a number of reasons why that might happen, but workload is certainly a significant factor. There are now only 35 judges in the court and they are dealing with a very complex and difficult workload, so they are very, very busy. But every judge understands that the important thing is to get a decision out as soon as you possibly can.

Senator MARSHALL —I think you said earlier in answer to a question that the number of mediations leading to private agreements is increasing, as opposed to adjudications required. Is that what was said?

Mr R Foster —No.

Senator MARSHALL —That was not what was said?

Mr R Foster —No, I did not say that.

Senator MARSHALL —I must have misunderstood that. So what is happening in respect to that?

Mr R Foster —There is a requirement, as you are aware, that people go to a family relationship centre before they can file in the family law courts. That is one factor that perhaps is having an impact on the number of filings in the courts generally, because, in terms of applications for final orders, the family law courts’ workload since 1998-99, or 2000, when the Federal Magistrates Courts came into operation, is down something like 18 per cent. The number of applications across the whole of the family law system in 1998-99 was 21,939, and at 2007-08 the figure was 17,306, which was a reduction of 21 per cent. On current projections, we are anticipating that there will be around 18,000 applications for final orders across both courts, which is a reduction of 18 per cent on that baseline figure back in 2000. So there has been a significant reduction in the amount of work coming into the system, and I am sure a great deal of that is in relation to mediation outside the court system.

Senator MARSHALL —Sure. Ms Leigh, is that something that is going to be looked at in your study—the correlation between that reduction and what is happening in the mediation centres?

Ms Leigh —At the very least, it is a necessary implication from the work that is being done in that study, but we are also following these figures very closely.

Senator MARSHALL —Thank you. Just one final question: I think you said 3.5 days is the average actual time in court; is that decreasing or increasing?

Mr R Foster —In the Family Court it is probably increasing. I think that just reflects the nature of the work that the court is doing. It is an average, and we have got the most complex cases; therefore, you would expect that figure to increase.

Senator MARSHALL —Sure, and the logic is that, if more are being dealt with through mediation, of course they would be the harder cases that go to court.

Mr R Foster —That is right.

Senator MARSHALL —Okay. Thank you.

CHAIR —Do we have any more questions for the Family Court?

Senator BARNETT —Yes, one final question. The complaints handling system—since we last met, has that changed and, if so, could you advise the changes?

Mr R Foster —There has been one change. I did not bring it with me, but on the Family Court’s website there are further and better particulars about how you can make a complaint. That is all. It has been made much clearer how you go about making complaints. That is the only change that has been made.

Senator BARNETT —All right. So you haven’t been instructed by the minister’s office or by the department with respect to complaints handling measures?

Mr R Foster —No.

Senator BARNETT —Thank you.

CHAIR —Thank you to the Family Court. We are now going to move to the Federal Court of Australia.

Mr R Foster —I do not know whether it is possible, Madam Chair, to do the Federal Magistrates Court now while we are here.

CHAIR —We have got the Federal Court first and then the Federal Magistrates Court.

Mr R Foster —Okay. I spoke to Mr Soden earlier, and he said he would have no objection if you did change the order while we are sitting here—but it is just a suggestion.

CHAIR —If it is easier to deal with the Federal Magistrates Court now, we will do that and then go back to the Federal Court.

[11.29 am]