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Legal and Constitutional Affairs Legislation Committee
27/02/2018
Estimates
ATTORNEY-GENERAL'S PORTFOLIO
Federal Court of Australia

Federal Court of Australia

CHAIR: We are dealing with the Department of the Attorney-General and we have before us the Family Court of Australia, the Federal Circuit Court and the Federal Court. Welcome Gentlemen. Do either of you want to make an opening statement?

Mr Soden : As you know, I am the Chief Executive and Principal Registrar of the Federal Court. For the assistance of the committee, I will let you know that earlier this calendar year the Chief Justice of the Family Court asked me to act as chief executive and principal registrar of that court. So I have two name tags here today. But I will just use one if that's okay. I'm here for the Federal Court and the Family Court. Dr Fenwick is here for the Federal Circuit Court. Of course as usual we are accompanied by others who are much more on top of the detail than we might profess to be.

CHAIR: Thank you for that. I was wondering why there was only two of you, but you have explained. You should have put out both name tags and we could have understood. Dr Fenwick, did you want to make any opening statement?

Dr Fenwick : Nothing from me. Thank you.

CHAIR: Okay. Let's start with Senator Pratt.

Senator PRATT: Thank you. I am going to commence with some questions regarding the discussions regarding the possibility of restructuring the court systems. Has your advice been sought on how the court systems could be restructured?

Mr Soden : I can answer that by saying I know there have been a number of conversations. Representatives of government and the department would have to speak as to the precise content of the conversations.

Senator PRATT: Has a discussion taken place at a practical level with you as administrators of the courts?

Mr Soden : Not yet in the detail that could be done.

Senator PRATT: How would you characterise the level of detail of current discussions?

Mr Anderson : There are a range of discussions at officials level, including with the court, but we're at a relatively early stage of those discussions. Ultimately it will be a matter for the department to give advice to government, so I can't say much more than that at this stage.

Senator PRATT: Do those discussions include the officials before us today? I understand you are not at liberty to answer for them, but are you consulting with the registrars of each court?

Mr Anderson : We are consulting with the officials from the courts as well.

Senator PRATT: You can all confirm that those discussions have started?

Mr Soden : I can confirm there are discussions, but I agree with the sentiment that they're developing.

Senator PRATT: You haven't had any discussions in your role as administrator of two courts?

Mr Soden : They are developing discussions. That's a good way to describe them. Much needs to be done.

Senator PRATT: I understand that; I'm trying to work out the extent to which a formal discussion is now underway that models this intention.

Mr Moraitis : To add to what Mr Anderson and Mr Soden said, this process can take some time. Public consideration of this is literally weeks old. The department will engage with all stakeholders in this process. The discussions about this were announced before or after Christmas. We are scoping out all the stakeholders about this, but as Mr Anderson said, it is a decision for the department to advise the government about the options.

Senator PRATT: I understand that; I'm asking whether registrars were aware of these emerging discussions back when they were announced last December.

Mr Soden : It would be fair to say they were aware of the possibility of emerging discussions last year.

Senator PRATT: Has the current AG had any discussions with the heads of jurisdiction in the Federal Circuit Court and the Family Court about a restructure of those courts?

Mr Anderson : The Attorney has had meetings with each of the heads of jurisdiction. The department hasn't been party to those discussions. He has met with the heads of each jurisdiction. I'm sure this would be one topic.

Senator PRATT: Minister Porter has had discussions with heads of jurisdiction?

Mr Anderson : He has been going through a process, as you would anticipate, of meeting with the heads of each agency within his portfolio, and that includes meeting with the heads of jurisdiction from the courts.

Senator PRATT: Has this topic of restructuring of the courts been on the agenda either informally or formally for those discussions?

Mr Anderson : I haven't seen an agenda as such, but I would be fairly certain there have been discussions between the Attorney and the heads of jurisdiction about the possibility of reform.

Senator PRATT: Would you be able to confirm that for me on notice?

Mr Moraitis : We will take it on notice.

Senator PRATT: Is a restructure plan to be completed by the end of this year, as Senator Brandis had previously indicated?

Mr Anderson : As I said, consideration of even the possibility of reform is at a very early stage. There's no commitment to doing anything at this stage; it's still exploratory.

Senator PRATT: Senator Brandis as Attorney-General indicated he thought it would run for about a year.

Mr Moraitis : The process of consultation.

Senator PRATT: The previous Attorney-General was asked in an interview by Ben Fordham:

Okay, but the review is not going to be handing its report back to you until the end of March 2019?

But I think that was in relation to family law. What is the expected date for the review of the courts?

Mr Anderson : It is not a review as such; it is an exploration of possible options for reform, looking at the effectiveness and efficiency of the existing structure. We're working through that. We're in only a very early stage. It would be premature to give a set date as to when it's going to come to a conclusion, because if we give advice to government and they say they'll do one thing then it might have one time frame; if they say they'll do another thing, it could have a different time frame.

Senator PRATT: Will the conclusion of that restructure coincide with the retirement of Chief Justice Pascoe in nine months time? Has that been canvassed?

Mr Anderson : The eventual timing and any decisions will be a matter for government. Again, it would be speculation on my part as to what the timing might be.

Senator PRATT: Has Chief Justice Pascoe been associated with any of those discussions?

Mr Anderson : I believe he has been involved in discussions.

Senator PRATT: In the nine months before Chief Justice Pascoe must retire, will he be actively consulting with government about the restructuring of the courts?

Mr Anderson : We'll be continuing to consult. We have only just started that process at officials level. I anticipate that the Attorney will continue to have regular discussions with the heads of jurisdictions, and one of the topics they will probably discuss is that question of what options there are for possible reform.

Senator PRATT: You can confirm that Chief Justice Pascoe has already been involved in discussions?

Mr Anderson : My understanding is he has been involved in discussions.

Senator PRATT: Dr Fenwick and Mr Soden, you confirmed you have been involved in some discussions.

Mr Soden : As Mr Anderson said, they were some very preliminary discussions.

Senator PRATT: Does that include formal meetings with the restructure appearing on the agenda?

Mr Soden : It's fair to say there have been initial meetings with some of the issues on the agenda.

Mr Moraitis : I would envisage that as we go through this process there would be various iterations and discussions with heads and officials in all three jurisdictions in this department. There would be the normal process of iterating options and ideas, and testing assumptions.

Senator PRATT: Do any judicial vacancies remain unfilled in the Federal Circuit Court or the Family Court?

Mr Anderson : No.

Senator PRATT: Have any endeavours yet been made to find a replacement for Chief Justice Pascoe when he retires in nine months?

Mr Anderson : I don't believe so. Nine months is quite a long time. That said, it's always possible for attorneys to be having discussions with a range of parties. As far as the department is aware, it's a no.

Senator PRATT: Do you expect a replacement to be appointed immediately upon his retirement?

Mr Anderson : That's a matter for government. It is an important position.

Senator PRATT: It certainly is.

Mr Anderson : It would be surprising to have a vacancy.

Senator PRATT: I note that in December last year Chief Judge Alstergren of the Federal Circuit Court was given a dual appointment as Deputy Chief Justice of the Family Court. The Family Court website says:

In the absence of the Chief Justice, the Deputy Chief Justice performs and exercises the powers of the Chief Justice (s 24).

Will there be any occasions in the nine months before Chief Justice Pascoe retires that the Deputy Chief Justice will be required to stand in for the Chief Justice?

Mr Anderson : At a high level I would say that if the Chief Justice were to take some leave then the Deputy Chief Justice would need to step in. I'm not aware whether he has any plans. He also does certain things in a personal capacity that could require him to take leave. He is involved in various other international discussions on issues like surrogacy.

Senator PRATT: You don't have any documentation of when Chief Justice Pascoe will be absent and when he will be replaced by the Deputy Chief Justice?

Mr Anderson : We don't currently know, Senator.

Senator PRATT: Could you take on notice whether there any documentation of those occasions and, if there are any such occasions, what the purpose of that absence is? International surrogacy might be the purpose for that. Also, on notice, whether the Chief Justice is on paid or unpaid leave, and who will fulfil the role of the Chief Justice of the Family Court of Australia in his absence?

Mr Anderson : To the extent we can answer those, yes.

CHAIR: Senator McKim, did you have any questions?

Senator McKIM: Yes, I do have a few. I don't think I will be very long.

CHAIR: That's good.

Senator McKIM: I wanted to follow up on a couple of Senator Pratt's questions around the conversations that are occurring regarding the restructure. Did government ask that these conversations be ticked off? What was the genesis of these conversations? Why are they occurring?

Mr Moraitis : You will recall there have been some enabling services or back-office reforms in this space. You may also recall that any savings achieved in that space were actually put back into the system to sustain that.

Senator McKIM: I do, Mr Moraitis, thank you.

Mr Moraitis : I think since then there has been the logical next step in that discussion by government, to my recollection.

Mr Anderson : I would add to that if I may. Diana Bryant, when she was Chief Justice of the Family Court, made some public comments about possibilities of reform in the federal courts. So it's not a completely novel topic in that sense.

Senator McKIM: Understood. Has government been briefed on the fact that the administrators in the system and in the department are having these conversations? Does government formally know about this?

Mr Anderson : The previous Attorney-General, Senator Brandis, commented on the topic in his valedictory, so I think you can assume that the then-Attorney-General was aware of the discussions.

Senator McKIM: Obviously we've got a new A-G now. Was this covered in incoming briefs for him?

Mr Moraitis : I wouldn't comment on what advice we give, but, given the topicality of the subject, it would be surprising if it wasn't touched upon.

Senator McKIM: What I would like to understand is if the conversations move forward and get to a particular place, how would you expect the consideration of a restructure to move forward post any decision within the group of people that are having the conversations? In other words, when might you decide that it's time for—I don't know—a discussion paper, broader consultation outside to external stakeholders, briefings to ministers and so forth? So what might the future stages of the process look like, should there be a decision to move forward?

Mr Moraitis : As I said, this is literally the first few weeks of the process of thinking about this in the department and other places, so I could ask the same question of my officials. What's the next phase? Mr Anderson and Dr Smrdel are in charge of the areas that will take this forward. There is no specific time line. Obviously, in a process like this, there will be a process of discussion and reaching out to various stakeholders. You could imagine there are very interested stakeholders in this space, so that would be a part of that discussion. As I said, there hasn't been that formulation of time lines of processes, stakeholder engagement strategies or government consideration. What are the options? We talk about restructure, but I think we are talking about reform rather than necessarily restructure, but that obviously would be an option.

Senator McKIM: That was my next question—whether any other changes are being considered as part of the conversations apart from structural changes.

Mr Anderson : This is part of a potential continuum from the 2015-16 budget changes that were aimed to put the federal courts other than the High Court on a sustainable financial footing, with the Federal Court taking over the back-office functions. It's really about a range of reforms to enable different courts, as efficiently and effectively as possible, to serve the public. There is a range of possible reforms that could be considered. The Federal Court, for example, is very well advanced in terms of digitisation of court files and things like that. That's a possible reform—I see that as a reform if that's extended across all of the different federal courts. There are questions as to how registry services might be provided, for example, and the accessibility generally of the services of those courts to the public. Those are also reforms which don't involve any consideration of structure but are about how justice is delivered as a service through the courts.

Senator McKIM: Is there any consideration being given to changes to the law which is ruled upon by the courts as part of this, or is it purely, I guess, an internal conversation amongst the courts about how efficiencies may be able to be delivered and any other structural reforms?

Mr Anderson : Each of the three courts has its own legislation, and so it may well be that reform could involve changes to one or more of those pieces of legislation.

Senator McKIM: Where it would pertain to any structural changes, Mr Anderson, is my understanding—

Mr Anderson : Well, structural or, in some cases, procedural changes.

Senator McKIM: So procedural changes may be on the table as part of this?

Mr Anderson : They may well be if that's going to advance the effectiveness and efficiency of the three courts generally.

Senator McKIM: I'm not sure if you would have a data set that would allow you to answer this, and I quite understand if you don't have the information here, but I'm interested in costs incurred by the Federal Court regarding government appeals against AAT decisions in migration matters. Do you have data set—or Mr Soden, potentially?

Mr Soden : The costs to the Federal Court, or the costs of—

Senator McKIM: Yes. What does it cost to run the cases? I understand that they're part of the ongoing churn of cases through the Federal Court.

Mr Soden : We'll take that on notice. I don't have that depth of detail here with me.

Senator McKIM: I understand that. Is it likely that you would have the data sets that you could interrogate to provide that—

Mr Soden : We would have some data. Whether it's easy to use to answer that question, I'm not sure, but we should be able to give what I would think is a fairly good response to that question with the data we have.

Senator McKIM: Thank you. Again, I quite understand if you wish to take this on notice, but I would like that broken down by decision in terms of whether or not the government was successful in its appeals. What were the costs in cases where the government successfully appealed a migration matter that was determined in the first instance by the AAT and also where the government was not successful?

Mr Soden : We will take that on notice as well.

Senator McKIM: I have a question on waiting lists, and I'm particularly interested in the Family Court: how are we trending in terms of the length of time before matters are determined?

Dr Fenwick : The proportion of case load across circuit court, family law and Family Court is approximately 88 per cent circuit court and about 12 per cent family law matters in the Family Court. I should have a median timeliness figure here. For the circuit court, the median time for finalisation for 2016-17 was 8.45 months.

Senator McKIM: That's the circuit court?

Dr Fenwick : Yes. I'm just not sure if I have that—

Mr Soden : For the Family Court?

Dr Fenwick : Yes.

Mr Soden : In relation to Family Court matters, median time from lodgement to the first day of trial for final order applications is 17.8 months.

Senator McKIM: And that's also in the 2016-17 year, Mr Soden?

Mr Soden : Yes.

Senator McKIM: Do have the 2015-16 figures?

Mr Soden : No, I don't.

Senator McKIM: Could I ask you both to take the 2015-16 figures on notice?

Mr Soden : I'm happy to do that.

Senator McKIM: Are you able to provide a year-to-date median time for the current year?

Dr Fenwick : I do have that; it's 8.3 to disposal, so that's the finalisation of final order applications.

Senator McKIM: It's a different figure that you just gave me for 2016-17, but it's the same measure?

Dr Fenwick : Yes, roughly.

Senator McKIM: It's apples with apples?

Dr Fenwick : Yes.

Mr Soden : I will take that on notice, Senator, to give you those comparative delays over a number of years to make it easy to see the trend.

Senator McKIM: Thank you. I would appreciate that.

Senator PRATT: I have one follow-up question. Mr Anderson indicated that he would take on notice Chief Justice Pascoe's movements, but I'm wondering if Mr Soden has that in his knowledge so that it doesn't have to be taken on notice.

Mr Soden : No, I'm sorry; I don't.

Senator HANSON: I'll go back to what Senator Pratt was asking about Chief Justice Pascoe. Is he the only judge that needs to be replaced? Are there any places that still need to be filled?

Mr Moraitis : There are no vacancies in the Federal—

Senator HANSON: No vacancies, so they have all been filled?

Mr Moraitis : Chief Justice Pascoe's term comes up later in the year in December. I can't think of any other vacancies that I'm aware of.

Senator HANSON: How many judges are employed by the Family Court or the family law circuit courts?

Mr Soden : I will preface my answer by saying that we have a full quota at the moment, and that's 32 all up.

Senator HANSON: Thirty-two all up in both the Family Court and family circuit court.

Dr Fenwick : Sixty-eight judges currently serving in the Federal Circuit Court.

Senator HANSON: So that's your full quota? Who sets the quota?

Dr Fenwick : There's a budget figure that equates to a certain number of positions.

Senator HANSON: For how long has it been set at 68? Has it increased over the years?

Mr Soden : Senator, there are lots of ups and downs with the allocations—usually ups rather than downs, where government initiatives provide funding for an additional judge. I don't have that figure and I don't think my colleague has the figure of how there have been variations of all the judges in all the courts over the last couple of years or few years, but we can take that on notice and give that to you.

Senator HANSON: Okay. I'm asking that because there has been an increase in the amount of Family Court matters. You have hearings that take two to three years. Are we keeping up with more appointments of judges to keep up with the demands on the court system? Is it true to say that on a daily basis a judge may have about 60 cases to hear, and overall about 500 cases?

Mr Soden : I would say no, Senator. The answer to that is that it varies tremendously amongst the judges in different places. Some judges, particularly in the Federal Circuit Court, have an extremely high number of cases and they may well have 60 matters in a list before them, not necessarily for hearing but to deal with on one day. On the other hand, there might be a judge in another place that has 100 matters pending or 50 matters pending. You might have one matter listed before that judge that day because that matter's on for trial. There's no way you could easily generalise—

Senator HANSON: And one judge could possibly even have, over a period of time, 500 cases that he's dealing with?

Mr Soden : Or more over a period of time. It all depends on what the period of time is.

Senator HANSON: At any one time that is waiting to make determinations on that is actually heard.

Mr Soden : Quite.

Senator HANSON: So the workload on the judges is quite extensive?

Mr Soden : I don't think any judge would argue with that proposition.

Senator HANSON: How many judges are on sick leave at the moment?

Mr Soden : Sorry, I don't have the answer to that question. I would have to take it on notice for the Family Court.

Senator HANSON: Would it be unrealistic to say that about four to six have been on sick leave for possibly three to six months or even longer?

Mr Soden : I'm not aware of that in the Family Court. I would have to take that on notice.

Dr Fenwick : In past years in the circuit court I believe that there have been significant periods of absence. I couldn't say what the current figure is. Sick leave is at the discretion of the chief judge, and case by case depending on the judge.

Senator HANSON: Those that are on sick leave for quite a lengthy period of time, are they replaced?

Dr Fenwick : No, we don't have a mechanism for replacing any variation in availability that's related to any kind of leave.

Senator HANSON: A judge is appointed until the age of 70—is that correct?

Dr Fenwick : That's correct.

Senator HANSON: There is no superannuation for judges?

Dr Fenwick : Judges of the Federal Circuit Court have a remuneration package that is salary plus superannuation.

Senator HANSON: At what age?

Dr Fenwick : They are appointed to 70.

Senator HANSON: At 70? Then they—

Dr Fenwick : No, they accrue superannuation as part of their entitlements package through their period of service.

Senator HANSON: If they retire before 70 are they entitled to anything?

Dr Fenwick : Not Circuit Court judges. As any employee, they would draw on their retirement benefits depending on what strategy—

Senator HANSON: So they're not entitled to anything before 70 in the family—Circuit Court.

Dr Fenwick : They accrue their superannuation benefit, which is put aside as any—

Senator HANSON: But they can't collect it until 70. Is that correct?

Dr Fenwick : There is nothing to draw on.

CHAIR: They'd get it at 65, wouldn't they, if they retired before—

Dr Fenwick : Sorry, 60; whatever the—it's not related to their term of service. If they've ceased—

CHAIR: I think what Senator Hanson's asking is, if they retire when they're 60, can they then draw upon whatever superannuation they have?

Dr Fenwick : I think the word that's relevant, if I may say so, is 'retired'. If they continue working they can't draw on their super, but if they make a decision to retire after 60 they're entitled to payment of their accrued superannuation.

CHAIR: Sorry, Senator Hanson; I'm just curious. Are they on a defined benefits scheme?

Dr Fenwick : No, they're not. It's the super program of their choice.

CHAIR: Okay. Senator Hanson?

Senator HANSON: It goes to my question on court funding. What percentage has increased over the past five years?

Mr Soden : I have a lot of numbers, but I don't have a simple percentage of increase over the last five years. There have been some quite substantial injections of funding over the years. There have been some savings that have been reinvested as a result of the back-office merge. The budget looks like it is increasing but that's because of marginal adjustments and other temporary additions. Whilst I could easily take on notice that question about how much it has varied over the last five years, there'd be a bit of explanation in that to make it meaningful.

Senator HANSON: Is there any indication, at this stage, to put a new Federal Court or Circuit Court at Newcastle? Is that in the budget?

Mr Soden : In the budget?

Senator HANSON: I am of the understanding that the Newcastle Family Court needs to be replaced. Is that on the agenda?

Mr Soden : Yes. It is on the agenda for the purpose of trying to work out how we might fix some ongoing accommodation problems in Newcastle family law related operations. We've been looking at that for the last few months. There's the possibility of some additional accommodation becoming available next door to the present accommodation. Some discussions have been held with the landlord of that place. There are some commercial considerations, in relation to incentives and length of lease and those sorts of things that are under discussion, but they may well need to be dealt with in the budget process. It'll mean some money will need to be found.

Senator HANSON: Can you explain the qualifications of registrars and their duties in the courtroom, please?

Dr Fenwick : In family law?

Senator HANSON: In the family circuit courts, family law, yes.

Dr Fenwick : Registrars are qualified legal practitioners.

Senator HANSON: To alleviate the pressure of the court system and judges, have you considered recommendations made to increase the number of registrars in the court system?

Dr Fenwick : We review our resourcing needs on a regular basis. There are two pathways in family law. Registrars are put to slightly different use in the Family Court and slightly different use in the Circuit Court. They're used for dispute resolution in the Circuit Court and for other case management events in the family law pathway.

Senator HANSON: Would it be feasible to say that registrars could be used to hear mentions and do the lighter duties rather than tie up judges?

Mr Soden : I can answer that. The answer to that could simply be, yes, but it always would depend on the particular case that might be before the judge or the particular list of cases that the registrar might be given. So, yes, I think you can safely assume that in the family law jurisdiction registrars already play a substantial role in alleviating the pressure on the judges. I think they could take a greater role. We're presently having a look at how we might better coordinate those registrar resources to fill the gaps that come up from time to time rather than have dedicated people in certain places.

Senator HANSON: Take a case in point: if someone has actually breached an order of the court, as far as child access or seeing the child and that type of thing—so they've actually breached it—then, instead of waiting months for it to come before the courts again, they could speak to a registrar about it and get these matters heard sooner.

Dr Fenwick : There is a process exactly like that in the Brisbane registry, and the court was funded for an extra registrar to trial a similar pilot in Melbourne. In the case of Brisbane, as I understand the pilot, as you've put it, consultation with the party clarified a lot of issues around order interpretation and enforcement, and then the matter could also be dealt with as a contravention matter if required.

Senator HANSON: Have the courts considered opening up night courts to alleviate the pressure on the system, because—correct me if I'm wrong—it's two to three years for some cases to be heard in the court system?

Dr Fenwick : No.

Senator HANSON: Would it be feasible to have night courts?

Mr Soden : I know the issue of night courts has been looked at in other places on many occasions, and pilots have been held, and studies have established that, whilst they are often thought to be a good idea, they do not turn out to be as beneficial as might be thought, because most of those pilots have never had additional resources, so you're deploying resources that would otherwise be used during the day to night-time, and there was no evidence in the pilots, that I can recall reading, that a night court without additional resources was going to produce additional outcomes; it was just delaying outcomes.

Senator HANSON: But it would be feasible, if you actually had the funding for it, to alleviate the pressure on these mums and dads out there who are going through stress and trauma. There are suicides and murders that are actually happening.

Mr Soden : I would not say it's an issue that couldn't receive careful consideration in the future, as to whether, in some places, something could be done out of hours. I must point out, though, that many, many people in the family law jurisdiction in the courts work extraordinarily long hours; I would not call them night courts, but there are many of those places that are working early into the evening often.

Senator HANSON: Has the KPMG report ever been released?

Mr Soden : I'm sorry; I can't answer that question. I don't know the answer to that question.

Senator HANSON: In the KPMG report, I believe that they recommended that an extra $70-million-odd, or $75 million approximately, be put into employing more judges in the court system, but the report has never been released. And you're not aware of the report? Minister?

Mr Moraitis : The report has not been released.

Senator HANSON: It has not been released? Can you tell us why?

Mr Moraitis : It's a report that was commissioned by this department, and, as longstanding practice, we don't usually release those reports. It's part of our policy formulation process. I might add: there have been some FOI requests; in fact, there is one appeal against a decision about that pending at the moment.

Senator HANSON: Is it sensitive information?

Mr Moraitis : I haven't read it lately. It's about court funding and the obvious questions. It's clear that, if we had more resources, we would deploy more judges in the daytime, and in the evenings if it suits people to have evening sessions. I've alluded to the fact that, when we did the structural reforms in the back office, the money was ploughed back; it's going to be ploughed back long-term—and we are talking $5 million or $6 million per annum, once we get those reforms happening. There was some injection of capital stuff for the courts recently. For the last financial year, or this financial year, I don't think there has been any more funding provided for the courts. In an ideal world, I'd love to see more funding for the courts, but—

Senator HANSON: They're setting up, and it's before the parliament, a parental management pilot scheme. That is going to be $12.7 million. My understanding is: you have not got qualified judges making the determination about children. Is that going to be constitutional? Under section 22 of the act it states that a judge is the only one who can make these decisions with regard to it. So you're putting this in the hands of social scientists and other people who are not judges, to make these decisions—

Mr Moraitis : That's not my understanding. I will ask my colleagues who are more expert on the hearings model and what the bill propounds. My recollection is that it is a combination of legally qualified people and other people who are qualified. They're not judicial proceedings; they're about assisting people in the family law space. Dr Smrdel and Mr Anderson—

Senator HANSON: Can I say the people on the panel can be community work, family violence, mental health, drug or alcohol addiction, child development. What they're basically saying is that they're not people who have the qualifications of a judge to make these decisions, and if they make the wrong decision, then that could go to the court system to be reviewed correctly.

Mr Anderson : Senator, if I can say a few things. The first thing is that in the 2017-18 budget there was $10.7 million over four years for additional family consultants who work in the Family Law Courts.

Senator HANSON: That is $10.4 million?

Mr Anderson : It was $10.7 million over four years. There's also additional funding of $14 million over three years being provided for the federal courts from the Public Service Modernisation Fund. That's about funding the transformation of court processes, so it's additional injections of the funding. In terms of family law generally and how those processes work—and you pointed to a range of different concerns—obviously the Australian Law Reform Commission has been tasked to do a fundamental inquiry into the Family Court system, the family law system, in Australia. That report is not due until next year, but that will canvass a very large number of issues about how the family law system works including how the actual family courts work as well in terms of the legal framework. Most family law matters are not actually resolved within the courts. They're actually dealt with outside the courts. People are doing things by consent. When the courts are getting involved, they're tending to deal with, typically, the most complex matters but not always, and there's a range of ways in which they do those things. I might now pass to the other end of the table for my colleagues from the family law area to speak specifically about some of those other things, and noting that this is moving away a bit from the practice of the courts themselves and is moving more into the policy work of the department which is later on today, if the committee is happy to hear at this stage about that.

Mr Gifford : The Parenting Management Hearing proposal is a new multi-disciplinary approach. I think one of the questions you raised was about the qualifications of the particular members who would be hearing these matters. On every particular panel, which would hear one of these matters before the Parenting Management Hearing, there would be a legally qualified member of the panel. The multi-disciplinary panel will actually have additional panel members with them which have expertise suited to the particular matter in addition to that legal member. The legal member's qualifications are actually akin to the appointment qualifications requirement for a judge. So, effectively, they'll be very well experienced and significantly expertised individuals in terms of family law matters, in particular, as well. The idea behind the Parenting Management Hearing is that we'll make sure that the panel is actually equipped to deal with the particular case and can bring the expertise necessary to assist self-represented matters at the less complex end of the spectrum to try to resolve their matters as soon as possible and keep them from the court system. So the idea, effectively, is that it is a $12.7 million injection to try to keep these matters from actually going into the backlog within the courts and to make sure that the families who are under pressure, as you point out, have their matters dealt with as expeditiously as possible.

Senator HANSON: But they can't have any legal representation, they represent themselves in the parental management. Also, am I correct in saying that a partner, who is actually up for domestic violence, can actually cross-examine their partner. Is that correct?

Mr Gifford : No, it's not. There's a couple of things there. In terms of whether or not they're legally represented, the idea behind the panel is they're actually able to seek advice prior to going into the panel about whether or not the panel is actually an appropriate mechanism for them. So they get a real sense about whether this is a case that should be before the Parenting Management Hearing because it's a consent based model. Both parties need to consent before they would go into the Parenting Management Hearings. There is a leave provision. The idea would be that, effectively, they will remain self-represented before the panel but the panel will actually have a leave provision so that they can give permission to parties in extreme circumstances for legal representation to be provided as well.

Ms Saint : One other point that might be worth clarifying, Senator, is that this body will be an administrative decision-making body, so it will not be making judicial decisions. The determinations that will be made by this panel will be binding parenting determinations which are able to be enforced by a court, but they will not be part of the court system. It will not be a judicial body.

Senator HANSON: So they can decide which parent a child lives with? That is binding. Can the parents then appeal to the court system?

Ms Saint : There is a right of review on a question of law to courts.

Senator HANSON: If they're not happy with the decision, can they then take that case to the courts?

Ms Saint : If there is an issue of law that's open to review then it would be open to the parties—

Senator HANSON: But the decision is binding. The decision cannot be overruled by the Federal Court?

Ms Saint : There is provision in the bill which accords with current case law, which provides that if there's been a significant change of circumstances then the matter would be able to return either in the court or in the parenting management hearing—or if there's a question of law which is open to review.

Senator HANSON: So it basically has the same jurisdiction as what the Family Court has?

Ms Saint : It has a similar jurisdiction to the current family law jurisdiction for parenting matters that are in the family law courts, but there are some express areas of jurisdiction which have been excluded from this body—for example, matters involving allegations of child sexual abuse have been expressly excluded from this body. So this body is directed at dealing with cases at the less complex end of the spectrum between self-represented litigants and only on parenting matters.

Mr Gifford : There was one other issue you raised there: whether or not the individuals could be cross-examined directly by their partners. No, that is not the case. The parenting management hearings are designed to be an inquisitorial based system. It's not going to operate as a formal legal process does, where there is a cross-examination. Rather, the panel members can equip themselves with the information they need from the particular party, which includes leading questions themselves rather than being any direct cross-examination from party to party.

CHAIR: Thanks very much for that. Senator Hanson, for your benefit, this particular legislation on the parenting management bill has been to a hearing of this committee where we have looked into it all the issues you have raised. You might look at the Hansard on that as it does address many of the issues you raised.

Senator HANSON: I like to go straight to the trough!

CHAIR: These people were there at those hearings as well. Anyhow, I just give you that as a matter of assistance.

Senator HANSON: Thank you.

CHAIR: If there is no-one else, I thank the various court officers for their appearance today and for the information they have provided.