“Sources close to the Family Court” prepare a fact sheet that shoots holes in “Christian” Porter’s case for abolishing the court … Lies, damn lies and blatant falsities … Family law restructure farcical … Pitch for survival as judges mount the battlements … Here’s the judges’ fact sheet, in full … 

The arguments informing any public debate about such an issue should be formed by reference to facts.

The independence of the judiciary is fundamental to a healthy democracy. Consequently, judges are expected to remain silent even in the face of stringent criticism. Judges usually rely upon the Attorney General to defend them from unfair criticism. 

However, when the Attorney-General is not prepared to do so and criticises the court on the basis of alleged facts, judges have no option but to speak up in their own defence and to correct misleading statements.

This document addresses some of the misinformation promulgated on and from the Attorney General’s announcement on 30 May 2018 as to proposed structural reform of the federal courts including that contained in the Attorney General’s “fact sheet” and the Attorney General’s opinion article titled “Structural reform, not more judges, needed” published in The Australian on 3 August 2018.

  “A humble magistrate of the circuit court handles on average 330 family law matters a year, compared with 26 for a Family Court judge” (The Australian editorial 1 June 2018).

The Family Court of Australia (“Family Court”) finalised 2,750 matters in 2016-17 compared to the Federal Circuit Court of Australia (“FCC”) “disposing of 17,000 family law matters a year” (Attorney-General’s article published 3 August 2018).

These comparisons are entirely misleading. The crucial words, used intentionally it seems to create a misleading impression, are “dispose” and “finalise”.  

It needs to be understood that FCC proceedings are listed immediately before a judge.  The Family Court triages cases.  Registrars (who are paid significantly less than a judge) ensure that only cases that need to proceed to trial are listed before a judge.  

Unlike the Family Court, the FCC has no administrative/delegated function for the making of consent orders where no judicial determination of contested issues is required.  

Thus the statistics relied upon include the many cases where an FCC judge makes an order by consent.

To give the same weighting to the making of a consent order (as a “disposal”) to the judicial time occupied in hearing and determining a contested trial, in assessing workload is misconceived.

In the 2016-17 year the Family Court dealt with approximately 13,919 cases by the making of consent orders by these means. None of these cases are counted in the quoted statistics concerning cases dealt with by the Family Court. Translated across the 23 trial division judges, the disposal of cases by consent orders made by Registrars under the control and supervision of the judges, equates to 605 cases per judge.

The average trial time in the FCC for the less complex but disputed issues cases with which it deals is 2 days.  The average trial time in the Family Court for the more complex such cases with which it deals is 4.5 days.  

It necessarily follows that in any 12 month period an FCC judge has the capacity to judicially determine at least twice the number of less complex cases as compared with the capacity of a Family Court judge to judicially determine more complex cases. 

In the 2016-17 year there were 23 trial division judges in the Family Court. Of the approximately 63 FCC judges at least 50 undertake family law work. Therefore the statistics are a product of twice the number of judges in the FCC, as compared with the Family Court, dealing with, as was always intended, less complex cases occupying less judicial time. 

 All transfers between the courts are an example of “bouncing”. The Attorney-General’s “fact sheet” refers to alleged “waiting times” to have a case transferred. It contains the assertion that when cases are transferred, litigants have to restart their proceedings.  

The 3 August 2018 article asserts that “1200 matters are bounced between the two courts annually …”, a term which carries the implication that these 1,200 matters per year are returned to the Court from which they originated – an assertion that has no factual foundation.

The vast majority of these cases are transferred to one court or another on the first return date by reason of them having been filed by parties or practitioners in the inappropriate court.  

Transferred cases are not “bounced” cases.  Of 21,000 cases filed between the courts approximately 5% are transferred. Importantly, of those 5% of cases, a tiny fraction involve “bouncing”, usually because of exceptional circumstances in the cases. Cases going backwards and forwards between the courts are rare and examples are outliers.

It is simply blatantly false to assert, as does the Attorney-General’s “fact sheet”, that “litigants had to restart their proceedings …” when they are transferred. By definition, they do not have to be; in no case do they need to be restarted, and that is not what occurs.  

The reduction from 3,000 “finalisations” in the Family Court in 2015-16 compared to 2,750 in 2016-17 is a “concerning trend” (and is implicitly asserted to be unrelated to judge numbers).

The growth in the number of cases pending from 17,000 to 21,000 is due to inefficiencies in the Family Court or inefficiencies resulting from there being two courts.

No evidence whatsoever supports these assertions.

While the “fact sheet” from the Attorney-General refers to the growth in the number of pending cases across the two courts, no mention at all is made of a crucial fact, namely the “clearance rate” as between the two courts. The clearance rate, expressed as a percentage, indicates the proportion of cases entering a court compared to the number of cases leaving a court.  

Over the past 5 years the cases pending has gone from 17,000 to 21,000. Yet, the “clearance rate” for 2016-17 in the Family Court was 100% – that is, the Family Court determined as many cases as were filed; there was no net increase. The increase in cases pending has, in terms of delay for litigants, been in the FCC which has never consistently achieved a 100% clearance rate across the Court – that is, the Court’s backlog is ever increasing. 

The Family Court’s 100% clearance rate during that period has occurred despite the failure by government to appoint judges to replace retiring judges and, when they have done so, only after an inordinate delay.

The Family Court’s 100% clearance rate has also occurred against a background of increasing difficulty and complexity in the cases. For example:

•  In 2012, 334 Notices of Child Abuse or Family Violence were filed; in 2017 the number was 653;
•  In 2010, 28% of trials had one self-represented litigant and, in another 7% of trials both parties were self-represented – a total of 35%; in 2017, 41% of trials involved self-represented litigants and, significantly, in 15% both parties were self-represented;
•  In 2012, 10.3% of trials were concerned with abuse and/or family violence; in 2017 it was 23.8%.

Thus, the Family Court’s clearance rate has been maintained despite diminishing resources and cases of greater difficulty and complexity.

In the 2015-16 year the trial division of the Court had the resource of 25.5 trial judges. 

In the 2016-17 year there were only 23 trial judges. The reduction of judicial capacity by 2.5 judges had a significant impact on the reduction in finalisations when the two years are compared and demonstrates the point the Attorney-General apparently seeks to avoid – Court output is directly related to judicial capacity.

Further, in the 2016-17 year the FCC reported a total of 3,188 judgments settled into written format. Of these, 1,349 were ‘family law”, 59 were Child Support (but included judgments delivered by the AAT) and 24 were within the category of “Practice and Procedure”. 

In the same year, the Family Court judgments in written format were 3,243 (2,675 at first instance; 568 Full Court).

The proposed reforms will “allow up to an extra 8,000 cases to be resolved each and every year”.

Not a scintilla of evidence is offered for this extraordinary assertion.

The true figures emerging from the relative clearance rates referred to above are repeated.

There are eight current appeal judges (excluding the Chief Justice and Deputy Chief Justice) but the two most recent appointments come from the trial division and have not been replaced. Assuming all eight undertake trial work, there is a net increase of judicial capacity in the trial division of six judges. There is no basis whatsoever for the contention that an extra 8,000 cases can be resolved.  Plainly that could occur, all else being equal, if those six judges each resolved more than 1,300 cases per year.

Reference to any number of recent appeal decisions will reveal significant concerns about the lack of procedural fairness and proper process adopted by some judges of the FCC. “Faster, simpler and cheaper” should not come at the expense of proper process. Is sacrificing proper process to be the means by which the extra 8,000 cases are to be “disposed of”? No other explanation has been offered.

Full Courts are composed of three judges at the insistence of the Appeal Division judges and thereby promote inefficiencies. In that respect the Full Court of the Federal Court is a comparison.

It is the Family Law Act – i.e. legislation – which dictates the composition of the appeal court.

The primary position for the Federal Court hearing appeals from the FCC is that they shall be heard by a single judge. The primary position for the Family Court is the opposite.

Single judge appeals from the FCC are to be heard by a single judge only when the Chief Justice so directs.  

Because successive governments have seen fit to give an inferior court (the FCC) an effectively co-terminous jurisdiction with a superior court of record (the Family Court), a single judge of the latter would be sitting on appeal from a single judge of the former. That is something contrary to a conventional understanding of judicial method and, in an environment when both courts are exercising a highly discretionary jurisdiction, to be avoided so as to avoid the dangers of one opinion substituting inappropriately for another. 

The Family Court is resistant to change.

It was the Family Court who proposed a single point of entry in 2007, and it continued to do so on many occasions. It was the FCC who opposed change and continued to oppose change.  

In 2015 at a Judges meeting in Melbourne, the then Chief Justice obtained support from the judges, to properly distinguish the jurisdiction of the courts. The judges were told it was proposed by the Attorney-General. 

However, it was apparently opposed by the FCC, and the Attorney-General rejected it as a result. There would thereafter have been no “bouncing” had that proposal been accepted. 

It was the Family Court who proposed a committee be formed for unification of the Rules of the Family Court and the FCC. The FCC always sought to have their own Rules.

It was the Family Court that embraced the International Framework of Court Excellence and had a committee look at all aspects of the court’s work. In the extensive report produced – in September 2014 – after consultation with the Court’s judges, significant reforms were suggested (see, for example, p 56 – 58ff).

That report, too, recommended a single point of entry (p 57). The carrying into effect of those reforms was stymied by the Government’s persistent refusal to discuss any reform proposals for the family law system.

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