Below is your first exclusive excerpt from the 35th edition of the Australian Family Law Act 1975 with Regulations and Rules book.
Foreshadowed major legislative changes to financial agreements and other aspects of the Family Law Act 1975 did not eventuate in the past 12 months, but there have been many changes to the Act and the Family Law Rules 2004. The most significant amendments relate to the Rules regarding subpoenas in the Family Court and the section of the Act which deals with the structure and administration of the Family Court.
Administration of the Court
The Courts Administration Legislation Amendment Act 2016 designated the Federal Court of Australia (including the National Native Title Tribunal), the Family Court of Australia and the Federal Circuit Court of Australia as a single administrative entity under the Public Governance, Performance and Accountability Act 2013 and a single statutory agency under the Public Service Act 1999.
In summary, this Act:
- established shared corporate services functions for the three courts
- maintained the responsibility of the heads of jurisdictions in relation to the business and administrative affairs of their respective courts
- provided for a Chief Executive Officer (CEO) for each head of jurisdiction to assist with the management of administrative affairs
- provided that the CEOs also hold the position of Principal Registrar
- provided for the Federal Court CEO to have responsibility for managing the shared corporate services, with the requirement for consultation
- provided that the Federal Court CEO is the accountable authority for the administrative entity and the agency head for the statutory agency.
Most changes took effect from 1 July 2016 except the CEO position as Principal Registrar commencing on 1 July 2018.
The Explanatory Memorandum to the Bill states that the measure ‘‘formed part of the package of reforms aimed at streamlining and improving the financial sustainability of the Federal Courts’’. The objective was to ‘‘generate efficiencies through the establishment of shared corporate services functions for the courts to reduce unnecessary duplication’’. The administrative burden on each court was reduced by consolidating finance, human resources, information technology, property and operations arrangements. The Act was not intended to ‘‘affect the substantive rights of court users’’. Each head of jurisdiction maintains responsibility in relation to the business of the courts and managing the administrative affairs of their respective courts, with administrative affairs defined to exclude corporate services.
The corporate services of the Family Court and the Federal Circuit Court which were merged for 1 July 2016 are defined in s 38A(1B) Family Law Act and s 89(1)(2A) Federal Circuit Court of Australia Act 1999 as:
- human resources
- information technology
- procurement and contract management
- risk oversight and management
- any other matter prescribed by a determination under subsection (5).
Consequential amendments were also made to the Family Law Rules as the Chief Executive Officer now combines the former positions of the Chief Executive Officer and the Principal Registrar of the Family Court.
The CEO of the Family Court, in his submission to the Senate Standing Committee & Legal Constitutional Affairs, expressed concerns about:
- the loss of control by the court over its information technology system including the court’s case management system (Casetrack) and the Commonwealth Law Courts Portal (Comcourts)
- the lack of constraints on the exercise of the power by the CEO, with only a requirement to ‘‘consult’’ with the heads of jurisdiction
- the absence of criteria for how decisions are to be made
- the lack of provision for any governance and accountability arrangements between the heads of jurisdiction such as a board-like structure
- the potential conflict of interest which may arise when the CEO of one court can make decisions that affect the three courts.
The CEO of the Family Court recommended to the Committee that to address these concerns the following changes be made:
- Two of the three heads of jurisdiction must agree on any decisions that will affect the operating processes of the courts.
- Any decisions affecting the operating processes of the courts or relating to expenditure over $500,000 must be communicated to the heads of jurisdiction in writing with reasons for the decisions reached.
- Decisions made that do not comply with points 1 and 2 above are voidable.
- At least once per annum the heads of jurisdiction of the Federal Court, the Family Court and the Federal Circuit Court are to meet with the Chief Executive Officer and the Chief Executive Officers of their respective courts to set policy for the coming 12 months for implementation by the Chief Executive Officer, with the Chief Executive Officer being responsible for providing heads of jurisdiction with a proposal for operations during the next 12 months at least 14 days prior to the meeting.
- Any dispute between the heads of jurisdiction about policy which cannot be resolved between them is to be resolved by the Attorney-General in consultation with three heads of jurisdiction.
The Law Council of Australia, in its submission, was primarily concerned with the impact on the Federal Circuit Court, but also with the resourcing of both the Family Court and the Federal Circuit Court. It welcomed the Bill, but communicated concerns about the capacity of the Federal Circuit Court to fulfil its role as an intermediate Federal Court, delays in the Family Court, and the lack of judicial resources in both courts. The Law Council expressed a need for increased funding and the appointment of additional judges in each of the Federal Circuit Court’s jurisdictions in a timely manner. The Federal Circuit Court’s significant workload, increasing under its expanding general jurisdiction, has made this requirement a critical one, according to the Council.
The concerns and recommendations of the CEO of the Family Court and the Law Council of Australia have largely not been addressed.
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