Audit objectives

The objective of the audit was to examine and report on the economy, efficiency and effectiveness of the courts' client service arrangements for family law clients. The audit also assessed the effectiveness of the coordination between the two courts, and of their administration of Primary Dispute Resolution (PDR) services.

Introduction (Chapter 1)

Both the Family Court of Australia (FCoA) and the Federal Magistrates Court (FMC) operate in a jurisdiction characterised by high volume workloads, and have many clients experiencing extreme emotional distress relating to their personal circumstances. The seeming complexity of the legal system, the nature of its processes, and the implications of possible case outcomes, often heightens the stresses on clients.

Family Court of Australia

The FCoA was created in 1976. The FCoA administers the Family Law Act 1975, the Child Support (Assessment) Act 1989, and the Child Support (Registration and Collection) Act 1988. The FCoA's objective is to resolve or determine disputes arising from family separation. The court has one identified outcome in the Attorney-General's Portfolio Budget Statements (PBS): ‘serving the interests of the Australian community by ensuring families and children in need can access effective high quality services'.

Federal Magistrates Court

The FMC was established by the Federal Magistrates Act 1999, and heard its first cases in July 2000. It was established as a lower level, independent, federal court to provide a simpler and more accessible service for litigants, and to ease the workload of both the FCoA and the Federal Court of Australia.

Client Service (Chapter 2)

While the ANAO found elements of better practice in some areas in the course of its fieldwork, there are significant issues of inconsistency of service across the courts' networks. In this context, there is scope to improve services to rural and regional areas, and indigenous clients.

The FCoA has taken some steps towards addressing current client service gaps, for example, by building partnerships with stakeholders, by recognising current challenges, and by attempting to address them through the roll-out of the new case management model and the cultural diversity strategy. The FMC, however, has some way to go in terms of consolidating its client service approach.

Submissions and interviews revealed that stakeholders were overwhelmingly concerned with issues of timeliness, access and equity. These are issues that should be addressed by the courts in seeking to improve their client service approach. The two courts could also work more effectively together on client service issues, not least by seeking and acting on feedback from their clients, to make sure that their services are meeting clients' needs into the future.

Coordination Between the Courts (Chapter 3)

The ANAO acknowledges the emotive environment in which the courts operate, and notes that the FCoA and the FMC are separate entities within a shared jurisdiction. This can present the courts with difficulties in developing joint approaches to issues affecting client service, as each court is at times competing with the other for resources and an overlapping client base. However, the policy issues underpinning these structural and resource issues were outside the scope of the audit.

Nevertheless, the ANAO observed a number of promising initiatives emerging from the courts, and considers that local examples of better practice need to be more systematically identified and applied across court registries.

The ANAO also considers that the courts should approach, on a more jointly coordinated basis, those issues impacting on family law clients generally, rather than focusing on the singular objectives of each court. For example, client information material on family law could be jointly produced as a family law reference or guide, to explain the roles and processes of each court, rather than being prepared from only one court's perspective.

In addition, the ANAO considers that family law clients would benefit from more integrated pre-filing information about the courts and their processes. This information could also assist in the direct flow of less complex cases to the FMC, freeing the FCoA to focus on more complex cases.

The ANAO also considers that there is considerable opportunity for the FCoA and the FMC to work more closely together: to develop an up-front assessment of filings to better determine the nature of individual cases; and so to direct them, initially, to the more appropriate court for resolution or determination.

Primary Dispute Resolution (Chapter 4)

Although there are some shortcomings with the quantitative PDR data collected by the courts, there appear to be variations in PDR services across registries and Community Based Organisations (CBOs). However, a lack of qualitative information on the PDR services makes a full assessment of the effectiveness of PDR difficult. Improved client feedback and evaluation strategies will assist the courts to do this in the future.

The courts have adopted different approaches to assure the quality of their PDR services, based on their different service delivery models. Although the FMC's initial approach to quality assurance was sound, a lack of ongoing monitoring and review makes it difficult for the FMC to provide reassurance to its stakeholders of the quality of its PDR services. The ANAO notes that a new approach to quality assurance in the FCoA is to be implemented in early 2004. This should improve the quality of its PDR.

Although there is some scope for flexibility in the FCoA's PDR services, more could be done to improve its services to rural and regional clients. Similarly, although the FCoA has adopted some good initiatives to provide PDR services to indigenous clients and clients who are culturally and linguistically diverse, services to these clients are variable across registries. Given the range of options for PDR service delivery in the FMC, there is considerable scope for even greater flexibility. This may be further enhanced by the CBOs' other client service initiatives.

Overall conclusion

Family breakdown has significant long-term financial, social and emotional costs for both the families directly involved, and the broader Australian community. Navigating through the family law system can be an additional stress on families who are separating. In recent years, the Government has focused on ways to reduce the complexity of the family law system. This has occurred primarily by encouraging effective partnerships amongst agencies that provide services to separating families, by emphasising mediation and other forms of dispute resolution in the family courts, and through the introduction of the FMC. The FMC was established to provide a faster, simpler and less expensive forum for the resolution of less complex disputes. Typically, less complex disputes would not involve allegations of serious child abuse or domestic violence, or property in dispute worth more than $700 000.

The FMC and the FCoA share jurisdiction in family law matters. It is, therefore, essential that the two courts coordinate their activities and work effectively together for the benefit of families facing separation— their clients.

Both courts have scope for improvement in terms of setting and refining their individual client service approaches. The ANAO noted examples of better practice in some locations, in terms of local initiatives designed to meet local clients' needs. However, the ANAO also found significant examples of inconsistency in the levels of service provided across the courts' networks. In particular, the ANAO considers that there is significant scope for improvement in relation to the level of service extended to rural and regional, and indigenous, clients.

It is also of concern to the ANAO that neither court is currently meeting its own designated targets in terms of the timeliness of services provided. Furthermore, neither court is currently collecting nor analysing reasons for administrative delays. The ANAO considers that the two courts could work more effectively together on client service issues, providing relevant and useful information to clients at each stage of the litigation process. They should also seek feedback from their clients to verify that their services are meeting their needs and are continually improved where appropriate.

The ANAO considers that there is currently scope for the FCoA and the FMC to improve the efficiency and effectiveness of their coordination arrangements. In particular, the ANAO believes there is a strong need for enhanced communication at the operational level. The ANAO acknowledges that the courts are operating in an emotive and stressful environment. However, it would be desirable for the FCoA and the FMC to focus jointly on shared family law clients, rather than each focussing on the more singular objectives of their own court. Without a strong joint foundation, it is difficult for the courts to provide an efficient, effective and high quality service to their clients. The ANAO also considers that there is scope for the two courts to apply a more coordinated approach to the streaming of matters between them.

Finally, the ANAO found that there are shortcomings in the quantitative and qualitative data collected by the courts on the outcomes of their PDR services. These shortcomings make a full assessment of the effectiveness of PDR difficult. The ANAO considers that both courts could do more to validate that their PDR services are providing value for money and are meeting their clients' needs. The lack of ongoing monitoring and review in the FMC, in particular, means that it is difficult for that court to provide assurance as to the quality of its PDR services.

Coordination between the two courts in relation to PDR is generally effective, although different practices were evident across the registry network in dealing with common issues and challenges. This means that administrative processes, and services provided to clients, differ around the country. The ANAO considers that, in particular, there is potential for PDR services to be improved for significant client groups, such as rural, regional and indigenous clients.

Recommendations and courts' responses

The ANAO made 11 recommendations aimed at strengthening client service in the FCoA and the FMC.

The courts have generally agreed with the report and its recommendations and have advised the ANAO of their response to the audit as follows:

FCoA

In recent years, the Family Court of Australia has made major advances in efficiency and effectiveness in client service, reflecting a philosophy and systemic commitment to client focus, quality and continuous improvement. Significant investment has been made in strategic projects and reforms. The pace of reform has sometimes taxed the Court's own capacity to maintain it, and based on feedback received, has taxed the ability of other stakeholders in the family law system to keep up. Having said this the Court recognises that there is a need for continuous improvement and is committed to a process which involves ongoing efforts to improve service to its clients.

In the initial stages, FCoA registries serve all clients of the FCoA and FMC. FCoA draws no distinction between FCoA and FMC clients—they are all clients of the family law system deserving of equal treatment. This may contribute to clients being unclear as to which court they are clients of, but it is seen as a fundamental of good client service. While the ANAO report suggests clients may need better information to provide clarity on this point, FCoA believes that the solution is more complex. Further, such organisational distinctions are often of less importance to clients than the outcome or remedy they are seeking. FCoA supports the ANAO recommendation for a single intake, with cases streamed through coordinated case management and case assignment.

FCoA appreciates the need for simpler, less complex cases to be processed using simpler procedures (one of the reasons FMC was established). However, at some points, the ANAO report appears to be critical of the two courts for having divergent client service practices. FCoA sees this as an inevitable consequence of FMC being set up as a separate entity with a different focus/objective—simpler, faster, cheaper, less complex disputes.

FCoA is strongly committed to providing services for culturally and linguistically diverse (CALD) clients, ATSI clients, rural and regional clients and self represented litigants. Numerous initiatives specifically support these groups. Some of the desired changes have proceeded more slowly than preferred because supporting infrastructure and systems (such as the new Casetrack information system) were required; also there are competing resource demands. However, the Court is being recognised as a best practice organisation for some of these efforts. (e.g. DIMIA recognition of its programs in support of CALD clients.)

FMC

The ANAO performance audit of the administration of the Family Court and the Federal Magistrates Court, which has been conducted in the fourth year of operation of the Federal Magistrates Court, relates to a relatively small part of the Federal Magistrates Court's operations. The report does not touch upon the very substantial relationship that the Federal Magistrates Court has with the Federal Court of Australia or the primary function of federal courts—the determination of disputes according to law by federal judicial officers.

The performance audit is a study of a system that is in transition. The Federal Magistrates Court has not yet developed its full capacity to handle all of the less complex family law work that exists within the family law system. This means that some of that less complex work is often done at a higher level than is necessary. It will be some years before that structural imbalance in the system is rectified. In the meantime, resource constraints and higher priorities will limit the capacity of the courts to implement many recommendations of the audit.

The Federal Magistrates Court was established independently, with the intention that it should not operate in the same manner as the Family Court, because there is a qualitative difference in the types of matter each court is hearing. The thrust of the ANAO report appears to be that the courts should work to minimise differences in their procedures and operations. The court considers that although there might be a benefit from minimising unnecessary differences in court procedures it cannot be assumed that net benefits will always arise. This is well stated in the Attorney-General's Department's Justice System Strategy paper, where it is said,

‘Harmonisation should not occur at the expense of flexibility. The reduction of unnecessary differences between the procedures of different courts should not be at the expense of those differences that are of benefit to users of court services, particularly where lower level courts may have simpler procedures specifically designed for less complex proceedings.' (p.67).

The court supports the notion that most family law litigants could enter the family law system through a single point from which the more complex litigation matters could be identified and separately managed. Optimally, the single entry point would be at the lowest level within the family law system. This is a matter that is being considered in another context.