Review of the efficiency of the operation of the federal ... · PwC observes that key differences exist as a result of: the way first instance matters are handled between the courts;

Review of efficiency of the operation of the federal courts

Final report April 2018

www.pwc.com.au

PwC

Disclaimer

This report is not intended to be read or used by anyone other than the Attorney-General’s Department.

We prepared this report solely for Attorney-General’s Department’s use and benefit in accordance with and for the purpose set out in our Order for Services agreement with the Attorney-General’s Department dated 7 March 2018. In doing so, we acted exclusively for the Attorney-General’s Department and considered no-one else’s interests.

We accept no responsibility, duty or liability:

• to anyone other than the Attorney-General’s Department in connection with this report

• to the Attorney-General’s Department for the consequences of using or relying on it for a purpose other than that referred to above.

We make no representation concerning the appropriateness of this report for anyone other than the Attorney-General’s Department. If anyone other than the Attorney-General’s Department chooses to use or rely on it they do so at their own risk.

This disclaimer applies:

• to the maximum extent permitted by law and, without limitation, to liability arising in negligence or under statute; and

• even if we consent to anyone other than the Attorney-General’s Department receiving or using this report.

Liability limited by a scheme approved under Professional Standards legislation.

2April 2018

PwC

Executive summaryThis review

Appropriate, early and cost-effective resolution of all family law disputes and the protection of the best interests of children and their safety are cornerstones of an effective family law system. Separating families rely on the federal court system to uphold their access to justice through the two courts responsible for family law – the Family Court of Australia (FCoA), and the Federal Circuit Court of Australia (FCC).

Over the past five years, the number of final order applications made to the courts to resolve family disputes has remained relatively static. However, the time and cost of resolution has not.

This Review is one component of the Australian Government’s commitment to family law system reform to support the contemporary needs of Australian families and to relieve the financial pressures on the family law courts. It is one step among many of the Government’s initiatives to review the family law system, including the concurrent Australian Law Reform Commission’s comprehensive review of the family law system.

The scope of this Review is limited to the operations of the courts in relation to family law matters and does not consider broader reform opportunities, revised budgetary allocations, nor reform opportunities within general law.

Family law application breakdown, (’000) 2016-17

Comparison of family law caseload of the courts

The two courts, the FCoA and the FCC, handle over 106,000 family law applications each year. Divorce applications to the FCC and consent order applications to the FCoA comprise a large component of total applications (43,800 and 14,200, respectively). The workload of the courts is driven by final order applications, which number approximately 20,500 each year, with the FCC receiving over 85% of these applications.

The legislative framework provides for first instance family law applications to be lodged in either the FCC or the FCoA. The courts have a Protocol which is intended to help determine the court in which an application should be heard. The Protocol can be interpreted to imply that quick, less complex applications should be heard by the FCC, while more complex matters with hearings expected to require four days or longer should be heard by the FCoA.

Despite the Protocol, there is not a consistent measure of complexity and it is often not possible or appropriate to categorise a matter as non-complex or complex when it is filed, as the level of complexity may become apparent over-time and/or may vary during the proceedings as a result of changing circumstances of the parties. As a result, PwC has been informed that, in practice, both the courts hear matters of similar complexity.

In the absence of detailed data, it has been difficult for PwC to substantiate the extent of variation in complexity of cases between the two courts. However, it is apparent that the vast variation in productivity between the two courts cannot be accounted for merely by the level of complexity.

3April 2018

PwC

Executive summary

Family law backlog

The workload pressure in the courts arising from family law matters is represented in the recent changes in time to court events within the courts.

Over the past five years, the number of matters pending in both courts continues to rise, with particular pressure in the FCC evident (see chart below). The percent of pending cases older than 12 months has grown by 38% in the FCC over the past five years, compared to 5% in the FCoA. Around 29% of all FCC pending final order cases are older than 12 months, compared to 42% in the FCoA.

In the same time period, the national median time to trial has grown from 11.5 months to 17 months in the FCoA, while in the FCC, the median time to trial has grown from 10.8 months to 15.2 months . Family law final order

finalisation per FTE, 2016-17Family law expenditure per family law final order finalisation, ($’000) 2016-17Family law final order pending applications,

(’000) 2012-13 to 2016-17

Cost to finalisation comparison

There is a significant difference in the cost to finalisation between the two courts. In the FCoA, in court expenditure terms, it costs near to $17,000 per finalised matter. In the FCC, this number is approximately $5,500. On a judicial full-time equivalent basis, approximately 114 final orders are finalised per FCoA judge per annum. In the FCC, this is approximately 338 final orders finalisations per judge per annum.

In relation to litigants, the party/party costs are estimated to be in the order of $110,000 per matter in the FCoA (including court fees, but excluding appeals), while in the FCC, this is closer to $30,000.

2016-172015-16

3.23.1

2014-15

16.1

17.217.8

3.0

+8%

+25%

14.9

3.1

14.2

2013-142012-13

3.0

FCoA

FCC

Note: FCC FTE adjusted to account for family law load on the following ratios: 51/15 for judicial FTE and 85477/95181 for non-judicial FTESource: FCoA and FCC internal reports, data provided upon request (FCoA)

338

114

4040

FCCFCoA

66%

Final ordersfinalised per judicial FTE

Final ordersfinalised per non-judicial FTE

-67%

FCC

16.9

FCoA

5.5

Expenditure per finalisation ($’000)

4April 2018

PwC

Executive summaryFamily law final order by finalisation type, (’000) 2016-17Differences in case allocation and

management practice and process

The different operational practices of the courts is leading to variation in efficiency levels. PwC observes that key differences exist as a result of: the way first instance matters are handled between the courts; the initial case management and allocation of those cases; the practices of judges; and, the scheduling and listing of appeals.

In the FCoA, cases are handled at first by a registrar and must undergo a series of dispute resolution mechanisms before being considered for trial. This means that parties do not come before a Judge until trial, and trial judges have not had a role in pre-trial activities. In the FCC, cases are allocated directly to the duty judge’s docket who then has discretion over the way s/he manages the case leading to some variation within the FCC on case management approaches.

FCC judges manage dockets over 300 cases long. In comparison, FCoA judges manage 30-40 cases on average. Over the year, on an absolute basis (final orders allocated to judges), FCC judges dispose over 300 matters. This compares to a FCoA judge who disposes nearer to 30 matters. This difference partly reflects the substantive differences in case management where matters in the FCoA are not allocated to a judge until they are set for trial.

If a case is ultimately deemed to require transfer to the FCoA, some time can have lapsed before an FCC judge does so (on average 11.1 months compared to an average of 4.6 months for the FCoA to transfer matters to the FCC).

Final order cases in the FCoA are:

• less likely to be settled than in the FCC (55% compared to 70% of cases)

• more likely to be transferred out of the court (20% of matters transferred to the FCC compared to 4% transferred to the FCoA)

• and, if a judgment is delivered, it is more likely to be a reserved judgment than an ex-tempore (an “at the moment”) judgment (11% in the FCoA compared to 3% in the FCC).

Source: Data provided upon request (FCC)

5 5 %

7 0%

1 3 %1 1 %

2 0%

17.2

4%

5%

2.7

FCoA FCC

3%

Settled

Withdrawn/discontinued

Transferred

Ex Tempore Judgment

Reserved Judgment

Other

Struckout/dismissed

5

PwC

51 FCC judges who hear family law matters

FCC judges sit 150 days on average each year

Most matters settle (70% in FCC)

It costs 1/3 as much to finalise a matter in the FCC

The median time to trial is 15.2 months

The number of days per trial is about 50% less in the FCC than FCoA

Only 3% of FCC matters are subject to reserve judgment

Executive summary

6April 2018

Family Court of Australia

31 (8 Appeal Division) FCoA judges

FCoA judges sit 129 days on average each year

Most matters settle (55% in FCoA)

FCoA finalises 1/3 of the cases per judicial FTE than FCC

The median time to trial is 17 months

FCoA matters are more often subject to reserved judgment (11% of all matters)

Lodgment

Federal Circuit Court

Trial

Appeals

FCoA mattersMatters in the FCoA require 45% more attendances by litigants than in the FCC

Finalisations take 1 month longer in the FCoA on average

FCC mattersThe FCC finalise over 85% of all family law final orders

Transfers20% of FCoA finalisationsare transfers to the FCC

It takes on average 16.5 months to transfer a case from the FCC to the FCoA for 1 in 4 transfers

Appeal DivisionThe Appeal Division judges wrote 26 judgments each, on average, in 2016-17

Only 13% of FCoA appeals are finalised by a single judge

Travel costs equate to a little over $55,000 pa per Appeal judge

Key findings

PwC

Executive summaryIdentifying efficiency opportunitiesThe Review’s terms of reference required consideration of the differences in case allocation, case management rules and approaches, and Court Rules between the courts and how increased standardisation of the courts’ operations could result in time and cost efficiencies.

The efficiency opportunities, summarised on the following page, have been assessed by PwC through a high-level consideration of the following criteria. It is important to note that the potential efficiency gains are not intended as potential cost savings, but instead potential productivity gains for the courts to provide additional court capacity – i.e. implementing the opportunities could result in the ‘freeing up’ of court capacity to finalise more matters per annum.

Summary of opportunitiesPwC has identified a number of opportunities that have the potential to significantly improve the efficiency of the family law system. Implementing the opportunities could significantly reduce the backlog of the family law courts and drive faster and cheaper resolution of matters for litigants without the need to appoint additional judicial staff.

As the opportunities relate to standardising court operations, it is expected that the opportunities can be implemented within the current legislative framework and could precede any significant reforms resulting from the ALRC Review.

Of the opportunities assessed in this Review:

• opportunities appear greatest in addressing the entry point and process for managing first instance matters, but in terms of ease of implementation, aspects of judicial practice may provide ‘quick wins’.

• opportunities with greatest positive impact to litigants are in respect to the first instance jurisdiction (opportunities 1 and 2) , while the greatest ongoing cost savings are most likely arising from case management opportunities.

• cultural barriers to implementation are most likely among the appeal reform opportunities, but these may be implemented with relatively less upfront investment, and create material time and cost savings to both the courts and litigants.

Further, the additional opportunities for consideration identified in this report, should be explored to address identified challenges. This includes:

• limiting ground for appeal of interim orders

• introducing specialisation/practice areas• harmonising Court Rules

• enhance obligations on legal practitioners to act in the interest of clients.

PwC recommends that the potential impacts of all opportunities be tested further to fully understand their impacts (including through further data capture and analysis). Time should be spent in designing effective and holistic solutions that will fully address the issues identified (including possible legislative change and the need for enhanced case management systems), to minimise the costs and risks of implementation and ensure effective change management.

Assessment criterion Symbol

Cost to implement

The initial investment required to implement the opportunity

Ongoing cost impact

The ongoing cost of supporting the opportunity (operating cost)

Cultural change impact

The extent of cultural change required by the courts to support the opportunity

Risk of implementation

The impact of potential risks associated with implementing the solution

Impact on litigants

Potential cost savings (legal representation and court fees)

Potential efficiency gains

Additional matters finalised per annum

No. of matters

7April 2018

PwCLow impact High impact

Executive summary

8April 2018

OpportunityCost to

implement

Ongoing cost impact

(operating costs)

Culturalchange impact


Impact on litigants (cost/time savings)


(additional matters finalised p.a)1

Jurisdiction and process

1. Single point of entryEstablish a single point for filing, assessing and allocating first instance family law matters

+ 670 matters

2. Consolidate first instance jurisdictionCombine jurisdiction for first instance family law matters into a single court entity

+ 3,410 matters

Case management

3. Initial case managementImplement structured initial case management with appropriate judicial authority

+ 1,760 matters

4. Managed case listingCoordinate and standardise case listing, to increase average listing rates and frequency

+ 1,410 matters

Judicial practice

5. Ratio of ex-tempore judgmentsIncrease the ratio of judgments delivered on an ex-tempore basis + 85 matters

6. Reserved judgment intervalReduce the average period between a reserved judgment and written judgment

+ 145 matters

Appeals management

7. Cross-division judge utilisationIncrease use of Appeal Division judges on first instance matters, and vice versa

+235 matters

$0.22m pa

8. Single judge appealsIncrease the rate of appeals matters managed as a single judge appeal

+ 520 matters

+ $0.35m pa

9. Implement a system of managed scheduling and listing of appealsImplement a system of managed listing of appeals and scheduling.

+ 740 matters

1 Opportunities are not necessarily additive. Opportunities 1 and 2 are presented as alternatives, while all others may be considered additive (Options 3-9 with either 1 and 2). Together, these opportunities may have some overlap and specific consideration of how they interrelate would be required to fully assess the potential efficiency gain.

PwC

Contents

Chapter Page

1. Project scope and background

1.1 Family law reform and this Review 12

2. Our approach

2.1 Project approach 14

3. Context

3.1 Background to the courts in relation to family law

16

3.2 Current reforms in the family law system 18

4. Current state analysis

4.1 Comparing court operations 20

4.2 Funding and expenditure profile of the courts 21

4.3 Resourcing profile of the courts 23

4.4 The activities of the FCoA and the FCC 26

4.5 Judicial performance 46

4.6 Conclusions 49

5. Efficiency opportunities

5.1 Identifying opportunities 53

5.2 Summary of family law opportunities 54

Chapter Page


5.3 Implementing family law opportunities 56

5.4 Measuring effectiveness and efficiency 58

5.5 Other opportunities for further consideration 59

5.6 A potential approach to family law case management

62

6. Impact on access to justice

6.1 Cost and time efficiencies to litigants 64

6.2 Current experience of litigants 65

6.3 Impact to litigants 66

7. Next steps and requirements for implementation

7.1 Next steps and requirements 69

Appendix A: Courts background 70

Appendix B: Efficiency opportunities 78

Appendix C: General law in the FCC 97

Appendix D: Current state - state by state analysis

99

9April 2018

PwC

Glossary and terms used in this report

Acronym Description

ADR Alternative Dispute Resolution

AGD Attorney-General’s Department

ALRC Australian Law Reform Commission

CJ Chief Justice or Chief Judge

CMJ Case Management Judge

FCA Federal Court of Australia

FCC Federal Circuit Court

FCoA Family Court of Australia

FDR Family Dispute Resolution

FTE Full-time equivalent

GFL General federal law

IP Intellectual property

NSW New South Wales

NT Northern Territory

PwC PricewaterhouseCoopers Australia

QLD Queensland

SA South Australia

SR Senior registrar

TAS Tasmania

VIC Victoria

WA Western Australia

Term Description

Appeal An appeal is a matter appealed on rights or a point of law. It always follows orders which are under appeal.

Application The document that starts most proceedings in the Court.

Consent Order A written agreement between parties approved by a court. It may cover parenting and/or financial arrangements.

Ex-tempore judgments

A judgment delivered ‘at the time’ of a case being heard.

Filing The process of the Court accepting a document or documents lodged by a party to a proceeding.

Final Order Application

An application for a final order is a lodgment made by parties to seek judicial resolution (a final decision of the court) for a matter.

Finalisation A case which is finalised in the court in which it is listed, including where the case is settled, withdrawn, transferred or judicially determined.

First instance A first instance matter refers to the initial hearing of a case in the court system.

Interim Order An interim order application may be filed with a court toseek a temporary order for parenting matters and/or financial matters. It is time-limited and multiple interim orders may be made prior to a final order being made.

Magellan case A Magellan case is a matter managed by a pathway under the Family Court to deal with cases involving serious allegations of physical and sexual child abuse.

Reserved judgments

A judgment written by a judge or judicial registrar at a later time following a trial.

10April 2018

PwC

1. Project scope and background

11April 2018

PwC

Family law reform and this review

Rationale for this review

Access to justice is a primary principle to the operation of the federal courts system. In family law, timely, high-quality and accessible justice to resolve parenting and property disputes is important to lessen the trauma and delay to families and children.

The Family Law Act 1975 established the family law system as it operates today. While a number of small reforms have been implemented, the system as a whole has not been reviewed. The Australian Law Reform Commission (ALRC) has been appointed to undertake a review of the Family Law Act 1975 and consider: the need for reform to support appropriate, early and cost-effective resolution of family law disputes to protect the best interests of children; mechanisms of appeal; and, opportunities for less adversarial resolution of parenting and property matters.

While the ALRC’s review is likely to identify significant opportunities for reform, the Attorney-General’s Department (AGD) is seeking to understand where opportunities lie within the current operations of the courts themselves. This Review therefore considers efficiency opportunities in the courts operations.

It follows a number of reviews – including the House of Representatives 2017 report, the KPMG 2014 report, the 2012 Skehill report and the 2008 Semple Report - which have identified opportunities to enhance the efficiency of the courts through case management, triaging and consistent application of court rules and processes.

Project scope

This review seeks to answer the following terms of reference:

1. Identifies, and to the extent possible quantifies, cost and time efficiencies from making consistent with respect to family law matters:

a. the Rules of the Family Court of Australia (the Family Court) and the Federal Circuit Court of Australia (FCC);

b. the case management rules and approaches of the Family Court and the FCC; and

c. the rules governing the allocation of cases between the Family Court and the FCC.

2. Compares, and to the extent possible quantifies, the productivity of the Family Court judge and that of a family law judge in the FCC.

3. Identifies, and to the extent possible quantifies, inefficiencies caused by having two different courts dealing with first instance family law cases.

4. Identifies, and to the extent possible quantifies, any cost and time efficiencies for litigants in family law cases through an increased and standardised use of registrars and case management judges to monitor and direct cases early in litigation, instead of leaving this to the individual judges to whom cases have been allocated.

5. Advises, and to the extent possible quantifies, potential cost and time efficiencies from the standardisation of Rules and procedures in general federal law matters in the FCC such as migration and industrial law.

6. Identifies the significant projects and improvements underway in the federal courts system.

7. Taking into consideration the findings of items 1 through 6 above, provides recommendations and, to the extent possible, quantification of any additional improvements that could be made to improve the service performance of the federal courts and/or judiciary.

12April 2018

PwC

2. Our approach

13April 2018

PwC

Project approach

Focus of this reviewThis Review focuses on time and cost efficiencies in family law within the Family Court of Australia (FCoA) and the Federal Circuit Court (FCC). This assumes that the fundamental operational parameters of the courts – in terms of funding, legislative requirements and judicial appointments – remain the same. The focus of this Review has been limited to opportunities in: the Rules of the courts, case management rules and approaches, case allocation between and within the courts, and overarching process inefficiencies.

The following aspects are considered out of scope:

• reconsideration of the family law system as a whole

• general federal law matters and the way in which these are allocated and managed

• opportunities that impinge on judicial independence

• judicial use and/or effectiveness of specialist services such as family consultants and other forms of alternative dispute resolution (ADR)

• judicial treatment of urgent/serious cases (eg. Magellan cases)

• future funding needs or expenditure allocation of the courts

• operations of the High Court of Australia.

Understanding the current state

To understand where opportunities might exist, an analysis of the current state was first undertaken to identify where variations exist between and within the courts on a number of metrics of efficiency and effectiveness. Data has been drawn on from the Productivity Commission’s Report on Government Services, the courts’ Annual Reports and data provided to PwC upon request by the courts and the Attorney-General’s Department.

Hypothesis-based approach to identify opportunities for efficiency

This project was undertaken over a 6 week period in March- April 2018.

Our project activities built on consultations with the courts to develop an understanding of the current state and to identify efficiency opportunities for investigation. These opportunities were then tested with key stakeholders to assess their validity.

Opportunities for efficiency in the time or cost of the family law jurisdiction of the FCoA and FCC have been identified through:

• engagement with senior family law court stakeholders

• desktop assessment of court data to establish where variations exist within the family law system.

Given time constraints of this Review, not all possible opportunities have been explored, nor have the potential implications of each opportunity been fully assessed. Furthermore, detailed solutions have not been developed.

To undertake the opportunities assessment, PwC has relied on datasets provided by the courts to assess variations in practice and process within the family law system. Variations have been used to test the hypothetical value of an opportunity between the two courts against expected change in efficiency metrics (for example, the time to finalisation of a matter and the potential reduction in that time if an alternative process were adopted).

Where possible, 2016-17 data has been leveraged to assess differences. Where definitive data points have been unavailable, assumptions, which have been tested with court stakeholders, have been relied upon.

The efficiency opportunities are explored further in chapter 5 of this report, and are comprehensively detailed in Appendix B.

14April 2018

PwC

3. Context

15April 2018

PwC

Background to the courts in relation to family law

The federal courts system

The High Court of Australia Act 1979, Federal Court of Australia Act 1976, the Family Law Act 1975, the Federal Circuit Court of Australia Act 1999(formerly the Federal Magistrates Act) establish the federal courts of Australia. The legislation provides for first instance family law matters to be lodged in either the FCoA or the FCC.

General Federal Law

The FCC and Federal Court have original jurisdiction for general federal law matters which includes Admiralty, bankruptcy, intellectual property, industrial relations, corporations law and migration law. The Full Court of the Federal Court, as the superior court, hears general law appeals from the FCC and relevant State Courts.

Family Law

The FCoA and the FCC hear family law matters in Australia, except Western Australia which has its own Family Court. Divorce applications are handled by the FCC, while consent orders are handled by Registrars.

The Full Court of the FCoA hears appeals from the FCC, relevant State courts, the Family Court of Western Australia, and FCoA matters at first instance.

Special leave must be granted to appeal a Full Court decision (of the FCoA) in the High Court of Australia.

Family Law Protocol

To better define the division of family law work between the FCoA and the FCC, the heads of those jurisdictions agreed a Protocol. The Protocol states that if one of a set of eight criteria applies to a matter, then that matter should be heard in the FCoA. This provides for the convention that matters likely to require a hearing longer than 4 days be allocated to the FCoA and shorter matters to the FCC.


Federal Court of Australia


Appeal Division of the Family Court of

Australia

Appeal

Appeal

First instance Family Law matters

First instance Family Law matters

Full Court of the Federal Court

Appeal

16April 2018

PwC

The family law application processThe family law application process varies significantly between the FCoA and the FCC. This is the result of variations in the Courts’ legislative frameworks (including their respective Acts, Regulations and Rules) and operational and cultural practices that have evolved over time. Most significantly, differences exists between the two courts in the case management process between filing and trial. Further detail on the differences in court processes is provided in Appendix A.

File in Family Court of Australia

File in Federal Circuit Court with affidavit and

Notice of Risk (R.22A.02)

Duty list

First hearing before a Judge (R.10.01)

Transfer to the Family

Court (Protocol)

Trial (R.16.10 – FLR (Sch 3 to FCCR))

Judgment

Appeal to Full Court of Family Court

Approve consent orders

Dispute resolution

Give directions

Make final orders

Interim hearing,

make interim orders

Fix final hearing date

Case Assessment Conference before a

Registrar (R.4.03,12.03)

Procedural hearing before a Registrar

(R.4.03)

Conciliation conference before a judicial officer

(R.12.07)

Procedural hearing before a Registrar

(R.12.08)

Compliance check before a Judge (R.16.02)

Trial Management hearing before a Judge

(R.16.08)

Procedural hearing before a Registrar (R.12.04, 12.09)

Exchange documents (property and financial)

(R.12.05, 12.06)

s94AAA(3) FLA

Judgment

Trial (R.16.10)

Interim orders

Child Responsive

Program (R.12.04)

Ju

dic

ial

re

sp

on

sib

ilit

y


In the FCoA, parties are required to undergo a prescribed set of activities which include case assessment by a registrar, conciliation, and compliance checks prior to trial management. Judges usually become involved at the point of trial when cases are allocated by the case management registrar.


Applicants to the FCC will be assigned to the docket of a duty judge upon filing. That judge will then manage that case from start to end, becoming the trial judge if the matters proceeds to trial. The FCC judge will make directions, interim orders, order dispute resolution and fix hearing dates.

17April 2018

PwC

Current reforms in the family law systemOutline of projects and improvements underway

A number of projects and improvements are currently underway within the family law system. Among them are:

• the Review of the Family Law System by the ALRC which will consider necessary reforms to ensure the family law system meets the contemporary needs of families. It is due to produce a final report on 31 March 2019.

• the Family Law Amendment (Family Violence and Other Measures) Bill 2017 would strengthen the powers of the courts to protect victims of family violence and facilitate the resolution of family law matters by state and territory courts in certain situations. The Family Law Amendment (Parenting Management Hearings) Bill 2017 would establish the Parenting Management Hearings Panel as an independent statutory authority to provide self-represented litigants with an alternative to the court process for resolving parenting disputes. The Bills were introduced to Parliament on 6 December 2017 and referred to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 20 April 2018 and 26 March 2018, respectively. Both Bills, if passed, would bring about changed arrangements for some family law matters currently managed though the FCoA and FCC.

Additionally, the federal courts are undertaking a range of projects which seek to bring about improvements to family law matters (see table to right).

Project/ Improvement

Timing Expected impact

Federal Court –national registry services

Already implemented (2017)

The Federal Court shared services model was implemented under the Courts Administration Legislation Amendment Act 2016, under which the Federal Court provides registry services to all three federal courts. These include IT, human resources, finance and registry services and has been implemented.

Federal Court –Central Registry Function

Already implemented

The Federal Court has adopted a Central Registry Function which creates practice areas within the court and allocates judges to cases based on their practice assignment. The Function is supported by a national pool of registrars who assist judges to manage general law matters.

This project is part of the National Court Framework project.

All courts -digitisation

Federal Court and FCC (implemented 3 years ago)Family Court (underway)

An electronic filing system has been implemented in the Federal Court and FCC. In the Federal Court, their case management system is effectively digital. The FCC intends to follow by becoming paperless over the next 2 years.Digitisation of the FCoA is in the process of roll-out over the coming two months (Sept/Oct 2018)

FCC – national ‘call over’ of family law matters

Current A ‘call over’ for pending family law matters is being undertaken across the country. The ‘call over’ brings forward the first court date for pending matters in an attempt to direct to ADR and/settlement. This is expected to ‘clear’ the backlog of matters in the FCC (anecdotally, 70% of matters are being settled through mediation).

PwC

4. Current state analysis

19April 2018

PwC

This section

To establish the efficiency of the operation of the courts, as far as possible, this section presents an overview of the efficiency of the courts through four lenses:

1. the funding and expenditure of the FCoA and the FCC

2. the resourcing profile of the FCoA and the FCC

3. the activities of the FCoA, the FCC and the Appeal Division of the FCoA

4. judicial performance (judicial staff within the court system).

Each seeks to present court performance against the key performance indicators of:

• court workload (filings, finalisations, attendances per matter, judgment types)

• measures of timeliness (time to finalisation, pending cases, interim to final order ratios, transference)

• expenditure (operational and staffing).

These indicators have been identified through consultation and understanding of processes and potential points of variation. While not formally-adopted KPIs, they provide a measure of efficiency upon which comparisons can be made.

While a wealth of data is available across the courts, not all provide for direct comparison. For this reason, select data points have been used for analysis.

It is also worth noting, that due to the nature and timing of this Review, we have relied on data and extracts from Casetrack and that provided directly by the courts. PwC has not tested dataset robustness nor reconciled information across datasets.

Measuring outputs of the courts

PwC has been engaged to identify inefficiencies caused across the two courts as it relates to family law, identifying potential areas of variation arising as a result of different rules and approaches of the courts. The assessment also seeks to compare the productivity of a judge of the FCoA and FCC. Together, this is intended to present a perspective on the efficiency of the courts.

The courts are measured on a wide range of metrics. These provide insight into the operation of the courts and have been relied upon to develop the current state analysis presented over the next slides.

The metrics upon which courts currently collect and measure their activity are guided by those used in the Annual Reports of the courts as well as the Productivity Commission’s Report on Government Services. The measurements of performance capture, among others:

• backlog

• finalisations, including number of matters disposed within 6-12 months

• resolution of matters prior to trial

• judgments delivered within 12 months

• cases pending conclusion less than 12 months old

• attendance and clearance rates

• judicial officers and FTE staff per finalisation

• cost per finalisation.

While not in themselves poor metrics of productivity, the inclusion of other points of data – such as divorce applications and consent orders – can conflate actual outcomes. In respect of family law matters, it is difficult to distil the efficiency of the courts for this reason. Most importantly, it is not often possible to assess the operation of the family law system as a whole as the FCoA and the FCC use different metrics to one another. Given direct inferences cannot be made into the efficiency of the court operations based on existing data, this Review seeks to undertake a detailed analysis of where variations and potential efficiency opportunities might exist.

Comparing court operations

20April 2018

The funding and expenditure profile of the FCoA and the FCC

PwC

Funding and expenditure of the courts

Funding of the courts

The FCoA and FCC are primarily funded through departmental appropriations. In 2016-17, this totalled $42.09m and $106.4m, respectively.

The 2016-17 Annual Report of the Federal Court outlines that against budget allocations the FCoA expended $0.11m less than budgeted (primarily due to non replacement of retired judges). The FCC expended $0.51m more than it was budgeted. An analysis of other funding sources and the overall financial position of the courts has not been undertaken.

Expenditure of the courts

The proportional expenditure of the two courts differs, reflecting differences in their functions. Overall, the FCoA expends less than half that of the FCC ($46.3m compared to $106.4m in 2016-17), noting that FCC expenditure also captures its general law functions, and operation costs of all Family Law Registries.

The majority of expenditure for both courts relates to fixed costs, mostly accounted for by judicial and non-judicial staff salaries. Proportionally, wages comprise a greater operating expense for the FCoA than the FCC. Following wages and property, court operation expenses are the next greatest spend for the FCC ($8.6m), noting that this captures some of the registry operation costs of the FCoA.

The travel expenses of the FCoA total $1.4m as compared to $2.3m of the FCC. If travel is considered on a judicial FTE basis, this is equivalent to $45,000 for each judicial member of the FCoA and $35,000 per judge in the FCC. Travel in the FCoA Appeal Division per judge is around $55,000. This compares to the FCC which, being a circuit court, means its judges travel frequently. Source: Federal Court data

Note: “Other” includes communications and postage information technology, general administration, vehicle, office services, external contractors, memberships an subscriptions, separation and redundancy payments, consultants, advertising, financing costs, and insuranceNote: FCoA expenditure includes $10.3m notional judicial salary (i.e. FCoA pension contribution) which is not included in FCC expenditure.

Court annual operating expenditure, ($m) 2016-17

The operation of the courts

The courts have, until recently, operated under different administrative structures. Since 1 July 2016, the corporate services functions of the Federal Court, Family Court and Federal Circuit Court have been merged into a single administrative entity following the passage of the Courts Administration Legislation Amendment Act 2016. This has meant that ‘back office’ functions for all three courts are now provided by the Federal Court.

Em

plo

yee

&

Ju

dg

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xp

end

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To

tal

1.8

38.0

Tra

vel

1.40.9

Oth

er

Co

urt

Op

era

tio

ns

Sec

uri

ty

Pro

per

ty

46.3

3.2

0.8

Co

urt

Op

era

tio

ns

2.3

Oth

er

Pro

per

ty

Em

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yee

&

Ju

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itu

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12.8

To

tal

106.4

Tra

vel

8.6

Sec

uri

ty

3.06.7

73.0

Travel

Security

Employee & JudgeExpenditure

Property

Other

CourtOperations

Total

FCoA FCC

22April 2018

The resourcing profile of the FCoA and the FCC

PwC

51

15

FCC

The resourcing profile of the courts

Judicial resourcing of the courtsAs of June 2017, there were 82 judicial members focused on family law across the two courts. Of the 66 judges in the FCC, approximately 15 FTE are committed to general law matters.

During 2016-17 there were 37 judges in the FCoA. Eight of these were Appeal Division judges, 24 were first instance judges and the remaining 5 judges are comprised of the Chief Justice and 4 justices of the Family Court of Western Australia. One of the 24 first instance judges of the FCoA retired in March 2017, meaning that the headcount of the FCoA was 31 at June 2017. However, given the retiring judge had worked for the majority of the year, the 24 FTE basis has been used in performance and potential efficiency gain calculations throughout this report.

Judicial appointment expirations are set to occur at a stable rate across both courts with one to three retirements forecast per year in both the FCC and FCoA.

Family law FTE, June 2017

FCC judicial FTE breakdown, June 2017

Source: Data provided upon request (FCC), Federal Court internal reportsNote: FCC FTE adjusted to account for family law load on the following ratios: 51/15 for judicial FTE and 8,5477/9,5181 for non-judicial FTENote: FCoA judicial FTE is based on 23 first instance judges and 8 Appeal Division judges (31 FTE in total at June 2017). This excludes the CJ (who is a member of the Appeal Division), 4 FCoA WA judges and the one retiring judge. In 2016-17, one judge was also seconded; this judge has not been captured in FTE figures presented in this report.Note: FCC

There are 31 (8 Appeal Division) FCoA judges and 51 FCC judges who hear family law matters

General federallaw judicial FTE

Family lawjudicial FTE

5131

432

68

FCCFCoA

Judical FTE

Non-judicial FTE

24April 2018

Source: Data provided by the FCC and AGD. FCC figures exclude registrars completing divorce work.

Indicative court FTE breakdown for finalisation of family law matters, 2016-17

Court role FCoAAppeal Division

FCC

Judges per court 24 8 51

Associates per judge 1.5 2 2

Registrars per court 12 3 10

Family consultants per court 12 48

Case coordinators per court 8 0

Non-judicial resourcing of the courts

Both courts also require extensive non-judicial staffing resources.

A greater number of non-judicial FTE support the FCC’s operation, but this also captures client services and registry staff responsible for delivering shared services to both courts as well as processing over 40,000 divorce applications.

In the FCoA, a large amount of initial case management is undertaken by registrars with parties in a matter not going before a judge in the FCoA until they have undertaken/attempted certain pre-trial obligations such as alternative dispute resolution (whereas in the FCC a matter is managed by a judge from the beginning). Accordingly, registrars are crucial to ensuring a large number of pre-trial finalisations in the FCoA.

Associates are also an important element of the court with each judge being allocated a certain amount to work with them and assist them on a variety of responsibilities, including case management.

PwC

Courts resourcing in states and territories

25

Staff are concentrated in the major states

Judicial staff are concentrated in the major states, especially for the FCoA, with 14 judicial FTE in NSW, 6 in Victoria, and 7 in QLD. In the FCC, 23, 15, and 13 justices sit in those locations, respectively.

Proportionally, the FCC has a greater number of non-judicial staff to judicial staff in most locations. In the FCC, judges are assigned 2 associates each, one of which acts as a court officer and undertakes all case management within Chambers. In the FCoA each judge is assigned 1.5 associates to assist with the delivery of judgments. Judges of the Appeal Division are assigned 2 associates. In addition, judiciary of the FCoA are supported by a case registrar, coordinator and court officer who manage cases in the lead up to, and during trial.

April 2018Source: Federal Court internal reports

FCoA judicial and non-judicial FTE per state/territory, 2016-17

FCC judicial and non-judicial FTE per state/territory, 2016-17

13.2

2.1

5.8

15.0

31.0

0.8

6.0

1.02.0

7 .0

14.0

1.0

VICTAS WAQLD SAACT NTNSW

FCoA non-judical FTE

FCoA judicial FTE

20.8

2.1

120.0

18.5

40.2

101.0

6.7

155.7

16.3

1.0

15.0

2.05.013.0

1.0

23.0

3.0

SA TASNT VICQLDACT NSW NationalWA

FCC judicial FTE

FCC non-judical FTE

The activities of the FCoA and the FCC

PwC

The overall caseload of the courts

The workload mix of the two courts differs

Overall, the FCoA and FCC handled almost 116,000 applications in 2016-17. Of these, 95,200 applications were made to the FCC (approximately 82% of all applications). The FCC handles both family and general law matters, with general law only comprising around 10% of all applications.

Around 21,000 applications were made to the FCoA, with about 350 of these applications for appeals.

Across both courts, around 106,000 family law applications were made to the court system in 2016-17.

Total court applications, (’000) 2016-17

Source: FCoA and FCC 2016-17 Annual Reports and FCoA Appeal Division data

FCoAappeals

0.3

FCC general

federal law

9.7

FCoA

20.7

FCC

115.9 95.2 85.5

FCC family law

Total

FCoA

FCoAappeals

FCC family law

FCC

FCC general federal law

Total

FCC applications are 82% of total applications

27April 2018

PwC

The family law caseload of the courts

The courts’ family law workload is comprised of a number of types of orders

Family law application types vary across the courts.

The majority of applications in the FCC are divorce applications (43,800) which are lodged online and processed by approximately six registrars.

In the FCoA, consent orders are the largest number of applications (14,200). Consent orders are a written agreement between parties approved by the court and are processed by registrars. The FCC also processes consent orders.

In both courts, interim orders are the second largest category of applications. Interim orders are a way for parties to seek a ruling on a particular matter until the final order is made.

Although divorce applications, consent orders and interim orders make up the majority of applications across the two courts, final orders are the key driver of family law caseload. This is because final orders require determination and therefore require significant court time. They are also where judicial effort is greatest. For this reason, final orders are considered the appropriate area of focus for assessing court performance and for identifying efficiency gains.

In 2016-17, there were a little over 20,000 family law final order applications. Of these, the vast majority are handled through the FCC. In 2016-17, 17,800 final orders were filed in the FCC. In the FCoA, 2,750 final orders were filed; around 85% less than the FCC.

Family law application breakdown,(’000) 2016-17

28April 2018

Source: FCoA and FCC 2016-17 Annual Reports and FCoA Appeal Division data

17.8

2.70.3

20.7

43.885.5

14.2

1.8

22.1

FCCOther

FCoAInterim Orders

FCoAFCC FCoAConsent orders

FCCFinal

orders

FCoAFinal

orders

FCCInterim Orders

FCoAOther

-85%

3.5

-76%

FCCDivorce

FCCInterim Orders

FCoAConsent orders

FCoAOther

FCoAInterim Orders

FCC FCoA

FCCOther

FCoAFinal orders

FCCFinal orders

FCCDivorce

PwC

Family law final orders over time

29

The number of final orders remains relatively static

Across the courts system, the number of applications for final orders filed in family law remains close to 21,000-22,000 matters each year – the number of family law final order applications filed in the FCoA has dropped by 4% over the 5 years and risen by 2% in the FCC.

In the same period, the number of family law final order applications finalised has dropped by 10% in the FCoA and 2% in the FCC.

However, despite relatively small changes to the number of applications filed and finalised, the number of pending family law final order applications has grown steadily in both courts, indicating a backlog which is continuing to grow year-on-year.

In 2016-17, the pending to finalisation ratio was 1.16 in the FCoA and 1.03 in the FCC.

2,7 00

2,7 50

2,800

2,850

2,900

2,950

3,000

3,050

3,100

3,150

3,200

16-1713-14 15-1614-1512-13

-4%

Pending

Finalised

Filed

Family law final orders in the FCC, 2012-13 to 2016-17

11 ,000

12,000

13,000

14,000

15,000

16,000

17 ,000

18,000

16-1713-1412-13 14-15 15-16

Filed

Pending

Finalised

Family law final orders in the FCoA, 2012-13 to 2016-17

Source: FCoA and FCC 2016-17 Annual Reports

PwC

Family law finalisations

The type of family law final orders heard are different in each court

Of family law matters handled by the FCoA and FCC, the FCoA hears proportionally more financial-only matters. The FCC hears proportionally more children-only matters (52% of all family law matters). Only a small proportion of matters heard in each court involve both children and finance (14% and 12%, respectively).

Family law final orders breakdown, 2016-17

1%

32%

12%

51%

FCC

35%

52%

3%

14%

FCoA

Children and financial

Children only

Other

Financial only

Final orders may have been preceded by a number of interim orders for each matter

Interim orders are temporary time-limited court orders used until the court has made final orders. In family law, these orders are typically 6-12 months in duration and cover matters such as child custody. Given the nature of these orders, they are also a proxy for cases requiring judicial direction but which are backlogged. While a matter may receive an initial interim order while ADR is undertaken and can be a legitimate intervention for cases, the use of multiple interim orders indicates a lack of resolution among parties pending finalisation. They also contribute to the workload of the courts in finalising matters.

In both courts, the number of interim orders to final orders has marginally increased over the past five years. The interim order to final order ratio is current 1.3 in the FCoA and 1.2 in the FCC.

1.31.21.21.21.2 1.21.2

1.21.21.2

16-1715-1613-14 14-1512-13

FCC

FCoA

Family law ratio of interim orders to final orders, 2012-13 to 2016-17

30April 2018


PwC


A greater number of matters are settled in the FCC

Of matters finalised, the majority are settled, but less frequently in the FCoA than in the FCC (55% compared to 70% of matters).

In the FCoA, transfers of matters to the FCC form the next greatest number of finalisations. While FCoA transfers number approximately the same as FCC in absolute terms, they comprise 20% of all FCoAfinalisations compared to 4% for FCC.

The rates of reserved and ex tempore judgments used by judges are inverse between FCoA and FCC with the FCC more likely to provide an ex tempore judgment than the FCoA. This indicates variation in practice/process between the courts.

Family law final order by finalisation type, (’000) 2016-17

The age of a matter, when finalised, differs between the courts

The age of matters at finalisation differs between the courts. In the FCoA, a greater proportion of matters is finalised within 6 months (44%) than in the FCC (35%). In aggregate, the majority of matters are settled within 9 months of filing (over 50% of all family law final order filings). Over 20% of matters in both courts are finalised at over 18 months after filing, with a slightly greater proportion of FCoA matters older than 18 months.

Age of family law finalisations breakdown, (’000) 2016-17

2 2 %1 5 %

2 0%

2 0%

1 4 %

1 7 %

9 %1 1 %

1 2 % 1 6 %

2 2 % 2 0%

FCoA

100%17.2

FCC

2.7

3-6 months

12-18 months

>18 months

9-12 months

<3 months

6-9 months

5 %1 3 %

5 5 %

7 0%

1 1 %

2 0%

FCC

17.2

4%

2.7

3%

FCoA

Withdrawn/discontinued

Struckout/dismissed

Other

Transferred

Ex Tempore Judgment

Reserved Judgment

Settled

Most matters settle (55% in FCoA, 70% in FCC)

31April 2018Source: FCoA and FCC internal reports

PwC


The number of court events attended by litigants in the FCoA far exceeds the FCC

The average attendance rate – the number of court events to which parties must attend (commonly with legal representation) –differs significantly between the two courts. In the FCC, the average attendance rate is 4.2, while in the FCoA it’s 6.1; parties are on average, required at court 45% more in the FCoA than the FCC which has a cost impact to litigants.

The majority of this difference can be attributed to the pre-trial case management practices of the FCoA which requires parties to engage with registrars through ADR and other avenues prior to coming before a judge. In the FCC, the judge manages this process from the point of filing.

Average attendance rates do not distinguish the differences between those matters which go to trial compared to those which are resolved pre-trial. The comparative difference in number of attendances are much larger for defended hearings (matters at trial) with many more attendances in the FCoA than the FCC.

Average attendance per final order finalisation, 2012-2013 to 2016-17

6.16.6

7.17.37.6

4.24.34.34.44.4

0

1

2

3

4

5

6

7

8 +45%

2016-172015-162012-13 2014-152013-14

FCC

FCoA

Matters in the FCoA require 45% more attendances by litigants than in the FCC

Source: FCoA and FCC internal reportsNote: Reported attendance rates per finalisation have been calculated using total finalisations divided by the total attendances in that financial year (i.e. are not case-specific)

32April 2018

PwC


33

3.94.2

12.4

13.4

5.76.1

16-1715-16

-69%

3.33.3

6.9

7 .7

4.04.2

16-1715-16

-52%

Non-trial average attendance

Overall average attendance

Trial average attendance

Average court attendances per final order finalisation breakdown, 2015-16 to 2016-17

FCoA FCC

Source: Data provided upon request (FCC)Note Average attendance per final order in this chart is calculated by averaging the number of attendances required for each case that was finalised in the respective years and is presented for matters that go to trial, matters that do no go to trial, and as an overall average. Due to this method of calculation, the overall average figures will differ in this graph as compared to other overall attendances presented in this Report.

FCoA litigants who proceed to trial must attend court almost double that in the FCC

An analysis of the actual number of court events to which litigants must attend for matters finalised in 2016-17 and 2015-16 has been undertaken by the courts. This shows that in 2016-17, the average number of FCoA attendances overall was 5.7 compared to 4 attendances per FCC matters.

However, there is a large disparity between matters that finalise before trial and matters that proceed to trial. In the FCoA, almost 70% fewer attendances are required for matters that finalise before trial compared to matters that finalise after proceeding to trial. This figure is similar in the FCC with matters finalising before trial requiring around 50% fewer attendances per finalisation that matters that finalise at trial.

The number of attendances per matter finalised before trial is about the same for both courts in 2016-17 (3.9 times in the FCoA compared to 3.3 times in the FCC). However, for matters that proceed to trial, it requires almost half as many attendances to finalise that matter in the FCC than the FCoA. FCoA litigants, on average, must attend court 12.4 times if they proceed to trial, representing a potentially significant cost to litigants. This compares to an average of 6.9 times in the FCC. Compared to 2015-16, attendance rates appear comparative (i.e. FCoA litigants attend court almost twice as much as FCC litigants).

PwC


For matters that proceed to trial, the time to trial is growing

In both the FCoA and FCC, the median time to trial, for defended hearings (almost 9,000 matters in 2016-17), is increasing. Over the past five years the national median time to trial has grown from 11.5 months to 17 months in the FCoA, while in the FCC median time to trial has grown from 10.8 month to 15.2 months.

While the median time to trial shows a sense of lengthening of time to trial, there are a number of important caveats to make:

1. the majority of all cases are resolved within nine months of filing in both courts (53% of all finalisations)

2. over 55% of all finalisations are settled and never proceed to trial. Only around 20% of final order finalisations occur after a matter has proceeded to trial, meaning that for the majority of litigants, their experience is influenced more by the timeliness and number of attendances that occur pre-trial.

Family law final order trial cases median time to trial (months), 2012-13 to 2016-17

17.0

14.7

11.612.1

11.5

15.214.2

12.5

11.510.8

0

2

4

6

8

1 0

1 2

1 4

1 6

1 8

2012-13 2013-14 2014-15

+41%

+48%

2015-16 2016-17

FCoA

FCC

The median time to trial is 17 months (FCoA) and 15.2 months (FCC)

Source: FCoA and FCC internal reports

34April 2018

PwC


Delivered and reserved judgments by age category, (’000) 2016-17

For both courts, the majority of reserved judgments are delivered within 3 months of trial endIn the FCoA, 11% of all final order finalisations have a reserved judgment, compared to 3% of the FCC’s finalisations. For these matters, litigants must await a written judgment following the completion of their trial (and sometimes, submissions made) to finalise their application. For most reserved judgments, the time between the end of a trial and delivery of written judgment is under three months. However, in both courts there is a significant amount of cases which take longer than three months to write (32% in the FCoA and 25% in the FCC), contributing to the overall length of the case for parties and the court. This total includes final orders as well as interim orders and cost orders.

The length of trials is higher for matters heard in the FCoA

Between the courts, trials usually occur over 2-3 days. However, completion of final order trials takes approximately half as long in the FCC than it does in the FCoA. For the 10% of cases which take longest (the 90th percentile) FCC trial lengths are 57% shorter than the FCoA.

Final order finalisation trial length, (days) 2016-17

2

3

1

2 2

4

3

7

FCC

-50%

-57 %

FCoA

Mean

Median

90th percentile

7 5th percentile

1,050

254 238

4586

502420 133 170

FCCFCoA

12-18 Months

9-12 Months

6-9 Months

Over 18 Months

Less than 3

3-6 Months



PwC

The caseload of matters pending applications has grown

In both courts, the number of cases pending has grown consistently over the past five years. In the FCC, pending cases has grown by 25%, while in the FCoA, pending cases have grown by 8%.

Pending family law matters in the courts

2016-172015-16

3.23.1

2014-15

16.1

17.217.8

3.0

+8%

+25%

14.9

3.1

14.2

2013-142012-13

3.0

FCoA

FCC

Family law final order pending applications,(’000) 2012-13 to 2016-17

The age of matters pending is also growing

The age of pending matters is growing in both courts over recent years. Around 40% of FCoA pending final order cases are older than 12 months, compared to the FCC’s 30%.

The growth in age of matters, particularly in the FCC, is partly attributed to the growth in pending caseload.

Percent of pending family law final order cases older than 12 months, 2012-13 to 2016-17

0

1 0

2 0

3 0

4 0

5 0

6 0

7 0

8 0

9 0

1 00

2016-17

35%29%

2013-14

42%

23%

2015-16

37 %

2014-15

36%

2012-13

21%

40%

24%28%

FCoA

FCC


36April 2018

PwC

6 .1

7 .47 .17 .06 .2

1 6 .5

1 4 .9

1 3 .01 2 .0

1 1 .2

0

2

4

6

8

1 0

1 2

1 4

1 6

1 8

2013-14 2015-16

-2%

2016-172014-15

+47 %

2012-13

FCC

FCoA

Family law final order 75th percentile transfer time (months), 2012-13 to 2016-17

Court transfer

Average time to transfer

No of transfers(2016-17)

FCC to FCoA 11.1 months 646

FCoA to FCC 4.6 months 535

The age of transfers is also growing

The average time taken by the FCC to transfer a matter to the FCoA 11.1 months while the average time taken by the FCoA to transfer a matter to the FCC is 4.6 months.

Considering the 75th percentile, the average time to transfer matters to the FCoA from the FCC has grown by 47% over the past 5 years; meaning, one in four cases transferred is increasingly taking longer to be transferred and now takes on average 16.5 months.

A key feature of the FCoA’s upfront case management approach leads to earlier transfers as compared to the FCC. Although, in both cases, a transfer results in a ‘restart’ to litigants, who must begin again in the court to which they’ve been transferred.

Pending family law matters in the courts

The number of matters transferred between the courts is growing

The courts regularly transfer cases between the courts, with the FCC transferring 100 cases more than received last year. In 2016-17, transfers represented 20% of all FCoA finalisations, as compared to only 4% of the FCC’s finalisations.

This reflects judicial decisions over complexity in line with the Protocol and the appropriate court in which a matter should be heard. The number of transfers is slightly increasing, with the FCoA transferring 480 matters in 2014-15, but a total of 535 in 2016-17. In the FCC, 610 matters were transferred in 2014-15, growing to 646 in 2016-17.

Family law final order transfers,2016-17


20% of FCoAfinalisations are transfers to the FCC

37April 2018

PwC

+16%

17.8

+3%

FCC

17.817.2

2.73.2

2.7

FCoA

Finalisations

Filings

Pending

Family law final order applications breakdown, (’000) 2016-17

There were more matters pending than were finalised in 2016-17 in both courts

Pending applications in both courts exceed those filed and finalised. Pending final order applications are 16% and 3% higher than finalisedapplications in the FCoA and FCC, respectively. In proportional terms, the FCoA has a greater number of pending to filed/finalisedmatters than the FCC. The difference between filed plus pending to finalised matters represents the ‘backlog’ carried by the courts. In 2016-17, the difference equates to approximately 12 months of work in both the FCoA and the FCC.

Clearance rates are not quite keeping pace with filings

Clearance rates (finalisations to filings) have been below 100% in the FCC for the past five years. Over the same period, the FCoA has varied between just below to at par clearance rates. Overall, finalisations are lagging the rate of filings. This number does not take account of accumulated backlog from filings carried over by the courts from previous years; the growing pending caseload.

Family law final order clearance rate, 2012-13 to 2016-17

0

1 0

2 0

3 0

4 0

5 0

6 0

7 0

8 0

9 0

1 00

1 1 0

97 %

2016-17

95%

2013-14

109%

2014-15

99%103%

2012-13

93%

99%98% 100%

2015-16

93%

FCoA FCC

The family law backlog in the courts

The FCC finaliseover 85% of all family law final orders


PwC

The family law backlog in the courts

The age of matters when they are finalised is growing

Across the courts, over the five years, the percent of finalisationsolder than 12 months has grown by 14% in the FCC. The number of cases older than 12 months has reduced in the FCoA.

Source: FCoA and FCC internal reports, data provided upon request (FCoA)

Percent of family law final order finalisations older than 12 months, 2012-13 to 2016-17

33.031.033.037.038.0

33.031.027.028.029.0

0

1 0

2 0

3 0

4 0

5 0

6 0

7 0

8 0

9 0

1 00

-13%

+14%

2016-172015-162014-152013-142012-13

FCoA

FCC

There are a number of unallocated cases in the FCoA

In the FCoA, cases are allocated to judges by the case management registrar. At the time of this review there were 715 unallocated cases in the FCoA. These are cases awaiting trial, but which are not yet allocated to a judge due to their lists being full.

Number of FCoA unallocated cases, current point in time

92020003447

343

260M

elb

ou

rne

Ad

ela

ide

Ho

ba

rt

Ca

nb

err

a

Sy

dn

ey

Bri

sba

ne

Pa

rra

ma

tta

Ne

wc

ast

le

Ca

irn

s

To

wn

svil

le

Source: Data provided upon request (FCoA)

39April 2018

PwC

Accounting for differences in finalisation there still remains a significant difference in judicial output


Family law final order finalisations, (’000) 2016-17

Note: FCC FTE adjusted to account for family law load on the following ratios: 51/15 for judicial FTE and 85477/95181 for non-judicial FTESource: FCoA and FCC 2016-17 Annual Reports, data provided upon request (FCC)

9.18.7

20.3

26.1

11.412.4

FCCFCoA

+8%

Overall mattersNon-trial matters Trial matters

Average time to finalise family law final order matters (months), 2016-17

Current

-84%

17.2

2.7

FCC final order finalisations

FCoA final orderfinalisations

FCoA judges finalise two-thirds fewer cases than FCC judgesIn 2016-17, the FCC finalised 17,250 final order applications utilising 51 family law judicial FTE; FCoA finalised 2,750 final order applications with 24 first instance judicial FTE. This is equivalent to 114 finalisations per FCoA judge compared to 338 finalisations per FCC judge – FCoAfinalisations per judge were two thirds lower than the FCC.

This disparity between the number of cases finalised per judge is often considered to be caused by the length of time that cases take to complete, driven by the complexity and number of issues considered in FCoA cases. However, average finalisations of final order matters take approximately 11.4 months in the FCC with the FCoA taking only one month longer at 12.4 months. For matters that proceed to trial, the average finalisation time is 20.3 months for the FCC and 26.1 months for the FCoA (29% higher).

So while matters do on average take longer in the FCoA, it is not proportionate relative to the difference in finalisations per judge.

Family law final order finalisations per FTE, 2016-17

338

114

4040

66%

FCoA FCC

Final ordersfinalised per judicial FTE

Final ordersfinalised per non-judicial FTE


40April 2018

Note: At June 2017, the FCoA had 31 FTE, of which 8 were Appeal Division Judges. The remaining 23 FTE hear first instance matters. However an additional justice, J Dawe, has been included given her retirement in March 2017, making up the 24 FTE basis for FCoA matters.

PwC

On measures of expenditure per finalisation, the FCC costs less

On an operating expenditure basis, the FCC is roughly two thirds cheaper than in the FCoA. This is equivalent to almost $17,000 per finalisation in the FCoA compared to approximately $5,500 per finalisation in the FCC.

On a resourcing basis, there are proportionally more non-judicial staff per FCoA matter, with 12 registrars supporting the 2,750 applications, compared to 10 across the FCC’s 17,250 applications. On any measure, the FCC costs substantially less per finalisation.

This may be attributed to a number of reasons:

• complexity of cases heard in the different courts

• the type of litigant and processes of the courts which may require longer trials in the FCoA as compared to the FCC

• the different case management practices of the courts, in which the FCoA has a number of events pre-trial that parties must engage, supported by registrars to promote settlement outcomes. This compares to the FCC practices of assignment of a case to a judge’s docket and it being managed by that judge from the first instance.

The effective cost per family law finalisation

Family law expenditure per finalisation, ($’000) 2016-17

FCCFCoA

16.9

5.5

-67 %

Expenditure

per finalisation ($’000)

Indicative court FTE breakdown for finalisation of family law matters, 2016-17

Court role FCoA FCC

Judges per court

24 51

Associates per judge

1.5 2

Registrars per court

12 10

Family consultants per court

12 48

Case coordinators per court

8 0


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PwC

Appeal Division applications

42

The caseload of the Appeal Division

In addition to applications for appeals, the Appeal Division of the FCoA also finalises a variety of other applications, including applications for extensions of time in an appeal and applications in an appeal (for instance, an application to adjourn a hearing). A total of 773 applications were finalised in the Appeal Division, both with and without judicial determination.

Of the total number of applications received by the Appeal Division, around 30% are finalised without judicial determination being required (by either the Registrar or the parties themselves).

The majority of applications finalised in the year were applications for appeals which comprised 52% of finalisations. Based on time to finalise and volume finalised, applications for appeals make up the significant majority of Appeal Division work.

Applications for extension of time (to extend the 28 day period to appeal following delivery of a final order judgment) and applications in an appeal account for nearly half of the applications finalised during 2016-17 by the Appeal Division, however, comparatively, they require less judicial effort.

Although cross appeal applications make up only 2% of the applications finalised in 2016-17, they take the longest to finalise (on average, 10.6 months). Cross appeals are where both parties are making an appeal to the same judgment.

Application determination

28%

773

39%

7%

72%

Applications finalised

773

52%

2%

Cross appeal application

Application in an appeal

Judicially determined

Application for extension

Not judicially determined

Application for appeal

Appeal Division application finalisation breakdown, 2016-17

9.9

2.53.1

10.6

Time to finalise

Application in an appeal

Cross appeal application

Application for appeal

Application for extension

Appeal Division time to finalise judicially considered applications, (months) 2016-17

April 2018Source: FCoA Appeal Division data

PwC

FCoA applications for appeal breakdown, 2013-14 to 2016-17

Appeal Division caseload

The caseload of the Appeal Division

The Appeal Division of the FCoA hears appeals from judgments of the FCC, the General Division of the FCoA and matters from the Magistrates and Family Courts of WA. The vast majority of appeals arise from the FCoA and FCC given their caseload volume. Appeals arise from both interim orders and final orders.

In 2016-17, the number of final appeals applications lodged in the FCoA exceeded 300. Against this, Appeal Division judges finalised 391 matters and delivered 207 judgments. Of the appeals heard by the FCoA Appeal Division, Appal Division judges delivered judgement in 59 interlocutory matters. Pending matters have reduced by 18% over the past five years.

As a matter of practice, full court judgments are written by one member of the full court, with drafts circulated to the other two members. In 2016-17, 391 matters were disposed in total, including settlements and cases which have been withdrawn. Of these, 207 written judgments were delivered. This means that, on average, the eight Appeal Division judges wrote 26 judgments each last year.

344368

386

328

391376375

339

195

242250239

2016-17

+15%

2015-16

-18%

+5%

2014-152013-14

FinalisedFiled Pending

The Appeal Division judges wrote 26 judgments each, on average, in 2016-17

Source: FCoA Appeal Division data

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PwC

The use of three-judge benches appears to have become typical practice

Appeals are heard by either a single judge or a three-judge bench. For appeals arising from the FCoA, 182 of the 185 matters disposed in 2016-17 were heard by three judges. Of appeals from FCC judgments, 156 of 206 (75% of appeals) were heard by three judges. By way of comparison, the Full Court of the Federal Court of Australia, when hearing an appeal from the FCC, hears approximately 88% of appeals by a single judge

While matters may have characteristics of complexity which requires a full bench, the use of single judges appears disproportionately low noting that the Chief Justice can determine that a matter from the FCC can be heard by a single judge if he/she so considers (s.94AAA(3) Family Law Act 1975). Further, that single judge need not be a member of the Appeal Division (s.94AAA(13)). Registrars have initial responsibility for case management and preparedness of appeals.

In 2016-17, 344 appeals were filed in the Appeal Division. A further 195 matters were pending while 391 appeals were disposed. While the Division is clearing matters at roughly the rate at which they are filed, there continues to be a backlog of almost 200 matters; the Appeal Division is approximately 6 months behind.

Other opportunities may exist in resourcing the General and Appeal Divisions using judicial availability between the two. This is enabled given that judges of the Appeal Division can sit on matters of the General Division (s.28(2A) Family Law Act 1975). Since 2010, it has been standard Appeal Division practice for Appeal Division judges to only sit on appeals and not on trials in the General Division. Only one Appeal Division judge sat on two General Division cases in 2016-17.

Conversely, General Division judges are able to sit on appeal matters provided Appeal Division Judges comprise the majority of the Full Court (two or more)(s.4 Family Law Act 1975). In calendar year 2017, a General Division judge sat on an Appeal Division matter on 74 occasions.

Practices of the Appeal Division

Appeals by court from which appeal originates, 2016-17

Only 13% of FCoAappeals are finalised by a single judge

Source: FCoA Appeal Division data

184

160 156

182

50

3

85

110

-98%

-68%

FCCFCoA

Pending

Disposed by full court

Disposed by single judge

Filed

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PwC

The scheduling of appeals requires significant travel for the Appeal Division

The Appeal Division is comprised of eight judges located across Australia. Appeals are primarily heard in Brisbane, Sydney, Melbourne and Perth.

To fulfil the three judge benches for appeals, judges travel to hearing locations approximately 20 times a year on a one-week-on/one-week-off basis. This results in a significant travel cost to the Division, which expended a little over $260,000 in 2016-17 on accommodation and travel allowances, excluding airfares. A rough division of costs shows expenditure of a little over $55,000 per Appeal Judge in 2016-17. A further $18,950 was spent in 2016-17 on spousal travel for four spouses of Appeal Division judges (this amount does not include fringe benefits tax liability). The CJ of the FCoA has responsibility for case allocation and approval of travel (s.21B(1A)(a)(i) Family Law Act 1975).

While travel costs only represent around 5% of total costs of the Division, it presents a possible efficiency opportunity if greater use of single judges, including those from the General Division, were adopted.

A total of $9.7m was expended in 2016-17 on the Appeal Division; a cost of approximately $25,000 per finalisation (as compared to approximately $16,900 and $5,500 per final order finalisation for the FCoA and FCC respectively).

Appeal Division expenditure

FCoA Appeal Division annual operating expenditure, ($’000)2016-17

Source: FCoA Appeal Division dataNote: FCoA Appeal Division “Other Employee” expenditure includes $2.8m notional judicial salary (i.e. FCoA pension contribution) which is not included in FCC expenditure.

96.9

Other costsAccom’ & travel

allowance

Other employee

costs

41.0

Cars (self drive, taxi, chauffer, Com Car)

Total

3,694.0

260.3

Judgesremuneration

Domestic airfares

9,702.2

186.9

5,423.1


45April 2018

Judicial performance

PwC

The caseload managed by each judge

FCC judges dispose of more matters each year

In numeric terms, FCC judges dispose of more first instance family law final order matters than FCoA judges each year. This is the case for all but one FCC judge. On average, in absolute terms, FCC judges dispose 304 matters each year compared to 33 per FCoA judge. This does not take into account leave or cases that were disposed without being attributed to a judge (that some judges may not have sat for a full year and so weren’t able to hear as many cases). No account has been made here for FCC judges who are only partly responsible for family law matters; i.e. they may clear many more matters each year if general law finalisations are also included.

Key reasons that contribute to the differences in disposal rates include the FCoA’s key statistics:

• litigants attend almost 2 more court events in the FCoA than the FCC on average

• settlement occurs less often (55% of FCoA matters compared to 70% of matters in the FCC)

• trials are, on average, longer in the FCoA than the FCC (3 days compared to 2 days)

• finalisation takes on average 1 month longer in the FCoA than in the FCC

• are more often subject to reserved judgment in the FCoA than the FCC (11% of all FCoA cases compared to 3% of all FCC cases), requiring more time to write judgments.

In the absence of detailed data, it has been difficult for PwC to substantiate the extent of variation in complexity of cases between the two courts. However, it is apparent that the vast variation in productivity between the two courts cannot be accounted for merely by the level of complexity. Even accounting for evidenced differences, FCoA judges finalise at least two thirds fewer cases per judge each year, on average.

Source: Data provided upon request (FCoA and FCC)Notes

Note: Although finalisations per judge are 338 and 114 for the FCC and FCoArespectively, because some cases are not assigned to a judge (such as when matters are settled when under the direction of a registrar in the FCoA), the above average figures of allocated finalisations per judicial FTE will not match those expected 338/114 numbers. Note: FCoA data does not include Appeal Division data. FCoA judiciary figures includes one Appeal Division Judge who disposed a small number of first instance matters in 2016-17. This judge has not been included in the headcount used for modelling performance or potential efficiency gains.Notes

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PwC

The differences in judicial practiceFCC judges sit more frequently and are less likely to reserve judgment

In 2016-17, FCC judges sat for 150 days on average, while FCoA judges sat for 129 daysThe average number of matters managed by FCC judges each day, excluding trials, was7.9 in 2016-17. This compares to the FCoA in which judges only hear trials as all pre-trial matters are managed by registrars and others in preparation for trial. In effect, FCC judges are sitting more frequently in court, and when they are, they are completing more tasks.

The practices of judges is also evident in the way in which matters are finalised. On average, FCC judges have an ex-tempore to reserved judgment ratio of 80%. Ex-tempore judgments made up 40% of the total judgements delivered by FCoA judges. The average (absolute) number of reserved judgments is greater among FCoA judges than FCC judges. Reservation of judgments can mean that parties are without resolution for some time following a trial. It may also mean that FCoA judges proportionally spend more time on case management to consider and write judgmentsThe complexity of cases can also influence the time needed for case management.

Court processes also contribute to judicial practice. On average, FCC judges manage a docket of around 350 matters at a given time, with a pending to finalisation ratio of 1.7.The existence of a ‘known backlog’ that is assigned to a FCC judge was considered by some as a direct incentive for each judge to clear cases as quickly as possible. In the FCoA, cases are not allocated to judges upfront. This results in FCoA judges handling an anecdotal 30-40 matters. No new cases are listed with the judge until agreed with the registrar with responsibility to allocate cases. As a result, FCoA judges have no sense of the ‘looming’ backlog until it is listed with them and may not incentivise speedy finalisation of judgment or of trial length.

Source: Data provided upon request (FCoA and FCC)Notes

Note: Although finalisations per judge are 338 and 114 for the FCC and FCoA respectively, because some cases are not assigned to a judge (such as when matters are settled when under the direction of a registrar in the FCoA), the above average figures of allocated finalisations per judicial FTE will not match those expected 338/114 numbers. Note: FCoA data relates only to General Division judges and does not include Appeal Division dataNote: “Approximate total possible sitting days” based upon data provided by Federal Court and is total year minus weekends, public holidays and indicative leave entitlements.Notes

48

Conclusions

PwC

Key observations of the courtsThe current state analysis identified a number of key differences between the two courts. Those key observations are summarised below.

50April 2018


31 (8 Appeal Division) FCoA judges

FCoA judges sit 129 days on average each year

Most matters settle (55% in FCoA)


The median time to trial is 17 months

FCoA matters are more often subject to reserved judgment (11% of all matters)

Lodgment


Trial

Appeals

FCoA mattersMatters in the FCoA require 45% more attendances by litigants than in the FCC


FCC mattersThe FCC finalise over 85% of all family law final orders

Transfers20% of FCoA finalisationsare transfers to the FCC


Appeal DivisionThe Appeal Division judges wrote 26judgments each, on average, in 2016-17

Only 13% of FCoA appeals are finalised by a single judge


51 FCC judges who hear family law matters

FCC judges sit 150 days on average each year

Most matters settle (70% in FCC)


The median time to trial is 15.2 months


Only 3% of FCC matters are subject to reserve judgment

PwC

Current state summary

Key statistic FCoA FCC

Family law final order applications 2,748 17,791

Family law final order finalisations 2,742 17,239

Judicial FTE 24 first instance8 Appeal Division

66 (51 family law)

Final order finalisations per family law judicial FTE per annum

114 338

Median time to finalise trial matters (months) 22.7 18.6

Average sitting days 129 150

Average attendance rate 6.1 4.2

Average 75th percentile transfer time (months) 6.1 16.5

Matters transferred out 535 646

Final order finalisations trial | non-trial 572 | 2,142 3,560 | 13,651

Final orders settled trial | non-trial 239 | 1,251 2,180 | 9,789

Final order finalisation reserved judgment | ex tempore 296| 134 522 | 2,287

Total expenditure ($m) 46.3 (inc Appeal Division)

106.4

Travel expenditure ($m) 1.4 2.3

Key statisticFCoA Appeal Division

Appeal applications 344

Appeal finalisations 391

Appeals disposed by full court 338

Appeals disposed by single judge

53

Total expenditure ($m) 9.7

Travel expenditure ($m) 0.45

The key statistics arising from the current state analysis for 2016-17 are as follows. These have been used as the key inputs to the opportunities assessment in the following chapter.

51April 2018

PwC


52April 2018

PwC

Identifying opportunities

Approach for identifying opportunities

As per the terms of reference for this Review, cost and time efficiencies have been identified in respect of:

• the Rules of the FCoA and the FCC

• the case management rules and approaches of the FCoA and FCC

• the case allocation rules between the FCoA and FCC

• judicial productivity

• possible efficiencies associated with management of first instance matters across two courts.

To establish specific potential opportunities, PwC has considered:

• variations that exist between and within the FCoA and FCC as identified through the current state analysis

• considerations identified through consultations with senior family law court system stakeholders

• findings and recommendations from previous reviews which have identified opportunities to enhance the efficiency of the courts through case management, triaging and consistent application of court rules and processes.

We have grouped identified potential efficiency opportunities into the four areas of:

1. Jurisdiction and process

2. Case management

3. Judicial practice

4. Appeals management

Assessing potential opportunities

The likely result of employing efficiency opportunities will be represented in:• a reduction in backlog in the courts

• better division of workload between the courts

• a reduction in average timeframes between lodgment and finalisation for a matter

• a reduction in process complexity or uncertainty

• a reduction in the average cost for applicants

• a reduction in cost (or avoidance of future costs) of the family law court system for Government.

To assist the quantification of opportunities, 2016-17 courts data has been relied upon to estimate average potential efficiency gains using these metrics. Follow-on impacts, such as interactions across the family law court system or risks of unintended consequences arising from implementation of an opportunity have not been assessed. For example, an opportunity to reduce process complexity, may also reduce time and/or cost for finalisationacross the system which affects how a different opportunity might be considered.

It is also worth noting that specific processes and practices may vary at an individual level due to the circumstances and complexity of a case; the preferences and practices of different judiciary; the capability and capacity within each court; and, the behavior of litigants and their legal representation. The scope of this review considers averages across the courts, meaning that these nuances have not been factored in. PwC has not looked at the detailed processes associated with case management, nor have we undertaken a capability assessment, or sampled cases, which would inform a detailed analysis of potential opportunities.

The summary of the opportunities assessment is shown in the following pages, while detailed descriptions and assumptions are provided in Appendix B.

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PwC

Summary of family law opportunities

Summary of opportunities

The key opportunities associated with the court’s operations are summarised in the table on the following page. They are explored in detail in Appendix B. Opportunities are not presented as potential cost savings, but instead productivity gains such that it allows the courts to free up capacity to hear more matters.

Of the opportunities assessed:

• opportunities appear greatest in addressing the jurisdiction and process of first instance matters, but in terms of ease of implementation, aspects of judicial practice may provide immediate opportunities for efficiency gain.

• opportunities with greatest positive impact to litigants are in respect to the first instance jurisdiction (opportunities 1 and 2) , while the greatest ongoing cost savings are most likely arising from case management opportunities.

• risks and cultural barriers to implementation are most likely among appeals opportunities, but these may be implemented with relatively less upfront investment, and to material time and cost savings to litigants.

The impacts of all opportunities need to be tested further to properly establish the risk and to understand specific solution costs of implementation to ensure the benefits outweigh the costs.

Assessment criterion

The efficiency opportunities, summarised on the following page, have been assessed by PwC through a high-level consideration of the following criteria. The potential efficiency gains are not presented as potential cost savings, but instead potential productivity gains for the courts – implementing the opportunities could result in the ‘freeing up’ of court capacity to finalise more matters per annum.

Assessment criterion Symbol

Cost to implement

The initial investment required to implement the opportunity

Ongoing cost impact

The ongoing cost of supporting the opportunity (operating cost)

Cultural change impact

The extent of cultural change required by the courts to support the opportunity


The impact of potential risks associated with implementing the solution

Impact on litigants

Potential cost savings (legal representation and court fees)


Additional matters finalised per annum

No. of matters

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PwC

Summary of family law opportunities

Low impact High impact

OpportunityCost to

implement

Ongoing cost impact

(operating costs)

Culturalchange impact


Impact on litigants (cost/time savings)


(additional matters finalised p.a)1


1. Single point of entryEstablish a single point for filing, assessing and allocating first instance family law matters

+ 670 matters

2. Consolidate first instance jurisdictionCombine jurisdiction for first instance family law matters into a single court entity

+ 3,410 matters

Case management

3. Initial case managementImplement structured initial case management with appropriate judicial authority

+ 1,760 matters

4. Managed case listingCoordinate and standardise case listing, to increase average listing rates and frequency

+ 1,410 matters

Judicial practice

5. Ratio of ex-tempore judgmentsIncrease the ratio of judgments delivered on an ex-tempore basis + 85 matters

6. Reserved judgment intervalReduce the average period between a reserved judgment and written judgment

+ 145 matters

Appeals management

7. Cross-division judge utilisationIncrease use of Appeal Division judges on first instance matters, and vice versa

+235 matters

$0.22m pa

8. Single judge appealsIncrease the rate of appeals matters managed as a single judge appeal

+ 520 matters

+ $0.35m pa

9. Implement a system of managed scheduling and listing of appealsImplement a system of managed listing of appeals and scheduling.

+ 740 matters

1 Opportunities are not necessarily additive. Opportunities 1 and 2 are presented as alternatives, while all others may be considered additive (Options 3-9 with either 1 and 2). Together, these opportunities may have some overlap and specific consideration of how they interrelate would be required to fully assess the potential efficiency gain.

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PwC

Implementing family law opportunities

Key opportunities

The key family law opportunities have been rated based on their relative cost to implement and time to implement based on the scale of the opportunities. This is shown on the axis’ to the right, capturing the size of each opportunity assessed (larger ‘bubbles’ represent opportunities with greater value). However, specific cost/time scales have not been considered given no specific solutions to implement each opportunity have been detailed in this Review. Further background to how this assessment was undertaken in shown in Appendix B.

Judicial practice opportunities are relatively less costly and time consuming to implement, while opportunities relating to case management and jurisdiction and process are partly more difficult to implement, acknowledging change that is required with it.

Key considerations not captured through this Review include:

• the impact on judicial independence

• change management needs associated with different/new case management processes

• the specific changes required to Rules, policies and processes.

This assessment has also been undertaken in isolation of an assessment of practical barriers to implementation. This includes not having undertaken a detailed analysis of process, capability and impact assessment. This could limit the true value of opportunities, and/or the potential cost/time change might take to implement.

56April 2018

Note: Opportunities are not necessarily additive. Opportunities 1 and 2 are presented as alternatives, while all others may be considered additive (Options 3-9 with either 1 and 2). Together, these opportunities may have some overlap and specific consideration of how they interrelate would be required to fully assess the potential efficiency gain

'Single point of entry'

Rationalise first instance

jurisdiction

Initial case management

Managed case listing

Ex-tempore judgementsReserve judgement

interval

Cross-division utilisation

Single judge appeals

Managed appeal listing

Low

-4

-2

0

2

4

High

Low -4 -2 0 2 4 High

Co

st

to i

mp

lem

en

t

Time to implement

Comparative Efficiency Opportunity


Case management

Judicial practice

Appeals management

PwC

Alignment to current projects/improvements

57

Project/ Improvement Timing Alignment to opportunities

Federal Court – national registry services Already implemented (2017) N/A

Federal Court – Central Registry Function

Already implemented Jurisdiction and process1. Single point of entry

Case management4. Managed case listing

All courts - digitisation Federal Court and FCC (implemented 3 years ago)Family Court (underway)

N/A

FCC – national ‘call over’ of family law matters

Current N/A

April 2018

Additionality of opportunities

The courts are already undertaking a number of projects seeking to address the opportunities identified in this Review. These will deliver, in part, on the efficiency opportunities assessed here, particularly in relation to a single point of entry and in improved case management of family law matters. However, these projects do not holistically address opportunities across the system, meaning opportunities still exist to gain efficiency through first instance matters and in the case management approaches across all family law matters. The relationship of these projects to the opportunities assessed here is shown in the table below.

PwC

Measuring effectiveness and efficiency

What should be measured

Given the different metrics used across courts, and the difficulty encountered through this Review to assess efficiency of the courts in a consistent way, there is an opportunity to improve these metrics. Measuring outputs and outcomes of the court in a consistent and holistic way is also an important tool to drive any behavioural change sought.

Importantly, to enable a fair basis for comparison, the same metrics should be adopted by each court for comparison, and it should be based on the number of family law final orders. To remove the impact of different approaches to case allocation and management, metrics should also be provided on an overall basis.

What is currently measured Opportunity

Report on Government Services

FCoA Annual Report FCC Annual Report Potential metrics

Effectiveness measures

• Judicial officers• Backlog• Finalisations• Attendance• Clearance• Fees paid by applicants

• 90% of final orders disposed of within 12 months

• 90% of all other applications disposed of within 6 months

• 70% of matters resolved prior to trial

• Clearance rate of 100%• 75% of judgments delivered

within 3 months• 75% of cases pending

conclusions to be less than 12 months old

• Number of finalisations• Clearance rate• Attendance rate• % of matters settled, judged

and pending• Time to finalisation• Age of matters pending

Efficiency measures

• Judicial officers per finalisation• FTE staff per finalisation• Cost per finalisation

• Number of transfers• Judicial FTE per finalisation• Non-judicial FTE per

finalisation• Effective cost per finalisation

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PwC

For further consideration

Opportunity Potential impact Why

Limit grounds for appealGrounds for appeal of interim orders to be limited to point of law or natural justice.

Reduce waiting times for decisions in the Appeal Division of the Family Court

Can be used by litigious parties to delay the proceedings, impose additional costs.

Introduce specialisation/practice areasIncrease specialisation areas in the FCoA.

Reduce number of appeals/number of transfers.

To improve the quality and consistency of decisions, specialisation assist with case allocation of matters. Consultation identified that this might benefit property/trust laws and children’s matters in particular given these can have specific complexity.

Harmonise Court RulesHarmonise the FCoA and FCC Rules. Alternatively, repeal and apply Federal Court Rules, with additional family law-specific Rules where necessary.

Greater certainty in family law matters. May also make transfers between the Courts more efficient

Different Rules, results in different processes and inconsistent outcomes depending on the court hearing the matter.

Enhance the obligations of legal practitionersMake an amendment to the Act to enhance the obligations on legal practitioners to act efficiently and in the interest of clients

Reduce the total cost to litigants and reduce unnecessary court events, enablingbacklog to be addressed

There are some emerging practices within the legal profession that are imposing substantial costs on family law litigants for services not delivered. Whilst these practices may not be unique to family law matters, the omission of a legislated obligation on legal practitioners to act ‘as quickly, inexpensively and efficiently as possible’ or to take ‘genuine steps to resolve the dispute’ (Federal Court of Australia Act 1976, Civil Dispute Resolution Act 2011) may be encouraging these practices which have a significant impact on the family law system.

A number of other opportunities were identified through this Review. However, time and scope limitations meant that their opportunity was not able to be assessed fully. They may present areas of further consideration and are presented in order of priority (based on potential efficiency gain/ability to address underlying drivers of variation).

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PwC

For further consideration (con’d)


Prescribe case management guidelinesIntroduce provisions similar to ss37M and 37N of the Federal Court Act (judicial case management) for family law matters. Alternatively, produce guidelines similar to the Case Management Guidelines available in the Family Court of Western Australia).

More matters settled inADR

Provide support to judges so they can confidently employ active case management powers.

Require that actions be taken to resolve matter prior to court application• Requirement for a s60I certificate to be expanded to property

matters.• Stronger judicial oversight and enforcement of pre-action steps.• Requirement for parties to provide a statement of the efforts they

have made to try to resolve their disputes before filing in the FCC. (Similar to FCC Rule 4.09 which requires the ‘genuine steps statement’ for all matters where the Civil Dispute Resolution Act applies (excludes family law matters)).

More matters settled outside the FCoA and FCC

• In the first five years that s60I certificates were mandated for matters with children, the number of applications to courts dropped by about 32%.

• Family law is the only jurisdiction in Australia that does not have legislative obligations on practitioners to resolve matters in a cost and time effective manner.

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PwC

For further consideration (con’d)


Align funding approach to use of family consultantsAlign the funding of family consultants between the FCoA and FCC to promote use and availability of consultants to the cases determined to most need it.

And more timely provision of family reports (possibly reducing the risk to delay to the courts)

Current differences in the way family consultants are funded (internally funded and widely used in the FCoA as compared to externally provided and paid on a contractual basis in the FCC) result in different practices in their use between the courts. Alignment would promote a more consistent approach to their use and possibly allocation to cases which may require it most to inform timely judicial decisions.

Party costs amendmentAmend s117 Family Law Act to remove the presumption that each party pays own costs

Improved compliance with orders

The introduction of a provision similar to s43(3)(f) of the Federal Court of Australia Act enabling a judge to award costs against a lawyer personally will see improved practices from practitioners. The likelihood of a costs order is likely to drive compliance with orders and desired behavioural practices.

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PwC

A potential approach to family law case management

Applicants - Single entry point

Case Management Judge (x 1)Registrar (x 2-3)Duty Judge (x 1)

(For serious interim orders – pool)

Counsellor

Early ADR

Compliance conference

5-6 weeks

8 weeks

8 weeks

Family Consultant

FDRConciliationMediation

Judicial mediation Private arbitration FDR Orders for trial

Reports

Interim applications

Discovery etc.

Trial

5 weeks

Future case management

A number of opportunities in this Review identify potential gains in having a single point of entry for family law matters and a consistent approach to case management of those matters (independent of the court in which it is lodged).

An example of what a future case management approach could look like

It demonstrates the appointment of a

case management judge to each case upfront –leveraging off the FCC’s model which presses for early settlement. The case management judge and registrars would work over a period of 8 weeks to resolve matters upfront. If not successful, matters would then be prescribed a period of alternative dispute resolution (at the discretion of the case management judge, similar to the FCoA’s current ADR approach) over the course of 8 weeks in an attempt to support parties to resolve matters. If still unresolved, a compliance conference would be held to determine the unresolved matters requiring direction. These matters would undergo either judicial mediation, practice arbitration, family dispute resolution or would be given orders for trail to be heard within a 5 week timeframe. In all, the process would take 6-7 months in total. This would also improve the consistency of case management and litigant expectations across all family law matters.

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6. Impact on access to justice

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Cost and time efficiencies for litigants

The impact of inefficiencies between and within the FCoA and FCC has a material impact on the experience of family law litigants. For many, the experience of court is traumatic, not only to the direct parties, but also to the children and broader families involved.

For those reliant on the court system to resolve property and/or parenting disputes, the key metrics which impact families are:

• cost to families in direct legal costs, court fees

• time associated with court events, including the delays to resolution associated with interim orders, trial and finalisation. All of which themselves carry an opportunity cost.

The court in which a matter is filed - most often on the advice of legal practitioners - dictates in the most part, a litigant’s experience of the family law system. This reflects that, as highlighted in Chapter 4 of this Review, significant variations exist in the allocation, management and practices and processes of each court. As a result, the way a matter is handled between filing and finalisation has been described as “a lottery”. The lack of certainty associated with the family law system can result in litigants being unaware of the process, the potential costs, the time impost and potential outcomes of their case.

This section captures the current experience of litigants, including an estimation of the cost and time impacts to the litigant in the FCoA and FCC.

It also outlines the potential impact on litigants as a result of implementing the efficiency opportunities identified in Chapter 5 of this Review.

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Current experience of litigantsThe cost and time to litigants of filing in each court The costs to litigants accessing court services for family law in the FCoA and FCC differs. On a party/party basis, PwC conservatively estimates that litigants expend over $110,000 per matter in the FCoA (including court fees, but excluding appeals), while in the FCC, this is closer to $30,000. (For full costing, refer to Appendix A).

Applicants

File in Family Court of Australia

File in Federal Circuit

Duty list

First hearing before a Judge

Transfer to the FCoA

Trial

Judgment

Appeal to Full Court of the Family Court


Dispute resolution

Give directions

Make final orders

Interim hearing

Fix final hearing date

Case Assessment

ConferenceProcedural hearing

Conciliation conference

)

Procedural hearing

)

Compliance check

Trial Management hearing

Procedural hearing

Exchange documents

Judgment

Trial

Interim orders

Child Responsive Program

$16,108 Legal

$825 court fee

$445 -$660 court

filing fee

$17,473 Legal

$1,650 court fee

$4,900 Legal

$8,019 Legal

$380 court fee

$5,428 Legal

$825 court fee

$7,896 Legal$825 court fee


$33,384 Legal

$2,475 court fee

$6,235 Legal

$825 court fee$1,305 court fee

$1,948 Legal

$6,896 Legal$1,210 court fee

$3,848 Legal

Family Court of

Australia

Total costs -party/party:

Over $100,000

Plus Court fees:

Over $10,000Excluding appeals

Federal Circuit

Court

Total costs -party/party:Over $25,000

Plus Court fees:




Average time to finalisation 12.4 months

Average time between reserved judgment and finalisation 68% complete within 3 months

Median time to trial 17 months

Average time to finalisation 11.4 months

Average time between reserved

judgment and finalisation 74%

complete within 3 months

Median time to trial 15.2 months

Average transfer time 4.6 months

Average transfer time 11.1 months

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Per event:$2,932-$4,399 Legal$380-$605 court fee

PwC

Impact to litigantsThe case allocation, management and Court Rules result in different experiences of the family law system to litigants. These present themselves not only in a cost and time sense, but also have an impact on the certainty and distress parties experience. The specific opportunities assessed in this Review will result in changes to those same metrics. The following table summarise the impact to litigants in cost, time and certainty under the current state as well as the potential impact associated with the efficiency opportunities. A comprehensive analysis of costs and time would need to be undertaken to fully quantify the impacts of any proposed change.

Issue FCoA FCC Current state impact on litigants Potential impact of opportunities on litigants

Time • Median of 17 months between filing and trial.

• Average trial is 3 days

• 68% of reserved judgments finalised within 3 months

• Backlog –715 unallocated cases

• 20% of cases are transferredto the FCC

• Average of 6.1 court attendances

• Median of 15.2 months between filing and trial.

• Average trial is 2 days

• 74% of reserved judgments finalised within 3 months

• Backlog N/A (as all allocated to duty judges)

• 4% of cases are transferred to the FCoA

• Average of 4.2 court attendances

The time for litigants to have a matter finalised differs depending on whether the matter is before the FCoA or the FCC. On the data available, matters that proceed to trial take 17 months (median) in the FCoA compared to 15.2 months in the FCC.

Matters in the FCC are more likely to settle (70% of cases compared to 55% in the FCoA).

The longer the time to finalise a matter through the courts, the more interim orders are likely to be needed. Where interim orders are appealed, there are further delays to the matter.

Animosity between the parties may increase as the time and costs increase. Delays in the court system only extend the conflict between the parties. The longer a matter takes before the courts, and the more legal costs incurred, the less likely the parties are to have an amicable relationship post-separation which has a significant impact on the wellbeing of any children involved.

Parties engaged in the conflict can use the system to further increase delays – for example, non-compliance with court orders (interim or procedural, requires additional hearing days and further extends the timeframe for finalising the matter). Parties can also appeal interim orders without leave, which further delays the finalisation of their matter.

The longer the matter takes, the more emotional distress on the parties and children involved.

Streamlining the case allocation and management processes of the courts is expected to reduce the time taken to finalise matters through:

• clearing backlog

• increasing number of matters settled by ADR

• reducing average court attendance rates

• reducing the number of matters which proceed to trial

• utilising judges to hear more matters, decreasing wait times for trial

• reducing the likelihood of transfers between courts.

As streamlining would have a system-wide effect, it is difficult to estimate the average reduced timeframe to litigants. Certainly, an improvement in the total number of finalisations and timeframes for doing so would increase the number of matters finalised within 12 months in both courts

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Impact to litigants (con’d)Issue FCoA FCC Current state impact on litigants Potential impact of opportunities on litigants

Costs > $100,000 > $25,000 The costs to litigants accessing court services for family law in the FCoA and FCC differs. On a party/party basis, PwC conservatively estimates that litigants can expend over $100,000 per matter in the FCoA (including court fees, but excluding appeals), while in the FCC, this is closer to $25,000. (For full costing, refer to Appendix A).

These costs are significant for litigants and do not include common events such as a transfer between courts, or appeals of interim orders. These costs also do not include the other costs to litigants such as time away from work for court appearances, solicitor/counsel conferences, expert reports, etc. Substantial legal costs adds to the financial stress that litigants are no doubt already experiencing as a result of the relationship breakdown and can have an impact on their emotional and mental health.

Growing legal fees also create a situation where vulnerable parties may be enticed to settle their matter without receiving their legal entitlements or having their future needs accommodated.

Streamlining the case allocation and management processes of the courts is expected to reduce the cost impact on litigants through:

• reducing average attendance rates

• reducing the use of multiple interim orders (as cases are resolved more quickly)

• reducing the number of matters which proceed to trial.

Given the variation between cases, it is difficult to calculate an average reduced cost to litigants, but for matters which are currently lengthy and involve multiple court events and could avoid trial, the cost to litigants could be reduced by $15,000 (FCC) -$50,000 (FCoA).

Reducing attendance rates and encouraging judicial authority in compliance of legal practitioners with court orders would likely drive the costs to litigants down in many cases.

Certainty • Family Law Rules 2004

• Family Law Regulations 1984

• Family Law Practice Directions

• Federal Circuit Court Rules 2001

• Federal Court and Federal Circuit Court Regulations 2012

• Federal Circuit Court Practice Directions

Different Rules and practices mean there is no certainty for litigants as to outcomes or process. Litigants cannot prepare themselves insofar as time or costs, as the processes between and within the two courts is unpredictable. It is also increasingly difficult for self-represented litigants to navigate the system, which adds to further delays.

The uncertainty begins by not knowing which court their partner may commence proceedings in.

The ability to appeal interim orders without leave also adds to the uncertainty for litigants.

Enhanced access to information and assistance to navigate the different services and processes within the family law system, including for children, would increase access to justice.

Streamlining the case allocation and management processes of the courts is expected to increase the certainty for litigants through:

• enabling information to be readily available about what to expect and when

• giving litigants confidence in the process

• standardising the experience of litigants in both courts

• enabling litigants to be self-represented without delaying the court, or compromising their interests

• providing a sense of likely cost implications of lodging a family law application upfront.

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7. Next steps and requirements for implementation

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Next steps and requirements for implementation

Realising opportunities

To realise the opportunities explored in the Review, consideration must be given to:

• further data capture and analysis to validate the potential benefits of change and the value of opportunities. Specific areas for additional data capture could include measures of case complexity including value of assets, number/age of children, volume of material filed

• mitigation of risks of proposed changes, including those identified in the table to the right

• Court Rules which require change, which could include the information provided by parties upfront, the pre-trial activities that parties must undertake, as well as the specific rules of evidence in both courts

• the need for legislative change, which may be required for opportunities that include changes to the court operations in its Appeal Division, the grounds for appeal and some elements of case management changes. The timeframes of this Review has meant that some of the impacts on the legislative framework in which the courts operate may not have been fully considered

• change management within the courts to bring about realisation of opportunities, including potential further investment in modern case management systems.

Risk Potential mitigation

An inability to implement changes due to regulatory or other barriers

A comprehensive analysis of legislative, regulatory and policy changes required to action opportunities should be undertakento understand the full scale of changes required.

Resistance to change within the courts, meaning opportunities cannot be fully realised

A dedicated change management process should be established to understand the impacts across different stakeholders to the family law system, including to identify where change is most likely be resisted. This is likely to be the case particularly in respect of Appeal Division opportunities. Change management activities, including training, awareness raising and cultural change, should be developed to be implemented alongside operational changes to mitigate resistance as far as possible.

The cost of change is underestimated, meaning the opportunity may be less viable

A full costing analysis of proposed changes to court operations should be undertaken to understand the relative costs and benefits. This should take account of capital needs (for example, IT infrastructure), operational needs (staffing profiles) and change management costs.

There is a negativeimpact on litigants and parties to the family law system through the implementation process

Stakeholders to the family law system should be consulted on specific proposed changes to understand where parties will be most affected and if there are particular barriers to change requiring action (for example, provision of renewed guidance). Actions should be incorporated into change management planning to reduce the impact on external stakeholders to the courts as much as possible.

An incoherence of opportunities identified in this Review and those identified in other aspects of family law systemreform, including those arising from the ALRC’s review

Where there is likely a divergence in operational changes proposed by this Review and subsequently by the ALRC, advice should be sought from court stakeholders to understand where and how opportunities could be implemented in practice and which would bring about the greatest positive outcomes. Assessment of those opportunities, informed by detailed analysis, should underpin decision-making.

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Appendix A: Courts background

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Relevant to this review

The operation of the family law system in the FCoA and the FCC has been subject to a number of reviews in recent years. The reviews identified a number of consistent opportunities to enhance the operation of the courts, and are hence relevant to this review. These include:

• House of Representatives Standing Committee on Social Policy and Legal Affairs, Parliament of Australia, A Better Family Law System to Support and Protect Those Affected by Family Violence (2017), which recommended: Introducing a triaging approach to court applications; A more streamlined case management model; Increased use of practice directions and note to promote efficiency; Greater leadership by judges to enforce court deadlines among parties; Greater use of orders to divert matters to ADR; and, Limiting appeals arising from interim orders.

• Review of the performance and funding of the Federal Court of Australia, the Family Court of Australia and the Federal Circuit Court of Australia (2014), prepared by KPMG, which identified structural budgetary deficits exist in the FCoA and FCC, and identified that further opportunities exist in integrating shared services across the courts, streamlining resourcing models and making case management consistent across the courts.

• ‘The Skehill Report’, Small and Medium Agencies in the Attorney-General’s Portfolio (2012), which identified the need to consider the financial viability of the courts and to develop an administrative arrangement to foster cooperation among the Commonwealth Courts.

• ‘The Semple Report’, Future Governance Options for Federal Family Law Courts in Australia (2008), which proposed a single point of entry to the family law system through the amalgamation of the Federal Magistrates Court into the Family Court.

Background to the courts in relation to family law

Background to this review

The potential for enhancing access to justice in the family law system has been subject to a number of reviews. A 2009 Access to Justice taskforce identified a set of principles to this end. These included the provision of information/early intervention/triaging to direct matters to the most appropriate destination; promoting fair, accessible affordable and simple outcomes; ensuring cost is proportionate to the issues; building resilience across the system; and, directing attention to the real issues underpinning legal events. Reviews since, including the Productivity Commission in 2014, identify the same principles of affordability, accessibility and fair and equitable justice as areas of opportunity.

Despite this context, the family law system has not undergone significant reform since its commencement in 1976 following enactment of the Family Law Act 1975. The Australian Law Reform Commission (ALRC) has been appointed to undertake this review and consider, among its terms of reference, the need for reform to support appropriate, early and cost-effective resolution of family law disputes, to protect the best interests of children, mechanisms of appeal and opportunities for less adversarial resolution of parenting and property matters.

The ALRC’s review follows the Government’s commitment to providing more timely and affordable resolution for family law matters, which has been informed by a number of reviews which have identified potential changes to the family law system.

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Background to the courts

The evolution of the federal courts system

The High Court of Australia Act 1979, Federal Court of Australia Act 1976, Family Law Act 1975 and the Federal Circuit Court of Australia Act 1999(formerly the Federal Magistrates Act) establish the federal courts of Australia. The Family Court and the Federal Circuit Court hear family law matters in Australia.

Federal Court of Australia. The Federal Court has original jurisdiction over federal law matters including taxation, native title, intellectual property, industrial relations, corporations law and migration law, and hears general law appeals from the Federal Circuit Court and State Supreme Courts. Appeals are heard by the Full Court of the Federal Court. Special leave must be granted to appeal a Full Court decision in the High Court of Australia.

Family Court of Australia. The Family Court was established as a less formal court to specifically hear family matters, legal disputes and to deal with marriage breakdowns as sensitively as possible. The Family Court hears first instance family law matters in all states and territories except Western Australia. It also hears appeals from the state magistrate’s courts and the Western Australia Family Court. Appeals from the Family Court are heard by the Full Court of the Family Court. Special leave must be granted to appeal a Full Court decision in the High Court of Australia.

Federal Circuit Court of Australia. The Federal Circuit Court, previously known as the Federal Magistrates Court, was established to provide a simple and accessible alternative to litigation in the Federal Court and the Family Court and to relieve the workload of those courts. The court shares jurisdiction with the Family Court of Australia and the Federal Court of Australia, including matters relating to family law, administrative law, bankruptcy, intellectual property, human rights and migration law. The Federal Circuit Court does not have appellate jurisdiction. Appeals from the Federal Circuit Court are referred to the Federal Court or the Family Court. The Federal Circuit Court delivers services to regional Australia through its circuit court program.

Protocol for the division of family law work

The Chief Justice and the Chief Judge have published this Protocol for the guidance of the legal profession and litigants, so as to enable matters to be directed properly to the court appropriate to hear them. The Protocol may on occasions give way to the imperatives of where a case can best be heard and is not intended to constrain the discretion of a judicial officer having regard to the applicable legislation and the facts and circumstances of the case before him or her.

If any one of the following criteria applies, then the application for final orders ordinarily should be filed and/or heard in the Family Court if judicial resources permit, otherwise the matter should be filed and/or heard in the Federal Circuit Court.

1. International child abduction2. International relocation3. Disputes as to whether a case should be heard in Australia.4. Special medical procedures (of the type such as gender reassignment and

sterilisation).5. Contravention and related applications in parenting cases relating to orders

which have been made in Family Court proceedings; which have reached a final stage of hearing or a judicial determination and which have been made within 12 months prior to filing.

6. Serious allegations of sexual abuse of a child warranting transfer to the Magellan list or similar list where applicable, and serious allegations of physical abuse of a child or serious controlling family violence warranting the attention of a superior court.

7. Complex questions of jurisdiction or law.8. If the matter proceeds to a final hearing, it is likely it would take in excess of

four days of hearing time.

NOTE: The Family Court has exclusive jurisdiction in relation to adoption and the validity of marriages and divorces.

Transfers1. Either Court on its own motion or on application of a party can transfer a

matter to the other Court.2. There is no right of appeal from a decision as to transfer.

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The operation of the courts

Rules and processes of the courts

The Rules and processes of the courts is a central consideration to this Review. Differences in practice arise in the allocation of cases and the management of cases despite managing similar types of family law matters.

The key differences in the Court Rules, as identified by senior family law court system stakeholders, are identified to the right.

In addition to those identified here, the aspect of waiving of Rules, and/or the application of FCoA Rules where FCC Rules are insufficient (Subsection 43(2) of the FCC Rules is also important). In practice, this can lead to variations in the process and practices of the courts in relation to similar matters.

Further detail on the differences in Court Rules is provided overleaf.

Rule FCoA FCC

Pre-action procedures

Rule 1.05 – must make attempts to resolve dispute before filing

Nil

Notice of risk Part 2.3 – only required where family violence is part of application.

Rule 22A.02 - prescribed form requires details of any allegations of child abuse, family violence or other risks.

Affidavits Rule 5.09 – no limits on length Practice Direction No. 2 of 2017 - Interim Family Law Proceedings – affidavits are limited to 10 pages, 5 annexures.

First court date Rule 4.03 - judge may make a range of orders including fixing a hearing date, primary dispute resolution etc.

Rule 10.01 – case assessment conference with Registrar.

Subpoenas Rule 15.3 - unlimited Rule 15A.05 – maximum of 5 can be issued

Spousal maintenance

Rule 4.15 – 3 years of financial information

Rule 24.05 – 12 months of financial information

Property matters –exchange of documents

Rule 12.02 - parties are required to produce a range of documents including taxation returns and superannuation information at least two days before the first court date.

Nil.

However, Rule 15A.17 enables parties to request by Notice to Produce.

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Key differences between the Family Law Rules and the Federal Circuit Court RulesThe following is a summary of the key differences in Court Rules. These have been identified through rapid review of the Rules. A detailed review is required to enable conclusions to be drawn.

Pre-action procedures Parties filing in the Family Court are required to attempt to resolve the dispute before coming to the Court. Rule 1.05 and Schedule 1 of the Family Law Rules requires parties to, for example, attend mediation or counselling etc. There is no requirement prior to filing in the Federal Circuit Court (other than section 60I certificates for matters involving children). However, Rule 4.09 of the Federal Circuit Court Rules requires the applicant the make a statement of genuine steps taken to resolve matter before filing – but this requirement does NOT apply to family law matters.

Notice of risk Parties filing in the Federal Circuit Court are required to file a detailed ‘Notice of Risk’ in matters involving children. Rule 22A.02 of the Federal Circuit Court Rules requires a prescribed form detailing any allegations of child abuse, family violence or other risks. However, this information is not provided to the Family Court unless allegations of abuse are part of the application. Part 2.3 of the Family Law Rules requires a different form and an affidavit.

Affidavits Parties applying for interim orders in the Federal Circuit Court are required to provide an affidavit under Rule 4.05 of the Federal Circuit Court Rules. Practice Direction No. 2 of 2017 Interim Family Law Proceedings (from 1 January 2018) limits the length of an affidavit in an interim application to 10 pages with no more than five annexures. However, Rule 5.09 of the Family Law Rules makes no restrictions on length.

First court date Under Rule 10.01 of the Federal Circuit Court Rules a judge may make a range of orders on the first court date including fixing a hearing date, primary dispute resolution etc. In the Family Court, a registrar will hold a case assessment conference or a procedural hearing under Rule 4.03 of the Family Law Rules.

Subpoenas Rule 15A.05 of the Federal Circuit Court Rules limits parties to only five subpoenas whereas Rule 15.3 of the Family Law Rules enables parties to have an unlimited number of subpoenas in the Family Court.

Spousal maintenance In spousal maintenance matters in the Federal Circuit Court, parties can have access to the other party’s financial records from the previous 12 months under Rule 24.05 of the Federal Circuit Court Rules. However, in the Family Court, parties can have access to three years of financial records under Rule 4.15 of theFamily Law Rules.

Property matters – exchange of documents In the Family Court, parties are required to produce a range of documents including taxation returns and superannuation information at least two days before the first court date under Rule 12.02 of the Family Law Rules. There is no such requirement in the Federal Circuit Court and parties must rely on issuing a notice to produce under Rule 15A.17 of the Federal Circuit Court Rules 15A.03 for each document sought which is to be produced at the hearing.

Penalties for non-disclosure If a party does not disclose or produce a document, they are not able to give any evidence of the contents of the document under Rule 14.09 of the Federal Circuit Court Rules and Rule 13.14 of the Family Law Rules. However, the Family Court further provides that the party may be guilty of contempt, may be ordered to pay costs and the court may stay, or dismiss all or part of the party’s case.

Joint experts –where two or more parties intend to provide evidence about a similar matter, Rule 15.08(d) of the Federal Circuit Court Rules allows the evidence to be provided concurrently. However, there is no equivalent in the Rule 15.69 of the Family Law Rules so the experts are heard separately.

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Costs to litigants – assumptions (FCoA)

Applicants without childrenApplicants with children and s60I certificate

File in Family Courtof Australia

Case Assessment Conference

Procedural hearing

Procedural hearing

Exchange documents

Child Responsive Program


$445 -$660 court

filing fee

$4,900 Legal



Draft 2 x 200 word letters @ $24.10/100 words - $96.40

Read 2 x 200 word letters @ $9.82/100 words - $39.28

Draft 3,000 word Affidavit - @ $20.99/100 words–$629.70

Read 3,000 word Affidavit @$9.82/100 words - $294.60

Lawyer time – 8 hours @ $246.33/hr -

$1,970.64Clerk time – 8 hours @ $159.69/hr - $1,277.52

SC Chamber time – 4 hours @ $750/hr -$3,000

SC Conference – 2 hours @ $750/hr - $1,500SC attendance of less than 3 hrs - $3,000

JC Chamber time 6 hours @ $400/hr - $2,400JC conference 2 hours @ $400/hr - $800JC attendance of less than 3 hrs - $1,100

Drafting 500 word subpoena @ $20.99/100 words - $104.95

Reading 500 word subpoena – $9.82/100 words - $49.10

Draft 2 x 200 word letters @ $24.10/100 words - $96.40

Clerk time – 7 hours @ $159.69/hr - $1,117.83SC Chambers – 2 hours @ $750/hr - $1,500JC Chambers – 2 hours @ $400/hr - $800

Lawyer time – 5 hours @ $246.33/hr -$1,231.65

An estimation of party/party and court fees has been prepared for the FCoA. This uses a number of assumptions outlined here.

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Costs to litigants – assumptions (FCoA) con’d

Appeal

Conciliation conference

Procedural hearing

Compliance check

Trial Management

Judgment

Trial

Interim orders

$17,473 Legal

$1,650 court fee

$8,019 Legal

$380 court fee

$5,428 Legal

$825 court fee

$7,896 Legal

$825 court fee

$5,332 Legal

$825 court fee

$33,384 Legal

$2,475 court fee

$6,235 Legal

$825 court fee $1,305 court feeFamily Court of

Australia

Total costs -party/party:

Over $100,000

Plus Court fees:


SC attendance of less than 3 hrs - $3,000JC attendance of less than 3 hrs - $1,100

Lawyer time – 5 hours @ $246.33/hr - $1,231.65Draft 2 x 200 word letters @ $24.10/100 words - $96.40

SC attendance of less than 3 hrs - $3,000JC attendance of less than 3 hrs - $1,100SC conference – 1 hour @ $750 - $750

JC conference – 1 hour @ $400/hr - $400Lawyer time – 5 hours @ $246.33/hr -

$1,231.65

Clerk time - 5 hours @ $159.69/hr - $798.45Draft 2,000 word Affidavit - $20.99/100

words - $419.80Read 2,000 word Affidavit @ $9.82/100 words

- $196.40

SC attendance of less than 3 hrs - $3,000JC attendance of less than 3 hrs - $1,100

Lawyer time – 5 hours @ $246.33/hr - $1,231.65

3 days SC attendance @ $6,500/day - $19,5003 days JC attendance @ $2,500/day - $7,500

SC chambers – 1 hour @ $750/hr - $750JC chambers – 3 hours @ $400/hr - $1,200

Lawyer time - 18 hrs @ $246.33/hr -$4,433.94

SC attendance of less than 3 hrs -$3,000

JC attendance of less than 3 hrs -$1,100

SC conference – 1 hour @ $750 -$750

JC conference – 1 hour @ $400/hr -$400

Lawyer time – 4 hours @ $246.33/hr- $985.32

Draft 1,000 word Orders - $20.99/100 words -

$209.90Draft 2 x 200 word

letters @ $24.10/100 words - $96.40

SC Chamber time – 2 hours @ $750/hr -

$1,500SC attendance - $3,000

JC Chamber time 2 hours @ $400/hr -

$800JC attendance - $1,100Lawyer time – 5 hours

@ $246.33/hr -$1,231.65

Clerk time - 5 hours @ $159.69/hr - $798.45

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Costs to litigants – assumptions (FCC)

Applicants without childrenApplicants with children and s60I certificate

File in Federal Circuit Court

Duty list

First hearing before a Judge

Transfer to the Family

Court

Trial

Judgment

Appeal


Dispute resolution

Give directions

Make final orders

Interim hearing

Fix final

hearing date

$445 -$660 court

filing fee

$1,305 court fee

$1,948 Legal

$6,896 Legal

$1,210 court fee


$3,848 Legal

Federal Circuit

Court

Total costs -party/party:Over $25,000

Plus Court fees:


$3,481 Legal

$605 court fee


$3,481 Legal

$605 court fee




$2,199 $1,099 (1/2 day)

$549.50 (1/2 day advocacy loading)

ADR - $1,832 + $1,099.50 (full day advocacy loading)

ORInterim orders - $2,750 + $1,099 (1/2 day) +

$549.50 (1/2 day advocacy loading)OR

Other hearings - $1,832 + $1,099 (1/2 day) + $549.50 (1/2 day advocacy loading)

$5,811 - preparation for trial$299

$2,199 (full day hearing fee) x2$1,099.50 (advocacy loading) x2

$299$1,099 (1/2 day)

$549.50 (1/2 day advocacy loading)

An estimation of party/party and court fees has been prepared for the FCC. This uses a number of assumptions outlined here.

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Appendix B: Efficiency opportunities

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Opportunity quantification context

LimitationsTo provide a degree of context to the potential nature of opportunities to improve efficiency in family law court operation, where practical, high level estimates of the potential scale of efficiency for each key opportunity were developed.

These estimates are designed to inform consideration of the comparative scale of opportunity between alternative efficiency opportunities, and are not a reliable forecast of the absolute value of each opportunity.

Estimates are based on a range of alternative data sources for current state activities, with a focus on reported performance for 2016-17. In some cases, the alternative data sources may report inconsistent values for similar court performance measures. This means that some values relied upon for the development of high level estimates of the scale of efficiency opportunity may not reconcile with similar measures reported by other sources.

However, for the purposes of the high level estimates in this report, the nature of the variation is not considered to be material, or to diminish the value of the estimates as an indicative comparison between opportunities.

Further, in some cases the estimates for potential efficiency required assumption regarding the nature of behavioural or performance change. Where this was the case, presentation of the potential efficiency includes transparent identification of the relevant assumption(s).

PwC did not independently review or verify the accuracy or completeness of data received, and relied upon to estimate potential efficiencies. PwC has also not undertaken a detailed assessment of processes and capability within the courts which is required to accurately estimate potential opportunities.

Due to these reasons, actual scope for efficiency will vary from the estimates presented in this report (perhaps materially).

Key data

A range of data and assumptions were relied upon in the development of high level estimates of potential efficiency from each opportunity. These are highlighted in the relevant quantification sections. However, some general performance measures which were relied upon for the majority of the quantification estimates are summarised below. These relate to 2016-17 performance.

The time to finalisation data measure is applied to estimate the potential capacity (in additional cases to trial) released through efficiency measures which save court time.

Measure (2016-17 data) FCCFCoA

(Trial)

FCoA(Appeal

Division)

Judicial FTE (family) 51 24 8

Finalisations 17,239 2,742 391

Finalisation/FTE 338 114 49

Time to finalisation (Avg)- no trial- trial

11.5 mth9.1 mth

20.3 mth

12.4 mth8.7 mth26.1 mth

-

79April 2018

PwC

Jurisdiction and process (Opportunities 1 and 2) Overview

Overview

Current state summary • Inconsistent processes and procedures for filing and progressing family law matters, creating complexity in the access to justice

• The FCoA and FCC operate as separate entities possessing different rules, processes, practices and culture. Depending upon in which court a matter is filed, applicants and their legal advisers need to ensure appropriate compliance with these requirements as well as understanding the potential for differing time and cost outcomes.

• Significant levels of case transfers between the courts

• In 2016-17 there were approximately 530 transfers from the FCoA to FCC (or 20% of total FCoA finalisations) and approximately 630 transfers from the FCC to FCoA (or 4% of total FCC finalisations).

• Inconsistent utilisation of judicial (and court) resources between the courts

• Even accounting for the expectation of a family law case in the FCoA possessing higher average complexity, there is a significant deficit in average judicial productivity between the FCoA and FCC. In 2016-17, average family law finalisations per judicial FTE in the FCC were approximately 338 versus approximately 114 per judicial FTE in the FCoA (General Division).

Potential opportunities to enhance efficiency

1. Implement a ‘single point of entry’ for filing first instance family law matters

• A new single point of entry would apply a uniform and consistent set of requirements for filing, including a requirement for comprehensive detail relating to the matter (e.g. Notice of Risk). This would be designed to support a reliable assessment of the expected complexity of the matter, as well as identifying any unusual, unique or high priority issues which might be relevant to the subsequent allocation or management of the matter.

2. Consolidate first instance family law jurisdiction into a single court entity

• This opportunity involves consolidating responsibility for all first instance family law matters into a single court. This would deliver both a single point of entry for all first instance family law matters, as well as a broader alignment in rules, processes and outcomes (timeframes and costs) through a common jurisdiction.

80April 2018

PwC

Jurisdiction and process (Opportunities 1 and 2)Summary assessment of opportunities

Summary Assessment Jurisdiction and Process

Court productivity 670 – 3,410 additional matters

Implementing a single point of entry for filing first instance family law matters, with consistent filing requirements and initial case assessment processes, will reduce complexity in the access to justice and:

• reduce delay and cost arising from uncertainty or inconsistency in the filing requirements and processes for first instance family law matters (particularly for self-represented parties), and

• reduce transfers of pending cases between the FCoA and FCC arising due to an inappropriate initial filing with that court.

A more significant restructuring of family law jurisdiction to consolidate first instance responsibility into a single court entity is expected to substantially extend the potential efficiencies from a simple single point of entry option. As well as the benefits available from a single point of entry option, rationalising first instance jurisdiction into a single court would offer productivity benefits through:

• avoiding all transfers of cases between courts (including those which arise due to a change in the complexity of a case), and

• lifting the average utilisation or productivity of FCoA resources towards the outcomes achieved by FCC resources.

Cost to implement It is expected that implementing these potential opportunities would require a modest to high initial investment (e.g. legislation, rules, facilities, systems and processes), particularly for the more significant rationalisation of jurisdiction option.

Ongoing cost impact It is expected that the single point of entry option could be largely resourced through existing FCoA and FCC resources allocated to managing filings in each court. Equally, a rationalisation of first instance jurisdictions is not expected to require a material change in the budget for total labour and non-labour items. While a consolidation of resources and processes for first instance family law jurisdiction could deliver cost efficiencies, the net impact to Government would depend on the strategy for ‘residual’ court functions (e.g. the family law appeals function of the FCoA, or the GFL function of the FCC) and mitigating any inefficiency risk from a loss of ‘scale’.

The extent that the options deliver an increase in judicial productivity, there is a potential avoided cost through reducing the pressure for additional resourcing to manage the caseload of the Trial Division.

Impact on litigants It is expected that there would be a benefit to parties to a dispute, driven by:

• reduced delay and complexity in listing requirements and processes

• earlier finalisation of disputes, by reducing ‘lost time’ in case transfers between courts, and

• earlier finalisation of disputes, by increasing average court productivity (with rationalisation of jurisdiction).

81April 2018

PwC

Jurisdiction and process (Opportunities 1 and 2)Summary assessment of opportunities

Summary Assessment Jurisdiction and Process

Other impacts The single point of entry option is not expected to create significant cultural change issues, other than judicial and non-judicial resources adapting to potential adjustments in processes and the nature of information received with listing.

Key risks A range of potential risks or challenges may need to be managed in the process of designing or implementing efficiency opportunities in this area.

• Under the single point of entry option, the function will need to be sufficiently empowered to allocate matters to each court without a right of refusal, and to deny a proposed transfer of a matter by a court, to prevent frustration of the efficiency opportunity by a court or its officers.

• Optimal realisation of efficiencies from the single point of entry option will be prevented if there is not a parallel process of simplifying and aligning the informational and procedural requirements of the FCoA and FCC.

• These options will require a (varying degree of ) reallocation of resources between the FCoA and the FCC to ensure adequate resourcing of either a single point of entry function or a single first instance family law jurisdiction.

• Where the removal of first instance jurisdiction from either the FCoA or FCC reduces the scale of the remaining court (e.g. FCoA reduced to just an appeals function for family law matters, or FCC reduced to just first instance GFL matters), consideration will be required to the strategy for the residual court functions. This may include abolition of the relevant court and absorption of its residual functions into another court entity, or retention of the court at a reduced scale (recognising that there may be a loss of certain scale efficiencies).

82April 2018

PwC

Jurisdiction and process (Opportunities 1 and 2)How the opportunities were quantified

Indicative ‘value’ Jurisdiction and Process

Rationalise first instance jurisdiction

The total number of case transfers in 2016-17 was approximately 1,160 (630 from the FCC and 530 from the FCoA). An estimate of the average time from filing of a matter to transfer was approximately 11 months for the FCC and 5 months for the FCoA. For the purpose of estimating the potential saving in time of avoiding case transfers, we have assumed that there is little ‘process value’ from this time when the matter is recommenced in the different court following transfer1.

This suggests that rationalising first instance jurisdiction, which will avoid a material number of case transfers, has the potential to save approximately 8,495 months in court and applicant time (6,310 months for FCC transfers and 2,185 months for FCoA transfers). Based on an average time to finalisation of matters of 11.5 months for the FCC and 12.4 months for the FCoA, the estimated time savings are equivalent to an additional number of matters finalised of approximately 550 for the FCC and 175 for the FCoA.

In relation to consolidation of resources into a single court with first instance jurisdiction, and coordinated management of judicial utilisation, it is challenging to estimate the extent to which current productivity rates for FCoA judges might be shifted towards the rates achieved by FCC judges, due to potential variation in matter complexity. However, as a guide, if half the difference between average finalisations per FCoA and FCC judge was able to be realised through coordinated management of resources in a single jurisdiction, the number of first instance family law matters disposed of in a year by FCoA judges could be increased by 112 cases per judge, or approximately 2,685 per year3.

The total estimated value of this opportunity is approximately 3,410 additional matters disposed.

Single point of entry This efficiency opportunity would realise less of the avoided case transfer benefit, reflecting an expectation that there would still be a requirement to transfer cases from the FCC to the FCoA when matters evolved to a more complex nature. For the purposes of this estimate, if approximately 10% of matters initially allocated to the FCC developed more complex characteristics justifying a subsequent transfer to the FCoA, the estimate for potential efficiency outlined for the Rationalise First Instance Jurisdiction option would decrease to additional matters disposed of approximately 670.

The estimated benefit in terms of improvement to average FCoA productivity identified for the Rationalise First Instance Jurisdiction option is not expected to be a material opportunity for this option.

Note: Some values presented in this table have been rounded for assessment purposes

1: For the purposes of this assessment, 10% of the time up to the point of transfer was assumed to relate to processes or effort applicable after the transfer (i.e. reduced the average time to finalisation of the matter in the new court, and therefore was not a net time efficiency from avoiding a case transfer).

2: Assuming average productivity for first instance family law matters of 114 finalisations per FCoA judge per annum (2016-17) and 338 finalisations per FCC judge per annum (2016-17).

3: Assuming first instance family law judicial FTE of 51 for the FCC and 24 for the FCoA (i.e. excluding 8 FTE for the Appeal Division) (2016-17).

83April 2018

PwC

Case management (Opportunities 3 and 4) Overview

Overview

Current state summary • Inconsistent approaches to initial case management between the FCC and FCoA

• The FCoA applies a central initial case management approach before allocation of cases to judges, while the FCC immediately allocates cases to judge dockets and relies on the individual processes of each judge for case management.

• Insufficient (or inconsistent) initial detailing of information relevant to the case, creating potential delays to progression of a matter or unnecessary events or attendances

• The courts apply different practices to the initial identification and documentation of information and issues relevant to a case, resulting in inconsistency in the form and detail of information presented to judges, creating risks to the efficiency of court processes.

• Insufficient (or inconsistent) incentives and encouragement for early settlement of cases, extending average times to finalisation and reducing judicial productivity

• A significant number of cases are settled after proceeding to trial (or are otherwise disposed without judgment), increasing time and costs for both courts and parties to a dispute compared to identifying and encouraging earlier settlement or finalisation prior to trial.

• Inconsistent utilisation and productivity of court resources (including judicial officers)

• There is broad variation in the performance of individual judges both within each court, and between the courts (whether measured by sitting days, matters disposed, time to finalisation, etc.), due to an absence of coordinated allocation and management/scheduling of cases and sitting days.

• Under-utilisation of court resources through conservative listing practices, extending average times to finalisation and reducing judicial productivity

• ‘Under listing’ of matters on sitting days creates risks to efficient use of judicial and court resources in circumstances where listed cases are not heard as scheduled (e.g. settled, withdrawn prior to the day), or are brief appearances, with no opportunity to deal with other cases in the time ‘freed up’ by these outcomes.


3. Implement initial case management with judicial authority

• At filing, implement an initial process of case management which leverages appropriate judicial authority to encourage early settlement, with managed allocation of remaining matters to dockets aimed at driving high levels of judicial utilisation.

4. Implement a structured system of managed case listing

• Implement a system of managed listing of cases, targeting rapid progression of cases and minimising risks to utilisation by increasing the average rate of listings per day, or the ability to introduce other matters to meet available time.

84April 2018

PwC

Case management (Opportunities 3 and 4) Summary assessment of opportunities

Summary Assessment Case Management

Court productivity 1,410 – 1,760 additional matters

Implementing a structured and consistent process of initial case management, empowered with appropriate judicial authority, will reduce average timeframes to finalisation of matters and deliver:

• earlier settlement (or other resolution) of matters before proceeding to trial

• reduced total appearances or events, and

• reduced requirement for interim orders.

The process will support coordinated allocation of cases between judicial resources to reduce instances of ‘unallocated’ cases or ‘overloaded’ dockets, by allocating cases with a view to minimising delays to the listing or finalisation of the matter, including considering judicial capacity and relevant capability (or ‘specialisation’).

Reducing variation and inefficiency in inconsistent practices around the frequency of sitting days and listing rates can lift judicial productivity through:

• increasing average sitting days, and

• reducing unutilised time on sitting days.

Cost to implement It is expected that implementing these potential opportunities would require a modest initial investment in the systems and processes for more central or coordinated management of court practices around case management and listing/scheduling.

Ongoing cost impact It is expected that these functions, to be most effective, would require resourcing which endows it with a high degree of legitimacy and judicial authority. While existing case management resources of the FCoA and FCC could be allocated to the initial case management function, it is expected that additional investment may be required to ensure that it is able to deliver optimal outcomes in terms of the proportion of matters remaining for trial, the quality of accompanying information and the appropriate allocation of these matters to dockets.



• earlier finalisation of disputes, by reducing the number of matters proceeding to trial (and the average times to settlement), and

• earlier finalisation of disputes, by reducing delays to listing/hearing of matters.

85April 2018

PwC

Case management (Opportunities 3 and 4) Summary assessment of opportunities

Summary Assessment Case Management

Other impacts These options are expected to create potential cultural change requirements in areas such as:

• a focus on encouraging earlier settlement (or other resolution) of cases before proceeding to trial.


• The options may require an investment of additional resources, to supplement and enhance existing registrar and case management judge resources.

• Increased intensity in the rate of listing can limit inefficiency when appearances do not occur or are short, but could result in a listed matter not being heard should all other listed matters proceed on the day, and/or for an extended period.

• Potential efficiency benefits would be limited if the case management function was not centralised between the FCoA and FCC.

• The guidelines for managed case listing would need to be sufficiently flexible to recognise the legitimate requirements of more ‘complex’ cases, or those with specific characteristics.

• Legal practitioners may resist reduction in their strategic options around case management.

86April 2018

PwC

Case management (Opportunities 3 and 4) How the opportunities were quantified

Indicative ‘value’ Case Management

Initial case management In 2016-17, the median time to trial was approximately 17.0 months for the FCC and 15.2 months for the FCoA. Approximately 4,150 first instance family law matters were finalised after having proceeded to trial (approximately 3,580 FCC and 580 FCoA). Of these, approximately 2,420 were settled after proceeding to trial (approximately 2,180 for FCC and 240 for FCoA).

If more structured initial case management could achieve an earlier pre-trial settlement of matters which currently settle only after proceeding to trial, the potential saving in court and applicant time is estimated to be approximately 18,705 months (17,155 months for the FCC and 1,550 months for the FCoA)1. Further, if the case management process could reduce the number of matters proceeding to trial by a further 5%2, the incremental potential saving in time would be approximately 1,595 months (1,410 months for the FCC and 185 months for the FCoA)1

Based on an average time to finalisation of matters of 11.5 months for the FCC and 12.4 months for the FCoA, the total estimated time savings are equivalent to an additional number of matters finalised of approximately 1,760 (1,620 for the FCC and 140 for the FCoA).

Managed case listing Assessing judicial productivity requires consideration of a broad range of potential drivers, and a recognition that the varying nature of cases (and their complexity) is expected to result in different performance on key output measures such as the number of matters disposed per judge. However, a high level assessment of the number of family law finalisations by FCC judicial FTE in 2016-17 suggests that the judge at the 25th percentile of performance disposed of 28% fewer matters than the average (or approximately 95 matters for an FCC judge and 30matters for an FCoA judge3). If the lowest performing 25% of judges could each increase productivity by 95 matters (FCC) or 30 matters (FCoA) per year, the additional matters disposed per year would increase by approximately 1,410 (1,220 for the FCC and 190 for the FCoA)4.


1: This estimate of time is based on the difference between the median time to trial and the average time to finalisation of matters which do not proceed to trial (i.e. it does not include any potential saving in time between when a matter reaches trial and when settlement is achieved post this point).

2. In 2016-17, approximately 4-5% of matters proceeding to trial in the FCC and FCoA were discontinued, dismissed, struck out or withdrawn.

3. Values for finalisation by judge were not available for the FCoA. Data for the FCC was adopted as a proxy for distribution in performance for the FCoA.

4. Assuming first instance family law judicial FTE of 51 for the FCC and 24 for the FCoA (i.e. excluding 8 FTE for the Appeal Division) (2016-17).

87April 2018

PwC

Judicial practice (Opportunities 5 and 6) Overview

Overview

Current state summary • Variation in practice with ex-tempore vs. reserve family law judgments between courts

• 2016-17 ex-tempore judgments were 60% of judgments at trial for the FCC, but only 15% for the FCoA.

• Variation in practice with ex-tempore vs. reserve family law judgments within courts

• In 2016-17, the top 10% of judges in the FCC had an ex-tempore judgment ratio about 20% higher than the average, while the bottom 10% had a ratio about 25% lower than the average.

• Delay in delivery of written judgments

• In 2016-17, approximately 80% of reserved judgments in the FCC were older than 3 months, and approximately 45% of reserved judgments in the FCoA (noting that reserved judgments were a significantly lower proportion of total judgments in the FCC).

• Approximately 30% of reserved judgments in both the FCC and FCoA were older than 6 months.


5. Increase the ratio of ex-tempore judgments

• Guidelines, targets and professional development aimed at increasing the average ratio of delivery of ex-tempore judgments would reduce average delay to the finalisation of a matter post-trial and deliver certainty to parties (reducing risks for further interim orders and incentives for parties to perpetuate the dispute).

6. Reduce the interval between reserved judgment and finalisation

• Guidelines, targets and professional development aimed at reducing the average period between a reserved judgment and delivery of the judgment (and certainty) to parties (reducing risks for further interim orders and incentives for parties to perpetuate the dispute).

88April 2018

PwC

Judicial practice (Opportunities 5 and 6)Summary assessment of opportunities

Summary Assessment Judicial Practice

Court productivity 85 – 145 additional matters

Increasing the use of ex-tempore judgments (as a proportion of total judgments) in the FCC and FCoA will reduce average timeframes to finalisation of matters and could result in:

• earlier certainty for parties in dispute, and

• reduced requirement for interim orders pre-judgment.

One part of this opportunity is to reduce the observed differential between the FCC and FCoA in the use of ex-tempore judgments, by increasing use in the FCoA. The other part of the opportunity is to reduce variation in performance between judges, by changing the behaviours and performance of judges with the lowest use of ex tempore judgments.

If there is also an initiative to reduce the average time to finalise a reserved judgment, say targeting an average of 3 months, there would be additional improvement to the average timeframes to finalisation for first instance matters, with the associate benefits to court productivity and time and cost for parties to a dispute.

Cost to implement It is not expected that implementing these potential opportunities would be associated with a material implementation cost impact for the courts.

Ongoing cost impact It is not expected that implementing these potential opportunities would be associated with a material ongoing cost impact for the courts.



• potential earlier finalisation of disputes, by reducing the number of reserved judgments, and the average time to finalise remaining reserved judgments, and

• potential earlier finalisation of disputes, by reducing the number of backlog of first instance matters.

89April 2018

PwC

Judicial practice (Opportunities 5 and 6)Summary assessment of opportunities

Summary Assessment Judicial Practice

Other impacts These options are not expected to have a material impact on culture in the courts.


• If targets for ex-tempore judgments are set too high, or pursued too aggressively, it may result in pressure to deliver ex-tempore judgments for matters with a level of complexity more suited to additional deliberation as part of a reserved judgment (e.g. which may increase appeals).

• Targets for performance may need to be tailored to reflect the nature of matters dealt with by specific judges (or groups of judges), particularly where the higher average complexity of cases allocated to the FCoA may need to be recognised through a comparatively lower target for ex-tempore judgments. The need for a differential target for the timeframes to deliver a reserved judgment may not be as pressing.

• As a system of guidelines or targets, if there is insufficient incentive for judges to make genuine efforts to achieve (or exceed) the targets for ex-tempore judgments or timeframes to deliver reserved judgment, the potential for realisation of efficiency benefits would be limited.

• Judges who, through existing practice or capability, routinely exceed the proposed targets for ex-tempore judgments or timeframes to deliver reserved judgments, should be encouraged to continue to pursue these practices or outcomes, rather than relaxing performance back to the target levels.

• A process of judicial education or professional development may be required to support changes in behaviour or capability for judges with a comparatively low performance in delivery of ex-tempore judgments and/or timeframes to develop written judgments.

90April 2018

PwC

Judicial practice (Opportunities 5 and 6)How the opportunities were quantified

Indicative ‘value’ Judicial Practice

Ratio of ex-tempore judgments

In 2016-17, amongst judges in the FCC, the average ratio of ex-tempore judgments for all matters receiving a judgment at trial was approximately 60%, or 690 out of 1,150 matters. For the FCoA, the same statistic was substantially lower at approximately 15%, or 50 out of 300 matters.

High level data assessment suggests that, in the FCC, the judge at the 25th percentile of performance reserved approximately 7% more judgments than the average (approximately 2 matters per FCC judge and 1 matter per FCoA judge)1.

If the lowest performing 25% of judges could each increase ex-tempore judgments by 2 matters per year for the FCC and 1 matter per year for the FCoA, the potential saving in court and applicant time is estimated to be approximately 150 months, based on approximately 5.9 months and 4.3 months2 per reserved judgment for the FCC and FCoA respectively (125 months for the FCC and 25 months for the FCoA)3. If the average rate of ex-tempore judgments could be increased by 10% across both of the courts, an additional potential saving in court and applicant time could be approximately 810 months (680 months for the FCC and 130 months for the FCoA).

Based on an average time to finalisation of matters of 11.5 months for the FCC and 12.4 months for the FCoA, the total estimated time savings are equivalent to an additional number of matters finalised of approximately 85 (70 for the FCC and 15 for the FCoA).

Reserved judgment interval For 2016-17, it was estimated that of all reserved judgments on family law matters in the FCC, the time to deliver a written judgment exceeded 3 months in approximately 80% of cases, and 6 months for approximately 30% of cases. The equivalent estimate for the FCoA was 45% of cases exceeding 3 months and 30% exceeding 6 months. This was estimated to be equivalent to an average period of 5.9 months per reserved judgment for the FCC and 4.3 months for the FCoA2.

If the average time to deliver a written judgment was improved to a benchmark of 3 months for both courts, the potential saving in court and applicant time is estimated to be approximately 1,690 months (1,350 months for the FCC and 340 months for the FCoA)1.

Based on an average time to finalisation of matters of 11.5 months for the FCC and 12.4 months for the FCoA, the total estimated time savings are equivalent to an additional number of matters finalised of approximately 145 (120 for the FCC and 25 for the FCoA).


1: Data for judgments by judge were not available for the FCoA. Data for the FCC was adopted as a proxy for distribution in performance for the FCoA.

2. The estimates of approximately 5.9 months (FCC) and 4.3 months (FCoA) are based on an analysis of data received on the age of all delivered judgments by six age ‘bands’, adjusted to focus on reserved judgements for final order applications.

3. Assuming first instance family law judicial FTE of 51 for the FCC and 24 for the FCoA (i.e. excluding 8 FTE for the Appeal Division) (2016-17).

91April 2018

PwC

Appeals management (Opportunities 7 to 9) Overview

Overview

Current state summary • Underutilised judicial resources in the Appeal Division

• 49 finalisations per judge per year in the FCoA Appeal Division compared to 114 finalisations per judge in the General Division and 338 finalisations per judge in the FCC

• Approximately 481 sitting days per judge per year in the FCoA Appeals Division compared to approximately 140 days per judge in the General Division.

• High level of pending matters in the Appeal Division

• 195 pending matters in 2016-17, equating to approx. 12 month backlog

• High cost per finalisation in the Appeal Division

• Approximately $25,000 per finalisation

• Costs associated with unnecessary travel

• Approximately $0.45m in 2016-17


7. Increase the number of single judge appeals

• The Chief Justice can exercise that an appeal matter from the FCC can be heard by a single judge if he so considers (s.94AAA(3) Family Law Act 1975). A single judge needn’t be a member of the Appeal Division (s.94AAA(13)).

8. Encourage cross-division utilisation of judges (i.e. use Appeal Division judges to hear first instance matters, and Trial Division judges to support appeals)

• The use of Appeal Division judges only to sit on appeal matters is guided by FCoA policy. Judges of the Appeal Division can sit on matters of the General Division (s.28(2A) Family Law Act 1975). Conversely, General Division Judges are able to sit on Appeal matters provided Appeal Division Judges comprise the majority of the Full Court (two or more)(s.4).

• The practice of trial judges sitting on appeals, and Appeal Division judges on first instance matters is adopted in the Federal Court.

9. Implement a structured system of managed appeal listing

• Implement a system of managed listing of appeals, targeting rapid progression of cases and minimising risks to utilisation byincreasing the average rate of listings per day, or the ability to introduce other matters to meet available time.

• Implement a system of scheduling judicial sitting days designed to significantly increase available capacity. An example can be found in the Full Court of the Federal Court of Australia’s sitting weeks and use of local judicial resources.

1: The estimate of approximately 48 days per judge is based on an estimated 8 judicial FTE and 385 total sitting days for the Appeals Division. The estimate of 385 days is based on reported values for 2016-17 of 33 sitting days for the Single Court and 118 for the Full Court. The value for the Full Court was multiplied by the estimated average of 3 judges per Full Court sitting day.

92

PwC

Appeals management (Opportunities 7 to 9)Summary assessment of opportunities

Summary Assessment Appeals Management

Court productivity 235 - 740 additional matters

Releasing or increasing Appeal Division judges’ capacity through more effective appeals management approach could result in:

• reduced number of pending matters in the Appeal Division, and

• reduced average timeframes to finalisation for appeals.

If the Appeal Division judges’ capacity was used to hear first instance matters, there would be potential to achieve:

• reduced number of unallocated cases in the FCoA , and

• reduced average timeframes to finalisation for first instance matters.

At a simplistic level, for every appeal listing which is changed from a full court to single judge basis, capacity is createdto hear two additional single judge appeals, or to hear two additional first instance family law matters.

Cost to implement It is not expected that implementing these potential opportunities would be associated with a material implementation cost impact for the courts.

Ongoing cost impact $0.22m - $0.45m p.a. in avoided travel costs

Within the context of total Appeal Division operating costs, judicial travel-related costs are only a modest item. Nevertheless, the options present scope to achieve a material reduction in the current value of this cost item.

The extent that the options deliver an increase in judicial productivity, there is a potential avoided cost through reducing the pressure for additional resourcing to manage the caseload of the Appeal Division or General Division.


• potential earlier finalisation of disputes (by reducing the number of backlog of first instance matters and pending matters in the Appeal Division), and

• potential increase in earlier settlement or abandonment of appeals, where one or more participants is unable or unwilling to comply with managed appeal timing.

93April 2018

PwC

Appeals management (Opportunities 7 to 9)Summary assessment of opportunities

Summary Assessment Appeals Management

Other impacts There are potential cultural or judicial development advantages available through a reduction in distinction between an appeal judge and a trial judge, particularly where this distinction may create perceptions of relative superiority or inferiority between judges. However, a practice of dynamic utilisation of judges based on their relative capacity rather than the current demand in a more narrow definition of their role, will support improvement in overall judicial productivity in family law.


• Resistance may be encountered from Appeal Division judges to the extent there is a perception of ‘exclusivity’ in their role, and the possible erosion of this exclusivity.

• Utilisation of existing first instance judicial resources for appeals listings will need to be managed in a manner which ensures the productivity benefit of substituting for Appeal Division resources outweighs the foregone efforts of the judge on first instance matters.

• Resistance may be encountered from judges reluctant to relinquish control over scheduling of their sitting days and/or the timing and intensity of listing appeals cases, particularly where this process may drive a significant increase in the average number of sitting days expected of judges.

• Increased intensity in the rate of listing can limit inefficiency when appeals do not occur or are short, but could result in a listed appeal not being heard should all other listed appeals proceed on the day, and/or for an extended period.

• Clear guidelines or principles will be required to provide clarity and consistency in the identification of matters requiring full court listing, and in encouraging a change from the current practice of ‘defaulting’ to a full court hearing.

• If one or more judges, either through design or practice, dominate involvement in full court appeals over others primarily involved in single judge appeals, undesirable cultural outcomes might be generated (e.g. perceptions of relative superiority or seniority).

• The potential capacity that may be released through these initiatives may not be efficiently utilised in the absence of high levels of cross-division utilisation of Appeal Division judges (i.e. there may be insufficient ongoing appeals demand to absorb additional judicial capacity).

94April 2018

PwC

Appeals management (Opportunities 7 to 9)How the opportunities were quantified

Indicative ‘value’ Appeals Management

Single judge appeals The total number of appeals finalised in 2016-17 of 391 is equivalent to approximately 49 per appeal judge1.

In 2016-17, approximately 86% of appeals were heard by the full court. Of these, 98% of the 185 appeals from the FCoA were heard by a full court, and 75% of the 206 appeals from the FCC. It is understood that the number of appeals heard by a single judge in the FCA is approximately 80%. If this is adopted as a general guide to what could be achieved for family law appeals in the FCoA, this suggests approximately 260 full court appeals heard as single judge appeals. Releasing two judges from these 260 appeals is equivalent to capacity to participate in approximately 520 additional matters. For this potential scale of efficiency to be realised, the additional capacity would need to be utilised on first instance family law matters.

Further, assuming that the estimate of an approximate 75% reduction in the number of full court appeals (i.e. from approximately 340 to 80) translates to an equivalent reduction in the requirement for judicial travel to interstate appeals, the 2016-17 travel cost of approximately $0.45m would be estimated to reduce by approximately $0.35m.

Cross-division utilisation Utilisation of first instance judges to constitute full court appeals, would transfer productivity from first instance matters to appeals matters. However, this could be more than offset if the average productivity of Appeal Division judges could be improved by making them available to manage first instance matters in the FCoA (or FCC). In 2016-17, the average finalisations per judicial FTE in the General Division of the FCoA was 114, compared to 49 for finalisations per judicial FTE in the Appeal Division1. If the productivity of an Appeal Division judge could be improved by 50% of this deficit in performance through hearing first instance matters, the potential increase in capacity is equivalent to approximately 234 first instance matters1.

Utilising General Division judges to constitute full court appeals also offers the potential to reduce appeal judge travel costs by substituting a local first instance judge for an interstate Appeal Division judge. Assuming, on average, two Appeal Division judges are required to travel for each full court appeal, if one is replaced with a first instance judge, the 2016-17 travel cost of approximately $0.45m would be estimated to reduce by approximately half (or $0.22m).


1: Assuming Appeal Division judicial FTE of 8, out of total FCoA judicial FTE of 31 (2016-17).

95April 2018

PwC

Appeals management (Opportunities 7 to 9)How the opportunities were quantified (cont.)

Indicative ‘value’ Appeals Management

Managed appeal listing Detail on the sitting days and utilisation rates of individual Appeal Division judges was not available for the purposes of quantification estimates for this report. An alternative approach to estimating potential efficiency gains examined the differential in average sitting days per judicial FTE between the Appeal Division and General Division of the FCoA. The premise is that managed appeals listing (including the scheduling of sitting days) could deliver an increase in Appeal Division judge capacity through an alignment in the average number of sitting days per judge.

This is expected to be a relatively conservative estimate of efficiency opportunity as it does not consider potential efficiency through listing practices which schedule appeals at a rate designed to leverage early finalisation of cases in a sitting day or period (e.g. late withdrawal or abandonment, brief hearing time, etc), which could increase average matters finalised per sitting day.

In 2016-17, the total siting days for all judges in the General Division of the FCoA were approximately 3,355, versus an estimated total of 385 days1 for judges in the Appeal Division. These values are estimated to be equivalent to approximately 140 sitting days per judicial FTE in the General Division, and 48 sitting days per judicial FTE for the Appeal Division2. Based on this analysis, on average, each Appeal Division judge sits approximately 91 fewer days per year than a General Division judge.

If structured appeal listing (and scheduling of sitting days) was implemented such that the deficit in sitting days for Appeal Division judges compared to General Division judges was realised, each Appeal Division judge would sit for an additional 91 days per year, on average (or approximately a 189% increase in sitting days). Based on the 2016-17 estimate of approximately 49 disposals per FTE for Appeal Division judges, this would be equivalent to capacity to finalise approximately 739 additional matters. This estimate is expected to be a relatively conservative estimate as the value of approximately 49 disposals per year per FTE does not consider potential efficiencies which might be achieved through an increase in the ratio of single judge appeals.


1: The estimate of approximately 385 days is based on reported values for 2016-17 of 33 sitting days for the Single Court and 118 for the Full Court. The value for the Full Court was multiplied by the estimated average of 3 judges per Full Court sitting day.

2: Assuming FCoA General Division judicial FTE of 24 and Appeals Division judicial FTE of 8 for 2016-17.

96April 2018

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PwC

Appendix C: General law in the FCC

97April 2018

PwC

General law – current state

Key stats

The FCC deals with significant volumes of family law as well as general federal law applications with general federal law making up approximately 10% (9,700) of total final order applications received by the court.

Of the 9,700 general federal law final order applications, migration matters make up around half with bankruptcy and industrial cases comprising a further 45%.

Although general federal law only accounts for 10% of overall final order applications received by the FCC, based upon judicial FTE breakdown, general federal law accounts for approximately 20% of judicial effort. This indicates that a general federal law matters are on average more complex or time consuming than family law matters.

Opportunities in general federal law matters

Triaging cases upon application in order to determine substantive issues and refer to Federal Court of Australia if required

Development of judicial practice areas to promote judicial expertise in areas of general federal law to promote swift resolution of cases

Show cause listings for migration matters to disincentivise drawing out matters

-90%

FCC family law

85.5


9.7

FCC

95.2

FCC family law

FCC


Other

0.1

Bankruptcy ConsumerMigration Industrial

9.7

3.3

0.1


1.2

5.0

Bankruptcy

Migration


Consumer

Other

Industrial

FCC general federal law final order applications, (’000) 2016-17

FCC total final order applications, (’000) 2016-17

“Other” includes administrative, admiralty, human rights and intellectual property

98April 2018

PwC

Appendix D: Current state – state by state comparisons

99April 2018

PwC

The caseload of the courts

Across the courts, there are some locations experiencing growth in the number of applications lodged, but in the most part, applications have either decreased or remained static over the past five years.

In the FCoA areas of growth include Melbourne (33% growth over 5 years), Adelaide (11%), Canberra (12%). In the FCC, growth exists in northern Australia with Brisbane (8%), Newcastle (16%) and Townsville (14%) experiencing greater numbers of applications.

The caseload among courts

The number of finalisations is falling

The number of finalisations has been falling over the years for both courts in most locations, possibly driven by slight reduction in filings as well as reducing clearance rates. Brisbane, Melbourne and Sydney, and for the FCoA, are the locations finalising the greatest number of matters. Consultations suggested that the 27% increase in number of finalisations at FCoA Parramatta may be in part due to its adoption of an FCC-like case management approach which brings matters forward quickly to cause settlement.

FCoA family law final order applications, 2012-13 to 2016-17

0

2 00

4 00

6 00

8 00

1 ,000

+33%

0

1 ,000

2 ,000

3 ,000

4 ,000

5 ,000

Bri

sba

ne

Ca

nb

erra

Ad

ela

ide

Da

nd

eno

ng

La

un

cest

on

Ho

ba

rt

Da

rwin

Ca

irn

s

+16%

To

wn

svil

le

Sy

dn

ey

Pa

rra

ma

tta

New

cast

le

Mel

bo

urn

e

12-13 14-15 16-1715-1613-14

FCC family law final order applications, 2012-13 to 2016-17

FCoA family law final order finalisations, 2012-13 to 2016-17

0

2 00

4 00

6 00

8 00

1 ,000+27%

0

1 ,000

2 ,000

3 ,000

4 ,000

5 ,000

Da

nd

eno

ng

Ho

ba

rt

Sy

dn

ey

+22%

Pa

rra

ma

tta

Bri

sba

ne

Ad

ela

ide

Ca

irn

s

To

wn

svil

le

Mel

bo

urn

e

La

un

cest

on

New

cast

le

Da

rwin

Ca

nb

erra

14-1513-1412-13 16-1715-16

FCC family law final order finalisations, 2012-13 to 2016-17

100April 2018

PwC

FCoA clearance rates are not keeping pace with filings

In the FCoA, a number of courts have dropped below a 100% clearance rate (finalisations to filings) in recent years, including in Adelaide, Brisbane, Canberra, Launceston, Melbourne and Sydney. This may be explained in part by changes in judicial appointments to those locations. FCC locations at or above 100% in 2016-17 are Canberra, Hobart, Launceston, Sydney and Townsville.

Measures of backlog among courts

The age of matters at time of finalisation is growing in the FCCThe age at which matters are finalised is growing in the FCC. Specific areas of growth in matters older than 12 months at time of finalisation include Adelaide (29%), Canberra (17%), Dandenong (43%), Darwin (27%), Melbourne and Newcastle (both 38%) and Townsville (28%).

Comparatively, the age of FCoA matters is relatively static (albeit older overall than FCC matters). Part of this difference may be attributed to the differences in case allocation between the two courts, where FCoA case allocation is more carefully managed and a greater proportion of matters are transferred to the FCC. In absolute terms, the FCC also manage many more cases.

FCoA family law final order clearance rate, 2012-13 to 2016-17

0

5 0

1 00

1 5 0

2 00

2 5 0

0

5 0

1 00

1 5 0

Ca

nb

erra

Bri

sba

ne

Ad

ela

ide

To

wn

svil

le

La

un

cest

on

Ho

ba

rt

Da

rwin

Da

nd

eno

ng

Ca

irn

s

Pa

rra

ma

tta

Mel

bo

urn

e

Sy

dn

ey

New

cast

le

16-1714-1513-14 15-1612-13

FCC family law final order clearance rate, 2012-13 to 2016-17

FCoA percent of family law final order finalisations older than 12 months, 2012-13 to 2016-17

0

2 0

4 0

6 0

8 0 +47%

0

2 0

4 0

6 0

New

cast

le

Sy

dn

ey

Pa

rra

ma

tta

La

un

cest

on

Ad

ela

ide

Bri

sba

ne

Ca

irn

s

To

wn

svil

le

Ho

ba

rt

Mel

bo

urn

e

Da

nd

eno

ng

+38%

Da

rwin

Ca

nb

erra

14-15 16-1715-1613-1412-13

FCC percent of family law final order finalisations older than 12 months, 2012-13 to 2016-17

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PwC

The age of matters pending is growing

Across the courts, over the five years, the percent of pending cases older than 12 months has generally grown, but particularly in the FCC. In the FCoA, matters pending >12 months have grown in Dandenong (59%), Newcastle (35%), Parramatta (45%), Sydney (26%) and Townsville (61%). All other FCoA courts have decreased or remained static over the five years.

The number and age of transfers is also growingThe courts regularly transfer cases between the courts, with the FCC transferring 100 cases more than received last year. This reflects judicial decisions over complexity and the appropriate court in which a matter should be heard. The number of transfers is increasing. The average time to transfer cases from the FCoA to the FCC is 6.1 months in the 75th percentile (compared to 16.5 months from the FCC to the FCoA).

Measures of backlog among courts (con’d)

0

1 0

2 0

3 0

4 0

5 0

6 0

+61%

0

1 0

2 0

3 0

4 0

Da

rwin

Da

nd

eno

ng

Ca

nb

erra

La

un

cest

on

Ho

ba

rt

Pa

rra

ma

tta

New

cast

le

+68%

To

wn

svil

le

Sy

dn

ey

Ca

irn

s

Mel

bo

urn

e

Ad

ela

ide

Bri

sba

ne

16-1712-13 15-1614-1513-14

FCoA percent of pending family law final order cases older than 12 months, 2012-13 to 2016-17

FCC percent of pending family law final order cases older than 12 months, 2012-13 to 2016-17

0

5

1 0

1 5

0

5

1 0

1 5

2 0

2 5

3 0

Ca

irn

s

La

un

cest

on

To

wn

svil

le

Sy

dn

ey

Pa

rra

ma

tta

Mel

bo

urn

e

New

cast

le

Ho

ba

rt

Da

nd

eno

ng

Da

rwin

Ca

nb

erra

Bri

sba

ne

Ad

ela

ide

15-16 16-1714-1513-1412-13

FCoA family law final order 75th percentile transfer time (months), 2012-13 to 2016-17

FCC family law final order cases 75th percentile transfer time (months), 2012-13 to 2016-17

Launceston included in Hobart

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PwC

The time to trial is growing

Across both courts, the median time to trial is increasing. Over the past five years the national median time to trial has grown from 11.5 months to 17 months in the FCoA. Growth is evident in all locations except Hobart.

The median time to trial in the FCC is slightly lower, although it is also growing in all locations except Launceston and Townsville. The median time has shifted from 10.8 months to 15.2 months.

Measures of backlog among courts (con’d)

Source: FCoA and FCC Case Management Reports

FCoA family law final order cases median time to trial (months), 2012-13 to 2016-17

FCC family law final order cases median time to trial (months), 2012-13 to 2016-17

0

5

1 0

1 5

2 0

2 5

3 0+131%

Dandenong included in Melbourne, Launceston in Hobart and Cairns in Townsville

0

5

1 0

1 5

2 0

2 5

Ca

irn

s

To

wn

svil

le

Ca

nb

erra

Da

rwin

Da

nd

eno

ng

Ho

ba

rt

Ad

ela

ide

Bri

sba

ne

La

un

cest

on

Pa

rra

ma

tta

Mel

bo

urn

e

Sy

dn

ey

New

cast

le

13-14 14-15 15-1612-13 16-17

Launceston included in Hobart and Cairns in Townsville

103April 2018

PwC

FCoA attendance rates far exceed the FCC

The average attendance rate – the number of court events to which parties must attend (commonly with legal representation) – differs significantly between the two courts. In the FCC, the average attendance rate is 4.2, while in the FCoA it’s 6.1.

While attendance rates are dropping across most court locations, the overall difference in rates remains large. The majority of this difference can be attributed to the pre-trial case management practices of the FCoA which requires parties to engage with registrars through ADR and other avenues prior to coming before a judge. In the FCC, the judge manages this process from the point of listing.

Difference in court practice

The use of interim orders is increasing

Interim orders are temporary, time-limited court orders used until the court has made final orders. In family law, these orders are 6-12 months in duration and cover matters such as child custody. Given the nature of these orders, they are also a proxy for cases requiring judicial direction, but which are backlogged. While a matter may receive an initial interim order while ADR is undertaken and can be a legitimate intervention for cases, the use of multiple interim orders suggests a lack of resolution among parties pending finalisation.

In both courts, the number of interim orders to final orders has increased over the past five years. This is particularly the case in the FCoA Canberra (67%), Newcastle (40%), Parramatta (25%), Sydney (20%), Townsville (27%) and Cairns (20%).

FCoA average attendance rates, 2012-13 to 2016-17

FCC average attendance rates, 2012-13 to 2016-17

FCoA ratio of family law interim to final orders, 2012-13 to 2016-17

FCC ratio of family law interim to final orders, 2012-13 to 2016-17

0

5

1 0

1 5-21%

Cairns included in Townsville

0

2

4

6

8

To

wn

svil

le

Sy

dn

ey

New

cast

le

La

un

cest

on

Bri

sba

ne

Da

rwin

Ca

irn

s

Mel

bo

urn

e

Ho

ba

rt

Ca

nb

erra

Ad

ela

ide

Da

nd

eno

ng

Pa

rra

ma

tta

15-1613-14 16-1714-1512-13

Cairns included in Townsville

0

1

2

3 +67%

0.0

0.5

1 .0

1 .5

La

un

cest

on

Pa

rra

ma

tta

Ca

irn

s

To

wn

svil

le

New

cast

le

Mel

bo

urn

e

Bri

sba

ne

Ad

ela

ide

Da

nd

eno

ng

Ca

nb

erra

Ho

ba

rt

Sy

dn

ey

Da

rwin

16-1715-1614-1513-1412-13

104April 2018

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