Operating context

This section describes how the Federal Court of Australia entity will pursue its environment, cooperative relationships, key capabilities and risk oversight and management strategies over the period 2022–23 to 2025–26.

Environment

The Courts and the National Native Title Tribunal undertake regular reviews of their operating environments, challenges and risks to determine performance goals and operational plans each year. A review of the external environment suggests that the key environmental drivers are government policy and legislative change, technological improvement, and social and economic change.

COVID-19 continues to have an impact on our environment at all levels and will continue to do so over the four years of this plan as we capture our lessons learned and apply this knowledge to build and improve on existing resources, products and services. Supporting the delivery of essential services in the administration of justice throughout the COVID-19 pandemic remains a key priority for the Courts and the National Native Title Tribunal. This includes workforce planning and capability actions and continuing digital transformation and information and communications technology reform to support the delivery of Court and Tribunal services.

Government policy and legislative change

As a result, the Courts and the National Native Title Tribunal need agile and flexible resources and systems to ensure we can respond to change in the fastest and most cost-effective way.

The Federal Court is anticipating changes as a result of incoming government policy decisions, however specific details and the impact of any potential changes is currently unknown.

The application of current and previous efficiency dividends against the Court’s property operating funding has continued to affect the entity’s budgets. The Courts will continue to discuss the current property funding shortfalls with Government to ensure there are adequate resources for the effective administration of justice.

Existing policy and legislative factors that could impact our environment over the period of this plan include the following:

• The Federal Circuit and Family Court of Australia Bill 2019 and the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019 passed both houses and received Royal Assent in March 2021 with a commencement date of 1 September 2021. The Federal Circuit and Family Court of Australia Act 2021 brought together the administrative structure of the Family Court and the Federal Circuit Court and aligned their operations in the family law jurisdiction. The purpose of the reforms was to create a single point of entry into the family law system, promote common rules, forms, and case management processes, and to ensure families are able to have their matters dealt with as quickly, efficiently and as cost effectively as possible. The single point of entry for all family law matters through the Federal Circuit and Family Court of Australia (Division 2) is also intended to simplify the filing process, facilitate proper triage of cases and reduce transfers between the two Courts.
• In the Federal Budget in May 2021, the Government announced a significant injection of funding to assist the Federal Circuit and Family Court of Australia to implement a new case management pathway, including additional Senior Judicial Registrars, Judicial Registrars, Court Child Experts, Indigenous Liaison Officers and support staff. These resources have been utilised in three key areas of the case management pathway so that judicial resources can focus on the most complex matters, trials and judgment writing; namely front-end triage, duty work and case management, interim decision making, and increased dispute resolution. These resources will enable the Courts to more efficiently deal with the family law caseload.
• Throughout 2020 and 2021, the then Family Court of Australia and Federal Circuit Court of Australia worked to harmonise the rules of court that apply in the family law jurisdiction, the case management pathway, procedures and court forms. The rules harmonisation process was undertaken by the Joint Rules Harmonisation Working Group, comprising an independent Chair, the Hon. Dr Chris Jessup QC and then the Hon. Ray Finkelstein AO QC, two supporting barristers, and a Joint Committee comprising judges of both courts.
• On 1 September 2021, the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 and the Federal Circuit and Family Court of Australia (Division 2)(Family Law) Rules 2021 commenced, along with a suite of practice directions applicable to the family law jurisdiction. This includes the Central Practice Direction – Family Law Case Management, which sets out the standard case management pathway for all family law matters.
• In the Federal Budget in March 2022, the Federal Circuit and Family Court of Australia (Division 1) and (Division 2) received funding to expand the Lighthouse Project model into 15 registries. This followed a successful pilot and positive evaluation of the Lighthouse Project in the Adelaide, Brisbane and Parramatta registries which commenced in 2020. The model utilises a custom built web application to risk screen to assist the Courts with early identification of family safety risks. Cases are then directed to appropriate case management pathways, safety planning and service referrals. High risk cases are allocated to a dedicated high risk list, the Evatt List, for case management by specialised and highly experienced Judges, Senior Judicial Registrars, Judicial Registrars and Court Child Experts.
  

  This important project aligns with the Courts’ focus on protecting vulnerable children and parties, particularly in the context of family violence, and delivering positive public safety and health outcomes.

  The Courts also received funding for additional Indigenous Liaison Officers to provide cultural support and assist with court proceedings including the Lighthouse Project model expansion, noting the prevalence of family violence and other risks in Indigenous communities. The presence of 11 additional Indigenous Liaison Officers will also assist with providing greater support to regional and rural areas.
• The Australian Law Reform Commission (ALRC) conducted a wide-ranging review into the family law system. The final report of the ALRC, delivered in March 2019, recommended significant reforms of relevance to the family law courts. The Courts will continue to engage with government and key stakeholders regarding the implementation of a number of these recommendations.
• A further inquiry into the family law system was announced in September 2019 when the Joint Select Committee on Australia’s Family Law System was appointed by resolution of the Senate and House of Representatives on 18 and 19 September 2019 respectively. The terms of reference direct the Committee to examine a number of aspects of the family law system. The Committee published two interim reports, the second of which provided a number of recommendations and dealt with the substantive issues. The Committee published a third report which addressed the child support system and a final report. The Joint Select Committee recommended the national rollout of the Lighthouse Project and the PPP500 Pilot.
• On 4 June 2020, the House of Representatives Standing Committee on Social Policy and Legal Affairs announced an inquiry into family, domestic and sexual violence. The terms of reference specifically include the adequacy of the evidence base around the prevalence of domestic and family violence, and data collection from institutions including the Courts. A final report was handed down in March 2021 which provided 85 recommendations, however these are not directly related to the Courts.
• In November 2021, the National Strategic Framework for Information Sharing between the Family Law and Family Violence and Child Protections Systems was endorsed by the meeting of Attorney-Generals. The Framework aims to promote the safety and wellbeing of adults and children affected by family violence and child abuse, and support informed and appropriate decision making in circumstances where there is, or may be, a risk of family violence or child abuse. The Federal Circuit and Family Court of Australia will collaborate on the implementation and delivery of the Framework to enhance information sharing and collaboration between the federal family law and State and Territory child protection and family violence systems.
• The Native Title Legislation Amendment Act 2021 (Cth) received royal assent on 16 February 2021, and fully came into force from 25 September 2021 when the final measures, which relate to applicant decision making and replacement of applicants, commenced.

Technological improvement

Electronic and digital court files, along with eFiling and eLodgment services, reduce cost and time for litigants and enable efficient national operations for the Courts and the National Native Title Tribunal.

Hearings, mediation and dispute resolution are now conducted remotely via Microsoft Teams or Cisco video conferencing, in court, or a hybrid approach with in-person and remote participants. This allows judicial officers to balance the complexity of the matter, and the benefits of in-person appearance and efficiency for participants. For example, case management and interlocutory hearings may be managed via video conference to progress efficiently through listed matters, and vulnerable parties can be securely connected to the Court without the potential impact of physical proximity to other parties.

In line with the principles of open justice, live streaming is now used to allow the media and interested members of the public to openly and transparently view proceedings where appropriate. In some cases, such as where there are privacy or security issues, edited video of proceedings is uploaded for later public viewing. This has been well received, in particular by the media, for high profile matters.

The Federal Circuit and Family Court of Australia (Division 1) and (Division 2) have responded to the COVID-19 pandemic through key initiatives such as the national electronically based COVID-19 List to expeditiously deal with family law matters related to the pandemic where they had a significant connection to COVID-19.

These rapid technological changes have provided greater access to justice to litigants in regional and rural Australia, improved safety for vulnerable litigants and more efficiently and effectively utilised judicial and registrar resources on a national basis.

In 2022, the Federal Circuit and Family Court of Australia (Division 1) and (Division 2) are continuing to utilise both in-person and electronic hearings depending on what best serves the interests of justice. The majority of final hearings are being conducted in-person, however electronic hearings and electronic dispute resolution are being utilised where efficient or where it provides increased access to justice, such as for litigants in regional and remote locations, or where they have safety concerns about attending a court registry.

In 2022, the Federal Circuit and Family Court of Australia (Division 1) and (Division 2) are focused on the expansion of the Lighthouse Project model into 15 registries. This follows a successful pilot and positive evaluation of the Lighthouse Project in the Adelaide, Brisbane and Parramatta registries which commenced in 2020. The model utilises a custom built web application to risk screen and triage all new parenting only applications into three levels of risk, assisting the Courts with early identification of family safety risks. Cases are then directed to appropriate case management pathways, safety planning and service referrals. High risk cases are allocated to a dedicated high risk list, the Evatt List, for case management by specialised and highly experienced Judges, Senior Judicial Registrars, Judicial Registrars and Court Child Experts. This important project aligns with the Courts’ focus on protecting vulnerable children and parties, particularly in the context of family violence, and delivering positive public safety and health outcomes. The Courts have also commenced a program of engaging Indigenous Liaison Officers to support Aboriginal and Torres Strait Islander litigants and children in family law.

Social and economic change

The impact has been felt across all the Courts and the National Native Title Tribunal. It has been particularly felt in the family law jurisdiction, where stay-at-home restrictions and the economic ramifications of the pandemic have placed additional pressures on families already dealing with separation and co-parenting and led to an increase in urgent applications and allegations of family violence. The pandemic has also impacted the profession, who have had to transition to remote working in a very short amount of time and familiarise themselves with a wide range of different videoconferencing platforms, and now transition back to a hybrid working environment with both in-person and electronic court hearings.

The expectations and types of court users, clients and stakeholders will continue to change over the next four years. The ongoing development of tailored services and communications, convenience and personalisation are now expected by the stakeholder groups serviced by the Courts and the National Native Title Tribunal. While technology provides a lower cost option to meet this expectation, defining stakeholder needs and developing tailored responses creates significant workload.

For the Federal Circuit and Family Court of Australia (Division 2) that conducts circuit work and the National Native Title Tribunal, this also includes maintaining a balance between leveraging the benefits of technology to improve access, but also ensuring it meets the needs of clients in remote areas where access to technology can be not only cost prohibitive, but more importantly, inaccessible in some areas. However, the technological achievements and the work of the Courts and the National Native Title Tribunal throughout the COVID-19 pandemic has demonstrated that widely available, user-friendly technology can facilitate access to justice in remote and regional locations. With the easing of COVID-19 restrictions, the Courts have transitioned to more face-to-face operations. This being said, electronic hearings and court events will still be maintained in appropriate matters, including those which involve family violence safety considerations.

For example, judge’s workloads have increased as a result of rises in the number of unrepresented litigants and, in the Federal Court, class actions.

In addition, the Federal Circuit and Family Court of Australia (Division 2) has continued to receive a significant volume of migration filings that is placing a strain on that Court. This trend is expected to continue over the four years of this plan.

Community awareness and focus on matters involving family violence and allegations of child abuse remains high, with resulting impacts on the Federal Circuit and Family Court of Australia (Division 1) and (Division 2). The Courts are focused on appropriately identifying and handling matters involving allegations of child abuse and family violence through a number of core projects, including the Lighthouse Project and the Notice of Child Abuse, Family Violence and Risk.

The harmonised Notice of Child Abuse, Family Violence or Risk has given the Court greater insight into the prevalence of a wide range of risk factors in family law proceedings, and also the prevalence of allegations of multiple risk factors, including family violence, child abuse, alcohol or substance abuse, mental ill-health, abduction and threats of harm, where parties are willing to make those allegations in filed material. It is accepted that there is a particular need to focus on supporting Aboriginal and Torres Strait Islander families where a number of these risk factors can be pronounced.

The native title system continues to mature, with the National Native Title Tribunal impacted by the ongoing increase in the determination of native title claims. This has placed greater emphasis on the challenges facing Prescribed Bodies Corporate and how native title holders can leverage economic development from the recognition of their native title rights and interests. Since the High Court’s decision in Northern Territory v Mr A. Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples [2019] HCA 7 (Timber Creek Compensation Claim), there has been an increase in the filing of compensation applications, with 16 applications being filed since the High Court’s decision was handed down.

Of the 16 compensation applications filed, two applications have been discontinued, another two have been struck out, and the remaining compensation applications are progressing in the Federal Court. The filing of the compensation applications has translated into increased workloads for the National Native Title Tribunal in terms of geospatial mapping and notification of these applications.