Operating context

Environment

Government policy and legislative change

Government policy and legislative change affects not only the jurisdiction of each court and the Tribunal, but their workloads and operating environment. 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 application of current and previous efficiency dividends against the Courts’ 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 Government policy and legislative factors that could impact our environment over the period of this plan include:

• The funding received in relation to the expansion of PPP500 follows a highly successful pilot that commenced in March 2020, and a positive independent review of the pilot by the Australian Institute of Family Studies (AIFS). The AIFS evaluation concluded that the PPP500 pilot was an efficient way of assisting parties with modest property pools to resolve post-separation financial matters. It found that the social return on investment was, for every $1 invested in PPP500, $3.88 of social value was generated for the PPP500 pilot stakeholders. Most of the social value was generated for parties (95 per cent). The expansion aligns with the Courts’ focus on protecting vulnerable parties, particularly in the context of family violence, noting that coercive control is often a defining feature of property disputes within the Courts. The Courts intend to roll out the program nationally in the latter half of 2023, with a number of related operational and infrastructure changes required in support.
• 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 Attorneys-General. 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 (Division 1) and the Federal Circuit and Family Court of Australia (Division 2) continue to 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.
• Under the Federal Budget approved in October 2022, the Federal Circuit and Family Court of Australia (Division 1) and the Federal Circuit and Family Court of Australia (Division 2) received funding to expand the risk identification process known as Lighthouse to 15 registries nationally. This expansion occurred on 28 November 2022, with Lighthouse now operating in various locations nationally. This followed a successful pilot and positive evaluation of the Lighthouse pilot, which commenced in 2020 in the Adelaide, Brisbane and Parramatta registries. Lighthouse utilises a custom-built web application to screen for levels of risk, to assist the Federal Circuit and Family Court of Australia (Division 1) and the Federal Circuit and Family Court of Australia (Division 2) with early identification of family safety risks and management of those risks accordingly. Lighthouse 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 continue to focus on the refinement of Lighthouse to account for the change in eligibility and case volume since expansion, which includes ongoing improvements to IT infrastructure, revision of policies and procedures, ongoing recruitment and continued stakeholder engagement.
• The Federal Circuit and Family Court of Australia (Division 1) and the Federal Circuit and Family Court of Australia (Division 2) also received funding for additional Indigenous Family Liaison Officers to provide cultural support and assist with court proceedings including Lighthouse expansion, noting the prevalence of family violence and other risks in Indigenous communities. The presence of additional Indigenous Family Liaison Officers will also assist with providing greater support to regional and rural areas and engaging with Aboriginal and Torres Strait Islander communities, court users and stakeholders.
• In the October 2022 budget, the Federal Circuit and Family Court of Australia (Division 2) received additional resources over the forward estimates, including the provision of an additional judge, registrars and support staff, to enable access to the informal and cheaper small claims process, following these legislative changes.
• On 30 November 2022, the National Anti-Corruption Commission Act 2022 (Cth) and National Anti-Corruption Commission (Consequential and Transitional Provisions) Act 2022 (Cth) were passed and commenced on 1 July 2023. The Acts established the National Anti-Corruption Commission, an independent agency that prevents, detects, investigates and reports on serious or systemic corruption in the Commonwealth public sector. It also educates the public service and the public about corruption risks and prevention. The staff of the Courts and Tribunal are subject to the National Anti-Corruption Commission. Judges and Registrars in the exercise of their delegated judicial functions are not subject to the National Anti-Corruption Commission.
• The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022, which was assented to on 6 December 2022, introduced amendments to the small claims procedure (commenced on 1 July 2023). These amendments impact the small claims jurisdiction of the Federal Circuit and Family Court of Australia (Division 2), in which claims for unpaid entitlements of less than $20,000, known as ‘small claims proceedings’ are dealt with by registrars and Judges of the Court in specialist, dedicated lists pursuant to the Fair Work Act 2009. Relevantly, these legislative amendments provide for an increase on the cap on the amount that can be awarded through small claims court proceedings from $20,000 to $100,000; and confirmation of the Courts’ ability to award filing fees as costs to successful small claims applicants.
• The Australian Government announced on 16 December 2022 that it will abolish the Administrative Appeals Tribunal (AAT) and replace it with a new federal administrative review body. The Government announced plans to appoint at least 75 additional members to the AAT to address an existing backlog of cases. These reforms may result in a significant volume of matters flowing through to the Courts, if there is an accelerated disposition of the AAT’s caseload, noting that the majority of the Federal Circuit and Family Court (Division 2) migration caseload is comprised of appeals from the AAT. The Courts will liaise with Government with respect to these changes and any additional resources that may be required to manage any influx of cases.
• On 30 January 2023, the Attorney-General released an exposure draft and consultation paper on proposed amendments to the Family Law Act 1975 (Cth). The exposure draft proposes a first tranche of legislative reform addressing the Australian Law Reform Commission’s Final Report No. 135: Family Law for the Future – An Inquiry into the Family Law System and seeks to implement elements of the Government Response to the Joint Select Committee on Australia’s Family Law System. On 29 March 2023, the Family Law Amendment Bill 2023 was introduced and read for a first time in the House of Representatives. A third and final reading occurred and was agreed to on 11 May 2023, before the Bill was referred to the Senate Legal and Constitutional Affairs Legislation Committee with a report due 24 August 2023. The implementation of the legislation would require a number of IT, operational and infrastructure changes to be made. The legislation may also require changes to case management processes depending on the extent of the legal reforms enacted.
• On 29 March 2023, the Family Law Amendment (Information Sharing) Bill 2023 was introduced and read for a first time in the House of Representatives. A third and final reading occurred and was agreed to on 11 May 2023, before the Bill was referred to the Senate Legal and Constitutional Affairs Legislation Committee with a report due 14 June 2023. The proposed legislation would see an enhanced information scheme as envisaged by the National Framework, and will require ongoing engagement with states and territories to facilitate implementation. A number of IT, operational and infrastructure changes would also need to be made in support of the legislation. Information sharing is critical in assisting the Federal Circuit and Family Court of Australia (Division 1) and the Federal Circuit and Family Court of Australia (Division 2) to prioritise safety and this initiative will aid the Courts in ensuring ready access to highly relevant information in family law proceedings.
• In May 2023, the Federal Circuit and Family Court of Australia (Division 1) and the Federal Circuit and Family Court of Australia (Division 2) received funding as part of the 2023–24 Federal Budget in support of two key initiatives:
  • the national expansion of the highly successful pilot dealing with financial disputes between parties with an asset pool of under $500,000 (known as Priority Property Pools under $500,000 or PPP500), and
  • to employ mediators and Court Child Experts to provide dispute resolution services for proceedings under the 1980 Convention on the Civil Aspects of International Child Abduction.
• The staffing of the Courts and Tribunal will be impacted by changes to workplace relations, including those introduced under the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022, the Public Sector Workplace Relations Policy 2023 which sets out the Government’s workplace relations policy as it applies to APS agencies and their employees, and through a whole of government approach to Enterprise Agreements.
• The funding in relation to Hague child abduction matters commences on 1 January 2024 and will allow the Court to make safe and effective alternative dispute resolution opportunities available at an early stage of the process with the aim of diverting families from contested proceedings under the 1980 Convention on the Civil Aspects of International Child Abduction.

Technological improvement

Electronic court files and case management, 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. Modernisation of family law digital court files was completed in 2022–23 and this software forms the basis for ongoing efficiency and reliability improvements to general federal law electronic court files and case management underway in 2023–24.

Hearings, mediation and dispute resolution are now often conducted remotely via Microsoft or Cisco video conferencing, in court, or hybrid with in-person and remote participants. Over 80 per cent of courtrooms nationally have been upgraded to modern videoconferencing and audio, with the remaining courtrooms scheduled in 2023–24.

All courtrooms have standard hearing loop technology for hearing impaired participants. Judicial officers 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 frequently 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 the proceedings is uploaded for later public viewing. This has been well received, in particular by the media, for high profile matters.

Rapid technological changes implemented during and after the COVID-19 pandemic provide greater access to justice to litigants in regional and rural Australia, improved safety for vulnerable litigants and more efficiently and effectively utilise judicial and registrar resources on a national basis.

The Courts and the National Native Title Tribunal are well advanced in the digital space, however further work will be conducted over the life of this plan to embrace and expand these new technologies.

This includes:

• modernising and harmonising core court, case and file management systems
• redesigning court networks to better support remote and hybrid hearings and working
• increasing and upgrading available video conferencing equipment and streaming technology
• enhancing cybersecurity to protect against current and emerging threats
• upgrading underlying platforms to enable ongoing modernisation and improved effectiveness
• taking advantage of the benefits of digital litigation, and
• consolidating services and optimising costs.

In 2022 and 2023, the Federal Court of Australia, the Federal Circuit and Family Court of Australia (Division 1) and the Federal Circuit and Family Court of Australia (Division 2) have continued to utilise both in-person and electronic hearings depending on what best serves the interests of justice. While the majority of final hearings are being conducted in-person, electronic hearings and electronic dispute resolution events continue to be utilised often for front end case management, dispute resolution and otherwise where it is efficient, where it provides increased access to justice, such as for litigants in regional and remote locations, or where there are safety concerns with respect to attending a court registry.

Extensive technological work continues to be undertaken in support of the expansion of Lighthouse to its two primary systems: the Lighthouse Application and the Family DOORS Triage Application. The focus of this work has been improving systems to account for the increased case numbers, an additional 12 registries and case eligibility criteria (parenting only, and parenting and financial). The next phase of this work involves the redevelopment of Family DOORS Triage Application, implementation of a revised parent risk screen and new non-parent risk screen as well as improvements to the Lighthouse Application following the expansion.

Social and economic change

The social and economic impact of the COVID-19 pandemic will have a lasting effect on the Courts, the National Native Title Tribunal, the profession, litigants and other stakeholders. The expectations and types of court users, clients and stakeholders will continue to evolve over the next four years in an adjustment to the hybrid in-person/electronic court environment. While technology provides a lower cost option to meet expectations, defining stakeholder needs and developing tailored responses creates significant workload.

For the Federal Circuit and Family Court of Australia (Division 2) where circuit work is conducted, 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 inaccessible in some areas. The backlogs created by the COVID-19 pandemic in the state courts have created some access issues for the Federal Circuit and Family Court of Australia (Division 2) in utilising state court facilities to conduct circuits. However, the technological achievements and the work of the Courts and the National Native Title Tribunal throughout the COVID-19 pandemic demonstrated that widely available, user-friendly technology can facilitate access to justice in remote and regional locations.

While the Courts have returned to more face-to-face operations, electronic hearings and court events remain central in the front-end case management of family law matters, with registrars conducting a majority of case management hearings and dispute resolution events electronically. The result of these changes is a hybrid in-person/electronic court environment, which has required flexibility and adjustment both from the Courts and from court users and stakeholders. These changes are the subject of ongoing refinement and will remain a focus for the Courts across the four years of this plan.

The work of the Courts has also been impacted generally by economic and social change. For example, judicial workloads in the Federal Court have increased as a result of rises in the number of unrepresented litigants and the rise in number of 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. The Courts are also monitoring the impacts of the changes to the system of judicial review and the appointment of additional AAT members on the migration caseload.

Community awareness and a 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 the Federal Circuit and Family Court of Australia (Division 2). The Courts are focused on safely and appropriately identifying and managing matters involving allegations of child abuse and family violence through a number of key initiatives, including Lighthouse and the continued use of the Notice of Child Abuse, Family Violence or Risk. Where parties identify risk in filed material, the harmonised Notice of Child Abuse, Family Violence or Risk has given the Courts greater insight into the prevalence of a wide range of risk factors in family law proceedings, including family violence, child abuse, alcohol or substance abuse, mental ill-health, abduction and threats of harm.

The Federal Circuit and Family Court of Australia (Division 1) and the Federal Circuit and Family Court of Australia (Division 2) will continue to focus on supporting Aboriginal and Torres Strait Islander families, and the Indigenous Family Liaison Officers will play a pivotal role in this by ensuring the Courts’ responsiveness to the risk profile of Aboriginal and Torres Strait Islander court users.

The three Courts and the National Native Title Tribunal are in the process of developing updated Reconciliation Action Plans, a key focus of which is the recruitment and retention of First Nations staff. This work will be done in conjunction with Reconciliation Australia.

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 introduction of the new post-determination assistance function under section 60AAA of the Native Title Act 1993 following legislative amendments in 2021, the National Native Title Tribunal has received numerous requests for assistance from common law holders and Prescribed Bodies Corporate in relation to native title and related disputes. This work requires a high degree of cultural competence and appropriate resourcing to meet the needs and expectations of Aboriginal and Torres Strait Islander stakeholders.

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 19 applications being filed since the High Court’s decision was handed down. Of the 19 compensation applications filed, one application has been determined, five have been discontinued, two have been struck out, and another two have been dismissed. 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.