What rules will apply in the post-merged Federal Magistrates Court?

An issue of great concern to the profession is whether the procedures of the Family Court will be imposed on the Federal Magistrates Court if a merger happens.

This is a matter that no one has provided an answer to the profession about. While it seems an obscure point, many in the profession are of the view that the procedures in the Federal Magistrates Court are often more service focused, and lead to quicker and cheaper results for clients than the procedures in the Family Court, which are often geared to more complex matters.

This was another matter to arise in the Senate estimates committee hearing, again between the Opposition Shadow Attorney-General, Senator George Brandis, and the CEO of the Family Court and acting CEO of the Federala Magistrates Court, Richard Foster.

Here are the edited exchanges:

Senator BRANDIS-
And one must respect the views of the people most immediately affected by these courts, in particular family law litigants who are very strongly of the view that the Federal Magistrates Court ought to be left alone because it does a good job. Mr Foster, I am sure you are aware that one of the several issues in controversy between these courts, were parliament to consent to this integration of proceeding, is the question of whether those federal magistrates who might join the Family Court would have a rule-making power and whether they would be able to promulgate their own rules of court. You are aware that that is an issue of some concern. It is one of the issues raised at the meeting of 12 May with Mr Govey. What is your view on that matter? I suppose that is not fair of me. Let me withdraw that question. You should not have a view. What is your view on that matter speaking on behalf of the Family Court? Then you can tell us your view of that matter speaking on behalf of the Federal Magistrates Court. If the two views are inconsistent then that is hardly your fault.
Mr Foster—Prior to that meeting to which you refer that Mr Govey attended with acting Chief Federal Magistrate Baumann and a number of other federal magistrates, the Chief Justice wrote to the Chief Federal Magistrate expressing in fairly clear terms that it was not and is not her intention, if the structure went through, to change the practices and procedures that exist within the Federal Magistrates Court. In other words, the prevailing culture, the method of doing business, would remain. I believe that her view is that it would make a lot of sense to have a common set of rules primarily based on the Federal Magistrates Court’s rules because of their user-friendly focus—if I can express it in those terms—but with special provision if there was a first division for the justices for the most complex matters that they are dealing with so that it was not one cap fits all. Certainly, the letter clearly expresses the view that there is no desire, willingness or intention on behalf of the Chief Justice of the Family Court to interfere in the operations of a second division if that were to come to be.
Senator BRANDIS—In the course of that answer, did I mishear you or did you say that the Chief Justice of the Family Court thought there should be a single set of rules?
Mr Foster—I think she believes that there should be a set of modified rules which would largely replicate what happens in the Federal Magistrates Court. Then there would need to be special provisions for the first tier for the justices of the court recognising that they are doing the most complex and difficult work and that the way they do that work is necessarily different from what would happen in the principal trial division.
Senator BRANDIS—Cutting to the chase, the Chief Justice wants a single set of rules for both tiers.
Mr Foster—With those exceptions. I am talking about a single set of rules for implementing an action for the processes that are of a more routine nature. The answer is that her view—if I am expressing it properly on her behalf—is that that would be a good thing.
Senator BRANDIS—Do you know, Mr Foster, that the Family Court rules are longer and more
complicated than either the High Court rules or the Federal Court rules? In fact, they are the longest, most complicated, least easily navigable set of rules of any federal court. Mr Foster—I think the Chief Justice, again speaking on her behalf I hope accurately, would recognise that
the Family Court rules are too complex and need to be changed. But to be fair, they are a set of rules that she inherited just before she was appointed as the Chief Justice.
Senator BRANDIS—Have there been no additional Family Court rules promulgated since Chief Justice Bryant has been the Chief Justice?
Mr Foster—I am sure there have been for various reasons, but not a complete review of the rules and that is really what I am suggesting that she is considering.
Senator BRANDIS—If there is to be a single set of rules, by whom would those rules be made? Would they be made by a committee of the senior judges of the court as is usually the custom?
Mr Foster—I really have no idea of how that would work. In the Family Court it is by the majority of judges who vote supporting the rules to see whether the rules are accepted. If you looked at the numbers, if there were 61 ‘federal magistrates’ and only—
Senator BRANDIS—But there would not be 61 federal magistrates absorbed into the Family Court.
Mr Foster—I am just using that as a figure. There would be a significant majority of judicial officers in the new Family Court who would be in the second tier. I do not know what the rule-making provisions would be. It is for others to work out. Certainly, it is not for me to work out.
Senator BRANDIS—I imagine although I have not looked at this that the rule-making powers are conferred by the Family Law Act or the act that constitutes the court. That is a conjecture as to one way in which it might possibly work if all of the judges had, as it were, an equal franchise, but has any thought been given to the way in which in this augmented structure—this two division, two tier court—the rule-making power would be exercised?
Mr Foster—Not to reach any conclusions would be my answer. It has obviously been raised just in informal discussion more than anything else that this is an issue.
Senator BRANDIS—What is your view speaking on behalf of the Family Court as to the way in which it should work?
Mr Foster—That is a matter for the judges.
Senator BRANDIS—The rules of court of course ultimately are promulgated by the judges, but given that the rules of court are one of the most important aspects, if not the most important aspect, that conduce to the efficiency or otherwise of a court they are of immense administrative importance too.
Mr Foster—They are, but how the rules are promulgated is a matter for the judges, not for me.
Senator BRANDIS—What I am asking you, speaking on behalf of the Family Court, is what the view of the court is as to how the rules of court should be promulgated in this new structure?
Mr Foster—I do not think the court has a view on that.
Senator BRANDIS—I also ask you, speaking in your capacity as the acting CEO of the Federal
Magistrates Court, the view of Federal Magistrates Court of how the rules should be promulgated.
Mr Foster—From my understanding, the Federal Magistrates Court would want to have its existing rules retained. In terms of rulemaking power, I have not had any discussions with any federal magistrate about how that might work.
Senator BRANDIS—I do not know if I handed you a copy of the minute of this meeting in Melbourne on 12 May—I do not think I did—but if you go to the foot of the third page, where the discussion of this issue is recorded, you will see that Acting Chief Federal Magistrate Baumann expresses a view about the importance of federal magistrates having clarification of whether they will have control over their practices and procedures. Presumably the federal magistrates who would constitute a lower tier of the Family Court would want to import into that court the existing practices, procedures and rules of the Federal Magistrates Court as it currently operates. Is that right?
Mr Foster—That is quite clear.
Senator BRANDIS—And that is your view, speaking on their behalf?
Mr Foster—I would support that view.
Senator BRANDIS—It goes on to say magistrates are keen to ensure that they can retain control over the manner in which they conduct their proceedings. Chief Justice Bryant has indicated she will be writing to the court to confirm this and has subsequently done so, but there is some concern about the need for some independent rulemaking power consistent with judicial independence. Do you know what that means?
Mr Foster—Not really, no. I must admit I really do not understand what it means.
Senator BRANDIS—I must confess it is a little obscure to me, too. I thought you might be able to help me.
Mr Foster—I am sorry I cannot help you.
Senator BRANDIS—There is a note here that says Chief Justice Bryant, subsequently to this meeting on 12 May, has written such a letter. Could that be produced, please?
Mr Foster—Can I take that on notice and ask the Chief—
Senator BRANDIS—Is it available?
Mr Foster—I do not have it with me.
Senator BRANDIS—You are familiar with the letter?
Mr Foster—I am aware of it, yes.
Senator BRANDIS—What is the date of it?
Mr Foster—I think it was the date of this particular meeting—Tuesday, 12 May. It might have been the day before, but it was certainly only 11 or 12 May, and I do know that a copy of it was hand delivered to Acting Chief Magistrate Baumann prior to the meeting and that one of them was forwarded to the Chief Federal Magistrate.
Senator BRANDIS—Is it the view of Chief Justice Bryant that, were the courts to be integrated in the manner suggested by Mr Semple, those former federal magistrates who would constitute the lower tier of the court would have a say in the making of rules of court equal to the senior tier of Family Court judges? Or is that not her view?
Mr Foster—I do not know what her view is on that.
Senator BRANDIS—Would you take that on notice as well, please?
Mr Foster—I can.
Senator BRANDIS—I warned about this in a speech I made to the Senate the week before last. It concerns me that, if there is going to be a single set of rules, almost inevitably in the way of things the more senior people in the court—the pre-existing Family Court judges—are going to have the say. They are going to be in a position, ever so politely, perhaps, to impose their will on the more junior judges, and the single set of rules that may develop that governs both the upper tier and the lower tier is just going to impose upon the lower tier, who will have displaced the family law jurisdiction of the Federal Magistrates Court, the same old complex, expensive, lengthy Family Court culture. The culture wars, if I may put it that way, within the family law system are going to be resolved by the people with the power—the senior judges.
Mr Foster—I cannot express more clearly than I have previously that that is not the view of the Chief Justice. She has written to the federal magistrates to that effect. I guess it is a question for others to determine how that eventuates, but that is certainly not the view of the Chief Justice. I can say that with some conviction….

Mr Foster—Could I just add one other comment in relation to harmonisation of rules?
Senator BRANDIS—Yes, by all means.
Mr Foster—There has been an informal group set up by the two courts, comprised of Justice Murphy from the Brisbane registry, Federal Magistrate Baumann from the Brisbane registry and Mr Geoff Sinclair, who is the Chair of the Family Law Section of the Law Council.
Senator BRANDIS—I know Mr Sinclair. Mr Sinclair is a big proponent of the Semple report, of course. He is quoted extensively in the press on the matter.
Mr Foster—But this is in relation to harmonisation of rules. That is the first step, and I think it is a clear indication that steps are being taken to have consistent and common rules wherever possible. The area where I see a difference is only for that small area of the justices of the Family Court dealing with the more complex matters, because they deal with matters in a different way—for example, the less adversarial trial in their procedures. But, in terms of the speedier, faster, quicker resolution, I think there is a pretty reasonable recognition that the rules that exist in the Federal Magistrates Court are appropriate and effective.