Federal Magistrates court to be axed

Federal Magistrates court to be axed

Michael Pelly | November 28, 2008

THE demolition notice placed on the Federal Magistrates Court last week presents the third attempt in less than a decade to change the culture of family law litigation -- all with Diana Bryant as a central figure.

Former coalition attorney-general Daryl Williams turned to the former Melbourne barrister in 1999 to be the first head of the court. And when his successor, Philip Ruddock, was casting around for a new chief justice of the Family Court four years ago, he also settled on Bryant.

Ruddock was sending a message that he thought change could be achieved from within the court. Now the Rudd Government is poised to show faith in Bryant, by putting her in charge of the new court.

Making Bryant the big winner has left the 59 federal magistrates wondering, "What did we do wrong?" Especially when current Attorney-General Robert McClelland complains of "a quite rigid formalistic and cumbersome system". He calls the merger a "reverse takeover in terms of culture, simplification of rules and numbers".

The magistrates did nothing wrong, unless you count adopting a "we're better than the Family Court" strategy in its quest for more funding, better pay, improved status and a redistribution of the workload.

Thirty-six of them will become part of a court which has been a subject of their derision -- if not envy. The Family Court will lose 11 of its 36 judges, with the remaining 25 to handle complex cases and appeals.

It still seems like a pretty big number, until you have a look at their terms and conditions.

Family Court judges get 10 weeks' leave a year and an extra six months every five years. If you dice up the six months and spread it over five years that is 14 weeks a year. Then there is sick leave, writing leave and other leave.

As one wag said: "They are on leave half the time. The poor old federal magistrates get four weeks' leave a year and they are burning themselves out."

There has also been a reluctance to share resources, and that includes everything from tea bags to the more important issue of family consultants.

In the early days of the Family Court, they were called court counsellors and became the first port of call for those entering the system. As time went by, resources became scarce and many of those people moved to other jobs. Those left ended up being monopolised by the Family Court. The consultants are like an assessor or expert witness who helps the judge on particular issues. But the judge still makes the decision.

His "reverse takeover" is a challenge for Bryant that should not be underestimated. However, there is a belief she has been staging her own culture war within the court, that her progress has been thwarted by some of its longer-serving members and that she deserves another chance under different conditions.

Many will retire over the next five years, and Bryant will have great input on their replacements. A combined registry and a new formula for allocating resources will also help. The quarrels with transferring matters between courts should ease. The Federal Court is a different matter. They neither asked for nor wanted the magistrates as part of the court, yet they will get at least 23. When asked in a senate estimates hearing whether the court wanted "to be left alone", the court's CEO, Warwick Soden, said: "I was thinking of the word 'collateral'."

Shadow attorney-general George Brandis sees this as a flaw. "This is the biggest proposed renovation of the federal judiciary in a generation. What it means is the restructuring of the two federal superior courts, yet it is written entirely from the view of one. There is a collateral effect on our courts inevitably."

McClelland says any legislation to force change is still 18 months away, but there is no reason why some of the changes cannot be implemented sooner. This week's announcement that the CEO of the Family Court, Richard Foster, would also be acting CEO of the Magistrates Court is a good start.

The federal magistrates' hurt will be soothed by a pay rise and the lofty title of judge -- moves McClelland supports. But the Attorney-General says they will not be getting the same pension entitlements and holidays as Family Court judges.

McClelland likes his judicial officers working more than six months a year.