Specialisation and expertise of judicial officers

Introduction

15.61 Jurisdictional arrangements and the expertise of judicial officers must be considered together. Judicial officers must be able to deal effectively with any extension of jurisdictional arrangements between care and protection and family law systems. Issues relating to the development of expertise are different for the State and Territory systems and the federal system.

State and Territory magistrates’ courts

15.62 To address some of the problems associated with access to the Family Court, the Commonwealth and the States and Territories have agreed that each State and Territory court of summary jurisdiction can exercise federal family law jurisdiction.^[137] There are no detailed national statistics on the extent of the use of magistrates’ courts for family law matters. Magistrates courts do not have any associated counselling services or primary dispute resolution processes and there are limited Family Court counselling services on circuit in rural areas.^[138]

15.63 Every State has a specialised children’s court that hears juvenile justice and care and protection matters.^[139] In non-metropolitan and remote areas and in the ACT and the Northern Territory, juvenile justice and care and protection matters are usually heard by the generalist magistracy sitting as a children’s court for economic reasons and for convenience.

15.64 Generalist magistrates deal with a range of issues and generally provide an important service, particularly for rural and remote families. However, the level of specialist expertise among generalist State and Territory magistrates exercising federal family jurisdiction and dealing with care and protection matters was raised throughout the Inquiry as of serious concern.

Magistrates frequently do not have the training, experience or the time in a busy magistrates’ court list to give proper consideration to all the family law issues, particularly the complex issues which relate to the determination of what is in a child’s best interests.^[140]

The typical magistrate is a ‘jack of all trades’ for whom children’s matters are one of many areas he or she deals with. They generally do not regard children’s work as a high priority. When they get a child’s case they see it as the short end of the straw and try to get it over with as quickly as possible.^[141]

15.65 Generalist magistrates handle the vast majority of cases that come before Australian courts and already adjudicate on family law, care and protection matters and juvenile justice matters in rural areas. One submission noted that magistrates courts

…house a number of jurisdictions: criminal, juvenile justice, care and protection, coronial, criminal injuries compensation, family, domestic violence, industrial and civil. It is completely unreasonable to expect the Magistracy to be able to administer such a diversity of jurisdictions. The majority of magistrates are drawn from the criminal bar [in Victoria]. It is fair to say that few come to the bench with much familiarity or fondness for family law.^[142]

Another commented

[t]he traditional use of magistrates’ courts has been for quick interim decisions, and here lie the greatest strength and the greatest weakness of these courts. They are generally widespread, relatively easily accessed in all but the most remote areas and exist to make summary decisions. The difficulty is that, while possessing these attributes, they lack the specialised knowledge and experience of the family law jurisdiction. Consequently, at least until new magistrates gain sufficient experience, they fall into traps such as granting far reaching ex parte orders without proper investigation.^[143]

15.66 In the longer term a specialist magistracy should be trained to handle family law and children’s matters, including care and protection and juvenile justice, in all jurisdictions including on circuit in rural areas. There was a great deal of support for the development of such a specialised magistracy in submissions.^[144] In areas where generalist magistrates presently operate on circuit, these specialist family and children’s magistrates could operate on similar circuits. It may mean that each magistrate visits a centre less regularly or sits for a shorter period. A specialist magistracy would assist the development of expertise in family and children’s matters and, in conjunction with the proposed cross-vesting arrangements or a transfer of powers, allow care and protection and family law issues to be dealt with in the one proceeding where necessary.

15.67 The NT Government pointed out that these arrangements may suit larger States. In the Territory, however, there are fewer magistrates and there is less capacity to become highly specialised.^[145] The Inquiry recognises these problems but considers that attention should be given by the smaller jurisdictions to the introduction of a specialist magistrate in the future. The NSW Government submitted that the proposal needs greater consideration and has resource implications.^[146] The proposal does have costs implications but it does not require a new infrastructure or an immediate increase in the number of magistrates.

A Family Court magistracy

15.68 The introduction of a federal magistracy that specialises in family matters would further streamline the jurisdictional arrangements for the determination of family law and care and protection matters, particularly under the proposed cross-vesting scheme or with a transfer of powers. It would allow matters dealt with by State and Territory magistrates exercising family law jurisdiction to be heard at a similar level in the Family Court. Further, a federal family magistracy would simplify the court’s structure, increase its capacity and reduce litigation and court costs. It has several influential supporters, including the Family Law Council^[147] and the Chief Justice of the Family Court.^[148] It is currently being considered by the Attorney-General.^[149]

15.69 Federal magistrates should be specialists in family law. They must also have expertise in care and protection to enable them to deal with matters under the proposed cross-vesting arrangements or transfer of powers. If federal magistrates are to be generalists, they may well experience the same difficulties as State and Territory generalist magistrates discussed above.^[150]

15.70 These magistrates must be judicial officers in their own right rather than exercising delegated jurisdiction as judicial registrars of the Family Court do at present. These magistrates will be able to hear disputed matters and to deal with a sufficient proportion of matters in the Family Court so as to ease the burden on judges and reduce delays only if they are judicial officers.

The development of expertise

15.71 At present, State and Territory magistrates receive limited training in family law and children’s issues. For example in NSW magistrates receive two days pre-bench induction and a one week residential training course in their first year on the bench. There are also five days of continuing judicial training for all magistrates each year. However, this training covers a range of issues and is not directed specifically to care and protection or family law issues.^[151] Although the Family Court has been active in ensuring that its judges receive training in several areas, particularly in gender issues and cross-cultural awareness, it has not introduced a course specifically on children’s issues.

15.72 The lack of training of judicial officers was raised as an issue of considerable concern in submissions.^[152] One submission noted that ‘…the training needs of those who deal with children’s issues have always been a relatively neglected area in the Australian legal system’.^[153] Another noted ‘…the tendency of some magistrates to underestimate applicants’ fears, trivialise complaints, adjourn cases repeatedly and lack sensitivity and training to adjudicate family issues’.^[154]

15.73 All judicial officers in both federal and State and Territory systems who hear family law and children’s matters, including care and protection and juvenile justice matters, should receive specialised training in children’s issues.

15.74 Whether or not a specialised magistracy is introduced in either the federal or State and Territory jurisdictions, there should be a core training program for judicial officers hearing family law and care and protection matters dealing particularly with communication with children, child development, family dynamics and the substantive areas of law. Given their developing experience in dealing with child abuse matters and in the light of the recommendations made in this chapter, it is important that Family Court judicial officers also develop expertise in issues relating to child abuse and in the substantive law of the care and protection jurisdictions. This training should include annual professional development conferences and more intensive training.^[155]