Specialisation and expertise of judicial officers


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.

Recommendation 130 States and Territories should develop a specialist magistracy to exercise federal family law jurisdiction and to handle care and protection and juvenile justice matters. All major population centres should have their own specialist family and children’s magistrates, while in more remote areas specialist magistrates should operate on circuit.

Implementation. The Attorney-General through SCAG should seek the agreement of the States and Territories to the development of this magistracy.

Recommendation 131 States and Territories should produce uniform statistics on family law matters heard in magistrates’ courts.

Implementation. The Attorney-General through SCAG should seek the agreement of States and Territories to a common approach to data collection.

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.

Recommendation 132 A specialist Family Court magistracy should be established. These magistrates should be judicial officers in their own right, empowered to hear and determine contested children’s matters.

Implementation. The Attorney-General should introduce a specialist federal magistracy for family matters.

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]

Recommendation 133 Judicial officers, including State and Territory magistrates, exercising federal family jurisdiction should receive training in children’s matters. Training for State and Territory magistrates could be provided by members and staff of the Family Court during annual training conferences. Training should include material on

  • child development

  • communication skills and appropriate language for communicating with children

  • family dynamics

  • issues surrounding disclosure of and family dynamics concerning child abuse

  • cross-cultural awareness.

Implementation. In conjunction with other judicial education bodies, AIJA should develop a national core syllabus for this training.

Recommendation 134 All magistrates and judges who hear care and protection matters should be trained in children’s issues. Training should include simulated clinical exercises and feedback on the use of appropriate language and communication with children.

Implementation. In conjunction with other judicial education bodies, AIJA should establish minimum training requirements for the children’s court magistracy and judiciary and set guidelines for training programs to be implemented in each jurisdiction.

[137] Family Law Act s 69J(2).

[138] rec 139 relates to Family Court counselling and dispute resolution services.

[139] Children’s Court Act 1987 (NSW); Children’s Court of Western Australia Act 1988 (WA); Children’s Court Act 1992 (Qld); Children and Young Persons Act 1989 (Vic); Child Welfare Act 1960 (Tas); Youth Court Act 1993 (SA).

[140] North Qld Women’s Legal Service DRP Submission 45.

[141] Darwin Practitioners’ Forum 16 July 1996. See also eg National Legal Aid DRP Submission 58; Copelen Child and Family ServicesDRP Submission 37.

[142] Federation of Community Legal Centres (Vic) IP Submission 129.

[143] Australian Association of Social Workers IP Submission 207.

[144] eg J Saunders IP Submission 21; H Wingate IP Submission 28; Catholic Education Office IP Submission 38; Association of Heads of Independent Schools IP Submission 55; Children’s Protection Society IP Submission 108; Youth Advocacy Centre IP Submission 120; Fitzroy Legal Service IP Submission 126; Federation of Community Legal Centres (Vic) IP Submission 129; Law Institute of Vic Family Law Section IP Submission 173; Townsville Community Legal Service IP Submission 181 & DRP Submission 46; Barwon Adolescent Taskforce IP Submission 188; Qld Law Society IP Submission 190; Church Network for Youth Justice IP Submission 212; Kreative Kids DRP Submission 35; North Qld Women’s Legal Service DRP Submission 45; Melbourne Practitioners’ Forum 28 May 1996; Canberra Practitioners’ Forum 6 May 1996; Wagga Wagga Practitioners’ Forum 9 May 1996.

[145] DRP Submission 71.

[146] DRP Submission 86.

[147] Family Law Council Magistrates in Family Law: An Evaluation of the Exercise of Summary Jurisdiction to Improve Access to the Family Law AGPS Canberra 1995, 2.

[148] Family Court of Australia Annual Report 1994–95 Family Court of Australia Sydney 1995, 24. See also Taxi Employees’ LeagueDRP Submission 21; Kreative Kids DRP Submission 35; North Qld Women’s Legal Service DRP Submission 45; Townsville Community Legal Service DRP Submission 46; Women’s Legal Service DRP Submission 68; SA Children’s Interest Bureau Board DRP Submission 79; Canberra Practitioners’ Forum 6 May 1996. The Family Court of WA has instituted a system whereby registrars are able to sit as stipendiary magistrates under the Stipendiary Magistrates’ Act 1957 (WA): Family Court Act (1975) WA s 23(1). These magistrates are thereby able to exercise the federal family jurisdiction conferred on State courts of summary jurisdiction by the Family Law Act.

[149] Attorney-General’s Dept DRP Submission 52.

[150] See paras 15.64-65.

[151] I Pike, NSW Chief Magistrate Minutes of Meeting Sydney 5 December 1996.

[152] eg SA Dept of Family and Community Services IP Submission 110; J Benfer, E Drew & K Shepherd IP Submission 119; Federation of Community Legal Centres (Vic) IP Submission 129; SAChildren’s Interest Bureau IP Submission 156; Berry Street IP Submission 159; Law Institute of Vic Family Law Section IP Submission 173;Townsville Community Legal Service IP Submission 181; Community Services Australia IP Submission 201; Australian Association of Social Workers IP Submission 207; North Qld Women’s Legal Service DRP Submission 45; G Vimpani Public Hearing Submission Newcastle14 May 1996; Melbourne Practitioners’ Forum 28 May 1996; Newcastle Practitioners’ Forum 13 May 1996.

[153] Australian Psychological Society IP Submission 131.

[154] Community Services Australia IP Submission 201.

[155] Training is equally important for counselling, mediation and report writing staff and indeed for all court staff who are likely to have contact with children: see paras 16.24-25, recs 137-138. Issues of training for legal representatives in family law and care and protection matters are addressed at paras 13.123-132, recs 84-86.