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Family Law

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10 JAN 2013

David Hodson on International Family Law: What do you call a judge and how much to pay for the privilege?

International Family Law Practice by David Hodson

David Hodson

Two developments late last year in Australia have interesting reflections for other countries, and give timely warnings and alerts of potential government actions. How should judges be described and does it have any impact on the respect for the judicial system or indeed respect by the judges for that system? To what extent should court fees be self-funding?

Federal magistrates who undertake the bulk of the family law work in Australia have a new name. Their court is now the Federal Circuit Court of Australia and they are now circuit judges rather than magistrates. There is a lot behind the change of name.

The Federal Magistrates Courts were set up in Australia in June 2000 to ease the pressure on the Australian Family Court, equivalent of the English High Court, at both Family Court Judge level and at Judicial Registrar level, the latter being often in practice the district judge equivalent of the English Divorce County courts. Initially set up in the major centres, it was expanded.

But practitioners are cautious creatures. Although it was not the state and local magistrates court dealing with crime, it was invariably situated in or near those courts rather than in the more luxurious surroundings of the Family Court buildings. Clients and lawyers would meet very different people in the court waiting rooms which were unattractive, cold (or more often appallingly hot), with the aura of crime and bottom end of the social market legal work. It's the reason why most English family lawyers avoid the Family Proceedings Court wherever possible. Action had to be taken by the authorities to persuade cases into the Federal magistrates. This occurred in the middle of the last decade.

First, it was announced divorce proceedings had to be commenced in the Federal magistrates. This is different to England as in Australia the divorce proceedings are freestanding from financial claims. Nevertheless it meant practitioners at least had to discover the local Federal Magistrates court! Familiarity began. It was a start. Secondly, the low financial cap on the powers of the Federal Magistrates Court was removed. They now had almost the same powers as the Family Court. No longer any reason not to issue in the Federal magistrates. Thirdly, there were no more appointments of Judicial Registrars in the Family Court. They were gradually phased out. Fourthly, the calibre of the appointed Federal magistrates was very high. Some of the very best senior solicitors and barristers practising in Australia when I was there are now Federal Magistrates. Their decisions are openly reported as precedents. They deal with the whole range of work including international. They are highly respected by their peers

But there was still unease. There were issues about rates of pay, the court buildings and similar. It has been a live issue over the past five years. What to do?

The Australian government did what many other governments do in similar circumstances: change the name and hope everyone will be happy!

The reason given by the government was to reflect the importance in the judicial system and that the role and responsibilities of a federal judicial officer was significantly different to that of a state magistrate. Henceforth the Federal Magistrates Court is now the Federal Circuit Court of Australia; terminology which will find irony back in England where it is many centuries since the monarch went out on circuit with his judicial officers! The Federal Magistrate now the circuit judge. I know many of my friends on the Australian bench are pleased at this development. Description is important as it does go to status, respect and integrity; crucial elements in any judicial system. How long it is before other issues arise is a matter for the future. It is a commendable development.

There will still be the transfer up to the Family Court of complex and intractable disputes, in a way not dissimilar with the transfer from district judge to High Court in England

The other development has been a significant increase in court fees. At the Australian biannual family lawyers' conference in Tasmania in October, the Attorney General for the government explained the intention of making court fees pay the cost of the court service as much as possible. The increases have been large, and introduced with very short notice, effective 1 January 2013. By way of some examples: divorce issue fee up from $577 to $800, application for a consent order from $84 to $145, daily hearing fee (first day is free) from $638-$765, setting down for hearing fee from $638-$765, combined application for children and property orders now $500 and general initiating application from $255 up to $305. These are dramatically in excess of the rate of inflation. The government says it will allow payment for new court resources. Practitioners are more cynical. Many are understandably anxious about the impact on access to justice and the position of the more vulnerable applicants.

In as far as it has happened in Australia, it may well happen in England and undoubtedly has already happened in other countries. We must stay alert in our separate jurisdictions to what is happening elsewhere in the world.

David Hodson is a Partner at The International Family Law Group LLP. He acts in complex family law cases, often with an international element.  

He is an English specialist accredited solicitor, mediator, family arbitrator, Deputy District Judge at the Principal Registry of the Family Division, High Court, London and also an Australian qualified solicitor, barrister and mediator. He is a Fellow of the International Academy of Matrimonial Lawyers and chair of the Family Law Review Group of the Centre for Social Justice.

David is the author of a new major reference work, The International Family Law Practice as well as A Practical Guide to International Family Law (Jordan Publishing, 2008). He can be contacted on dh@davidhodson.com.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.

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