As has been widely reported, the Federal government has passed a bill which will lead to the abolition of the Family Court of Australia. This was done despite strong opposition from major legal bodies, legal professionals, domestic violence services, community legal services, and the legal community generally. It has also been done merely weeks before the findings of a parliamentary inquiry into the family law system was due to be handed down.
So you may ask – what does this all mean?
Merger with the Federal Circuit Court
Essentially, the Family Court will be subsumed within a division of the Federal Circuit Court.
Unlike the Family Court, which is a stand-alone specialist court dealing with all aspects of family law cases, the Federal Circuit Court has jurisdiction over a broad range of cases, including bankruptcy, copyright, and immigration matters. However 90% of its current workload is in family law.
The current Family Court will become the Federal Circuit and Family Court of Australia (Division 1), while the Federal Circuit Court of Australia will become the Federal Circuit and Family Court of Australia (Division 2). Like the courts that they would be replacing, the Division 1 court will deal exclusively with family law matters, including the most complex matters, while the Division 2 court will deal with both family law and other federal law matters.
Both divisions would operate under the leadership of a single Chief Justice and Deputy Chief Justice. All Division 1 judges would be able to hear appeals either as a single judge or as part of a full court.
The merger is likely to come into effect in around September 2021.
Why the merger is controversial
Currently, those seeking to have cases determined by the Family Court generally have to wait up to 2 years before their cases are finalised. The Attorney General believes that a core benefit of the merger is that it will simplify the system by creating a single-entry point, with one set of forms, procedures, rules and practice management styles, making the court process easier for families to navigate.
However ,this view is not shared by many who work within the family law system. An open letter signed by 157 stakeholders (including retired judges, major legal bodies, legal professionals, domestic violence services, community legal services, and the legal community) implored the government to consider alternatives to the abolition of the Family Court, stating:
“Any reform should strengthen a system, not lead to the diminution of specialisation. If the Government’s proposed reforms proceed, we will lose a stand-alone specialist superior family court.
In acknowledging the need to prioritise the safety of children and adult victims-survivors of family violence in the family law system, government commissioned inquiry after inquiry has recommended increasing specialisation in both family law and family violence, including the recent Australian Law Reform Commission inquiry into the family law system. We believe this should be a Government priority.
We understand and support having a single entry point to the family courts and common rules so the family law system is easier for families to navigate. We understand this is a key reason why the Government is seeking to reform the family courts. However, there are different ways this can be achieved. And this can be done without abandoning the benefits otherwise available to children and families from a properly resourced and specialised court system.”
The proposal to merge the courts was based on a review conducted by leading accounting firm PwC, which asserts that the new structure will allow the Federal Circuit Court judges to deal with cases more expediently.
However opponents of the merger believe that simple solutions, such as better funding and resourcing of the system through the employment of additional judges and Registrars, would have an immediate positive impact on delays, without the need to do away with the specialist Family Court. Similarly, simplification and unification of the rules could have been achieved without the abolition of the Family Court. Alternatively, collapsing the Federal Circuit Court into a division of the Family Court would have preserved the specialist family law court, whilst still achieving a single entry point and a simplification of the court procedures and rules generally.
It was noted by the Australian Law Reform Commission in its 2019 review of the family law system that, when the Family Court was established, the significant increase in incidents of family violence and child abuse could not have been foreseen. And since that time, resourcing provided to our courts has been reduced, rather than expanded. Further, the impact of COVID 19 government enforced lockdowns has also led to an increased need for family law advice and litigation.