On 17 February 2021, the Senate passed the Federal Circuit and Family Court of Australia Bill 2019. This legislation abolishes the current Family Court of Australia which means that there will no longer be a stand-alone specialised Family Law Court.
The proposed reform is to combine the Federal Circuit Court (FCC) and the Family Court of Australia into a single generalised court: the Federal Circuit and Family Court of Australia (FCFC).
The FCFC will be divided into two divisions – Division 1 would deal with family law matters including complex matters and appeals, and Division 2 would deal with family law and other federal law matters. Both divisions would operate under a single Chief Justice and Deputy Chief Justice.
The reform is intended to create a “simpler, faster, and cheaper” dispute resolution for family matters. It will be a single-entry point into the court system thus will be easier to navigate because it would establish a common set of rules among the courts, negating procedural discrepancy.
However, the proposed merger of the FCC and the Family Court is not based on any consultation with Australian families or family law experts. Many organisations within the legal profession oppose the abolition of the Family Court and issued an open letter in November 2019 with an updated list of signatories in February 2021. This open letter was signed by 155 stakeholders, including 13 retired judges and many legal support services.
The proposed FCFC does not address the underlying systemic problems of the Family Court, and if it is not funded properly it will struggle. Matters heard in the Family Court need specialised treatment, and the absorbing of the courts may reduce this.
The FCC currently has a broad jurisdiction including bankruptcy, copyright, and migration. It is predicted that there will be times in which these types of cases will take precedence over family matters, increasing delays in the already overloaded system. It may well be that judges with no family law knowledge would end up presiding over complex family law matters.
Complex family law matters, including matters involving family violence, require specialisation of courts to improve decisions and outcomes for families. The safety of children and adult victims-survivors of family violence requires increased specialisation. The proposed merger serves only to undermine that important need.
The Federal Circuit and Family Court of Australia Bill 2019 is yet to receive assent, which usually occurs 5-10 working days after a bill is passed. It is expected that the merge will occur within 6 months of assent, unless a different date is specified when proclaimed. It is expected that the courts will receive $4 million to implement the restructure.
Our experienced Family Law team is happy to discuss how the family law court reforms will affect you.