The attorney-general Christian Porter took many by surprise last week when he announced that he would get the ball rolling on family law reform with his mooted merge of the Family Court and Federal Circuit Courts. The radical outcome of a family court merge had not been anticipated to be pushed through before the Australian Law Reform Commission completes its Government-mandated family law review in 2019. If the legislation is passed it will come into effect early next year as well.
Some of the headlines have declared the Family Court has been killed off. Indeed Pauline Hanson is being criticised for taking the credit for this, given she has long campaigned for the abolition of the Family Court. But the Family Court has not actually been eliminated by the family court merge plan: it has been subsumed into a new “super court” together with the Federal Circuit Court. The new court will be called the Federal Circuit and Family Court of Australia (FCFCA).
The FCFCA [will have] two divisions. One division will focus solely on family law and involve existing judges from the FCA. The other will deal with both family law and general federal law matters and involve judges from the FCC.
Streamlining the courts has been frequently debated over the past few years, with the hope that productivity and efficiency of the family court system would be infinitely improved without the duplication of processes and confusion experienced by court users who are often bounced between the courts. The attorney-general says the family court merge will benefit families by giving them a single point of entry into the family law system and not requiring them to deal with two courts with different rules, forms and processes.
There is almost unanimous agreement these days that Australia’s family law system is in trouble, requiring a massive overhaul to fix a situation where families wait up to three years for their cases to be finalised—an unacceptably long time in the life of a child. But the creation of a “super court” through the family court merge is not necessarily seen as the miracle solution. The devil is in the detail, and on closer scrutiny, some argue, the new merged court “appears to be merely an expansion of the generalist FCC at the cost of destroying the more specialist FCA”.
At present, the most complex and traumatic family law cases are heard in the Family Court with specialist judges and staff increasingly experienced in issues surrounding family violence, mental health, parental capacity, and so on. Critics of the government’s merger plans say the merged court will suffer a loss of specialisation, impacting vulnerable families—one headline references criticism of the merger as “‘an act of vandalism’ that could endanger women, children”.
As the Conversation article notes:
This [reduced specialisation] is of particular concern in the context of the proposed new appeal division of the Federal Court. Over time, judges on the appeal court who have no family law experience could be presiding over appeals from trial judges who also have no family law experience.
It’s also widely not accepted that the merger will be some kind of instant panacea to all the family court system’s problems. While streamlining inevitably will improve efficiency, will it be enough to make up for the resource constraints that have hampered the efficient operation of our family court system?
Further, critics question whether the whole focus on fast-tracking cases is even appropriate, arguing families going through the court process, due to their complex needs, must have “a specialist response—not necessarily a fast-track through the system”. Of course, what would be ideal would be a fast specialist response…
Although the attorney-general has also been criticised for announcing the merger without consultation with the industry, “the federal government will undergo a consultation period with the judiciary, legal profession and other relevant stakeholders” before it introduces the legislation in Parliament later this year.
Australian Financial Review (free trial subscription available)
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