Streamlining the family court system has been frequently debated over the past few years, with the hope that its productivity and efficiency could be improved by eliminating the duplication of processes and confusion experienced by court users who are often bounced between the two Australian courts that hear family disputes, the Family Court and the Federal Circuit Court. The Attorney-General Christian Porter has said the family court ‘merger’ 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. But critics say the merger is deeply flawed. So what’s the problem? Let’s take a look.
Critics of the government’s merger plans say the merged court “appears to be merely an expansion of the generalist Federal Circuit Court at the cost of destroying the more specialist Family Court, which will suffer a loss of specialisation, impacting vulnerable families”.
“The merger bill would abolish the specialist, stand-alone Family Court as we know it by subsuming it into one of the country’s busiest courts, the lower level Federal Circuit Court. The Federal Circuit Court is already struggling through chronic under-resourcing and under-funding to manage less complex family matters alongside its crushing, growing migration workload,” said Law Council President, Pauline Wright.
But a senior government bureaucrat in the Attorney-General’s department, deputy secretary Iain Anderson, recently told The Australian that the merger would result in the courts having “more—not less—specialisation in domestic violence and family law”. He said a “conservative” legal profession is opposed to the merger plan but that it’s being “misrepresented” to the public.
Since the Attorney-General revealed his merger plans in 2018, he has been faced with criticisms that the Family Court was being abolished or eliminated. Many have expressed concerns over a loss of specialist expertise which could dangerously impact victims of abuse going through the system.
Mr Anderson said the proposal was not to abolish the Family Court nor decrease specialisation.
“[The merger will] actually increase specialisation in family law…They’re not going to increase risks to victims of family violence or to vulnerable people, they’re actually going to enhance protections that are available to those people by bringing together the courts and their practices.”
It’s true that the idea is not to eliminate the Family Court altogether. It is to be subsumed into a new “super court” together with the Federal Circuit Court, called the Federal Circuit and Family Court of Australia (FCFCA). The FCFCA would become one court with two separate divisions.
Government: Family Court about property, not families
Proponents of the family court merger point to the fact that the majority of family law matters are resolved in the lower-level Federal Circuit Court, not the Family Court. Mr Anderson told The Australian:
“People…could be forgiven for assuming that the Family Court does all the family law work in Australia…But in fact the Family Court hears 11 per cent of federal family law disputes, and the Federal Circuit Court hears 89 per cent.”
“When people talk about the specialisation of the Family Court, they don’t often appreciate that the Family Court hears more matters involving property than they do matters involving children, so the specialist expertise is about property to a greater extent than it is about children.”
There’s no question that it is the Family Court which hears the most intractable and distressing family law disputes, which frequently involve allegations of family violence and child abuse. It’s clear that such matters require specialist intervention and management. It is for that reason that the court merger plan is causing concern.
As Women’s Legal Services Australia spokesperson, Ms Angela Lynch, elaborates:
“Family violence best practice responses world-wide recommend an enhancement of family violence specialisation in courts – not moves away from it. With about 70 per cent of final matters in the family law courts involving family violence, reforms must prioritise child and victim safety. The Federal Government’s proposed model does not achieve this.”
Federal Circuit Court struggling to cope already
Further, the Federal Circuit Court is already struggling to cope with its caseload, which this year’s Annual Reports have revealed is due to both the COVID-19 pandemic (which one can conceive is a relatively temporary situation), as well as the “significant increase in migration applications filed” (which does not appear likely to magically lessen in future). The Federal Circuit Court’s Annual Report states:
“[W]ithout further resources, on current filing rates, the pending migration caseload will surpass the pending family law caseload in less than two years. This is impacting the Court broadly, but is having a particular impact on the judges who are trying to accommodate hearing more migration cases in a finite amount of available judicial time, which necessarily comes at the expense of their other work.”
The Law Society has noted that the Federal Circuit Court “is facing severe backlogs of more than a year’s worth of migration and family law cases”.
Do you need assistance with a family law matter? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.
