The Morrison Government’s solution to the woes of the family court system has been given the go-ahead by a two-vote majority in the Senate to the dismay of many stakeholders. The bill was passed thanks to the support of One Nation and independent Rex Patrick, despite vocal opposition from more than 155 stakeholders in Australia’s family law system. The family court merger will collapse the specialist Family Court with the Federal Circuit Court, to create a single court called the Federal Circuit and Family Court (FCFC).
The Government has announced this structural change will streamline family court processes by simplifying the system to create a single entry point and single case management framework that is theorised will reduce delays and backlogs currently being suffered by users of the family court system. The Government argues the merger will create a simpler, faster and cheaper family law system.
But critics, including numerous former family court judges among a coalition of 155 stakeholders who recently voiced their fears over the merger, feel the attorney-general Christian Porter’s hybrid court plan has been rushed, especially given the current parliamentary family law inquiry is due to report in coming weeks. And they say there has been a distinct lack of debate and refusal by the Government to listen to the outcome of numerous family law inquiries in recent years.
Critics have pointed to an inevitable loss of specialisation. For example, Women’s Legal Services chief executive Angela Lynch said it was “a bizarre decision to move from a specialist court to a generalised model”. Read more about the concerns of critics here.
While there’s a clear need for “implementation of harmonised rules and forms between the Family Court and the Federal Circuit Court and simplification..of the Family Law Act”, experts do not believe that a combined generalist court is the answer.
Instead, there’s overwhelming consensus that fixing the ailing family law system requires dealing with the chronic under-resourcing that has occurred over the past decade. The Family Court has “already been starved of funding over the life of this Coalition government with real recurrent spending being almost halved to $58 million each year”. Further, a decline in the number of judges and lack of timely replacement of judges has “left the system at breaking point”.
The merger plan, first unveiled in 2018, was based on a report by consultants PwC Australia, commissioned by Porter’s department, which said the Federal Circuit Court was more efficient at clearing family law cases than the Family Court. However, there has been criticism of the PwC findings that they are “stripped of context [and] misleading”. For one, the Federal Circuit Court figures include many cases where the court made a consent order (the parties reaching agreement without a court hearing).
Mr Porter and PwC have also said the two courts often handle similar cases. In truth, the Family Court deals with the most complex 10 percent of family law matters while the Federal Circuit Court handles mostly straightforward cases.
The Family Court “hears a range of more complex cases, including those involving international child abduction, serious child sexual abuse and family violence, along with cases where the hearing is expected to take more than four days”. Currently, around 70 percent of cases before the Family Court involve allegations of family violence.
But Mr Porter has said the matters the Family Court deals with are “not radically more complex, they’re modestly more complex”. He has also said, in response to concerns over a new general appeals division in the merged court, that “the bulk of family law appeals relate to property disputes, and the court is well equipped to handle the complex legal issues in those cases”.
Attorney-General’s department, deputy secretary Iain Anderson, has said:
“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.”
But there’s no question that it is the Family Court which hears the most intractable and distressing of family law disputes, frequently involving allegations of family violence and child abuse. It’s clear that such matters require specialist intervention and management.
The merger may well cause further gridlocks and delays for family law consumers, because the Federal Circuit Court also has to manage migration, admiralty, administrative, consumer, human rights, privacy matters and more, and its last Annual Report stated:
“[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.”
There has been unanimous agreement over the years from many different stakeholders that Australia’s family court system desperately needs reform. Last year, Mr Porter defended his merger plan by saying “doing nothing is an absolute non-option”.
This is somewhat strange, as there has actually never been the suggestion by the community or the legal profession that “nothing” should be done. Rather, there have been numerous suggestions relating to options other than a merger. The Law Council, for example, outlined alternative proposals as being:
- Retain and properly resource and invest in a specialist standalone family court;
- Consider alternative structural reform; and
- Consult with stakeholders and consider the Australian Law Reform Commission’s (ALRC) recommendations.
In the parliamentary debate the other day, it was reemphasised that the better course of action would be to properly resource the court and hire more judges, not subsume the Family Court into a different jurisdiction. As with the position of the Law Society, it was also pointed out that the Government should take on board the recommendations of the ALRC, which it so far has not done, despite itself having commissioned the ALRC report. One of the damning things the ALRC found was that “the family law system has been deprived of resources to such an extent that it cannot deliver the quality of justice expected of a country like Australia”.
It remains to be seen how this will all pan out and we will keep you informed of developments.
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.