In May 2018, attorney-general Christian Porter announced his plans for merging the Family Court of Australia and the Federal Circuit Court of Australian, with the intention that the new system would take effect on 1 January 2019. But the timing of Mr Porter’s family court reform plans hit a snag in the Senate last week.
Currently, in all states except WA which has its own Family Court, the Family Court of Australia typically hears more complex family law matters (such as those involving serious family violence or child abuse, international family law disputes, or complex financial matters) while the Federal Circuit Court deals with all other family law matters.
The aim of Mr Porter’s significant reform plan is to streamline the court system and stop matters being bounced back and forth between the two systems, to reduce waiting times for families and to improve the general efficiency of our family law system.
The family court reform plans had already come up against opposition from parts of the legal industry as well as domestic violence groups, while Mr Porter has also been criticised for not having consulted with stakeholders, including the family law-consuming public, before introducing his reforms to parliament.
And last week, political stoushes occurred on the issue, with Mr Porter’s family court reform bill now having been referred to an inquiry by the Senate’s Legal and Constitutional Affairs Legislation Committee after voting by Labor, the Greens and crossbench senators.
The inquiry’s reporting date was slated for 15 April 2019, but government members of the Committee overturned that vote at a meeting last week and instead set a consultation date of 14 September 2018 –only three weeks after the legislation was introduced—and a reporting date of 26 November 2018, to enable consideration of the bill during the final two sitting weeks of the year. The submissions deadline was subsequently extended to 28 September 2018, but critics say this is still not enough time for stakeholders to properly analyse Mr Porter’s bill.
The clear advantage of the proposed 15 April 2019 reporting date is that the inquiry Committee would then be able to consider the results of the Australian Law Reform Commission’s report into the family law system, which is due on 31 March 2019.
But the Government argues the Committee can conduct an intensive inquiry in its proposed three month timeframe, and that eight months is simply not needed. “If every committee took eight months the Senate would grind to a halt. This is purely a political game by the Labor Party,” said the Committee chairman, Liberal senator Ian Macdonald.
Meanwhile Mr Porter claims the three month inquiry timeframe is enough “because the bill mostly replicates existing legislation and there have been numerous reviews over the past decade”, according to The Australian.
In contrast, criticism of the proposed timeline is plentiful:
- The NSW Law Society has queried whether a considered submission on the proposed reforms can be drafted in just weeks.
- Shadow attorney-general Mark Dreyfus has said the Government had “given interested parties just three [now five] weeks to make submissions on a bill nearly 200 pages long, which represents the biggest change to the Family Court since the Whitlam government created it in 1975”.
- Law Council president Morry Bailes has previously said: “Three weeks for stakeholders and the community to review such a significant overhaul is insufficient and extremely worrying.”
- NSW Bar Association President Arthur Moses SC, has said: “There should be no indecent haste to attempt to ram through the Parliament proposed legislation that should be carefully considered and assessed based on evidence”.
- Crossbench Senator Rex Patrick has said: “This can’t be rushed. There’s over 600 pages of complex legislation and the Committee expects judges, lawyers, family law stakeholders and mums and dads to read, consider and respond to the Committee in just five weeks”.
- Crossbench Senator Tim Storer has said: “It would difficult for me to support such a significant change to the judiciary without seeing the independent report commissioned by the government from the ALRC”.
In response to his critics, Mr Porter said his reforms are “not overly complicated and we will work with the Senate committee members to ensure they have all the information they need to get the job done”. Although the main bill is 200 pages long, Mr Porter says that only a quarter of the clauses in the bill are “new or substantively change existing provisions”. Of the 249 clauses in the main bill, only 60 are new.
But Senator Patrick and Senator Storer have said they will respectively move and vote to restore the original deadlines when parliament resumes.
Mr Porter’s plans have also been criticised because they do not allocate any extra resources to the struggling family court system. For example, in a speech this year, the retiring Western Australian Family Court judge Stephen Thackray dwelt on the funding cuts to the family court system, and the need for more judges and registrars, plus more timely replacements of outgoing judicidary staff, to avoid sitting judges suffering from chronic overwork. In the recent past, however, the previous attorney-general George Brandis said that it isn’t possible under Australia’s Constitution to appoint more judges because we are at capacity. This is an issue that was never adequately clarified and probably should be by Mr Porter…
Judge Thackray also opined, “Our current law is completely misunderstood by even well-educated Australians and indeed I am sorry to say it is often misunderstood by some lawyers and worse still it is misunderstood by some judges.” He added:
“I have studied the way successive governments handle the hot potato it represents — since our family law system is front and centre in the gender wars in which the men’s groups say we favour the women and the women’s groups say we favour the men. If there is any winner in that war it sure is not the Family Court and it sure is not the children of Australia.”
We’ll keep you posted on further developments relating to the family court reform plans.
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 Legal Services 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 Legal Services.