What is the Merger of the Family Court and the Federal Circuit Court and how will impact upon Families?

On 17 February 2021 the Senate passed the proposed Family Law Merger bill despite strong opposition by many of the stakeholders involved in Family Law.

The bill was debated since its introduction in 2019 by various groups (with 155 signatories) with each signatory being a representative of a group, including a range of professions and community organisations who work with Australian families and including 11 retired Family Court and Federal Circuit Court Judges. There were strong concerns, that if it was passed, it would have devastating effects on families.

The effect of the new legislation is that there will no longer be a Specialist Family Court.  Instead, the two existing Courts, the Family Court and the Federal Circuit Court will be merged into one court but with two separate divisions.   

What will be the name of the new court?

The Federal Circuit Court and Family Court of Australia.

When will the new court commence operation?

On 1 September 2021.

How will the two divisions work?

What is now the Family Court of Australia will soon become the Federal Circuit Court and Family Court of Australia (Division 1).  What is now the Federal Circuit Court of Australia will become the Federal Circuit Court and Family Court of Australia (Division 2).

Where will family law applications be filed?

All initiating applications will be filed in Division 1 but appeals will be filed in Division 2.

Will Division 2 only hear family law matters?

No. Division 2 will continue to exercise the general federal law jurisdiction of the existing Federal Circuit Court.  This will mean that all of the Courts will deal with all federal law matters (migration, admiralty, administrative, consumer, human rights, privacy matters and more) and not be limited to only Family Law matters.   This will mean that it will be a generalist court and not a Specialist Court, as the Family Court has been since its original inception in 1975 and commencement in 1976.

What applications will be heard in Division 1?

Appeals will be heard by Division 1. The Chief Justice can also direct that a matter be transferred from Division 2 to Division 1.

Court rules will give guidance to the Chief Justice, and the Chief Justice will also be required to consider whether proceedings in an associated matter are pending in Division 1, whether the resources of Division 1 are sufficient to hear and determine the proceeding, and the interests of the administration of justice.

Is there an appeal from a ruling from the Chief Justice as to whether or not a matter should be transferred from Division 2 to Division 1?

No.

Will there be new court rules?

Yes. The rules of the new court will probably be based on the Harmonised Rules which are being developed quite separately from the Merger and may well be implemented before the Merger.

Will the Family Court of Australia completely disappear?

This is a matter for interpretation.  My view is it will disappear, as it won’t be the same as what it was.

The original plan of the Federal Government appeared to be to abolish the Family Court, when the Government first tried to pass the bill, but the legislation has since been amended to provide for a minimum of 25 judges in the new Division 1.   The fact that those Judges are staying seems to suggest that the Court won’t completely disappear, but will be known under in a different name and will operate in a very different way.

The Federal Government has said that before the merger there will be 35 specialist judges in Division 1 (currently 33) and 43 in Division 2 (currently 40) and any retiring judges will be replaced.

After the Merger, there will no longer be a specialist family law court in Australia.  It is considered internationally to be best practice to have a Court that is specialised in and its main focus is on dealing with Family Law Cases.

Will the new merged court be better than the current family law court structure?

There are a number of differing about views about this.  The Government says it will be better but considerable concerns have been expressed by community groups (including those dealing with family violence), the Law Council of Australia and lawyers.

Personally, it is devastating news for the family law community and all of its stakeholders, including most importantly the families who access it.

The two Courts were already overburdened and under-resourced with significant delays that were impacting on cases when there is family violence or cases when a child is not seeing or spending time with one parent.   For over 5 years, we have heard Judges and Registrars apologise to parties for the unreasonable delays and waiting times.

The chronic delays and under-resourcing continues to impact upon the timing of outcomes for families.  It was placing additional pressure and stress on Judges and court staff who are overburdened with heavy caseloads.  Whilst 100 cases is considered by the Chief Justice, as a desirous workload, the standard for Judges is 300 cases and many Judges have well over 600 cases.

Many Family Law groups have been advocating to the Federal Government for years for increased resources to ease the burden of their workload and to alleviate the impact the delay has had on families, but to no avail.  The Merger now appears to increase the workload of the Courts without providing the additional resources need to tackle the problem with delays.

There will be also increased administration costs involved in implementing the new structure, the new rules, and those costs could have been spent differently with additional resources to the existing Court structure.

My view aside, to a large extent, we will need to wait and see how the Merger works, but most stakeholders agree that the new court won’t be better unless the Government directs more resources to it.   

The Merger effectively transforms three courts that have been largely working independent of each other, the Family Court, the Federal Circuit Court (Family division) and the Federal Circuit Court (general division) into one operational Court.  Whilst it may cut the ongoing administration costs for the Government, sadly it will be at the cost of vulnerable families, especially families experiencing family violence and families where children are not seeing or spending time with a parent.

The ability to adapt to the new changes will be up to the stakeholders, the Courts, the lawyers, the services and most importantly the parties.  We will have to work with what we have.  As a legal profession, because of the chronic delays for the last 5 years, it has meant encouraging parties to, where possible, look at alternative means to resolve their matter away from the Courts.

Any Good news?

The Courts have expected the Merger for some time now and have worked on and planned Rules to implement the intended Merger.  Some of those Rules have already been in place that have extended the powers of Registrars dealing with matters.

We have recently been advised that there has been a significant re-structuring of the way Registrars perform work with the Courts.  This has meant that the current Registrars have been more able to help the Judges with some of the Judicial work.  This is expected to greatly assist with the Judges’ current workload.  Previously we had one Senior Registrar who had delegated power to make decisions about urgent interim parenting matters and undefended matters, who worked in the Sydney, Wollongong and Parramatta area.  We have recently been advised that there has been a number of appointments to Registrars in Senior Registrar Roles, with there being 3 Senior Registrars in Sydney, one working in both Sydney and Wollongong and 3 Senior Registrars operating from Parramatta.

The Deputy Registrars roles have changed in that they are assisting the smoother running of various lists including the Contravention Lists and Discrete Property lists which has had the effect of freeing-up some of the time of the Judges, which was previously run by the Docket Judges.  A number of newly appointed Assistant Registrars have been appointed nationally to deal with Consent Orders and the busy Divorce list.

This is exciting news as it is expected that the new structuring of the Family Law Registrar’s roles should ease up the Judges’ workloads and delays in the system, which should lead to better results for families. 

There is also a mention of 5 new Judges to be appointed before the Merger commences in September 2021 and additionally all retiring Judges will be replaced with new appointments.

Whilst the Merger is overall not a desired outcome for many stakeholders, it appears that the re-structuring of the Registrar’s roles and the appointment of a significant number of Senior Registrars should go some way to ease the burden on the overworked Family Law Judges, hopefully, leading to earlier Court dates, less delays and more timely outcomes for families.

Should you wish to discuss these changes and how it will impact you and your matter please contact Solari and Stock on 8525 2700 or click here to request an appointment.

Article written by Nicole Quirk.
Photo by Bill Oxford on Unsplash