Family Court of Australia and Federal Circuit Court to Merge

While it hoped no one was looking last Monday night, the Morrison government whipped a 2019 bill out of its back pocket. Aimed at effectively abolishing the standalone Family Court, the government then placed it on the Senate agenda for debate Tuesday morning, without any prior warning.

Passed in the Senate on 17 February 2021, the Federal Circuit and Family Court of Australia Bill 2019, and its supplementary legislation, saw laws passed allowing for the merger of the Federal Circuit Court and the Family Court to create the Federal Circuit and Family Court of Australia (FCFC).

The Federal Circuit Court was established in 1999. Initially known as the Federal Magistrates Court, the Circuit Court was designed to take the load off the Family Court and the Federal Court by picking up less complex cases.

Critics of the bill – and there were many – argued that the collapsing of more complex family law cases into the newly created non-specialist court would be to the detriment of justice served, especially in the case of children and adult victim-survivors of family violence.

Having passed in the lower house last December, the much-derided bill narrowly passed in the Senate on Wednesday night with 30 for and 28 against.

Labor and the Greens opposed the bill, but the Liberal Nationals were able to ram it through with the support of One Nation and independent Rex Patrick.

The official line

Attorney general Christian Porter introduced the legislation in December 2019. During his second reading speech on the bill, he asserted that the changes aimed at reducing “the costs and delays that thousands of Australian families experience as a result of a split federal family law court system”.

The Morrison government initially proposed the reform in August 2018, when it introduced its first merger bill. This legislation lapsed due to the closing of parliament for the May 2019 election. And the new version was updated with input from a parliamentary review of the 2018 bill.

The AG explained that the new court would be divided into two divisions, with Division One dealing with the matters previously dealt with by the Family Court, and Division Two carrying on with the matters of the Federal Circuit Court.

“There will be a single point of entry for the federal family law jurisdiction and, ultimately, a common set of rules, procedures, practices and approaches to case management,” Porter set out.

“The reforms enabled by these bills will improve user experience for… Australian families.”

The attorney general also explained that the review had raised concerns around judicial officers being appointed to the FCFC needing skills and background enabling them to deal with family law matters, and he assured the current bill provides for this.

Dissolving specialist family law court

However, former Chief Justice of the Family Court Elizabeth Evatt remarked last Tuesday that the “increasing number of cases in which issues of family violence and child abuse are raised has led to an even greater need today for family law jurisdiction to be vested exclusively in specialised judges”.

Evatt underscored that the laws that have just passed undermine this need as FCFC judges will have their attention diverted to unrelated jurisdictional matters, and given this, it was not in the “public interest” to see it passed.

The former top judge of the Family Court made the comments as part of a broader statement addressed to the attorney general on 16 February 2021.

The open letter was signed by 155 family law stakeholders, including 13 retired judges, who decried the loss of the specialist, standalone court.

In direct contradiction to Porter’s claims, bodies like the Law Council of Australia, NATSILS, the NSW Bar Association and Women’s Legal Services Australia opposed the bill “out of concern the merger will increase cost, delay and stress for families”.

Indeed, the attorney general’s proposition that the merging of the two courts will reduce delays in court times seems at odds with the reason the Federal Circuit Court was created in the first place, which was to reduce the heavy workload of the Family Court.

Structural reforms

The explanatory memorandum of the recently passed bill reiterates that the structural reform merges all family law, as well as other federal matters, to improve efficiency under a common leadership and management, with a particular focus on new rules of court.

There will be one FCFC Chief Justice and one Deputy Chief Justice, who will hold the dual position of Deputy Chief Judge of Family Law. There will also be a Deputy Chief Judge of General and Fair Work overseeing the cases formerly administered by the Federal Circuit Court.

The legislation provides that over the first two years of operations the rules of each division of the court will be made by the Chief Justice and the corresponding Chief Judge. And following the initial period, the rules will be determined by all FCFC judges.

The current Appeals Division of the Family Court – which consists of ten judges specifically appointed to deal with family law appeals – will be dissolved, so that all FCFC judges within Division One of the new court will be able to hear appeals.

Women and children at risk

“Any reform should strengthen a system, not lead to the diminution of specialisation,” stressed the open letter, which was originally published in November 2019. “If the government’s proposed reforms proceed, we will lose a stand-alone specialist superior family court.”

The key stakeholders further stressed that in prioritising the safety of children and adult victim-survivors, government-commissioned inquiry after inquiry have stressed that the way forward was “increasing specialisation in both family law and family violence”.

On addressing the chamber last Wednesday, Greens Senator Larissa Waters noted the “extreme opposition” to the merger, and she maintained that the Morrison government had brought the bill onto the agenda in an “awful hurry” after a crossbencher had changed their view on the legislation.

Waters said it was well understood the Family Court hasn’t been “working terribly well”, however “no one in the profession thinks the merger is a good idea”, as a “massive backlog” is not going to be fixed by mixing family law in with a different jurisdiction.

“In this day and age, when we have an epidemic of violence against women and their children and when many of the cases that end up in the Family Court in fact feature it as an element,” Waters asked, “why on earth would you reduce the specialisation of the courts to deal with that matter?”

Yet, the Morrison government failed to hear, let alone respond.