The merger of the Federal Circuit Court and the Family Court is fast approaching, so now is the ideal time to share what this will mean for those in the family law system.
What is the Family Court merger?
Four years ago, the Government announced their intent to amalgamate both the Federal Circuit Court and the Family Court of Australia. It was justified on the basis of asserted “efficiencies” and the idea that having one central entry point and one set of rules and forms would be better. There was significant opposition to the proposed merger by key stakeholders including peak bodies representing family lawyers, women’s legal services, the family violence sector and others who were very concerned about the risk of the loss of specialisation in the court and questioned the basis for the predicted efficiencies of the merger.
The Family Court of Australia was a specialist, superior court of record, created 45 years ago to deal exclusively with matters arising under the Family Law Act 1975. Under the planned merger, that court would become part of a single court, in two divisions, which would also deal with general federal law matters.
From its inception, the Family Court of Australia became a world-leading innovative court, bringing counselling and mediation services to assist parties and trying to find ways to responsively deal with the legal issues of separating families. The Act mandated that only lawyers who were suitable because of specialist family law experience and training could be Judges in that court.
However, over the decades that followed, successive governments failed to properly resource that court and pressures and demands increased. In 2000, a new separate Court to undertake the less complex family law work was created (which in 2013 became the Federal Circuit Court). The work of that court increased dramatically over time, and demands and pressures upon both courts became enormous.
Delays between filing and final resolution blew out and the stories of frustration and difficulty, from users of the court, were frequent. Family violence and how the court responded to it, was the subject of criticism. The Federal Circuit also dealt with general Federal Law matters and its immigration load, in particular, became significant. The Government initiated a range of national inquiries and Parliamentary reviews and declared that the family law system “needed to be fixed” while refusing to direct essential resources to the Courts. Judges were not replaced in a timely way, they carried enormous and unreasonable file loads and pressures on hardworking court staff increased.
The merger on 1 September 2021.
After 4 years of advocacy against the merger, amidst fears it would make things worse for vulnerable families, the merger Bill passed, by one vote, on 17 February 2021.
The new Court (the Federal Circuit and Family Court of Australia) will commence on 1 September this year.
The new Acts will create an amalgamated Federal Circuit and Family Court of Australia (FCFCA) with two Divisions: one which will include judges of the Family Court of Australia dealing with the most complex matters and exercising appellate jurisdiction, the other consisting of judges of the Federal Circuit Court of Australia, which will be the single point of entry for family law and child support cases.
As a result of significant advocacy during the debate about the legislation, a number of important protections were achieved, including that the number of Judges in Division 1 (the old Family Court) cannot fall below 25. That Division will deal with the more complex property and financial cases, certain complex parenting matters (like international relocations and serious child sexual abuse matters) and will be the appellate court.
How will the new Court work?
In the rush to be ready to launch the new court, new rules, forms and case management systems are being developed by the Court. Time pressures are enormous and while some consultation with stakeholders is occurring, the limited time available means the opportunity to reflect further and improve these systems, may be compromised.
The Court has declared an ambitious target to have matters resolved within 12 months of filing, with compulsory dispute resolution built into the case management process. The new case management system will see some work, previously done by Judges, now undertaken by Registrars and the emphasis on dispute resolution is intended to encourage people to work things out without a judge. Of course, cases are started at court because the parties have not been able to reach an agreement, despite dispute resolution efforts.
While getting to a final hearing (if not settled before) within 12 months is a laudable goal (it is roughly twice as fast as the present average across most registries in Australia) getting there will depend upon having the Judges, Registrars and court consultants available at the court to hear urgent matters, make orders, complete family reports and conduct focussed case assessments before trial.
The final Rules of the Court have not yet been released, with only weeks before the court starts. We are all expected to act in accordance with the new Rules and case management system, from day one.
It is going to be a time of fast learning and adjustment for all involved and we will all need patience as we come to terms in real-time with what the merger means for our clients and our colleagues in practice and at the Court.
What does the court merger mean for families?
For those families already before the court, it may mean that little appears different, at first. The documents on the court file, using old forms, will still be relied upon, but new documents, in the future, will need to comply with the Rules (and there will be page limits on affidavits in both divisions of the Court for interim hearings).
We expect there will be continuity of service and many things will feel like “business as usual” but the Court will need to find a way to bring thousands of existing files into the new case management system (along with the new ones filed every day). There might be a few hiccups along the way.
Unless the new Court is able to urgently fill all of the roles which it contemplates are essential for the delivery of the “fast track” outcomes for families, including filling existing judicial vacancies, delays will continue.
Frustrations may be exacerbated by the challenges for all, of coming to terms with the “new” way of doing things. Much has been promised. It may take some time to assess what is actually delivered.
DDCS Lawyers specialise in all aspects of family law and can help guide you through your family law matters. If you need assistance, contact our team on (02) 6212 7600 to book a consultation.