The Federal Government’s proposal to merge the Family Law and Federal Circuit Courts into a newly named Federal Circuit and Family Court of Australia (FCFCA) in April next year has moved forward, with the Bill passing the lower house on 10 December and being sent to a Senate committee for review.
On the same day, at his swearing in ceremony in Melbourne, the new Chief Justice of the Family Court of Australia described the merger as an enormous challenge and called on the legal community to put their support behind it.
The proposed changes, outlined in our article here, are aimed at creating more efficiencies within the family court system by making the Federal Circuit and Family Court of Australia (FCFCA) the one entry point for all family law matters.
Whilst those practising in the area of family law agree that the current system is in desperate need of reform, there are many voices questioning how helpful these particular changes will be and also why there is a need to rush through these reforms ahead of the delivery of the final report of the Australian Law Reform Commission’s review into family law issues due in March next year.
Arthur Moses, president-elect of the Law Council of Australia, has said that “the proposed restructure may actually create more delays and problems as it solves.” This is an opinion he will share with the Senate Committee when he appears before them this month.
The Law Council of Australia is particularly concerned that the restructure of the family court system has the potential to result in the reduction in the number of specialist family court judges. Mr Moses will tell the Senate Committee that judges hearing family law matters in the Federal Circuit Court who lack expertise in family law may make erroneous decisions leading to the risk of more appeals and increased costs for litigants.
The former chief justice, Diana Bryant, expressed similar concerns in an address to the New South Wales Society of Labour Lawyers on 30 November, where she noted that moving appeals out of the Family Court of Australia, a superior court with a specialist intermediate appellate division, to the Federal Court of Australia, a court that mostly hears commercial disputes, will lead to “a significant downgrading of the importance of family law and how it is delivered in Australia.”
Furthermore, former chief justice Bryant expressed deep concern that the current moves to merge the two courts has occurred without consultation with stakeholders who would have been in the position to alert the government to underlying issues that have caused great delays in the family court system. The most pressing of these being the failure of the government to replace retiring judges in a timely manner, which has led to chronic understaffing of the judiciary in the Family Law and Federal Circuit Courts. The Law Council of Australia has also called for the government to urgently address this issue.
Former chief justice Bryant also noted that the success the family law courts have had in helping disputing couples resolve their matters outside of court, means that it is generally only the really complex cases involving “severe family violence, allegations of sexual abuse, parents with mental health issues and substance abuse and difficult relocation cases often involving a move to an overseas jurisdiction,” that come to a hearing before the courts. These matters often also involve unrepresented parties. All in all, this results in cases that demand a lot of the courts’ time, adding to delays.
The message that the former chief justice hoped to convey was clear and simple: “trying to fix the system without a clear understanding of its problems is unlikely to be successful.”
Let’s hope that the Senate Committee is listening closely and trying to understand the real challenges facing our family law courts and that the government will ultimately choose to make reforms that seek to look after the best interests of Australian families and children.