Federal Circuit Court to Merge With Family Court

Friday 1 June 2018 @ 12.53 p.m. | Judiciary, Legal Profession & Procedure | Legal Research

In a media release dated 30 May 2018, the Commonwealth Attorney General, Christian Porter, announced that a single new Federal Circuit and Family Court of Australia (the "FCFCA") would be established from 1 January 2019.  The new court would be created by amalgamating the existing Federal Circuit Court of Australia and the Family Court of Australia.   A new Family Law Appeal Division (the "FLAD") will also be established in the Federal Court of Australia (the "Federal Court")  to hear all appeals in family law matters from the FCFCA (and some appeals from the Family Court of Western Australia).

The rationale for the merger offered by the Attorney-General and the Government is that the current court structure and overlap of family law jurisdiction between the Family Court and the Federal Circuit Court leads to:

". . . significant inefficiencies, confusion, delays, additional costs and unequal experiences for many families. This results in poor outcomes for some children and families".

The contention is that these reforms will address these inefficiencies. The Attorney-General says that establishing a single new court will create "a consistent pathway for Australian families in having their family law disputes dealt with in the first instance". The Attorney-General argues that the reforms are designed to:

  • maximise the use of highly skilled and trained judicial officers, and court resources, 
  • significantly improve access to justice for Australian families; 
  • improve the efficiency of the family law system; 
  • reduce the backlog of matters in the family law courts; and 
  • drive faster, cheaper and more consistent resolution of disputes for Australian families.

Structure and Operation of the New FCFCA

According to the Fact Sheet released with the Attorney General's media release, the new FCFCA will be divided into two divisions. Division 1 will comprise the existing judges of the Family Court, and will deal only with family law matters.  Division 2 will comprise the existing judges of the Federal Circuit Court, and will deal with both family law and general federal law matters. The Federal Circuit Court’s existing general federal law jurisdiction and fair work jurisdiction will not be impacted by the establishment of the FCFCA, with no changes to the existing appeal pathway. The current Fair Work Division of the Federal Circuit Court will be retained in Division 2 of the FCFCA.

Under the proposed structural changes there is to be no changes to jurisdiction or operation of the High Court of Australia, the Family Court of Western Australia, or other state and territory courts that deal with family law cases.

The FCFCA, according to the Fact Sheet, will have a single federal point of entry for all Australian family law matters. Urgent and high risk cases will continue to be prioritised, and each case will be allocated at the earliest possible point to the relevant judge and division with the right expertise and capacity to deal with it. In addition the new FCFCA is to operate under the leadership of one Chief Justice with the support of one Deputy Chief Justice. Each will hold a dual commission to both Divisions of the FCFCA allowing  for more effective allocation of cases between the two Divisions and enabling the new FCFCA to operate under a common case management process, resulting in a more efficient and consistent handling of family law matters.

Handling of Appeals a Fundamental Change

In its Fact Sheet the AG's Department points to a fundamental change that will result from the establishment of  the FCFCA being, the removal of a

". . . substantial part of the appellate jurisdiction of the Family Court, allowing considerable judicial resources currently used to hear appeals to focus on hearing first instance family law matters".

This it is argued will contribute to the new FCFCA being able to hear more matters each year, reducing the backlog in first instance family law matters and contributing to reducing median case waiting times.

The FCFCA will retain jurisdiction to hear appeals on family law matters from State and Territory courts of summary jurisdiction. This appellate jurisdiction will be extended to both divisions of the FCFCA and  all family law appeals from the FCFCA and the Family Court of Western Australia will be heard by the new FLAD component of the Federal Court. There will be no changes to the rights to appeal as currently provided for under the Family Law Act 1975 (Cth).

Reaction and Comment

It has been reported that some of the Family Court judges were considered opposing the reforms on the basis of a constitutional challenge under Section 72 of the Constitution, which essentially provides that federal judges cannot be removed other than for "proved misbehaviour or incapacity". The Attorney-General has responded to this speculation by indicating that the government had designed the reforms with section 72 specifically in mind, and had relied on advice from the Solicitor-General that the measures were "constitutionally sound". The Attorney-General is also reported as saying that:

"While the government had tried to minimise the impact for judges, the reforms were not designed for judges or for lawyers but for Australian families during stressful, difficult times in their lives".

Questions have also been raised about the timing of the announcement, given that the Australian Law Reform Commission is currently conducting the first review of the entire family law system since it was enacted in 1975. However, the Attorney-General has responded by saying that the “urgent need for structural court reforms” meant the government had to act early to improve results for families.

An opinion piece written by UTS Senior Lecturers Miranda Kaye and Jane Wangmann for The Conversation also raises this point: 

"It also seems strange that the government would announce this proposal while the Australian Law Reform Commission (the "ALRC") is still conducting the first comprehensive review of the family law system since the Family Law Act was passed in 1975. . . . This review is due to be completed in March 2019 and the structure of the court will no doubt be a fundamental part of its recommendations."

They went on to highlight the complexity of family law cases:

"A key concern is that prioritising possible gains in efficiency and cost reduction could have unintended consequences for families caught in the system. Most families that require judicial hearings have a range of complex needs. There are often problems involving family violence, child sexual abuse, alcohol issues, mental health concerns, and questions of parenting capacity. These families require a specialist response – not necessarily a fast-track through the system."

They also mentioned the pressing need for more resources, and the potential loss of specialisation:

"Indeed, when the new “super court” starts operations in January 2019, there will be the same backlog and same overall number of judges and court staff."
"The FCA [Family Court] is a specialist court dedicated to complex family matters. One of the requirements for appointment to this court is that a judge must have the expertise to be considered a 'suitable person to deal with matters of family law'... However, this is not a requirement for judges sitting in the FCC."

Timing and Implementation

According to the Fact Sheet, it is the Government's expectation that legislation to amalgamate the courts will be introduced in the Spring Parliamentary sittings. Subject to the passage of the legislation, the FCFCA and the FLAD will commence operation on 1 January 2019. The Federal Court and both divisions of the FCFCA will maintain their existing court rules initially, and following on consultation with the judiciary, legal profession and other stakeholders, the new court will update its rules with a view to achieving consistency in forms, procedures, administrative matters and practice directions.

Proceedings before the courts at the time of the commencement of the reforms will have transitional arrangements in place to ensure that matters before the courts at that time are dealt with "...as effectively and efficiently as possible, and with the minimum of inconvenience and delay".

For further information about the reforms see Attorney-General’s Department website .

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