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MERGING THE FAMILY COURT AND FEDERAL CIRCUIT COURT: A HAPPY MARRIAGE?

Updated: Feb 21, 2021

Controversial legislation to merge the Family Court and Federal Circuit Court narrowly passed the Senate yesterday, with a two-vote majority.[1] The legislation has ignited debate amongst parliamentarians and legal professionals about the effects of the structural “marriage”.


Although the legislation[2] to merge the Family Court with the Federal Circuit Court (‘FCC’) was introduced to parliament in December 2019, the pressing matters associated with the COVID-19 pandemic stalled debates of the draft legislation until late last year. After making its way through the House of Representatives, the Senate debated and passed the legislation yesterday, after lengthy debate.[3]


Amongst the aims for the legislation, the changes are intended to ‘establish a single point of entry for federal family law matters, ensure the development of common Rules of Court, forms and practices and procedures, enhance judicial appointment criteria, and streamline the family law appeals pathway.’[4]


According to the Commonwealth Attorney-General’s Department, the merger will, ‘preserve the current cohort of Judges of the Family Court and Federal Circuit Court, including their extensive family law and family violence expertise.’[5] While the changes will see the two courts sharing the same name (the “Federal Circuit and Family Court”), it will reportedly retain distinct family and federal divisions.[6]


Meanwhile, the Law Council expressed its discord. Prior to the passing of the legislation, the Law Council publishing an open letter[7] ‘with 155 signatories from the family law arena, including 13 retired judges, imploring the government to drop the merger.’[8] The Law Council said the FCC is already struggling to address its backlog of cases and from a lack of funding.[9] For example, ‘Two in three FCC judges already have more than 300 matters in their dockets, some more than 600.’[10] To put this into context, ‘The Chief Judge of the FCC has previously indicated that the ideal number should be around 100 each.’[11]The merger, the Law Council argued, will therefore worsen the performance of the new combined Family and Federal court by exacerbating these existing issues.[12]


The open-letter signatories had also suggested the aims of the legislation – including offering a single entry-point for family law matters and consolidating rules and procedures could have been achieved without legislative intervention.[13] This could have included, for example, greater coordination amongst the judges and administrative officers of each court, and the development of shared processes – as we have seen with the integrated approach of the specialised Domestic Violence and Magistrates Courts in Queensland.


Misinformation appears to be circulating as to whether the appeal division of the Family Court has been discarded by the legislation, with sources vehemently claiming this is, or is not, the case. For example, the Law Council suggested the merger will ‘abolish the existing specialist, stand-alone, multi-disciplinary Family Court system’, including the specialised Family Court appeal division,[14] and thus undermine the operations of the system. Meanwhile, the Attorney-General’s department has stated this is incorrect.


Attorney-General, Christian Porter, made clear in his second reading speech that the specialised appellate division of the Family Court will be abolished, but this is to be replaced by a more generalised appellate division covering both Family and Federal Court matters.[15] Mr Porter said ‘there will no longer be an appeals division for select judges to be appointed to but, rather, Division 1 (family law matter) judges will be able to hear appeals, both as individual judges and as members of a Full Court.’[16] Mr Porter claims this new court structure will improve efficiency.[17]


Parliamentarians, the legal profession, and parties in family law proceedings will be watching with bated breath as the effects of the legislation begin to become clear. The impacts of the new “marriage” between the Family Court and Federal Circuit Court structures are likely to be felt for years to come.


References and further readings

[1] Madeline Hislop ‘Family Court abolished as controversial bill passes through Senate’ Women’s Agenda, (Webpage, 18 February 2021) https://womensagenda.com.au/latest/family-court-abolished-as-controversial-bill-passes-through-senate/#:~:text=On%20Wednesday%20night%2C%20the%20Senate,and%20independent%20senator%20Rex%20Patrick [2] An earlier version of the Bill, debated in 2019, was defeated in parliament at an early stage. The Law Council of Australia had penned an open letter opposing that Bill, which is available here: Women’s Legal Services Australia ‘Open Letter – Concerns about proposed Family Court merger’ (Letter, 11 November 2019), available at: http://www.wlsa.org.au/uploads/submission-resources/2021_Open_Letter_update_%28f%29_160221.pdf. [3] Katina Curtis, ‘Family Court merger set to pass after government wins over key senator’ The Sydney Morning Herald (16 February 2021), available at: https://www.smh.com.au/politics/federal/family-court-merger-set-to-pass-after-government-wins-over-key-senator-20210216-p572yb.html. [4] Commonwealth Attorney-General’s Department, ‘Structural reform of the federal courts’, Australian Government (Webpage, 2021), available at: http://ag.gov.au/legal-system/courts/structural-reform-federal-courts#:~:text=On%205%20December%202019%2C%20the,Court%20of%20Australia%20(FCFC). [5] Ibid. [6] Ibid. [7] Please see: Law Council of Australia, ‘Concerns about proposed family court merger’ (Open Letter, 11 November 2019), available at: https://www.lawcouncil.asn.au/files/media-releases/Open%20Letter%20-%20Family%20Court%20merger%20opposed%20by%20155%20stakeholders.pdf. [8] Katina Curtis, ‘Family Court merger set to pass after government wins over key senator’ The Sydney Morning Herald (16 February 2021), available at: https://www.smh.com.au/politics/federal/family-court-merger-set-to-pass-after-government-wins-over-key-senator-20210216-p572yb.html. [9] Law Council of Australia, ‘Dire Federal Circuit Court backlogs prove family court merger a risk to families, judges’, Law Council of Australia (Webpage, 23 October 2020), available at: https://www.lawcouncil.asn.au/media/media-releases/dire-federal-circuit-court-backlogs-prove-family-court-merger-a-risk-to-families-judges. [10] Law Council of Australia, ‘Family Court merger opposed by 155 stakeholders, including 13 retired judges’, Law Council of Australia (Webpage, 16 February 2021), available at: https://www.lawcouncil.asn.au/media/media-releases/family-court-merger-opposed-by-155-stakeholders-including-13-retired-judges. [11] Ibid. [12] Law Council of Australia (n 9). [13] Please see: Law Council of Australia, ‘Concerns about proposed family court merger’ (Open Letter, 11 November 2019), available at: https://www.lawcouncil.asn.au/files/media-releases/Open%20Letter%20-%20Family%20Court%20merger%20opposed%20by%20155%20stakeholders.pdf. [14] Law Council of Australia (n 9). [15]Christian Porter MP, ‘Second reading speech: Federal Circuit and Family Court of Australia Bill 2019’ Hansard (Speech, 5 December 2019), Parliament of Australia, available at: https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22chamber%2Fhansardr%2F6133541f-9c3b-4d52-a689-67b034ad1f12%2F0022%22. [16] Ibid at [9]. [17] Ibid at [9].

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