On 30 May 2018 the Federal Government announced that the Federal Circuit Court of Australia and the Family Court of Australia would merge to become the Federal Circuit and Family Court of Australia (“FCFCA”). To a non-lawyer the change may seem subtle, but the legal fraternity is anticipating that the overhaul could have dramatic effects.
For many years now the Federal Circuit Court has heard 85-90% of all family law cases. Its 69 judges deliver over 17,000 judgments per year. The high workload has meant considerable delays – sometimes in excess of 2 years – in cases progressing to a final hearing and timing for the delivery of judgments.
The Family Court has generally been reserved for more complex cases, for example those involving international relocation, child abduction and child abuse.
Once established, there will be a single point of entry for federal family law matters through the FCFCA although there will still be 2 divisions within the FCFCA – Division 1 will comprise the existing judges of the Family Court and Division 2 will comprise the existing judges of the Federal Circuit Court.
The government is not intending to make any further appointments to Division 1 of the FCFCA, which leads to concerns that specialist family law judges will be progressively phased out. As put by the President of the NSW bar association, Arthur Moses SC, “Family Law is factually and legally complex, emotionally-charged and produces life-altering consequences for families and children. Judges working in this area not only require specialist technical knowledge, legal reasoning, fact finding and analytical skills, they also require highly effective communication and interpersonal skills and experience. One of the Family Court’s most admired features has been the fact that only those why by reason of training, experience and personality are suited to deal with family law cases are appointed as its judges. Unless there are overwhelming counterveiling factors, Australians should not be forced to put their families’ futures into the hands of a general purpose court already juggling increased migration caseloads if there is another way forward”.
The government is promising that the FCFCA will offer a more effective and consistent dispute resolution process for family law litigants, but in circumstances where there is no additional funding it remains to be seen whether the government can deliver on that promise.
The legislation to reform the Federal Courts was introduced to Parliament on the 28th of August.