Earlier this year, the Federal Government made sweeping changes to the Family Court System passing legislation that combined the Family Court and Federal Circuit Courts into a single structure.
The proposed system has not been without its share of controversy.
Critics of the new system have raised concerns that family violence victims will be left out in the cold.
The new amalgamated court will be known as the Federal Circuit and Family Court of Australia (FCFCA) split into two divisions with the Family Court of Australia forming Division 1 and the renamed Federal Circuit Court and Family Court of Australia becoming Division 2.
The new court will be led by a single Chief Justice accompanied by a Deputy and the new system will commence operation from September 2021.
These changes were designed to completely overhaul the old family law system and to create a streamlined, single point of entry for all cases together with harmonised rules, forms and case management. These changes are captured under the following laws:
- The Federal Circuit and Family Court of Australia Act 2020
- and the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2020.
This legislation is currently awaiting Royal Assent.
Our article Family Law for the Future contemplated some of these reforms from the point of view of the Australian Law Reform Commission’s (ALRC) 60 recommendations arising from their comprehensive review of the Australian family law frameworks conducted in 2019.
What will the Merged Court System Look Like?
- Divided in Two – The new Federal Circuit Court and Family Court of Australia (FCFC) will separate into two divisions with the old Family Court of Australia designated as Division 1 and the Federal Circuit Court designated as Division 2.
The Appeals Division of the Family Court of Australia will be abolished and family law appeals will now be heard by a new Family Law Division in the newly created Federal Circuit Court and Family Court of Australia. - A Single Point of Entry – Essentially, the changes to the Family Court system will mean that there will be a complete administrative restructure of the two courts: the Federal Circuit Court of Australia (FCofA) and the Family Court of Australia (FCofA) will merge in the sense that all cases will be captured at a single point of entry.
- More Specialist Judges – will be appointed under the new structure will be appointed with the intention of having 35 specialist judges in Division 1 (The Family Court) and 43 Judges in Division 2 (Federal Circuit Court) and the legislation requires that the number of judges in the Family Court (Division 1) will never be less than 25.
- Exceptions – The Family Court of Western Australia, which will remain separate and be largely unaffected by the new legislation, except for the hearing of appeals.
What are the main changes to the Family Court System?
There will be one court, but there will be two divisions of that court and:
- Family law applications will be filed in Division 1 (Family Court of Australia). Initiating applications will be filed in Division 1, but appeals will be filed in Division 2 (Federal Circuit Court).
- There will be new court rules governing the new structures.
Why Did the Government Change the Family Court System?
The Federal Circuit Court was created to relieve the strain on the Federal Court and Family Courts by taking on less complex cases across the areas of bankruptcy, copyright, migration and family law with around 90% of the court’s workload being in the area of family law.
Prominent legal commentators and members of the public have criticised the merger as likely to result in survivors of family and domestic violence being ignored under the new system.
In particular, the former Chief Justice of the Family Court, Elizabeth Evatt expressed concerns that the proposed merger could create “undesirable outcomes for children and families” and she was concerned about the need for more specialised judges and that:
Merging the Family Court into a generalist court will undermine the integrity and the structural specialisation of the Family Court. The impact of losing this institutional specialisation is not properly understood and has been downplayed.
Other commentators have applauded these changes to the family court system, arguing that an additional 8,000 cases per year will be resolved each year.
This data was based upon Price Waterhouse Cooper’s (PWC) review of the merger – however, prominent academics and critics of the PWC report argued that the data was flawed and out of context.
How Will it Affect my Custody Proceedings?
It seems unlikely. In relation to people with a current matter before the court, these changes will not affect them. As the court transitions to this new model, arrangements will be made to ensure that all cases are dealt with efficiently and smoothly. The new framework will remain committed to the Family Court system’s Core Principle being:
The prioritisation of the safety of children, vulnerable parties and litigants, as well as the early and ongoing identification and appropriate handling of issues of risk, including allegations of family violence, are essential elements of all case management.
The New South Wales Bar Association argued that the changes to the family court system will create longer delays and higher legal costs for families trying to finalise family law proceedings, particularly where children are concerned or where there are allegations of family violence.
On face value, the merger of the Family Court and Federal Circuit Court into a single harmonized point of entry for family law cases does not suggest that parenting proceedings will be affected.
The Family Court’s April press release announced a further four judicial appointments for that month.
The legislation promises to deliver more specialist judges in Family Court with reduced waiting times for a case to reach hearing.
How the system performs, in reality, will be interesting to watch when the new merged court commences operation in September 2021.
What about Urgent Family Violence Cases?
If your matter is on the national COVID-19 List or is part of the Lighthouse Project, these changes will not have an immediate effect on your case.
The courts remain committed to the safety of children and their protection from family violence.
Talk to One of Our Experts
These changes to the family court system mean that divorcing couples will be operating in a slightly different environment but one with the potential for a speedier resolution of cases if the system works as intended.
Our expert team located in Sydney and Melbourne can walk you through your family law matter no matter how complicated. You can contact us today we will treat your matter confidentially and with compassion and understanding.
Monica is an Australian freelance writer currently based in Acapulco, Mexico. She has 15 years’ experience with Australian law firms across the practice areas of insurance litigation, corporate and family law.