On September 1, 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 came into effect, bringing with it significant Family Court changes. The bill merged Family Court of Australia and the Federal Circuit Court of Australia into a single court system (FCFCOA).
The bill has been in the works for a couple of years but was passed by parliament on the 17th of February, 2021, and received Royal Assent shortly after (1st of March).
Public opinion has been divided on how effective the Court Merger will be. The government has reassured the public that the merger will streamline the backlog of family related cases and effectively shorten the waiting time for families.
The bill’s detractors are concerned that the merger will leave the Court under-resourced, underfunded, and impact its specialisation capabilities.
While the success of the merger will be a test of time, the merger brings with it significant structural and procedural changes to the Family and Federal Circuit Courts. In this article, we highlight the main and most important changes and how ongoing and future court cases will be affected.
Structural Changes as a result of the Family Court Merger
The Family Court changes introduced legislation include a number of structural changes within the Federal Circuit and Family Court, including:
- A new Court structure
- A new case management pathway
- Leadership changes and judicial appointments
Let’s get into these in more detail.
New Family Court Structure
The Family Court merger means that there is now an amalgamated Federal Circuit and Family Court (FCFCOA) with two divisions: Division One and Division Two. This means that all Family law cases will now be captured through a single point of entry.
Division One is considered a continuation of the Family Court and will deal with exclusively Family law matters. Initiation applications are filed into this division.
Division Two is a continuation of the Federal Circuit Court. It will deal with family law matters, in addition to migration and federal law matters. Division Two also has appellate jurisdiction. In other words, all appeals will be filed to Division Two as the Appeals Division of the previous Court system has been made obsolete.
New case management pathway
One of the major Family Court changes the Federal Circuit and Family Court of Australia Act 2020 has introduced is the new case management pathway.
Moving forward, all cases filed after September 1 will be managed via the following pathway:
Diagram adapted from FCFCOA website
The new pathway aims to enable the court to clear 90% of cases within 12 months.
Under the new case management pathway:
- The first court event should take place within 6-8 weeks of filing the case
- If it can safely be conducted, mediation and dispute resolution should take place within 6 months of the case being filed
- If no resolution is reached, a trial should take place within 12 months of the application being filed
Leadership changes and judicial appointees
The new Court will house 111 judges in total, 90 of which will specialise in Family Law.
Division one (Family Court) consists of 35 family law judges that can hear trials and appeals. It will be headed by a Chief Justice and Deputy Chief Justice.
Division two (Federal Circuit Court) will be led by one Deputy Chief Judge for Family Law and one Deputy Chief Judge for General Federal Law and Fair Work. The division consists of 76 judges. Of those, 55 are family law specialists. The remaining 21 judges are experts in migration and federal laws.
Registrars will be responsible for the management of cases, the facilitation of interlocutory and interim hearings and dispute resolution
Procedural Changes of the new Family Court Merger
As outlined by the new case management pathway, some of the procedural changes stipulated by the Federal Circuit and Family Court of Australia Act 2020 include:
- Dispute resolution
- Court Order compliance
Let’s take a closer look at these Family Court changes.
Under the merger, the Courts anticipate that “parties will avail themselves of every opportunity to participate in dispute resolution – whether that be a court-based family dispute resolution conference or conciliation conference, privately funded dispute resolution, mediation or arbitration”.
The FCFCOA expects parties to resolve their disputes, when possible and if it is safe to do so, within 6 months of filing an application. If no resolution is reached, the parties will need to fill out a Genuine Steps Certificate to indicate that they’ve made genuine attempts to resolve their dispute before the Courts will hear them.
Court Order compliance
In addition to streamlining the Courts’ extensive backlog of cases, the government claims that the merger will help the courts put children and vulnerable parties’ safety at the forefront of consideration.
The new court system has introduced a National Contravention List to address the ongoing problem of court order breaches. The list will consist of Contravention Applications filed when a court order breach takes place. Parties who breach court orders can face cost consequences and legal practitioners on the list may be subject to personal cost orders.
Ongoing and future cases
As per media releases made by the FCFOA, the Family Court changes associated with the Federal Circuit and Family Court of Australia Act 2020 will not affect ongoing cases that were filed into the system prior to September 1. The Lighthouse Project will also be unaffected by the new changes.
However, to give the courts the chance to hear cases that have been pending in the courts for a long period of time, the government ordered a Winter Callover, which began on August 2. As part of the Callover, approximately 7000 cases are being heard at the Sydney, Parramatta, Melbourne, Brisbane, and Adelaide Registries.
Applications and appeals filed after September 1 will be subject to the Family Court changes and case management pathway.
If you have any ongoing or pending cases in the FCFCOA and would like information on how to proceed or have a general enquiry about the merger and Family Court changes, email us firstname.lastname@example.org, or leave an inquiry here.
Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.