For the first time in over 40 years an inquiry has been made into the family court system. The Family Court system has been criticised as ‘painstakingly slow’ and ‘prohibitively expensive’ time and time again. To remedy this, the government has proposed a merger between the Family Court of Australia (FCoA) and the Federal Circuit Court of Australia (FCC) without waiting for the release of the Australian Law Reform Commission’s final report, which is scheduled for 31 March 2019.
The government’s proposal has caused an outcry and led to much speculation about the proposed Family Court merger and its potential impact on those who are separating. This article will look at what the proposed merger will do and the issues that may arise as a result.
What is the proposed Family Court Merger?
As part of the wide-ranging inquiry into the family court, PwC released a report in 2018 reviewing the FCoA and the FCC and putting forward a number of proposals based on their findings.
In a nutshell, the report identified inefficiencies with the FCoA and noted that the FCC manages to go through a higher number of cases in a shorter period of time, thereby costing the taxpayer less per case. However, the report has come under significant criticism for not adequately addressing the context in which the statistics of the PwC base their findings. In particular, the FCoA deals with highly complex family law matters such as international child abduction, cases with significant family violence or complex jurisdictional issues. Due to the complexity of these matters, it is a necessary by-product that the FCoA takes longer with to resolve matters.
In response to the PwC report, Federal Attorney-General Christian Porter announced his proposal to do away with the FCoA and FCC and merge the FCoA with the FCC. This proposal was handed to the Turnbull government and has now passed in the lower house. The proposal remains in the Senate, facing strong opposition from the legal community. The proposal now awaits the handing down of the inquiry into the family court before a decision will be made.
In short, the proposal aims to do the following:
- Merge the 2 courts into 1 court, the Federal Circuit and Family Court of Australia, but with 2 divisions.
- 1 division will deal with both family law and general federal law issues; and
- The other division with deal solely with family law.
- Remove the ability to appeal to the Full Court of the Family Court of Australia and replace this with a new Family Law Appeal Division in the Federal Court of Australia.
This will mean that there is one entry point for litigants into the Court system rather than choosing between the FCC and FCoA.
What is the issue?
The issue with the proposal is largely due to the PwC report being based on statistics which do not truly reflect the context of the FCC and FCoA. Further, the proposal does not adequately address the underlying issues present in the current family court system such as under-resourcing and a lack of specialised judges with significant experience in family law.
The question remains what would achieve a better outcome: improving the current system or a doing a complete overhaul of the system that does not address the resourcing of the Court and seemingly removes experts from the field.
The number of marriages that end in divorce has grown significantly in the last 40 years, with the number of divorces in 1975 when the FCoA was conceived at 24,307 to 49,032 in 2017. Furthermore, this does not cover the increase in de facto relationships which end in separation or marriages which end in separation but not divorce. However, despite the strain on the family court system due quite simply to the increase in Australians wanting to separate, the resources allocated to the family court system has not grown proportionately.
For example, in 1976 there were 24 judges appointed to the FCoA and in 2019 there remains 24 judges appointed to the FCoA. Although this does not include the FCC and the judges appointed therein.
While the proposed changes rightfully aim to increase efficiency in the family court system, they do not address the underlying need for the family court’s resourcing to catch up with demand.
Loss of Judges with knowledge in Family Law
Under the proposed merger the FCoA will be done away with and replaced by the Federal Circuit and Family Court of Australia. Currently the FCC deals with family law and general law matters, meaning that its judges are not required to be specialists in the field of family law, although many are. However, the FCoA is a specialist court in family law, and as such the judges are family law experts.
The concern is that the proposed new Court, like the FCC, will not require its judges to be family law experts. Even if FCoA judges are brought across into the new court, they may not be replaced by judges with family law knowledge upon retirement. This is especially concerning in relation to the proposed new appeal court.
In any event, judges with knowledge and expertise, not just of the law, but also of the common practices and resources available for those in the family court system, are essential. The loss of such expertise, especially in an area with a high number of self-represented litigants, is alarming.
The proposed changes have now been put on hold pending release of the final report, which is scheduled for 31 March 2019.
Although the end result is unknown, the uncertainty in the family court system as a result of the proposal has highlighted the glaring inadequacies of the system and the fundamental necessity of a family court system that is well-resourced with the appropriate expertise.
The impact on actual litigants is unlikely to be felt until after any changes are made, and so for now we will make do with the system we have.
This is not legal advice.