The structural changes involve combining the currently independent Federal Circuit Court with the Family Court of Australia into one court which will be known as the Federal Circuit and Family Court of Australia (“FCFCA”).
The purpose of this change is to remove the confusion and overlapping jurisdiction between the two courts and instead provide one pathway for all family law matters to be heard and one set of rules. The theory is that this change should result in a faster resolution for disputes.
There will be two divisions within the FCFCA, the first division dealing with only family law matters whilst the second division will deal with both general federal matters and family law matters. Fundamentally, the first division will operate like the Family Court of Australia and the second division will operate like the Federal Circuit Court. Although Judges currently sitting on the benches of the Family Court will continue to preside over matters in the first division, there will be no more appointments to that division and as those Judges retire the first division will cease to exist.
Whilst any change which proposes to speed up and simplify the current process of hearing a family law matter will be welcomed by the community, without further information it is difficult to see how the proposed changes will do so.
The announcement does not explain how two divisions which operate in the same jurisdiction will be any less confusing, particularly given that there has been little advice as to how a case may move between them.
Another concern arising from the announcement is the failure to confirm that the judges which will be appointed to the FCFCA will have family law experience. Given the sensitive and high conflict nature of the family law jurisdiction, deciding matters in this jurisdiction requires not only legal experience but an understanding of social and psychological issues which are commonly involved. With the judges of the first division being phased out as they retire, the community is concerned that that experience and knowledge that they bring to the bench will also be phased out.
The announcement is also silent on another major concern experienced by the family law courts, which is the lack of funding. Without extra funding for much needed support services upon which judicial officers rely, including but not limited to family consultants and registry staff, it is difficult to be confident that the changes will accelerate the family law process.
It is important to note that the review of the family law system announced by the Turnbull Government on 9 May 2017 and conducted by the Australian Law Reform Commission is still ongoing with their report due to be released in March 2019. That review, unlike the changes announced by the Attorney General, will have the benefit of the views, thoughts and ideas of members of the family law community and we eagerly anticipate their conclusions.
Please feel free to contact our office on 6331 2911 if you have any questions about these reforms or the family law process.
Lauren Ryan | Family Law Solicitor