The Federal Attorney-General has indicated that he wants to make changes to the Courts that deal with Family Law in Australia. He wants to merge them into one, two-tiered system.

 

Given that the Federal Circuit Court was designed to be quicker and simpler and cheaper than the Family Court the following observations by the Attorney-General may not be surprising:

The family law application process varies significantly between the Family Court and the FCC. This is the result of variations in the courts’ legislative frameworks (including their respective Acts, Regulations and Rules) and

operational and cultural practices that have evolved over time. As a result:

 Costs for families are estimated to be up to four times more in the Family Court than the FCC

 Matters in the Family Court require 45 per cent more attendances by litigants than in the FCC

 Days per trial in the Family Court are double that in the FCC.

In 2016-17, almost 1,200 families had their disputes transferred between the Family Court and the FCC.

The waiting time to have a case transferred averaged 11.1 months in the FCC and 4.6 months in the Family Court. In both cases, litigants had to restart their proceedings using the procedures of the alternate court.

 

A brand New Court?

To remove this duplication, the Attorney-General is creating a new court to be called the Federal Circuit and Family Court of Australia (FCFCA).

 

The new court will be divided into two divisions:

 

  • Division 1 will comprise the existing Judges of the Family Court of Australia and deal only with family law matters.
  • Division 2 will comprise the existing Judges of the Federal Circuit Court of Australia and deal with family law matters and general federal law matters.

 

This appears to simply rename the Family Court as “division one” and the Federal Circuit Court as “division two”.

 

Consistent Court procedures 

The new court will do away with procedural differences between the existing two Courts. The procedural differences were originally introduced because the Federal Circuit Court was meant to be quicker and simpler than the Family Court.

 

Appeals

Currently appeals from the Federal Circuit Court can go to a single judge of the Family Court but usually (75%) are heard by three judges of the full court of the Family Court and appeals from a single judge of the family Court go to the full Court of the Family Court.

 

The Attorney-General notes that non- family law Federal Circuit Court appeals tend (88%) to go to a single judge of the Federal Court.

 

Under the proposed changes appeals from a single Judge of the new court would go to a new “Family Law Appeal Division” in the Federal Court of Australia. This means that current Family Court judges will be freed up to deal with new matters rather than being allocated to hear appeals.

 

It is not clear what expertise in family law matters the Federal Court Appeal process will have.

 

It is not clear whether new Federal Court Judges will be needed to deal with all the new appeals.

 

New Court to avoid delays by avoiding inter Court transfers of matters

The basis for changing the names of the court is said to be:

“growing delays in the court system caused by the overlapping jurisdiction and significant variations in the operational rules, processes and practices of the Family Court and Federal Circuit Court.”

 

Further, according to the Attorney-General:

“One key issue causing exacerbating delays for many families is the high number of cases transferred between the two courts. Almost 1200 families’ cases are transferred between the two courts each year, some after having been in court for more than 11 months. This means those families must start the whole court process again in the other court with completely different rules, procedures and processes. This and other inefficiencies mean highly skilled and trained judicial officers are being hampered from hearing and resolving more family law cases requiring resolution because of inefficient and often duplicated administration.”

 

It is not clear from the press release what the reason for the transfer of these cases was.

 

If matters were being transferred from the Federal Circuit Court to the Family Court because they had become more complicated or issues had arisen which made the Family Court the appropriate one to deal with issues, it is unclear why the new system will not still have matters being transferred between Division I and 2.

 

The Attorney-General anticipates that this will improve the efficiency of the Federal family law system by up to one third.

 

A Single Chief Judge

Fact sheet 1 from the Attorney-General goes on to say that the new court system will operate under the leadership of a single Chief Judge.

 

Cynics may recall that one of the possible original factors in the creation of the Federal Magistrates Court was to limit the apparent relevance of the then Chief Judge of the Family Court, who had been critical of government policy shortly before the announcement of the new court.

 

Common Processes across the new Court

There will be a common case management process introduced which appears to be the “Docket system” currently used in the Federal Circuit Court whereby a matter is kept within the management of the same judge from beginning to end of the matter.

 

Is there any money in it?

There doesn’t appear to be any significant funds available to increase the number of judges to enable more matters to be dealt with which has been a consistent aspect of many recent calls to address delays in the Family Law courts. The proposal seems instead to try to free up the existing resources.

 

Patrick Earl

Senior Solicitor