The Parliament of Australia has just passed the Federal Circuit Court and Family Court of Australia Act 2020 (Cth) and the Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2020 (Cth), which have major implications for the family law jurisdiction moving forward.
Most notably, the new legislation merges the Federal Circuit Court of Australia and the Family Court of Australia into the Federal Circuit and Family Court of Australia (FCFC). This article explores the context of the changes, and highlights some of the key functional differences the FCFC will introduce.
A brief background
The current system
The Family Court was established by the Family Law Act 1975 (Cth) as a superior federal court of record for family law matters. The Federal Circuit Court was established by the Federal Circuit Court of Australia Act 1999 (Cth) as an intermediate court to assist with the increasing workload of the Federal Court of Australia and the Family Court. Although the Federal Circuit Court shares its jurisdiction with the Federal Court of Australia, as much as 90% of its workload are family law matters. Under the current system, the majority of family law matters are heard before the Federal Circuit Court, with the Family Court usually handling more complex matters and appeals.
The new system
The proposed consolidation of the Federal Circuit Court and the Family Court was first introduced in an earlier version of the Federal Circuit and Family Court of Australia Bill in 2018 by the Turnbull Government. This came about as a result of numerous reviews and reports questioning the efficacy of the federal court system in handling family law matters (a notable example being this 2018 report by PwC). However, due to the proroguing of Parliament in mid-2019, the bill lapsed. The merger was later reintroduced by the Morrison Government as the Federal Circuit and Family Court of Australia Bill 2019 (Cth) and the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019 (Cth). These bills were passed on 17 February 2021, and are now awaiting Royal Assent.
What’s changing
The most notable change is the consolidation of the Federal Circuit Court and the Family Court into the FCFC. The FCFC will consist of two divisions: Division 1, which is a continuation of the Family Court, and Division 2, which is a continuation of the Federal Circuit Court. Under this system, Division 1 will handle only the most complex matters, with all family law matters being filed in Division 2 initially, then transferred to Division 1 as appropriate.
Under the new system, the FCFC will have shared court documents, procedures, practice notes, and a single Chief Justice holding a commission to both Divisions. The Chief Justice will also be supported by two Deputy Chief Justices, with one having a family law focus, and the other having a general federal law and fair work focus.
One key difference is the removal of the Appeal Division of the current Family Court, with the new system enabling all Division 1 judges to hear appeals as individual judges or as members of a Full Court.
More generally, the Morrison Government has stated that the purpose of the reform is to improve the efficiency, efficacy, and accessibility of the federal court system for family law matters.
What’s staying the same
The most readily apparent similarity between the current and new systems is the hierarchy of the courts. Currently, the Family Court is considered a superior court, which will remain the same when it becomes Division 1. The Family Court’s appellate jurisdiction will also be preserved. This means that Division 1 will be able to hear appeals from a Division 2 decision, and the Full Court of Division 1 will be able to hear appeals from Division 1 first instance judgements.
Interestingly, although the Morrison Government cites unified leadership as one of the key points of efficiency, at the time of writing one judicial officer, The Hon. Justice William Alstergren, holds two commissions as both the Chief Judge of the Federal Circuit Court and Chief Justice of the Family Court.
Perhaps most importantly, the Federal Circuit Court and Family Court have reiterated that the new FCFC’s core case management principles will remain the same: prioritising the safety of children and other vulnerable parties, and early and ongoing identification and management of risks such as allegations of family violence (see the Courts’ media release on the merger). The Courts have also restated their focus on delivering improvements such as implementing more efficient case management systems and family violence-related reforms, including rules harmonisation, the Lighthouse Project and the national COVID-19 List.
Summary
New legislation will consolidate the Federal Circuit Court and the Family Court, creating the FCFC. The FCFC will have two divisions which will serve similar functions to the existing system, but are intended to improve the Courts’ efficiency in Family Law matters. Our team of specialist Family Lawyers are keeping apprised of the changes as they arise.
If you would like to know more about how these changes may affect your matter, get in touch with our Sydney CBD based specialist Family Law team today!
