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Proposed restructure of federal Family Law Court system

Proposed restructure of federal Family Law Court system

By LIV Media

Courts Family Court 

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The federal government is proposing a major restructure of the federal Family Law Court system which was announced by the Attorney General Christian Porter last week.

Based on the information available, here is a summary of the proposed changes:

The federal government is proposing to create a new Federal Circuit and Family Court of Australia (FCFCA) by merging the Family Court of Australia (FamC) with the Federal Circuit Court (FCC). The FCFCA will consist of two divisions:

  • Division 1: will comprise the trial division of the FamC as it is now, presided over by the existing judges of the FamC
  • Division 2: will comprise the FCC as it is now, with both family law and general federal law jurisdictions, presided over by the judges of the FCC

There will be no further judicial appointments to the FamC or to Division 1 of the FCFCA, and as the existing judges in the Family Court retire, Division 1 of the FCFCA will cease to exist.

The FCFCA will have a single set of rules and forms, and a single point of entry. Based on the current available information, it is not clear:

  • how the jurisdiction of the divisions will be defined;
  • how cases will move between the divisions;
  • how or when the decision to move cases between the divisions will be made; or
  • who will be responsible for making such decisions.

The appeal division of the FamC will be eliminated, and replaced by a Family Law Appeal Division of the Federal Court of Australia (FLAD).

There is no information available as to whether the existing judges of the appeal division of the FamC will be appointed to the FLAD, or even whether judges appointed to the FLAD or the FCFCA will have any family law experience.

The Law Institute of Victoria believes urgent steps are needed to address the unacceptable backlogs, confusion, inefficiencies and costs that have plagued the family law system for years due to the chronic under-resourcing of the system by successive federal governments.

The Law Council of Australia and the LIV is seeking more specific information about the proposed changes from the government.

However, it is unclear whether the government’s proposal will actually address the endemic issues plaguing the family law system. The creation of two new courts may neither alleviate nor address the core issues caused by two federal courts at different levels exercising family law jurisdiction with inadequate resourcing, noting that any appeal to the FLAD would also involve families dealing with a different court, with different procedures.

In light of the increasingly complex needs of families before the courts, the LIV believes the federal government should commit to legislating to ensure that only judges with family law expertise and experience will be appointed to the family law jurisdiction of the new courts.

The LIV believes there should be significant funding committed to the proposal to support the family law system.

If the legislation passes, the FCFCA and the FLAD will commence operation on 1 January 2019.

The LIV is also engaging with the ongoing review being conducted by the Australian Law Reform Commission, noting that its Terms of Reference require a comprehensive report into the family law system, including reference to the federal family law courts, to be delivered by 31 March 2019.

For fact sheets and an overview of the proposed changes to the Family Law Courts, visit: https://www.ag.gov.au/LegalSystem/Courts/Pages/Structural-reform-of-the-federal-courts.aspx

For the complete Terms of Reference for the Australian Law Reform Commission Review of the Family Law System, visit https://www.alrc.gov.au/inquiries/family-law-system/terms-reference.


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