Written by Michelle McDermott
There is a lot of media attention about the Federal Government’s proposal to merge the Family Court with the Federal Circuit Court and lots of noise from the various Law Councils and Law Societies in each State/Territory about why it should not happen.
So, what’s it all about?
There has been universal agreement that Australia’s family law system is not working as well as it should.
The Federal Government has put forward The Federal Circuit and Family Court of Australia Bill 2019 (Cth) (“the Bill”). The Government says that the Bill will unify the administrative structure of the two Courts to create on Court called “The Family Circuit and Family Court of Australia” to be comprised of Division 1 (a continuation of the current Family Court) and Division 2 (a continuation of the current Federal Circuit Court). The Government says that the structural reform will provide the impetus to:
- help Australian families resolve their disputes faster by improving the efficiency of the existing split family law system;
- provide appropriate protection for vulnerable people; and
- ensure the expertise of suitably qualified and experienced professionals, support those families in need.
The merger proposal was not passed by the 45th Parliament and was opposed in 2018 and 2019 by a wide range of stakeholders out of concern the Bill was based on a flawed premise and would harm, not help, vulnerable children and families. When the proposal was reintroduced to the 46th Parliament, with a few amendments, it was met with fierce opposition from more than 110 stakeholders because they say it will:
- Abolish a stand-alone, specialist Family Court as we know it and collapse it into one of the busiest courts, the under-resourced, over-burdened lower level Federal Circuit Court.
- Harm vulnerable children and families in need of specialist family law assistance.
- Increase cost, time and stress for families and children.
- Place further stress on Federal Circuit Court judges already struggling under unsafe workloads.
- Fail to alleviate the fundamental problems plaguing the family law system.
- Fail to address the risk of family violence victims falling through the cracks.
Despite the opposition, Attorney-General Christian Porter and the Government are pressing ahead with the Bill.
The concerns raised have been made even more acute, when the Australian community is in the throes of the COVID-19 pandemic and a shadow pandemic of devastating family violence. This has placed unprecedented pressures on families and created urgent, ongoing demand for family law services.
The more than 110 stakeholders have agreed that they prefer what is called the “Family Court 2.0 model” that has been proposed by the NSW Bar Association. This model proposes a straight-forward “lift and shift” of the Federal Circuit Court’s family law jurisdiction and judges into a new lower division within the stand-alone, specialist Family Court. This model is already in operation in Western Australia. It would strengthen a stand-alone, specialist family court and increase family violence specialisation.
Naturally, there is a misconception that Lawyers have a vested interest in opposing the merger. Conceivably, the only stakeholder who actually stands to benefit from the Bill is the legal profession. The Bill will increase delays, resulting in greater legal costs and greater need for legal advice and services. Yet the Law Council of Australia, has consistently opposed the merger proposal because it is not in the public interest that the Bill proceed.
What families need now is safety, security and as much certainty as there can be in such uncertain times. The strongest protection for children, families and survivors of family violence is to maintain and strengthen a stand-alone, specialist family law court involving a holistic, specialist system of interrelated, co-located services and resources, as was intended when the Family Court was created.
Access to specialist services at all stages of a case are critical to provide what can be life-saving support, advice or intervention. The merger would put that access in jeopardy. Instead, it is time to:
- strengthen a stand-alone, specialist family law court and increase family violence specialisation with the Family Court 2.0 model proposed by the NSW Bar Association; and
- invest in parts of the system that work well when properly resourced and funded.
This article has been written using information contained in the Briefing Note prepared by the Law Council of Australia entitled “Protect children, families & family violence survivors: oppose flawed family court merger”. The Author agrees with and supports the Law Council’s views.