Deal Struck in Parliament – Family and Federal Court Set to Merge

KEY TAKE OUTS

• A bill merging of the Family Court and Federal Court of Australia has recently passed the Australian Senate.
• A letter was published in November 2019 which strongly opposed the bill and now has over 150 signatures of leading professionals.

A letter from November 2019 has resurfaced opposing the merger of the Family Court of Australia and the Federal Circuit Court. The merge claims to ease navigation of the court system through a single-entry point and common rules, all housed under one roof.

However, professionals claim it is based on a six-week report, noting itself that it was completed under “time-constraints”, and that it holds no evidentiary basis to a positive outcome. Instead, it destroys the specialisation needed for family matters to be progressed and decided effectively.

There are widespread concerns that the move away from a specialist family court model will “result in a loss of structural, systemic specialisation and dismantle the appeal division.” It could also result in increased costs and further delays in an already overflowing family court system, placing added pressure on Australian families.

There are also severe concerns for children and adults that have survived family violence and seek safety though the court system.

The NSW Bar Association proposed alternatives in the letter, such as Family Court Judges being in Division 1, and family law based Federal Circuit Court judges being in Division 2, of the Family Court of Australia. They also stated they would be very much open to other reform options which would protect the specialisation of the Family Court system.

The letter has been signed by around 155 stakeholders in the profession, including legal experts and community organisations, such as the Law Council, Community Legal Centres Australia, Women’s Legal Services Australia and National Aboriginal and Torres Strait Islander Legal Services, as well as by 13 retired judges.

Many professionals have stated that the merging of the two courts will see the system become chronically underfunded. The first Chief Justice, Elizabeth Evatt, stated that the Family Court’s “standalone nature is one its greatest attributes” and that the change would undoubtedly “lead to undesirable outcomes for children and families.”

Despite this, the proposition has recently gained traction once again with the Morrison government striking a deal with opposing Senator Rex Patrick, promising a minimum number of specialist family law judges to be operating in the new system.

Senator Patrick stated he now supports the bill for its “streamlining effects for administration” and because he believes “it does nothing to dilute the expertise of the court.”

The bill passed the Senate on 18 February 2021.