Last year, Federal Attorney-General George Brandis announced that the family law system, which has not been overhauled since the Family Court was established in 1976, would be subject to a wide-ranging review. Concerns about the current family law system include the length of time it takes for a matter to be finalised, the cost of running family law proceedings and how the system deals with victims of family violence and with children. In May 2018, the government announced that legislation would be brought forward to amalgamate the Federal Circuit Court and the Family Court into a single jurisdiction. However, the review of the Family Law Act has still to be undertaken.
What do the changes mean?
On 1 January 2019, the Federal Circuit and Family Court of Australia (FCFCA) will be established. This means that the Federal Circuit Court and the Family Court that currently operate separately, will be combined into a single court. A Family Law Appeal Division will also be established in the Federal Court of Australia.
Under the new system, there will be a single entry-point for all family law matters. This is a change from the current system, under which applications can be filed either in the Federal Circuit Court or the Family Court. The FCFCA court will prioritise urgent and high-risk cases and matters will be appointed to the judge and division with the most relevant expertise. This means that parties will know what to expect in terms of costs and length of time likely to be taken for their matter to be finalised.
The establishment of the FCFCA will mean that the majority of the appellate jurisdiction of the Family Court will be removed. The FCFCA will hear appeals from State and Territory courts of summary jurisdiction, while other appeals will be heard by the Federal Court. The rights of appeal in family law matters will be unchanged under the new system.
If the legislation passes, the changes will take effect on 1 January 2019.
Why is the family law system being changed?
The Attorney-General’s department claims the changes will help to address problems with the current family law system, including delays, inconsistencies, confusion and unnecessary costs. The new court is aimed to be more accessible, efficient and consistent and to allow families to resolve their disputes more quickly and cheaply.
The family law system has not been reviewed since the Family Court was established in 1976. It is commonly criticised as being outdated and impractical and for having failed to keep up with developments in the way relationships and families operate. It currently takes an average time of nearly a year and a half for a matter to reach trial, meaning that significant changes can occur in the lives of children and parents while the proceedings are on foot. The slow processes mean that children involved in parenting matters must live without certainty about their future care arrangements for significant periods.
Under the current system, the Federal Circuit Court and Family Court operate parallel, with different procedural rules, different forms and different filing fees. A lot of people involved in family law proceedings represent themselves and having to navigate the parallel court systems without a lawyer can be confusing. It is common for applicants to file applications in the Family Court when the more appropriate jurisdiction to hear it is the Federal Circuit Court, as the relationship between the courts is often not understood.
Responses to the changes
Supporters of the changes say they will save resources by eliminating crossover between two jurisdictions. The government has stated that the new system will aim to resolve up to 8,000 more family law matters every year. However, critics of the family law system are unconvinced that the changes will allay their concerns about its inefficiency or result in better judgments. The move towards ‘fast-tracking’ family law matters has left some feeling that complex situations involving domestic violence, substance abuse and questions of parenting capacity may not be dealt with adequately by a system that is prioritising saving time and money. Questions have also been asked as to why the changes are being implemented at the same time that a comprehensive review of the family law system is underway and prior to recommendations being made. The changes have been announced with little consultation with the legal community or the broader community.
The Australian Law Reform Commission is currently reviewing the Family Law Act and will be handing in its report in March 2019.