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The current family law court system is made up of two courts: the Federal Circuit Court (formerly known as the Federal Magistrates Court) and the Family Court of Australia. The Federal Circuit Court deals with the vast majority of family law cases filed, as the Family Court deals with matters of greater complexity or seriousness.
Whilst this system is good in theory and was introduced to allow for the Court system to deal with an increased number of filings of “non-complex” cases, the system is no longer working. Both Courts have a significant back log of cases with, in my experience, matters in the Family Court taking about 3 to 4 years to reach a final hearing, and matters in the Family Court taking about 3 years to reach a final hearing. This delay is exacerbated if the Court decides to transfer the matter from one court to the other, as at this point, the Court process can essentially start again in the new Court.
It is also often confusing for litigants to understand the rules and processes for the Court their matter is in, as it is not consistent between the two Courts.
The delay in the family law courts has been a hot-topic with government in recent years as the Court staff, the family law profession and litigants have put pressure on the government to deal with the many issues in the family law system, especially since such issues prevent litigants (and their children) getting a judicial outcome. In September 2017, the government announced there was going to be a review of the family law system. Whilst this created a lot of discussion, there had been no substantial changes to the system.
On Wednesday, 30 May 2018 however, news finally came that there is to be a massive overhaul of the system. The Attorney-General, Christian Porter has announced that there will be a merging of the Family Court and Federal Circuit Court. The changes will come into effect from the start of 2019 (the exact date is not yet known due to the need for legislation to pass to formally give effect to the change).
The new system will provide for two separate divisions within the one, merged Court. However, one of the divisions will be gradually phased out. It is not yet clear what policies and procedures will distinguish the two divisions. With respect to the appellate jurisdiction of the current Family Court, it is the intention of the merger for appeals to be heard by a specially created division of the Federal Court.
The merger will prevent matters being delayed due to transfers from one court to another, and hopefully make the system feel more accessible for litigants. However, what is not clear at this stage is how matters will be dealt with quicker in the new system as the simple solution to speed things up is more judges and funding. Part of the Attorney-General’s announcement included a statement that there will be a reallocation of judges throughout the family law court system, especially appeals judges (who are part of the current Family Court) as the appeal judges deal with only a fraction of matters compared to Federal Circuit Court judges.
It will interesting what opinions the announcement of the merger will generate from all sectors of the community as the proposal is finalised through parliament this year. Do not hesitate to contact one of our family lawyers if you need assistance in working out how the family law system will deal with your case.
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