Federal Circuit and Family Court of Australia
The family law system was recently the subject of a wide-ranging review. Concerns about the current system include the length of time it takes for family law matters to be finalised, the cost of running proceedings and how the system deals with children and with victims of family violence. In May 2018, the federal government announced that the Federal Circuit Court and the Family Court would be amalgamated into a single jurisdiction. The Federal Circuit and Family Court of Australia will be established on 1 September 2021.
What do the changes mean?
The establishment of the Federal Circuit and Family Court of Australia (FCFCA) means that the Federal Circuit Court (FCC) and the Family Court of Australia (FCA), which currently operate separately through their jurisdictions overlap, will be combined into a single court. A Family Law Appeal Division of the Federal Court of Australia will also be established.
Under the new system, all family law matters will have a single entry point. This is a change from the current family law system, under which an applicant can file their application either in the FCC or in the FCA. The FCFCA court will prioritise urgent and high-risk matters and cases will be appointed to the judge and division with the most relevant expertise. This means that parties will have certainty in terms of the likely costs and time required for their matter to be finalised.
The changes will take effect on 1 September 2021.
The Federal Circuit and Family Court will have two divisions
The FCFCA will be made up of two divisions.
Division 1 will deal with complex family law matters and appeals. Division 2 will be the entry point for all family law matters except for appeals.
Complex matters will be able to be sent to Division 1 by the Chief Justice.
Why is the family law system being changed?
The federal government has stated that the changes to the family law system have been introduced to address problems with the current system, including delays, inconsistencies, confusion and unnecessary costs. The new court aims to be more efficient, accessible, and consistent and to allow families to resolve disputes more quickly and cheaply.
The family law system has not been reviewed since the establishment of the Family Court 1976. The system is commonly criticised as being outdated and impractical and for failing to keep up with changes in relationship norms and in the way families operate. It currently takes an average time of almost a year and a half for a matter to reach trial, meaning significant changes can happen in children’s lives while proceedings are on foot. The slow processes mean that children must live with uncertainty about their future care arrangements for significant periods until a parenting matter is finalised.
Under the current system, the Family Court and the Federal Circuit Court operate parallel, with different rules, forms and filing fees. A lot of parties to family law proceedings represent themselves and have to navigate the parallel court systems alone can be confusing. It is common for applicants to initiate proceedings in the Family Court when the more appropriate jurisdiction to hear the matter is the Federal Circuit Court, as the relationship between the courts is poorly understood.
Responses to the Federal Circuit and Family Court
There have been very mixed responses to the announcement of the changes. Supporters say the merge will save resources by eliminating crossover between the two courts. The government has said that the new system will aim to finalise up to 8,000 more family law matters per year. However, critics of the family law system remain unconvinced that the changes will improve its inefficiency or result in better judgments. The fast-tracking of family law matters has left some feeling that complex situations involving domestic violence, substance abuse or parenting capacity may not be dealt with adequately by a system that is prioritising expediency and where there is less specialisation. The changes were announced with little consultation with the legal community or the wider community.
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