Impact of the Family Court Merger

29 November 2022 in Family and Divorce Law

What is the Family Court Merger?

5 years ago, the government announced their intent to combine both the Federal Circuit Court (FCC) and the Family Court of Australia (known as the Family Court Merger). By establishing one single entry point and one single set of rules for all family law proceedings, the merging of the two Courts was meant to clear the backlog of family law cases, reduce costs and shorten the wait times for new cases.

The new Court, The Federal Circuit Court and Family Court of Australia (FCFCOA) Commenced on 1 September 2021.

The Court has two divisions: Division 1 (a continuation of the Family Court of Australia), which hears cases involving complex issues and has appellate jurisdiction; and Division 2 (a continuation of the Federal Circuit Court of Australia), which serves as the single entry point for cases involving family law and child support.

How will this affect my parenting or property matter?

A key change brought about by the merging of the courts is the emphasis on pre-action procedures and the new requirements in financial matters. Previously, the pre-action procedures applied strictly to parenting cases. E.g. the parents must attempt mediation before bringing a parenting matter to court unless there was an exemption such as urgency or family violence.

The merger brought in pre-action procedures for both parenting and property matters, which means that parties must undertake a series of out-of-court negotiations and mediations prior to bringing the matter to court. The parties are also now required to issue a Notice of Intention to Commence Proceedings which outlines the issues in dispute, orders the party will be seeking, an offer to settle and a timeline of at least 14 days for the other party to respond.

You may think “that seems like a lot of steps to get to court” or “they won’t settle, so what is the point of this?” In our experience, most matters settle before they reach the stage of filing with the court. These new steps brought in by the merger encourage parties to reach an agreement together and allow you to play a more active role in the settlement of your dispute, rather than relying on the court to decide your case.

Why merge the courts?

Since the establishment of the Family Court in 1975 by then Prime Minister Gough Whitlam, there has been a significant increase in incidents of domestic violence and child abuse. Despite this heightened demand, in the past decade in particular, we have seen dramatic funding cuts and a failure to act on recommendations from reviews into the system.

In 2019, the Australian Law Reform Commission conducted an extensive review of the family law system and found that over the years it “has been deprived of resources to such an extent that it cannot deliver the quality of justice expected of a country like Australia.”

To address the inquiry’s findings, and what the Federal-Attorney General called “the overlapping family law jurisdiction” between the courts, the government drafted a bill to merge the Family Court and FCC. The goal of creating this “overarching, unified administrative structure” was to increase efficiency and reduce delays, quickly resolving matters for “the benefit of Australian families.”

The merger’s key aims were to:

• Minimise unnecessary costs and delays in family litigation
• Ensure the safety of families and children
• Facilitate the just resolution of disputes according to law and as quickly, inexpensively, and efficiently as possible

Critiques

When the Bill was announced, it was received with intense opposition from many family law experts, women’s legal services, peak legal bodies and members of parliament. Critics said that a stand-alone specialist family court is essential to safeguard the safety of children and victim-survivors of family violence.

159 stakeholders, including 11 retired family law judges and two former chief justices, signed an open letter to the Attorney-General expressing their concerns about the proposed merger. The letter stressed that the safety of children and adult victim-survivors of family violence requires increased specialisation and that the proposed merger serves only to undermine that important need.

After four years of opposition to the merger amid concerns that it would worsen conditions for disadvantaged families, the Bill was approved on 23 February 2021, by a single vote.

A number of critical provisions were secured due to advocacy throughout the legislation’s debate. Notably, the Federal Circuit and Family Court of Australia Act 2021 mandates that a minimum of 25 judges must be appointed to Division 1 (the former Family Court). That Division serves as the appeal court and deals with more complicated property and financial problems as well as some complicated parenting situations (such as serious child sexual abuse cases).

Impacts

There have been both positive and negative impacts of the merger on both consumers and lawyers.

Positive Impacts

• Established a single point of entry for federal family law matters
• Established a single set of court rules, forms, practices, and procedures
• Strengthened judicial appointment criteria
• Streamlined the family law appeals pathway

Negative Impacts

• Experts have argued the FCFCOA does not allow for a nuanced and specialised system that is sensitive to victim-survivors needs. The increase in domestic violence during the COVID-19 pandemic has only increased this need.
• According to its 2020 Annual Report, the FCC is struggling to manage the increased caseload. This could lead to families competing for resources and enduring long wait times for hearings – the opposite of the merger’s goals
• Families with ongoing matters in the court now have to acclimatise to a new system and way of doing things
• The greater focus on “pre-action procedures” (the stages before legal proceedings commence) has increased the workload for lawyers, potentially increasing the time and cost of legal assistance

Navigating the new system can be confusing. The family lawyers at Brander Smith McKnight understand the nuances of the FCFCOA Act and of the Courts. We are able to expertly guide you through these new procedures in a compassionate and supportive manner.