Merging of Family Court, Breakdown of Family Law

By Gabrielle Ebeling

With the support of One Nation Senator Pauline Hanson, the Federal Parliament has passed a bill that risks saturating the Federal Circuit Court, endangering the safety and welfare of families in critical need of expert attention.

On 17 February this year, the Senate passed legislation that will combine the Family Court with the Federal Court to create one court with two divisions. The bill, tabled by Attorney-General Christian Porter, marks the most significant change to the family law system in 46 years and is going ahead despite being vociferously opposed by 159 key stakeholders, including 13 ex-Family Court judges. 

So what does this mean for Australian families in need of the Court’s services?

In Australia, family law matters are currently dealt with in two courts: the Family Court of Australia and the Federal Circuit Court. 

The Family Court has jurisdiction to hear all matters in family law except divorce, and generally deals with matters of high complexity, including consent orders, serious allegations of sexual abuse of a child, adoption and contravention of parenting orders. 

The Federal Circuit Court takes the load off the Family Court by catching the less complex family matters, as well as dealing with more general law matters in the federal jurisdiction. It deals with a higher volume of cases and sits more regularly, the rules and procedures are less formal and the processes are often quicker than those of the Family Court. 

Established to reflect of the uniquely sensitive nature of family law, the Family Court is specifically designed to provide specialised support in an area that involves extreme vulnerability and in which the safety of children and adult victim-survivors of family violence is paramount.      

Distinguishing itself from more general courts that systematically analyse legal questions and requirements, the Court, established in 1975 by then Prime Minister Gough Whitlam, is intended to “provide help, encouragement and counselling to parties… and to have regard to their human problems, not just their legal rights.”  

However, in the time that has passed since its establishment, there has been a dramatic growth in incidents of child abuse and domestic violence which could not have been foreseen by the Whitlam government. Despite an increase in demand, there has not been an increase in funding to match it. 

On the contrary, the last seven years have seen the Federal Government commit to neglecting the Family Court. This neglect has been manifested in deliberate funding cuts, failures to replace judges of the Family Court and the Federal Circuit Court in a timely manner, and failures to implement the expert recommendations of repeated reviews into the family law system.  

In 2019, the Australian Law Reform Commission, on completion of the most comprehensive review into the family law system that has ever been conducted, noted:      

“The family law system has been deprived of resources to such an extent that it cannot deliver the quality of justice expected of a country like Australia.” 

In response to the Court’s inability to perform the vast functions required of it, the Government drafted a bill in 2019 that would bring the Federal Circuit Court and the Family Court together into an “overarching, unified administrative structure” to be known as the Federal Circuit and Family Court of Australia. 

This would condense the current dual system approach into one framework with common leadership and common case management, resulting in an increase in efficiency and a reduction in delays, speeding up the resolution of matters for “the benefit of Australian families.”

Yet the bill does not match up with the advice of experts. The merger was not recommended by the Australian Law Reform Commission, nor any of the 70 reviews into the family law system that have taken place since 1974. 

Rather, the Government is basing the most radical change to the structure of the nation’s family law system on a discredited six-week desktop review completed by PricewaterhouseCoopers, that cites evidence from other reports put together by KPMG and Ernst & Young, all of which are focused on one-dimensional economic statistics that fail to take into account the complexity and sensitivity of family law matters.

In an open letter, 159 key stakeholders expressed their concern that the merger would come at the cost of the safety of children and adult victim-survivors of family violence. The first Chief Justice of the Family Court of Australia, the Honourable Elizabeth Evatt AC, warned that the impact of losing this institutional specialisation is not properly understood, and has been downplayed. 

The second Chief Justice of the Family Court, the Honourable Alistair Nicholson AO, RFD, QC, backed up this claim, noting:

“it is unbelievable that Government would propose the dissolution of a Federal Superior Court in this fashion without the most careful and searching Public Inquiry and without consulting the many experts in this field.”

He said though throughput is important, so is the quality of the decisions made. 

The core issue of the family law system’s failure to adequately deliver justice is that it is under-resourced, and there is a crippling backlog of cases that extends a process which is inherently distressing and traumatic for those involved. 

The merger does nothing to address these problems. 

Rather, it pushes all matters from the Family Court into the nation’s busiest and most overburdened court. In its Annual Report released in October 2020, the Federal Circuit Court revealed stark concerns that it is unable to cope with its increasing workload. As President of the Law Council of Australia, Pauline Wright, commented: 

“The Federal Circuit Court is already struggling though chronic under-resourcing and under-funding to manage complex family matters alongside its crushing, growing migration workload.”

As such, the Attorney-General’s claims that the bill will “reduce the costs and delays” that families experience are simply not true. On the contrary, these families will be forced to compete for resources and hearing time in the vast and expanding swamp of caseloads that the Federal Circuit Court is already struggling to manage.

The shadow pandemic of domestic violence created by COVID-19 has generated a demand that is greater than ever for a specialised system that is sensitive to the needs of victim-survivors of family violence. Now more than ever, we should be focussed on establishing a system that respects its subjects and provides them with the resources they need to feel protected and to grow past the trauma. 

Increasing specialisation, increasing funding and resources, and prioritising the safety of children and victim-survivors in the family law system are solutions that have been recommended by inquiry after government-commissioned inquiry. Yet inquiries are meaningless unless they are put into action by a willing and dedicated government. 

In tabling the bill, Christian Porter has worked in flagrant disregard for the concerns raised by scores of legal professionals, stakeholders and community experts. The bill does not just risk being an inadequate answer to a problem that is in dire need of a solution. It risks exacerbating the problem by increasing cost, time and stress for those involved, and shamelessly prioritises political cost-cutting over the welfare of vulnerable Australian families.