Parliament backs overdue reform of family courts

Families will be able to deal with their matters in the family courts much more quickly and at lower cost as a result of the Morrison Government’s reform of the family court system.

Attorney-General, Christian Porter, said the passage of the Federal Circuit and Family Court of Australia Bill through the senate means families will have a simpler, faster and, as a result, cheaper system. 

“Successive governments have been talking about delivering reform of the family courts for decades – the Morrison Government has delivered,” the Attorney-General said.

“This area has been one of the most reviewed in

Australia but until now, no government has been able to achieve much-needed reform to focus the work of the courts on the users – those families which are dealing with the end of a relationship and need assistance to finalise their matters so they can move on with their lives.”

The Bill creates a new single court structure, the Federal Circuit and Family Court (FCFC), combining the existing Federal Circuit Court and Family Court of Australia. It will establish for the first time a single point of entry for families so they are no longer bounced around between different courts – a recurring feature of the current system that contributes to lengthy delays for families.

The Bill will bring about the creation of a single set of consistent rules, processes and procedures to apply in the Court. The implementation of a consistent set of court rules will make navigating the system simpler and reduce confusion for Australian families, while ensuring that the rules represent best practice.

The FCFC will comprise two divisions – the first being the current Family Court of Australia and the other being the Federal Circuit Court - which currently deals with about 90 per cent of parenting applications. Division 1 cannot be abolished and cannot fall beneath 25 judges - the same number that was previously said to be appropriate in the Semple Review commissioned by the Labor Party.

The final Bill included amendments introduced previously which ensured that family law appeals continue to be heard by the FCFC, in Division 1, rather than in the Federal Court of Australia. There will be no separate Appeal Division in the FCFC (Division 1). Instead, all FCFC (Division 1) judges will be able to hear appeals, including as a single judge to ensure more matters are finalised each year.

The legislation also requires that those hearing family law matters in either Division will need to satisfy additional appointment criteria to ensure they are suitable to deal with family law matters, including family violence.

“The unfortunate reality is that many of the matters that come before the family law courts involve family violence, and as such, it is appropriate to codify that judicial appointees have the ability to deal with such cases,” the Attorney-General said.

The Government has made significant additional investments in the family law system, including many recent initiatives to ensure the system protects victims of family violence and measures in the recent October 2020 Budget. These include:

• more than $140 million for the courts and family law system in the last Budget, including increases in funding for the federal family law courts, particularly for the Federal Circuit Court. It included funding for an additional family law judge, 5 extra family law registrars and support staff. This will assist with the demands in family law registries
• the Lighthouse Project, which screens, triages and case manages matters involving family violence,
• the placement of police and child protection officials in family law registries to improve information sharing,
• establishing the Family Advocacy and Support Services in the federal family law courts, which funds duty lawyer and social workers in federal family law courts, and
• increased legal funding through the new National Legal Assistance Partnership agreement.

“These initiatives don’t impact the known structural issues associated with the present two-court structure,” the Attorney-General said.

“As I have said repeatedly, further additional funding must be tied to genuine reform because there is simply no point pushing more funding into a failed structure.”

As part of the implementation of the Bill, the Government has agreed to also provide an additional FCFC (Division 1) judge, two additional FCFC (Division 2) judges, and an additional judicial registrar to support the Adelaide registry, and will provide $14.3 million in further legal assistance in South Australia to establish a pilot programme for family law matters. The Government will also re-establish the Family Law Council, and the Government recognises the advocacy of Senator Patrick for these initiatives.

The Attorney-General said many of the loudest voices who have opposed these reforms and made wild assertions about consequences, had a vested interest in maintaining a status quo that fuelled delays causing increasing tensions between parties and rising costs and who failed to present alternative approaches.

“Families who need to use the court to resolve matters at the end of a relationship have a right to expect that the system will help them settle their matters quickly, efficiently and at as low cost as possible,” the Attorney-General said.

“Unfortunately, for too many families, this has not been the reality as the system itself has been exacerbating the stress and pressure being experienced by users of the courts.

“I thank the Parliament, particularly cross-bench Senators Patrick and Hanson for their work in achieving this reform.”