Proposed merger of the Family Court of Australia and Federal Circuit Court
13 December 2018
On 12 December, representatives from the Law Council gave evidence at the Senate Legal and Constitutional Affairs Committee’s inquiry into the proposed merger of the Federal Circuit Court and the Family Court of Australia Bill 2018, which the Law Council strongly opposes.
The Law Council was represented by President-elect Arthur Moses SC and Paul Doolan and Wendy Kayler-Thomson, Chair and the Immediate Past Chair of the Law Council's Family Law Section respectively.
There is no doubt Australia’s family law system is in need of reform, however, it is the Law Council’s belief the proposed restructure would compound the court’s problems, not solve them.
There has been chronic underfunding of the family law system over several decades and a failure to make timely appointments of judicial officers when retirements occurred, resulting in a backlog of cases and long delays.
Proper resourcing of the family law system and timely appointments are needed to help solve the problem we now face.
If legislated, these reforms could reduce the number of specialist family law judges, which could in turn lead to erroneous decisions, poorer outcomes for families and the risk of more appeals and increase costs for litigants. Using specialist judges is more efficient and produces fairer outcomes.
It would also increase the workload of the already backlogged – the family law work currently undertaken by the Family Court often require intense case management, more hearing days at trial and require more complex judicial analysis and decision making.
The proposed reform is based on the flawed findings of a PwC report, prepared in just six weeks with no input from the legal profession or court users.
The report makes significant incorrect assumptions about current court processes and is largely based on statistics, which should not be the only measure of court performance.
Finally, such a monumental restructure – the largest in 40 years of the Family Court – should not be considered until after the ALRC Family Law Review issues its final report (31 March 2019) and its recommendations have been properly considered.
A number of proposals in the ALRC Discussion Paper overlap with matters that are the subject of the restructure Bills, such as proposals regarding case management, triaging of cases, risk assessment, specialist lists and the role of different levels of judicial officers.
The people using the system – families and children in crisis – need to be the focus of any changes to the Family Court system. However, the Law Council believes the proposed merger would not be in the best interests of Australian families and children, only make the situation worse.