2.1
Evidence to the inquiry raised several issues with the Federal Circuit and Family Court of Australia Bill 2019 (the FCFC bill) and the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019 (the Consequential Amendments bill) (together 'the bills').
2.2
This chapter discusses the following key issues:
whether the bills would achieve the stated purposes;
establishing a single point of entry;
the need for holistic reform of the family law system;
dual appointments and the power to make Rules of the Court;
ensuring specialisation in family law matters;
other matters, including the minimum number of judges prescribed in, and reviews of, the legislation.
2.3
The chapter concludes with the committee's view and recommendation.
2.4
Issues raised in this inquiry were similar to those highlighted in the previous inquiry. Inquiry participants agreed that reform to the family law system is needed and broadly accepted the merits of the stated purposes of the bills. However, there was opposition to the model of reform proposed in the bills.
Achieving the bills' stated purpose
2.5
The Attorney-General's Department (the department) explained the legislation's 'primary purpose is to improve justice outcomes for Australian families and make the federal law courts simpler and easier for families to access'. The legislation seeks to 'address the current problem of two courts dealing inconsistently with the one subject to facilitate a more cohesive federal family law court system'.
2.6
The department emphasised that COVID-19 makes the anticipated efficiency gains even more critical:
The Attorney-General has consistently advocated these reforms on the basis they will increase the efficiency of the courts in dealing with family law disputes safely and effectively. The anticipated efficiency gains will be even more critical in a post-COVID-19 environment where the courts anticipate a significant increase in caseload notwithstanding the best efforts of the courts to deal with urgent family law matters during the pandemic.
2.7
Submitters and witnesses questioned whether the bills would achieve the stated objectives. Concerns were raised that the bills 'would put at greater risk those Australians in need of special family law assistance to resolve the most intractable of disputes'.
2.8
The NSW Bar Association disputed the suggestion that the bills would increase efficiencies and reduce delays. National Aboriginal and Torres Strait Islander Legal Services (NATSILS) posited that the bills would not address the problems, delays and inefficiencies in the family law system and should be rejected.
2.9
The Queensland Law Society questioned how the complexity of the current system would be resolved by the FCFC bill:
In effect, there is no true amalgamation of the courts. It is therefore unclear how the issues around the complexity of the current system will be resolved through the proposal. While we acknowledge the intention for a common case management approach to be adopted across both divisions, the structure does not appear to assist in reducing complication for those engaged in the system.
2.10
Similar to the previous inquiry, submissions were critical that the rationale for the proposed reforms is based, in large part, on a report from PricewaterhouseCoopers which, in the view of inquiry participants, includes flawed interpretations and assumptions.
2.11
In contrast, Professor Patrick Parkinson expressed support for the bills 'in general terms' but with some proposed amendments (detailed later in this chapter). Professor Parkinson observed that while most of the 'argument…will be on the proposed restructure' of the courts, there are a number of sections of the bill:
which introduce new powers and impose new obligations that have great potential to improve the efficiency of the courts and to reduce the delays in getting matters to trial that need a hearing. This will in turn reduce the costs of litigation for the parties.
Single point of entry
2.12
As outlined in chapter 1, the bills would establish a single point of entry into the federal family law system. All first instance family law and child support matters would be filed in Division 2 of the FCFC with some matters subsequently transferred to Division 1. According to the department, it is expected that the bulk of matters transferred to Division 1 would be through Division 2's case management procedures although some matters could also be transferred by order of the Chief Justice.
2.13
The department outlined the anticipated benefits of a single point of entry:
A single point of entry into the federal family law courts would reduce confusion among Australian families about…which court they should be filing their family law matter. It would also empower the courts to implement unified and effective case management procedures across both courts, which would reduce the need for matters to be transferred between the courts unnecessarily. Further, risks would be able to be more easily identified and managed, and families with complex needs would receive the early support and assistance they need to resolve their disputes.
2.14
The Women's Legal Services Australia (WLSA) supported the principle of a single point of entry, but was concerned that implementation of a single point of entry 'would result in the abolition of a stand-alone specialist superior Family Court'.
2.15
The NSW Bar Association argued that the proposed legislation 'other than inferentially, by abolishing the Family Court and creating one court' does not direct any specific action to achieve a single point of entry and the harmonisation of rules. The NSW Bar Association and the Law Council drew attention to specific clauses to demonstrate that the FCFC bill 'would not make it mandatory for a single point of entry to be created' and furthermore:
Instead of mandating this desired outcome, clauses 70, 75, 193 and 216 of the [FCFC bill] simply require the Chief Justice and Chief Judge to "work cooperatively" with an "aim"- but not a requirement - to ensure common approaches to "case management", "common rules of court and forms", and "common practices and procedures". The [FCFC bill] is silent as to any consequences that would flow if agreement were not able to be reached, or these initiatives given effect to.
2.16
Inquiry participants argued that a single point of entry could be achieved without the proposed legislation and highlighted that much of the work required to unify and consolidate a single set of rules, forms and procedures is already under consideration by the Common Rules Project of the Family Court and Federal Circuit Court.
2.17
Mr David Pringle, Chief Executive Officer and Principal Registrar, Family Court and FCC, detailed a number of reforms and projects being undertaken by the courts 'to promote mediated and conciliated outcomes in a safe way and to reduce litigation time frames and backlogs'.
2.18
Mr Pringle advised that while the 'court's initiatives are not contingent on the bills being passed, there are a number of elements in the bills that would complement the court's reforms':
These include the stated objects of the bill, which in summary are to provide a framework for the operation of both courts so as to ensure a common approach to case management and common rules, practices and procedures. The bill also introduces an overarching purpose—this is very important—which is in essence an obligation upon the courts, the parties and lawyers to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible. Importantly, there's also a focus on proportionality and the importance of resolving cases cost-effectively depending on the complexity and importance of the case. These objectives are consistent with the court's statement of core principles. A single entry point is also conducive to the harmonisation initiatives of the courts. By its nature, it would allow the courts to triage for risk at an early point and stream cases to either court based on case characteristics.
2.19
The department emphasised that part of the rationale for the bills is to provide for a single point of entry and single case management system which would:
...reduce the number of court events and, effectively, allow for the resolution of disputes in a way that is safe for the parties, but also efficient for the parties, so that they aren't attracting those costs and so that they can resume their normal working lives without the continuation of their dispute at some astronomical cost.
2.20
The department acknowledged that the courts 'are taking positive and productive steps to attempt to develop a common set of rules across both courts for family law matters' and the bills:
provide a mechanism for implementing common set of rules, given that a common set of rules has not eventuated despite persistent calls for it. The Bills provide an important safeguard for ensuring common rules of court and forms, and common practices and procedures.
Holistic reform of the family law system
2.21
Several inquiry participants discussed the structure of the family law system in broad terms, highlighted the challenges and put forward a range of considerations for reform. This was articulated by some submitters as the need for a 'holistic reform' of the family law system. For example:
[Victorian Women Lawyers] considers that increasing efficiency would be more effectively achieved by improved case management within the current system and holistic structural reform within the Family Court. VWL supports the recommendations contained within the Small Claims, Large Battles report produced by Women's legal Service Victoria.
2.22
While submitters had different views regarding what constituted holistic reform, key themes included further engagement with substantive reviews of the family law system; greater consultation with stakeholders; and a stronger focus on reforms aimed at benefitting children and victim survivors of family violence.
2.23
Relationships Australia advocated for 'system transformation', arguing that the courts form one part of a family law system that offers holistic support:
That includes an important role for the courts as a pillar in a family wellbeing system but does not hold the courts as the pinnacle of the entire process of a family separation. What we are arguing for, and what our submission has put, is that family law courts shouldn't be about delivering vindication between competing interests. A family wellbeing system must be about providing holistic support to a family that's going through a separation. We accept that there will be times when courts must be involved in that process. Therefore, they will be an important and co-equal pillar, but, equally important, are services that work with families to support them through that separation process, to include paramountcy of safety, of children's wellbeing and the best interests of the children, and look at a whole range of factors that need to be in place for the future success of those children and their development.
Substantive reviews
2.24
The Australian Women Against Violence Alliance (AWAVA) stated that 'since 2009 there have been twelve major reports released on the necessary reforms and improvements' to the family law system. A number of submitters emphasised that findings of recent substantive reviews of the family law system should be included in any proposed reforms.
2.25
In particular, submitters expressed concern that the proposed bills do not adequately engage with recommendations included in the extensive review undertaken by the Australian Law Reform Commission in 2019:
Furthermore, the [Bar Association of Queensland] is concerned that this proposed structural reform does not appear to be based upon the substantive recommendations advanced by the Australian Law Reform Commission despite the significant cost associated with that review. It is difficult to contemplate the purpose of such a review, if the review process is time and resource intensive, the recommendations of existing substantial reviews have not been adopted and the model may not be sufficiently operative for a review to give an accurate reflection of the model.
2.26
The Queensland Law Society echoed this view, adding that the bills have been devised without consideration to the findings of an ongoing parliamentary inquiry into the family law system:
Any structural reforms should be considered in the context of the recent recommendations made by the Australian Law Reform Commission following the Review of the Family Law System. The Joint Select Committee on the Family Law System review is also currently on foot. The proposed reforms have been considered outside any of these important reviews. We maintain that any significant changes to the court system must be considered in a holistic manner.
2.27
The department acknowledged the bills 'should be viewed within the broader context of other initiatives' the government is undertaking in the family law system and that the bills:
…are not the only step to improving outcomes for Australian families in the family law system, but they are a necessary foundational step to ensure that current and future initiatives have maximum impact.
2.28
The department told the committee it is is 'carefully considering the ALRC Report and will also give thorough consideration to the recommendations of the Joint Select Committee'. Furthermore:
[T]he purpose of the Bills is to address a known problem and place the federal family law courts in the best position to deal with matters efficiently and effectively. The implementation of the Bills can be done separately to those reviews, so that Australian families experience the benefits of a more efficient federal family law court system sooner.
Children and victim survivors of domestic and family violence
2.29
One of the broad issues raised in the context of holistic reform was the need for greater measures to improve the family law system for children, families and victim survivors of family violence. Community Legal Centres Australia advocated for an alternative model of reform:
We would welcome further consultations on alternative models of structural, holistic reform to benefit children, families and victims-survivors of family violence. We recommend that immediate action is taken to further increase family violence specialisation in the family law system.
2.30
Similarly, the National Aboriginal and Torres Strait Islander Legal Services (NATSILS), recommended that:
The Committee should advocate to the Parliament for a more holistic, structural reform of the family law system with a view to eliminating jurisdictional gaps, improved information sharing, and a greater focus on protecting victim survivors of family violence and children, like those recommendations that have already been made by the numerous inquiries into the family law system that have been initiated in the last few years, including the Australian Law Reform Commission's review of the family law system.
2.31
The NSW Bar Association argued that a 'stand-alone' family court, bolstered by holistic reform would best achieve the protection for children and victim survivors:
Fundamentally, the strongest protection for children, families and victims of family violence is to maintain a stand-alone, specialist family court involving a holistic, specialist system of interrelated and co-located services and resources, as was intended when the Family Court was originally created. Even with amendments, the Amended Merger Bills would nevertheless mark the end of a specialist, stand-alone court as know it and should be opposed…Holistic reform to bolster a stand-alone specialist family court - and funding to properly resource it - is urgently needed.
Stakeholder consultation
2.32
A number of submissions argued that holistic reform of the family law system would require greater consultation with key stakeholders, and stated that inadequate engagement occurred prior to the introduction of the bills. The Law Institute of Victoria (LIV) remarked that 'holistic law reform requires comprehensive consultation with external stakeholders in the broader family law system'.
2.33
In addition to consulting with the legal profession, submitters called for further engagement with users of the family law system, particularly minority groups. Community Legal Centres Australia recommended:
Adequate consultation on proposed models, legislation, policies and procedures which involves those who would be impacted. It is important this includes the legal assistance sector and sexual and family violence experts. Consultation with people with disability, LGBTQ communities and people living in regional, rural and remote areas is also required.
2.34
In its submission to the previous inquiry on the 2018 bills, the Family Court commented:
[A]lthough Chief Justice Pascoe was consulted during the drafting process, the body of judges were not. Chief Justice Alstergren was also consulted, albeit in his capacity as Chief Judge of the Federal Circuit Court of Australia. The body of judges believe they should have been consulted.
2.35
Ms Virginia Wilson, Deputy Principal Registrar and National Family Law Registrar, Family Court and Federal Circuit Court, explained that following the 2018 bills, the Attorney-General spoke to judges across both courts at a plenary of judges in August 2019 and it was noted at that time that there would be changes made to the 2018 bills. Following that plenary, there was an opportunity for the courts, as well as individual judges, to make submissions on the bills. On notice, the courts advised:
Both the Family Court of Australia and the Federal Circuit Court of Australia made submissions on the 2018 version of the Bills. The submission from the Family Court provides that as Head of Jurisdiction, the Chief Justice does not consider it appropriate for the Court to comment on Government policy or the structure of the Court. Nevertheless, notwithstanding existing protocol, individual Judges of the Court were at liberty to make their own submissions on the 2018 version of the Bills. In August 2019, at a plenary of judges the Attorney-General spoke to judges across both Courts and outlining intended changes to the 2018 version of the Bills.
In relation to the 2019 Bills, reference is made to the letter from Chief Justice Alstergren to the Committee Chair dated 12 November 2020, which noted that the Family Court of Australia 'relies upon its previous submissions made on 14 December 2018’ and that, as Head of Jurisdiction, the Chief Justice does not consider it appropriate for the Court to comment on Government policy or the structure of the Court. However 'individual Judges of the Court are at liberty to make their own submissions on Government policy if they wish to do so and a few have'.
2.36
The department explained the consultation undertaken on the bills including engaging with the Family Law Section of the Law Council and a range of different practitioners. Consultation with community legal centres, ATSILS and other legal assistance providers has also occurred:
I can point at least to a meeting that was held between the Attorney-General and the ATSILSs and CLCs, through their peak organisations, prior to the reintroduction of this 2019 bill. The Attorney was at pains to provide the opportunity for those organisations—including…National Legal Aid—to be briefed on the changes that had been made to the bill, subsequent to the 2018 Senate committee report and prior to the reintroduction of that bill. At the departmental level, we've also had similar conversations through the ATSILSs, CLCs Australia and legal aid commissions so that they are aware of and familiar with the proposed operation of the provisions of the bill.
2.37
The department elaborated:
The Attorney-General, the Hon Christian Porter MP, wrote to Ms Cheryl Axleby and Mr Wayne Muir in their capacity as co-chairs of NATSILS on 30 May 2018 to outline the proposed changes as they were in the initial iteration of the court reform proposal.
The department hosted a teleconference with stakeholders, including representatives from NATSILS, to discuss the reforms on 30 May 2018.
Further consultations occurred prior to and during meetings between the department and NATSILS on 16 October 2018, 15 August 2019, 3 December 2019, and 23 March 2020.
The Attorney-General conducted a roundtable consultation with stakeholders, including a representative from NATSILS, about the proposed structural reforms on 10 October 2019.
Maintaining specialisation in the family law system
2.38
Submissions and witnesses expressed concern that the proposed reforms to the courts would result in a loss of specialisation about family law matters. Much of this concern was predicated on the view that the new FCFC would:
…weaken the family law jurisdiction by diminishing the judicial expertise of the [Family Court] and its appellate jurisdiction, and eliminate current case management practices with which family law solicitors are familiar and which are uncommon in other jurisdictions.
2.39
Concerns were raised that the FCC does not have sufficient expertise in complex family law matters. The Law Council argued that the bills would 'end the specialist stand-alone Family Court as we know it' as it would 'collapse into one of the country's busiest courts, the lower level Federal Circuit Court':
which already struggles through lack of resourcing to manage less complex family matters alongside its other work in migration, administrative, admiralty, bankruptcy, consumer, human rights, intellectual property, privacy and workplace law. It's a court whose judges are already chronically underresourced and overburdened, some grappling with more than 600 cases on their dockets, and that was even before the pandemic.
2.40
The Law Council also gave evidence that 'wraparound services' such as counselling and other specialised services are available through the Family Court, but not the Federal Circuit Court.
2.41
A key concern about an insufficient level of family law expertise and specialisation centred on the potential for 'erroneous decisions and poorer outcomes for families'. The Queensland Law Society submitted:
The skill necessary to understand the complex dynamics relating to family violence and properly identify risk is essential to the practice of family law and the proper determination of family law disputes. Decisions made without this skill and expertise can place victims of family violence, including children, at increased risk.
2.42
Similarly, Victorian Women Lawyers submitted:
In particular, a lack of judicial experience in the area of family law could result in increased risks for particularly vulnerable groups such as women and children, including victims of family violence, people with disabilities and those who identify as transgender or gender diverse.
2.43
The Law Council outlined a number of impacts on cases and litigants where the judicial officer has no or limited family experience including: lack of consistency in judicial approach to practice, procedure and the application of well-established legal principles and the limits or range of the exercise of judicial discretion, making of orders that may not appropriately manage risks to women and children, increased costs to litigants.
2.44
The preferred model for family law was one which retained 'a stand-alone specialist superior family court and increases family law and family violence specialisation'. WLSA advocated for a stand-alone Family Court on the basis that, in part, 'it provides a greater probability of appropriate judicial appointments as it will always be more obvious if a completely inappropriate appointment is made in the specialist court'. It was the view of WLSA that retaining such specialisation in a specialist Family Court would offer the 'greatest protection for our clients and the higher probability of the best outcomes'.
2.45
The FCFC bill includes qualification requirements for proposed judicial appointments to Division 1 and Division 2 of the FCFC at clauses 11 and 111 respectively. These provisions provide that appointments only be made if 'by reason of knowledges, skills, experience and aptitude, the person is a suitable person to deal with matters of family law, including matters of family violence'.
2.46
Professor Parkinson welcomed criteria in the FCFC aimed at ensuring that judges hearing family law matters have suitable skills and experience to deal with such matters, but argued that successive '[g]overnments have not infrequently ignored the statutory criteria entirely'. Noting the importance of public confidence in the quality of the judiciary, Professor Parkinson argued that, in the absence of a merit based process, appointments may be based on personal friendships and allegiances, rather than requisite experience.
2.47
Accordingly Professor Parkinson recommended that an independent Judicial Appointments Commission for federal courts and tribunals be established by agreement between the government and the opposition. Further, Professor Parkinson suggested that all judicial appointments contain 'a detailed statement of how, and to what extent, the person nominated satisfies the statutory criteria' and 'an account of the selection process to test such suitability'.
2.48
Representatives from the Family Court and the FCC, as well as the department, disputed there is an issue with judicial specialisation in the FCC. Mr Pringle stated:
The judges of the FCC are highly experienced, qualified and hard-working. The average length of time that FCC judges have served on the bench is 8.2 years. Those judges presiding in family law matters have a high level of education, skill and experience. On last analysis, the judges had, on average, approximately 25 years of experience in family law.
The FCC services 43 metropolitan and regional areas across Australia. It deals with 88 per cent of all federal family law applications and 91 per cent of all parenting matters, and, indeed, 100 per cent of all parenting matters on circuit. Over 85 per cent of the FCC's caseload includes family law matters, which are increasing in both legal complexity and the level-of-risk factors experienced by parties. The capabilities and experience of FCC judges are reflected in the very low appeal rate of their decisions, which is less than one per cent of matters disposed of by the court. The successful appeal rate is even lower.
2.49
According to Mr Pringle, the inclusion of 'more criteria regarding specialisation' in the FCFC Bill would mean that 'appointments made under those provisions would likely have a greater focus on experience with family violence and family law matters'.
2.50
Mr Pringle explained that the court's internal family law services are shared between the Family Court and the FCC. These services include registrar resources, family counsellors and registry staff. External services, such as Legal Aid, are 'available to family law litigants, irrespective of which court they are in'.
2.51
The department argued it is a 'misconception' that the FCC 'does not have family law expertise':
The existing Federal Circuit Court, which will become the FCFC (Division 2), deals with the vast majority of final order family law applications handled by the two courts (approximately 88 per cent in 2018-19), including a great number of highly complex parenting and property matters, and the Family Court on the other hand handles more matters involving property than matters involving children.
2.52
The department emphasised that the bills would not reduce specialisation in the family law system, and would 'maintain the existing specialisation requirement in the Family Court, which will be division 1, and…introduce a new specialisation requirement for the Federal Circuit Court, division 2'.
2.53
The department stated that:
The bills do not in some way dissipate a specialised ecosystem of support and other services for family court matters, as has been suggested by some. Those services are available for all Family Court matters, no matter which division they will be handled in. Making this structural reform will in itself enable new harmonised practices and a single point of entry. It will lead to reductions in backlogs and increased efficiency of court processes. The savings to the courts from harmonised consistent practices will be reinvested by the courts in their family law case handling. This reform follows naturally on the reform that brought together the back office of the various courts in the 2015-16 financial year.
Dual appointments and the power to make Rules of the Court
2.54
The FCFC bill provides for the possibility of dual appointments of the Chief Justice of Division 1 and the Chief Judge of Division 2; and the Deputy Chief Justice of Division 1 and the Deputy Chief Judge (Family Law) of Division 2. These provisions would allow the same person to occupy the role of Chief Justice and Chief Judge, and the same person to occupy Deputy Chief Justice and Deputy Chief Judge.
2.55
Some submitters expressed concern that under the bill the Chief Justice and Chief Judge would be empowered to make Rules of the Court, if the Chiefs of the two courts are the same person, the proposal effectively vests the rule making power in a single person:
Decisions made by a single person may be adverse to the rule of law and against the interests of either one or both divisions of the Court and the public which it strives to serve. The proposed process is a significant departure from how court rules are made in all superior courts.
2.56
The Family Law Practitioners Association Queensland highlighted that the FCFC bill proposes to confer sole rule-making power to create the Rules of Court on the Chief Justice for Division 1 and the Chief Judge for Division 2 for a period of 2 years:
Whilst the Bills note that the power to make Rules is to be amended two years after the section commences to provide for the Rules to be made by the Judges or a majority of them, there are many potential dangers if the rule making power is reposed in one person even for a two year period, and particularly during a transitional and establishment phase.
2.57
Whilst submitters acknowledged that the bill would require the Chief Justice to be satisfied that there has been proper consultation with the other judges of the FCFC before creating court rules, they emphasised that if the consultation does not occur, the validity or enforceability of a Rule of Court is unaffected.
2.58
The LIV further argued that vesting sole rule-making power in the head of jurisdiction for each Division of the FCFC has the potential to inhibit effective case management by each Division of the FCFC, which may negatively impact the relationship the courts currently have with key stakeholders, including the legal profession.
2.59
According to the department, proposed clauses allowing for dual appointments underpin the government's intention of 'enabling a common case management approach and effective allocation of cases' between Division 1 and Division 2. Further, the department stated:
Clause 21 would, in conjunction with clauses 76 and 217, enable each head of division, in practice one Chief Justice, to issue common rules of courts, practice notes and directions, which would guide the Judges and Court staff of each division, legal practitioners and litigants about the way uniform procedures are expected to operate. This would provide a streamlined court system that would allow Australian families to spend significantly less time in the courts to resolve their family law disputes.
The single leadership and management of both Courts by a single Chief Justice supported by a single Deputy Chief Justice would allow for redesigning consistent internal approaches to case management, practice and procedures across both Divisions. It is also expected that a common Head of Jurisdiction would ensure the issuing of common Rules of Courts, practice notes and directions.
Appeals process
Appellate jurisdiction
2.60
Evidence to this inquiry supported the preservation of appellate jurisdiction within the FCFC (Division 1), as opposed to the creation of a family law appeals division in the Federal Court of Australia (proposed by the 2018 bills). However, a number of submitters considered that the proposed model, which allows all FCFC (Division 1) judges to hear family law appeals, effectively abolishes the dedicated appeals division of the existing Family Court, under which 'time and experience has resulted in the development of efficient and effective systems and processes'.
2.61
A concern articulated by the Bar Association of Queensland was that the elimination of a dedicated appeal division 'would result in the loss of valuable precedent and the expertise of appeal judges in family law crucial to the proper administration of justice'. The LIV suggested that the model 'would disadvantage litigants in Division 1 of the FCFC by the lack of jurisprudence available to guide appeal Judges in determining complex issues on appeal'.
Appeals heard by a single judge
2.62
The FCFC bill would provide that appeals from Division 2 judges are heard by a single Division 1 judge unless the Chief Judge determines that issues in the case warrant consideration by a larger appellate bench. The bill would effectively reverse the existing default position that appeals be heard by a panel of three judges unless the Chief Judge determines the appeal be heard by a single judge.
2.63
The Bar Association of Queensland stated that the proposal may lead to fractured jurisprudence, stating that 'appeal decisions of a bench of three judges results in the development of authoritative jurisprudence, rather than a series of single judge decisions'.
2.64
The Bar Association of Queensland also expressed concern that as Divisions 1 and 2 of the proposed FCFC 'have a complete concurrence of jurisdiction' it would be inappropriate for a single judge of Division 1 to hear an appeal from the single judge of Division 2:
Where Division 1 judges would only have original jurisdiction to hear and determine matters transferred to it by Division 2, it is inappropriate for a single judge of Division 1 to hear and determine an appeal from a decision of a Division 2 judge. This model has the potential for an appeal to be tantamount to a substitution of one single judge's decision for another, a course the authorities are clear is improper.
2.65
The NSW Bar Association argued that the bills offer inadequate protection for the fundamental rights of litigants to appeal:
To have the final—barring the High Court here, but in practical terms—right of appeal, then, to a single judge on what are purely discretionary decisions to another single judge of essentially the same court provides little protection, we would suggest, for those fundamental rights.
The bench of three is something that is tried and true. It's stood the test of time in terms of an ability to defuse appropriately individual opinions and individual preconceptions as to the importance of domestic violence decisions on the position of children and parents. It has provided a tried and true method of filtering out and dealing appropriately with those rights and protecting them. We're very concerned about seeing these litigants put in a position where, effectively, their rights are single judge, first hearing; single judge, appeal; and that's the end of the run...
2.66
Accordingly, there was support for a continuation of current practice where an appeal is 'generally being heard by 3 or more Judges of the Family Court sitting together, where a majority of those Judges are members of the Appeal Division'.
2.67
Professor Patrick Parkinson did not share this concern. He argued that appeal decisions are often contradictory, even when heard by a bench of three judges:
The reality is there are a lot of appeals in family law, and the current appeal bench sits in groups of three. So, in any given year, a large number of differently composed benches are hearing cases. One of the great frustrations for me is that they are constantly contradicting one another…Will it make any difference if you go to predominantly one-member courts?
I don't think so, because you can select the cases which throw up issues of law and principle and have a three- or five-member bench to hear those. The majority of appeals do not raise significant points of law.
2.68
Professor Parkinson agreed with the rationale for the proposed model, arguing that potential productivity outweighed concerns:
It is precisely how appeals operated before the Federal Magistrates Court became the Federal Circuit Court. The change to have three member benches in all appeals against final orders from a Circuit Court judge arose because it was considered that the status of the Circuit Court as equivalent to a District Court in NSW, warranted ordinarily having a three member appellate bench of superior court judges to hear the appeal. That is, the elevation of the magistrates to become judges required an increase in the number of judges providing appellate scrutiny for each decision. The Government has evidently decided that in a choice between concerns about the status of the FCC judges and the need for greater productivity to reduce delays, the latter consideration should dominate. I agree. There are ways of ensuring that cases which appear likely to involve significant issues of law or practice going beyond the immediate matter at hand, will be heard by a larger appellate bench.
2.69
The department submitted that allowing a single judge to hear appeals would result in efficiencies to the family law system:
The exercise of the appellate jurisdiction of the FCFC (Division 1) by a single judge will contribute to the FCFC being able to hear more matters each year. Further, allowing all judges to hear appeals, either as single judges or as part of a Full Court, would give the FCFC (Division 1) increased flexibility as to how it manages its appeal workload.
Resourcing
2.70
Reform of the family law system was broadly supported, and submitters acknowledged that the backlog of cases and delays currently experienced by family law litigants are highly problematic. Many submitters argued that these issues will not be addressed adequately by the bills, which are intended to improve efficiency within the family law system, without a simultaneous increase in resourcing for the courts.
2.71
Some community legal centres, advocacy bodies and legal professionals argued that the proposed reforms do not address what was broadly described as 'chronic underfunding' of the courts system, including funding for legal assistance:
The LCA considers that chronic underfunding of the family law courts as well as the delays (or in some cases failure) in replacing retiring judges are the root cause of much of the backlog and delays currently experienced by family law litigants. When a judge retires in the FCC their docket of cases or workload, which can be as much as 500-600 cases, must be picked up by existing judges until a replacement is appointed. Delays in appointment inevitably therefore reduce the capacity of the remaining judges to hear cases in a timely way, causing significant backlogs, overlistings of interim and trial dates and increases in the time to both interim hearing and trial.
2.72
The Law Council argued that while the increased legal assistance funding provided by the National Legal Assistance Partnership announced in June 2020, was welcome, funding contained in the 2020-21 Budget 'is insufficient to address the significant unmet need in the system and the Courts' and 'one-off injections cannot rectify a decade of chronic under-resourcing'.
2.73
Questioning how improved efficiency would be achieved without also increasing in resourcing, submitters were particularly concerned that reforms may harm litigants, particularly victim survivors of domestic and family violence:
We agree that the family law court system is under pressure and reform is required so that it responds better to people in difficult situations. However, it needs to be acknowledged that the key reason why the system struggles to meet the needs of families in Australia is chronic under-funding. The proposed reforms do not allow for further resources. Merging the courts will not alleviate the current problems and may make matters worse for family violence victim-survivors.
We question the emphasis on achieving 'efficiencies' in the context of an already-very-under-funded system. Instead, the emphasis should be on achieving the structure that will best deliver safety for victims/survivors and their children.
2.74
The NSW Bar Association added that both litigants and judges are at risk as a result of under resourcing:
Proceeding with the Amended Merger Bill at a time when the Federal Circuit Court is already struggling through chronic under-resourcing and under-funding to manage its family law load alongside a crushing – and growing – migration workload is reckless and will put both litigants and judges at significant risk.
2.75
The Family Court of Australia and FCC welcomed recent funding to address 'structural funding concerns that we had and COVID-19 urgency related issues', and additional judicial registrar and support services were funded through the October 2020 budget. The courts also indicated that additional resourcing would be sought to advance existing initiatives and to fund additional registrars:
…there's been a welcome amount of resourcing recently. But, as I indicated earlier, we certainly feel that some additional resourcing will be needed to make sure that our risk and responsiveness initiatives continue to be advanced. That is really important, in particular to make sure that we have enough registrars and senior registrars who can take the load and help with dispute resolution.
2.76
The department emphasised that additional funding has been provided to the legal assistance sector as part of the National Legal Assistance Partnership finalised earlier this year. The department also highlighted that consultation is ongoing:
There's approximately $97.7 million of additional funding that was provided for the sector, some of which also goes to state and territory governments for implementation. It'll be a question of engaging with the sector to say that if they have additional needs they will bring those forward and we'll consider them. We meet with them very regularly—at least quarterly with each of the different sectors, I believe, or different parts of the legal assistance sector. When they have raised questions of need we've certainly listened and put that to government.
Other matters
Minimum number of judges
2.77
The bill provides that regulations may prescribe a minimum number of judges (whether appointed as senior judges or judges) of the FCFC (Division 1) that hold office in accordance with the Act.
2.78
The Attorney-General has stated the government's commitment to setting 25 judges as the minimum number to be appointed in Division 1. The department advised that this number is based on a recommendation from the Semple report. It was emphasised that the regulation would establish a new minimum number of judges to be appointed that is not prescribed in the current system.
2.79
The Bar Association of Queensland supported the prescription of a minimum number of judicial officers, but observed that the number of judges is to be prescribed by regulation and 'it is unclear how the resources will be allocated, thus preventing any real consideration of this important issue'. The Law Council argued that it is 'entirely inappropriate' for the minimum number of judges to be determined by regulation rather than 'enshrined in statute and subject to amendment' by the parliament.
Review of the legislation
2.80
The FCFC bill provides that a review of the operation of the Act must be undertaken 5 years after its enactment, to provide the public with information regarding the effectiveness of the new court structure.
2.81
While noting the stated intention to review the ongoing success of reforms through a legislated review, the Bar Association of Queensland raised concerns regarding the statistics and assumptions upon which any review may be based:
…it is entirely unclear how long the court will take to implement these changes and therefore how long the new model will be effectively operating prior to such a review, thereby casting into doubt any statistics upon which such a review may be based...
These concerns are exacerbated by the limitations identified in the report by PricewaterhouseCoopers upon which current criticisms of efficiency are based, and its ultimate conclusion that “the actual scope for efficiency will vary from estimates presented in this report”. These limitations are likely to be present in any future review unless those limitations and assumptions are overcome.
2.82
Submissions questioned the utility of conducting a review when previous recommendations of substantive reviews of the family law system, including the 2019 Australian Law Reform Commission review, had not been addressed.
Proposed amendments to the bill
2.83
Professor Parkinson supported the proposals in the bills with some amendments. In addition to his recommendation with regard to an independent Judicial Appointments Commission (discussed in paragraph 2.47), Professor Parkinson suggested that allowing Federal Court judges to hear family law appeals (as proposed in the 2018 bills) could have the advantage of bringing 'helpful, fresh perspectives and a new rigour to decision-making' and would allow a greater number of judges to develop knowledge of family law. He recommended that the government considers:
…appointing at least three suitable judges from the Federal Court to hold joint appointments if they are willing to serve in an appellate capacity to hear family law matters.
2.84
Further, Professor Parkinson highlighted discrepancies between the terms and conditions of judges of the FCC and the Family Court, despite the relatively similar work undertaken by the officers of each court:
These judges work very long hours under conditions of enormous stress, but their leave entitlements are much less than the Family Court or the Federal Court. They get one-quarter of the long service leave that the Family Court judges do. They have 25 per cent less annual holidays. Even if there is a pay differential, there is a compelling case for leave entitlements to be the same.
2.85
Professor Parkinson suggested amending section 117 of the proposed FCFC bill, 'to achieve parity in terms of leave entitlements' for Division 1 and Division 2 judges.
Committee view
2.86
The need for reform to family law courts, and the family law system more generally, has been considered in a number of reviews for government. It has been widely accepted that the family law system is complex, difficult for families to navigate and needs reform.
2.87
The proposals contained in the Federal Circuit and Family Court of Australia Bill 2019 and the Federal Circuit Court and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019 demonstrate the government's commitment to improve outcomes for Australian families by making the family courts simpler and easier for families to access.
2.88
The committee acknowledges that while inquiry participants supported the broad objectives of the bills, concerns were raised about the model of reform proposed by the government. The committee is satisfied that the bills contain provisions to ensure that families accessing the family law system will have access to a range of specialised services and experienced judges. The committee notes that the bills have been revised to address a number of stakeholder's concerns.
2.89
The committee sees merit in submitters' arguments that the minimum number of Division 1 judges be prescribed in legislation, as opposed to regulation. The committee urges the government to strongly consider amending the FCFC bill to legislate a minimum of 25 judges in Division 1.
2.90
The reforms to the family law court proposed in the bills are just one part of the government's response to the complexities of the family law system. The committee welcomes the government's commitment to carefully consider the final ALRC Report and the recommendations of the Joint Select Committee on Australia's Family Law System.
2.91
The committee recommends that the Senate pass the bill.
Senator Amanda Stoker
Chair