Introductory Info
Date introduced: 23 August 2018
House: House of Representatives
Portfolio: Attorney-General
Commencement: Various dates as set out in the body of this Bills Digest.
The Bills Digest at a glance
Purpose of the Bills
The purpose of the Federal Circuit and Family Court of
Australia Bill 2018 (the Bill) is to bring about structural reform of the
federal courts (excluding the High Court of Australia). The Bill achieves this
by merging the Family Court of Australia (Family Court) and the Federal Circuit
Court (the Circuit Court) to create the Federal Circuit and Family Court of
Australia (FCFCA) comprising two divisions.
The purpose of the Federal Circuit and Family Court of
Australia (Consequential Amendments and Transitional Provisions) Bill 2018 (the
Consequential and Transitional Bill) is to make necessary amendments to other
Commonwealth Acts and Regulations which are affected by the passage of the
Bill.
Key features
The key features of the proposed arrangements are as
follows:
- the
Court which is currently operating as the Family Court of Australia will become
the FCFCA (Division 1) with jurisdiction to hear complex family laws matters. The
Full Court of the Family Court is abolished. Appeals from decisions of the
FCFCA (Division 1) will be considered by the newly established Family Law
Appeal Division of the Federal Court of Australia
- the
Court which is currently operating as the Federal Circuit Court will become the
FCFCA (Division 2) and will continue to have a broad jurisdiction to hear
matters arising from a suite of Commonwealth statutes
- the
Bills provide that there is to be a Chief Justice of the FCFCA (Division 1) and
a Chief Judge of the FCFCA (Division 2). However, the Bill also provides that a
single person can hold both positions and the Explanatory Memorandum states
that this is the Government’s intention
- the
Bills also provide for the making of new rules of the FCFCA which will mean
that a single set of rules and single set of forms will apply to Divisions 1
and 2.
Concerns about the Bill
Submitters to the Senate Legal and Constitutional Affairs
Committee inquiry into the Bills have raised a number of concerns including
that they will operate to:
- diminish
the specialisation and status of family law by allowing for the appointment of
judicial officers to Division 2 of the Court who have no specialised knowledge
and experience of family law
- be
driven by, and almost exclusively are focused on, financial efficiencies
instead of the safety and wellbeing of Australian families and
- repose
the rule making power in the Chief Justice and the Chief Judge (who are one and
the same), rather than with a majority of judges as is common elsewhere.
Committee recommendations
The final report of the Senate Legal and Constitutional
Affairs Committee recommended that the Bills be passed but recommended:
- the existing appellate
jurisdiction of the Family Court of Australia be retained
- the
qualifications of judges in Division 2 include that they have the
appropriate skills, knowledge, experience
and personality and
- the Australian
Government pursue the immediate appointment of suitable candidates to vacant
judiciary positions in the family courts and consider whether there is a need
to appoint additional judges.
Purpose of the Bills
The purpose of the Federal Circuit and Family Court of
Australia Bill 2018 (the Bill) is to bring about structural reform of the
federal courts (excluding the High Court of Australia). The Bill seeks to merge
the Family Court of Australia (Family Court) and the Federal Circuit Court (the
Circuit Court) to create the Federal Circuit and Family Court of Australia
(FCFCA) comprising two divisions.
The purpose of the Federal Circuit and Family Court of
Australia (Consequential Amendments and Transitional Provisions) Bill 2018 (the
Consequential and Transitional Bill) is to make necessary amendments to other
Commonwealth Acts and Regulations which are affected by the passage of the
Bill.
Structure of the Bills
The Bill contains five Chapters:
- Chapter
1 sets out preliminary matters including relevant definitions
- Chapter
2 creates the Federal Circuit and Family Court of Australia comprised of
Division 1 and Division 2
- Chapter
3 relates to the operation and management of the Federal Circuit and Family
Court of Australia (Division 1)
- Chapter
4 relates to the operation and management of the Federal Circuit and Family
Court of Australia (Division 2) and
- Chapter
5 sets out miscellaneous matters including the functions and powers of the
Chief Executive Officer.
The Consequential and Transitional Bill has 10 Schedules,
many of which amend multiple statutes to reflect the newly named FCFCA
(Division 1) and (Division 2).
Background
Family law and family violence
Over the last decade there have been a number of reviews,
at both state and federal levels, of the performance and/or funding of the
Federal Court of Australia (Federal Court), the Family Court and the Circuit
Court. The context of many of these reviews has been the need for courts with a
family law jurisdiction to deal with matters of family violence.[1]
In its 2017 publication, A Better Family Law System to Support
and Protect Those Affected by Family Violence, the House of Representatives
Standing Committee on Social Policy and Legal Affairs (the House Committee) expressed its concern that the current design of the family law system
can fail to support and protect families affected by family violence. In
particular the House Committee drew attention to:
- the difficulties posed by an adversarial family law system
- the existence of inappropriate responses to reports of family violence
- the legal fees and complex court procedures which reduce the
accessibility of the family law system and
- the complexity in navigating state, territory, and federal
jurisdictions.[2]
A comprehensive review of the family law system by the
Australian Law Reform Commission (ALRC) was announced by the Government on 27
September 2017. The review commenced on
1 October 2017 and is due to report by 31 March 2019.[3]
The Bills which are discussed in this Bills Digest deal only with the structure
of federal courts—not with underlying discontent about the manner in which the
family law system applies to those persons who are subject to it.
Structure of federal court system
The graphic below sets out the current structure of
Australia’s federal court system.[4]
Graphic 1: Structure of Australia’s federal court system
| High Court of Australia (HCA)
The highest court in the Australian judicial system
designed to decide cases of special federal significance, including challenges
to the constitutional validity of laws and to hear appeals by special leave
from Federal, State and Territory Courts.
|
|
↑
|
|
↑
|
|
Federal Court of Australia (FCA)
A superior court of record and a court of law and equity.
The FCA has a wide and varied jurisdiction relating to matters such as
taxation, trade practices, native title, intellectual property, industrial
relations, corporations and bankruptcy, and appellate jurisdiction in matters
on appeal from single judges of the FCA, from the FCC (in non-family law
matters) and Supreme Courts of the States and Territories.
|
|
Family Court of Australia (FCoA)
A specialist family court designed to resolve the most
complex legal family disputes. Like the FCA, the FCoA is a superior court of
record, but has jurisdiction relating to family law matters such as divorce,
parenting matters and matters arising under the welfare jurisdiction of the Family Law Act
1975, child support, leave to adopt, certain civil matters arising
under section 1337C of the Corporations Act
2001 and the Bankruptcy Act
1966, property alteration and maintenance.
|
|
↑
|
|
↑
|
|
Federal Circuit Court of Australia (FCC)
A court of record and a court of equity designed to
provide a simple and accessible alternative to litigation in the FCA and the
FCoA, and to relieve the workload of the aforementioned Courts. The FCC has a
broad and diverse jurisdiction relating to matters concerning family law and
child support, administrative law, admiralty, anti-terrorism, bankruptcy,
copyright, human rights, migration, privacy and trade practices.
|
Source: KPMG, Review
of the performance and funding of the Federal Court of Australia, the Family
Court of Australia and the Federal Circuit Court of Australia, 5 March
2014, p. 9.
The Western
Australian model
Neither the Commonwealth nor the states and territories
have exclusive jurisdiction over family law matters. The Australian Constitution
gives the Commonwealth the power to make laws with respect to marriage,[5]
and with respect to divorce and matrimonial causes; and in relation thereto,
parental rights and the custody and guardianship of infants.[6]
Additionally, states (with the exception of Western
Australia) have referred their state powers to the Commonwealth. This has had
the effect of the federal parliament having jurisdiction over marriage
(including same-sex couples), divorce, parenting and family property upon
separation, while the state and territory governments have retained
jurisdiction over adoption and child welfare.
The Family Law Act 1975
allows federal family law jurisdiction to be vested in state family courts, by
agreement between a state government and the Australian Government.[7]
Western Australia is the only state to have entered into such an agreement.
That being the case, the Family Court of Western Australia (FCWA) is the only
state family court in Australia.[8]
Appeals from a decision of the FCWA in the federal
jurisdiction are determined by the Full Court of the Family Court. Appeals in
the state jurisdiction are determined by the Court of Appeal of the Supreme
Court of Western Australia.
Reviews of the court system
2008—Semple Review
In 2008, the first of a series of reviews of the operation
of the Family Court and the Circuit Court (formerly known as the Federal
Magistrates Court) was undertaken. The report of the Future Governance Options
for Federal Family Law Courts in Australia (known as the Semple Review),
acknowledged that, at that time, the arrangement of business and resources
between the courts did not enable the most efficient utilisation of the
resources provided to the family law system. According to the Semple Review:
... there exists a significant level of duplication of
administrative structures and corporate services across the Family Court
and the [Circuit Court] and ... the existing and proposed duplication is not
financially sustainable and utilises resources that could be directed more
effectively to assisting litigants. The combined future levels of expenditure
will, under current arrangements of the Family Court and [Circuit Court],
significantly exceed their annual allocations and are unsustainable for future
years.[9]
[emphasis added]
The Semple Review recognised that in part, this problem is
a result of the way in which the Circuit Court was established.
... it was established as a separate court but without
resources comparable to those of the other federal courts. This made it
dependent on resources provided by the Federal Court and the Family Court. The
growth of the [Circuit Court] to become the largest federal court and
substantial shifts of family law work from the Family Court to the [Circuit
Court] have compounded this problem; 79% of family law applications (excluding
divorces and consent orders) are filed in the [Circuit Court].[10]
[emphasis added]
The Semple Review recommended a merger of most of the Circuit
Court with the Family Court and a merger of the remainder of the Circuit Court,
being the part which did work other than family law, with the Federal Court. To
achieve this, it proposed a structure in which the Circuit Court would
constitute a ‘second tier’ in the superior Courts.[11]
2012—Skehill Review
In 2012, the Strategic
Review of Small and Medium Agencies in the Attorney-General’s portfolio
(known as the Skehill Review) considered a number of options for action which
were intended to improve the efficiency and effectiveness of courts
administration.[12]
One of those options (option 4) was for the courts to
formalise their informal working relationship by entering into a Memorandum of
Understanding under which the heads of each court would ‘meet no less than
quarterly to discuss and agree upon a program of work for the examination and, ...
the implementation of initiatives for joint or shared administration across the
Courts’.[13]
This was the preferred option for the courts as it could ‘deliver results’
without the need for substantial structural change.[14]
However, an alternative option was also mooted. Under
option 7, the separate administrative structures (but not the judicial
structures) of the Federal Court, Family Court and Circuit Court would be
collapsed into a single agency.[15]
This would operate so that each Head of Jurisdiction would remain responsible
for the judicial leadership and functioning of his or her Court, whilst a
combined governance structure would be responsible for the single
administration.[16]
The advantage of option 7 was that it provided the potential to optimise
economies of scale in the provision of the full range of court administration
services, not limited to corporate services and registry services.[17]
Whilst the Skehill Review ultimately recommended that the
government should adopt option 4, it recommended that option 7 be retained as a
future possibility if efficiencies and effectiveness were not adequately
achieved through option 4.[18]
In the wake of the Skehill Review, the Courts and
Tribunals Legislation Amendment (Administration) Act 2013 created a
single agency known as the Family Court and Federal Circuit Court with a single
Chief Executive Officer for both the Family Court and the Circuit Court.[19]
However, the merging of the administration functions of all three courts did
not proceed at that time.
2014—review of performance and funding
In 2014, KPMG undertook a review of the performance and
funding of the Federal Court, the Family Court and the Circuit Court (the KPMG
review). Setting the scene for the review, the report of the KPMG review
states:
... it is recognised that the FCA, FCoA and FCC operate in a
broader (constrained) fiscal environment which necessarily impacts on timely,
efficient, equitable access to justice and facilitation of judicial
decision-making. Equally, reported increases in case complexity and changes to
the client profile mean that the courts are operating in a new landscape which
presents challenges to the timely, equitable and efficient administration of
justice.[20]
At the time of the KPMG review all three courts had
projected budget deficits from the financial year 2014–15 and it was recognised
that there were ‘entrenched structural funding issues’.[21]
Amongst other things the KPMG review concluded:
The current funding model for the Courts is not
sustainable. The question of sustainability cannot simply be addressed
through the injection of additional funds or one-off cuts, rather it requires
more fundamental amendments to the model.
To achieve the current budget across the forward estimates
for all three Courts would require significant cuts to service and staffing
levels. Such cuts to administrative services are unlikely to form a sustainable
basis or driver for long-term efficiencies.[22]
[emphasis added]
The KPMG review made 19 separate recommendations intended
to guide future strategic decision-making about the courts.
Following the KPMG review, the Government enacted the Courts
Administration Legislation Amendment Act 2016 (the Amending Act)
to achieve greater efficiencies in the corporate management of the Federal
Court, the Family Court and the Circuit Court.[23]
The Amending Act designated the Courts a single administrative entity
under the Public
Governance, Performance and Accountability Act 2013 (the PGPA Act),
and as a single statutory agency under the Public Service Act
1999. In addition the Amending Act placed responsibility for the
corporate management of the three Courts with the Chief Executive Officer (CEO)
of the Federal Court.[24]
This was consistent with what the Skehill Review had envisaged in 2012.
The merging of the courts’ corporate functions was
expected to deliver efficiencies to the courts of $9.4 million over the six
financial years to 2020–21 and result in ongoing annual efficiencies of
$5.4 million from that time.[25]
2018—review of efficiency of courts’ operation
In 2018, the Attorney-General’s Department commissioned
PwC to review the operations of the courts in relation to family law matters
(the PwC report).[26]
The PwC report measured the performance of the Family Court and the Circuit
Court in the following ways:
- by
backlog: over the past five years, pending cases older than 12 months have
grown by 38 per cent in the Circuit Court, compared to five per cent in the Family
Court. Around 29 per cent of all Circuit Court pending final order cases are
older than 12 months, compared to 42 per cent in the Family Court[27]
- by
time to trial: over the past five years, the national median time to trial
has grown from 11.5 months to 17 months in the Family Court, while in the Circuit
Court the median time to trial has grown from 10.8 months to 15.2 months[28]
- by
the cost of finalisation: in the Family Court it costs near to $17,000 per
finalised matter. In the Circuit Court, the cost is approximately $5,500[29]
- by
the amount of final orders: on a judicial full-time equivalent basis,
approximately 114 final orders are finalised per Family Court judge per annum.
In the Circuit Court, approximately 338 final orders are finalised per judge
per annum[30]
and
- by
the cost to litigants: the party/party costs to be paid by litigants are
estimated to be in the order of $110,000 per matter in the Family Court
(including court fees, but excluding appeals), while in the Circuit Court this
is closer to $30,000.[31]
Importantly, the PwC report measured performance in
economic terms and could not take into account ‘the complexity of cases’ which
were before the Family Court—and the extra resources which might be expended in
dealing with them.[32]
PwC concluded that the different operational practices of
the courts were leading to variations in efficiency levels. Those practices
related to:
- the
way first instance matters are handled between the courts
- the
initial case management and allocation of those cases
- the
practices of judges and
- the
scheduling and listing of appeals.[33]
PwC identified a number of opportunities that it considered
would have the potential to significantly improve the efficiency of the family
law system by reducing the backlog of the family law courts and drive faster
and cheaper resolution of matters for litigants.[34]
Although it is the PwC report which has formed the basis
of the model for the Family Court and the Circuit Court proposed by the Bill,
it has been the subject of some criticism for containing ‘multiple inaccuracies
and unsubstantiated assumptions’.[35]
It was also criticised because ‘the conclusions advanced on the basis of the
statistics [in the report] do not accord with the experience of litigants and
practitioners routinely appearing before the Courts’.[36]
Committee consideration
Senate Legal and Constitutional Affairs Committee
The Bills were referred to the Senate Standing Committee
on Legal and Constitutional Affairs (the Senate Committee) for inquiry and
report.[37]
The report of the Senate Committee was published on 14 February 2019.[38]
Majority view
The majority view of the Senators who participated in the
inquiry into the Bills was that the Bills should be passed subject to the
following qualifications:
- the
proposed new divisions of the Federal Circuit and Family Court of Australia be
provided with additional resources for Registrars to assist with the backlog of
cases
- an
appellate division of the Federal Court of Australia not be created and instead
the existing appellate jurisdiction of the Family Court of Australia be
retained into the Federal Circuit and Family Court of Australia (Division 1)
- the
qualifications of judges in Division 2 include that they have the
appropriate skills, knowledge, experience and personality and
- the
Australian Government pursue the immediate appointment of suitable candidates
to vacant judiciary positions in the family courts and consider whether there
is a need to appoint additional judges.[39]
Dissenting report
Australian Labor Party (Labor) members of the Senate
Committee submitted a dissenting report in respect of the Bills. Citing the
ongoing inquiry by the Australian Law Reform Commission, the Labor Senators
contended that consideration of the Bills should occur after that inquiry is
complete.[40]
Additional
comments
Senator Rex Patrick of the Centre Alliance made additional
comments in respect of the Bill, acknowledging the ‘overwhelming
view amongst the majority of submitters and witnesses that the proposed
legislation will not achieve the legislation’s stated objectives’.[41] He indicated the key
issues that had been raised during the Senate Committee’s inquiry were:
- the dangers of relying on the statistical report produced by PwC in
considering the operation of courts that deal with complex personal issues
- the lack of proper consultation with both judicial officers and the
broader legal profession
- the breakdown in the specialisation of the family law courts system
that would result if the Bill was enacted and
- the effect of the Bill on existing Western Australian appeals arrangements
which did not need to be changed.
Senator Patrick acknowledged that the Bill ‘had
good intentions’ but stated that ‘the idea of handing sole rule making power to
the Chief Justices in perpetuity is fundamentally flawed’.[42] He recommended that the
Bills not be passed.[43]
Aftermath of the report
Some of the evidence to the Senate Committee was to the
effect that the Family Court had been starved of resources and that the
Government intended to make no new appointments to that Court—effectively
closing it down over time.[44]
Since then the following appointments to the Family Court
have been announced by the Attorney-General, Christian Porter:
- on
8 February 2019: Judge Jillian Williams and
Judge Louise Henderson[45]
- on 22 February 2019: Judge Ciara Tyson[46]
- on 11 March 2019: Judge Joshua Wilson and Judge Robert
Harper[47] and
- on 14 March 2019: Dr Timothy McEvoy QC.[48]
This represents a partial response to the recommendations
of the Senate Committee as set out above. However it is noted that four of the
six appointees to the Family Court were already Judges of the Federal Circuit
Court.
Further stakeholder comments are addressed under the
heading ‘Key issues and provisions’ below.
Senate Standing Committee for the Scrutiny of Bills
The Senate Standing Committee for the Scrutiny of Bills
(Scrutiny of Bills Committee) commented on the broad delegation of a number of
administrative powers in the Bill.[49]
In particular the Scrutiny of Bills Committee drew attention to:
- the
ability of the Chief Justice and the Chief Judge to delegate his, or her,
authority to deal with a complaint about another judge of the Court to a broad
class of persons[50]
and
- the
ability of the Marshal or Deputy Marshal or the Sheriff or Deputy Sheriff to
authorise persons to assist them in the exercise of certain coercive powers.[51]
Accordingly the Scrutiny of Bills Committee sought further
information from the Minister about these matters.
Attorney-General, Christian Porter responded on 4 October
2018.[52]
In relation to the delegation of power to deal with a complaint about a judge,
Mr Porter stated:
The Federal Court, the Family Court and the Federal Circuit
Court all employ a consistent practice in relation to the authorisation of
persons or bodies to handle complaints. In each Court, the respective Chief
Justice or Chief Judge has authorised the Deputy Principal Registrar of that
Court to assist with the handling of complaints against judges of that Court.
In the Family Court, the Chief Justice has also authorised the Deputy Chief
Justice to assist with the handling of complaints. The Deputy Principal
Registrars are legally qualified, experienced and occupy Senior Executive
positions. Each Court has complaint handling strategies, which include the
escalation of complaints to the Chief Justice or Deputy Chief Justice, as
appropriate.[53]
Whilst the Committee accepted the Minister’s explanation,
it considered that it would be appropriate for the Principal Bill to be amended
to require the Chief Justice (Division 1) and the Chief Judge (Division 2) of
the Federal Circuit and Family Court to be satisfied that persons authorised to
handle complaints possess appropriate expertise. In addition, the Committee
requested the information provided by the Attorney-General be included in the
Explanatory Memorandum to the Bill.[54]
In relation to the delegation of powers of sheriffs and
marshals, Mr Porter stated:
These provisions would allow the Sheriff, the Deputy Sheriff,
the Marshal and the Deputy Marshal of the FCFC (Division 1), the FCFC (Division
2) and the Federal Court to authorise any person to assist in exercising powers
or performing functions. These provisions are modelled on existing provisions
in the FLA (section 38P(4)), the FCCA Act (sections 108 and 111) and the FCA
Act (section 18P(4)).
Those persons currently authorised to provide such assistance
within the Family Court, the Federal Circuit Court and the Federal Court are
State and Territory Sheriff's officers. These officers execute the Courts'
orders in relation to civil enforcement matters. As such, they execute civil
enforcement warrants to seize and sell property or take vacant possession of property
in strict accordance with the order issued by the respective Court. State and
Territory Sheriff's officers perform the same duties in relation to enforcement
orders issued by State and Territory Courts, are trained in accordance with
State and Territory requirements and are generally uniformed and carry photo
identity cards. Where violence is anticipated, authorised officers seek
assistance of local police and do not arrest people in connection with this
type of process.[55]
The Committee considered that it would be appropriate for
the Principal Bill to be amended to require the Sheriff, Deputy Sheriff,
Marshal or Deputy Marshal of the Federal Circuit and Family Court and the
Federal Court to be satisfied that persons authorised to assist those officers
in the performance of their functions possess appropriate expertise. In
addition, the Scrutiny of Bills Committee requested that the information
provided by Mr Porter be included in the Explanatory Memorandum.[56]
Policy position of non-government parties/independents
Labor
Labor does not support the Bills. Speaking in relation to
the Bills in the House of Representatives, Graham Perrett MP identified three
reasons why Labor would not support the Bills—firstly due to the lack of
consultation about the Bills, secondly the lack of time available to consider
the content of the Bills in the context of the Senate Committee inquiry into
the Bills and the review which is currently being undertaken by the Australian
Law Reform Commission and thirdly because the case for the particular changes
which would arise from the passage of the Bills ‘has not been made’.[57]
Dr Mike Freelander, MP expressed
his concerns as follows:
This Bill, put forth by the
government, seeks to combine the Federal Circuit Court and the Family Court
into one court, establishing the new Federal Circuit and Family Court of
Australia ...
While the two amalgamated entities
will undertake the same roles and functions under this legislation as they
currently do, it's worth noting that the Attorney-General has expressed an
intention not to appoint new judges to FCFC Division 1 as they retire. This
is a Division that, under this legislation, will effectively replace the
existing Family Court. This is a major concern. What this means, in not so many
words, is that this legislation would amount to a gradual abolition of the
Family Court over time.[58] [emphasis added]
Anthony Albanese MP stated:
... these reforms are significant. They would fundamentally
change the way that families, lawyers and advocates interact with the family
law sector. The Bill before us won't solve the present-day problems in the
Family Court ...
What it will do instead is end
specialist expertise in Family Court matters, handing all family law matters to
the more generalist Federal Circuit Court. While the Federal Circuit Court
currently handles a large number of these cases, the most complex cases are
reserved for the Family Court. This court is presided over by specialist judges
with appropriate experience, which is why these cases can take longer to
resolve. It certainly is not a reason to get rid of the court altogether. The
government also wants to abolish the specialist appeals division of the Family
Court and hand that function to the Federal Court instead. That is in spite of
the fact that the Federal Court has never handled family law before.[59]
Centre
Alliance
Similarly, Senator Patrick of the Centre Alliance does not
support the Bills. His additional comments to the Senate Committee report into
the Bills are set out above.[60]
Position of major interest groups
The Senate Committee received 114 submissions some of
which expressed regret that the Bill did not go further and reform the family
law itself—in particular, matters relating to shared parenting.
Women’s Legal Services Australia (WLSA) agreed that the
current system needs reform but contends that ‘the current Bills are not the
solution’.[61]
The Bills will, in their view:
- Diminish the specialisation and status of family law at a time when
more, not less, specialisation is required to address the increasing
complexities of modern Australian society, families and the needs of children.
- Be driven by, and almost exclusively are focused on, financial
efficiencies instead of the safety and wellbeing of Australian families.[62]
The Family Law Practitioners Association Qld (FLPA)
expressed the following concerns about the Bills:
- The two proposed Divisions of the Court will have the same ‘head’
and ‘deputy head’ holding commission across both Divisions. The rule making
power is reposed only in the Chief Justice and the Chief Judge (who is,
notably, the same person).
- The criteria for appointment of judicial officers to Division 2
of the Court is less than what is required for Division 1. In our view, that
should not be so and a degree of specialised knowledge and experience is
essential for both Divisions.
- It is imperative that appeals from judges of both Divisions be
determined by an appellate court with specialised family law background.[63]
Financial implications
According to the Explanatory Memorandum to the Bill, as
part of the 2018–19 Budget, $4 million was allocated to assist with the
implementation costs of the structural reform of the federal courts.[64]
However, should the recommendations of the majority
Senators on the Senate Committee be adopted, additional funding for Registrars
would need to be allocated so that the current backlog of cases can be
addressed.
Statement of Compatibility with
Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed
the Bills’ compatibility with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of that Act. The
Government considers that the Bills are compatible.[65]
Parliamentary Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights
considered that the Bills did not raise human rights concerns either because
the Bills do not engage or promote human rights and/or permissibly limit human
rights.[66]
Key issues and provisions
Commencement
Sections 1 and 2 of the Bill commence on Royal Assent.
Sections 3–249 of the Bill (as introduced) are said to commence on 1 January
2019.
However during debate on the Bills in November 2018 it was
acknowledged that, due to the ongoing Senate Committee inquiry, the
commencement date of 1 January 2019 was ‘no longer achievable’.[67]
That being the case, amendments to the Bill were introduced and passed by the
House of Representatives so that the proposed commencement date of the Bill is:
A single day to be fixed by Proclamation. However, if the
provisions do not commence within the period of 6 months beginning on the day
this Act receives the Royal Assent, they commence on the day after the end of
that period.[68]
Amendments were also made to the commencement dates of the
various provisions of the Consequential and Transitional Bill to reflect that
change.[69]
Establishing the FCFCA
The problem to be addressed
One of the problems to be addressed by the Bill is that
with two courts—that is, the Family Court and the Circuit Court—people ‘are
moved from one court to the other and so suffer unnecessary cost and delay’.[70]
There seems to be widespread agreement that ‘the current
system is letting Australian families down’.[71]
In order to address the problems faced by users of the Family Court a number of
different models for change have been put forward over time. The question is
whether the model which this Bill proposes would improve the current system.
What the Bill does
Chapter 2 of the Bill establishes the single court which
results from the merging of the Family Court and the Circuit Court.
Clause 8 of the Bill establishes the Federal
Circuit and Family Court of Australia (FCFCA) comprising two Divisions. Once
the Bill is enacted, the Family Court continues in existence as the FCFCA
(Division 1) and the Circuit Court continues in existence as the FCFCA
(Division 2).
Under clause 9 of the Bill, Division 1 of the FCFCA
will consist of a Chief Justice, a Deputy Chief Justice and Senior or other
Judges who hold office under the FCFCA Act (when enacted). Under clause
10 of the Bill, Division 2 of the FCFCA will consist of a Chief Judge, a
Deputy Chief Judge and other Judges who hold office from time to time.
Stakeholder comments
The Law Council of Australia strongly opposes the merger.[72]
Law Council President, Arthur Moses SC, has stated:
... the Family Court’s work was highly specialised, with its
problems rooted in chronic underfunding by successive governments ...
Without doubt Australia’s family law system is in need of
reform, but the proposed restructure would compound the court’s problems, not
solve them.[73]
The Queensland Law Society (QLS) acknowledged that ‘the
existence of two separate courts, with different rules, procedures and
processes produces unnecessary complexity’.[74]
To that end it ‘supports the creation of a single, specialist court for
determining family law matters’.[75]
However, the QLS does not consider that ‘the amalgamation of the Family Court
and the Federal Circuit Court, as proposed in the Bills’ will achieve this on
the grounds that ‘in effect, there is no true amalgamation’.[76]
Constitution of the FCFCA
Part 1 of Chapter 3 and Part 1 of Chapter 4 of the Bill
describe how Division 1 and Division 2 of the FCFCA respectively are
constituted. The relevant clauses are in broadly equivalent terms to those
under the Family
Law Act 1975 and the Circuit Court Act so that matters such as
the appointment of judges,[77]
their assignment to a specific location or division,[78]
the manner in which they are to be addressed[79]
and the oath or affirmation to be given before proceeding to discharge the
duties of their office are largely unchanged.[80]
In addition, clauses 20 and 97 of the Bill
allow dual appointments so that the Chief Justice of the FCFCA (Division 1)
may be appointed to, and hold at the same time, the office of Chief Judge of
the FCFCA (Division 2) and vice versa. Similarly, the Deputy Chief Justice
of the FCFCA (Division 1) may be appointed to, and hold at the same time,
the office of Deputy Chief Judge of the FCFCA (Division 2) and vice versa.
According to the Explanatory Memorandum to the Bill:
Crucially, the Government intends that the FCFC would
operate under the leadership of one Chief Justice supported by one Deputy Chief
Justice, who would each hold a dual commission to both FCFC (Division 1)
and FCFC (Division 2) ... The appointment of a single Chief Justice/Chief Judge
would ensure more effective allocation of cases between the two Divisions. It
would also enable the FCFC to take consistent internal approaches to case
management, practice and procedure, resulting in the more efficient handling of
family law matters.[81]
[emphasis added]
Accordingly, the Honourable William Alstergren, has been
appointed to the roles of both the Chief Judge of the Federal Circuit Court of
Australia and Chief Justice of the Family Court with effect from 10 December
2018.[82]
Key issue—qualities of judges
Existing subsection 22(2) of the Family Law Act
provides that a person shall not be appointed as a Judge in the Family Court
unless, amongst other things, the person is a suitable person to deal with
matters of family law by reason of training, experience and personality. The
Bill (at paragraph 11(2)(b)) replicates those terms for a person
who is appointed as a judge in the FCFCA (Division 1). However, the same
requirement that a person has the requisite personality is not an explicit
condition of appointment to the FCFCA (Division 2) (see paragraph 79(2)(b)).
Former Chief Justice of the Family Court, Diana Bryant stated:
We’re called upon to make orders which deeply affect people’s
lives, that intrude into intimate relationships, orders which affect whether
people can move their home or can see their children or regulate how they see
their children. These are not powers to be exercised lightly and section 22
provides a good framework for sound decision-makers to be appointed.[83]
The majority report of the Senate Committee agreed with
this view, recommending the qualifications of judges in Division 2 include
that they have the appropriate skills, knowledge, experience and personality.[84]
Terms and conditions
Judges in both Division 1 and Division 2 of the FCFCA are
paid remuneration as determined by the Remuneration Tribunal under the Remuneration
Tribunal Act 1973.[85]
They may resign or be removed from office in the same manner.[86]
Clauses 90–95 in Chapter 4 of the Bill set out the
disability and death benefits which are payable to judges of the FCFCA
(Division 2). These clauses are in equivalent terms to existing sections 9A–9F
of Schedule 1 to the Circuit Court Act.
Jurisdiction
Part 2 of Chapter 3 and Part 2 of Chapter 4 set out the
jurisdictions of the FCFCA (Division 1) and (Division 2) respectively.
Division 1 Court
Under clause 24 of the Bill the FCFCA (Division 1)
has original jurisdiction which is the same as that currently
exercised by the Family Court,[87]
that is:
- with
respect to matters in respect of which proceedings may be instituted under the Family
Law Act
- with
respect to matters arising under the Marriage Act 1961
in respect of which proceedings (other than proceedings under Part VII of
that Act) are instituted under that Act
- with
respect to matters arising under a law of a Territory (other than the Northern
Territory) concerning the adoption of children; the property of the parties to
a marriage or either of them; or the rights and status of a person who is an ex‑nuptial
child
- as
is conferred on the Court, or in respect of which proceedings may be instituted
in the Court, by any other Act.
Under clause 25 of the Bill the FCFCA (Division 1)
may hear appeals from:
Clause 27 of the Bill provides that whether the
FCFCA (Division 1) is sitting in its original jurisdiction or as an appellate
court it will be constituted by a single judge. This is different from the
current arrangements whereby the Full Court of the Family Court may hear
appeals.[89]
(See further discussion below under the heading ‘Appeals’.)
Division 2 Court
Clauses 99–101 of the Bill reflect the broader
original jurisdiction of the FCFCA (Division 2). Clause 100 replicates
clause 24 so that both Division 1 and Division 2 have original jurisdiction:
- with
respect to matters in respect of which proceedings may be instituted under the Family
Law Act
- with
respect to matters arising under the Marriage Act 1961
in respect of which proceedings (other than proceedings under Part VII of
that Act) are instituted under that Act
- with
respect to matters arising under a law of a Territory (other than the Northern
Territory) concerning the adoption of children; the property of the parties to
a marriage or either of them; or the rights and status of a person who is an ex‑nuptial
child
- as
is conferred on the Court, or in respect of which proceedings may be instituted
in the Court, by any other Act.
In addition, the FCFCA (Division 2) has original
jurisdiction as is vested in it by laws made by the Parliament under clause 99
and in Commonwealth tenancy disputes under clause 101. These clauses
replicate existing sections 10 and 10AA of the Circuit Court Act
respectively.
Clause 102 replicates clause 25 so that both
Division 1 and Division 2 of the FCFCA share the appellate jurisdiction which
is to be exercised by the Court constituted by a single Judge.[90]
In addition, clause 104 of the Bill replicates the
provisions of section 10A of the Circuit Court Act so that the FCFCA
(Division 2) comprises the General Division and the Fair Work Division.
Certain powers relating to jurisdiction
Both Division 1 and Division 2 of the FCFCA are empowered
to make orders of the kind that the Court considers appropriate and to issue,
or direct the issue of writs.[91]
Similarly, Division 1 and Division 2 of the FCFCA have the same power to punish
a contempt of their authority as that of the High Court.[92]
The FCFCA (Division 2) has additional powers to make
declarations of right and to give summary judgment.[93]
The relevant clauses are in equivalent terms to sections 16 and 17A of the Circuit
Court Act respectively.
Appeals
Clause 37 in Chapter 3 and clause 122 in
Chapter 4 of the Bill provide that appeals from a judgment of the FCFCA
(Division 1) and the FCFCA (Division 2) respectively may not be brought
directly to the High Court. If these provisions are found to be inconsistent
with section 73 of the Constitution (which sets out the appellate jurisdiction
of the High Court), provision is made for such appeals to be brought with
special leave of the High Court.[94]
Clause 122 of the Bill which applies to the FCFCA
(Division 2) is broadly consistent with existing section 20 of the Circuit
Court Act.
The Appeal Division of the Family Court is repealed and a
new Family Law Appeal Division is inserted in the Federal Court Act by
the Consequential and Transitional Bill.
According to the Explanatory Memorandum to the Consequential and Transitional
Bill:
The conferral of appellate jurisdiction for family law and
child support matters is central to the structural reform of the courts.
By investing the Federal Court with appellate jurisdiction, and removing most
of the appellate jurisdiction of the Family Court, judicial resources of the
FCFC (Division 1) will be able to be redirected to hear more first instance
family law matters. It is appropriate for appellate jurisdiction to be
conferred on the Federal Court as it is a superior court with experienced Judges.[101]
[emphasis added]
Stakeholder comments
Stakeholders were highly critical of the move to create a
Family Law Appeal Division in the Federal Court as it would represent a move
away from family law specialisation. The QLS opined:
The proper determination of family law matters requires a
high level of skill and extensive knowledge of issues and areas of substantive
law, including property, commercial law, taxation, trusts, family violence,
child development, social and psychological issues impacting on litigants and
children, post-separation family dynamics, diverse family structures and
cultural awareness.[102]
The Senate Committee was told in oral evidence:
The pertinent issue is the loss of specialisation which is
threatened by these Bills. So, while specialisation is important for all family
law matters, as we've heard from several of the previous witnesses, we would
argue that it's cases of domestic and family violence that are perhaps the most
complex and have the most at stake for both the parents as well as the children
and demand a much higher level of specialisation ... these bills threaten to
reduce that specialisation in a number of ways [including] through the loss of
the specialist appellate jurisdiction of the Family Court.[103]
The members of the Victorian Family Law Bar Association
strongly oppose the abolition of the Appeals Division of the Family Court
stating:
... it is proposed that the abolition of the Appeal Division of
the Family Court will “enable the existing judicial resources of the Family Court
to be refocused to finalise more first instance family law matters and to clear
the backlog of pending matters”.[104]
However, as there are just ten judges assigned to the
Appeals Division of the Family Court, the amendments ‘will have little impact
on the existing case load. In any event, the appeal work will remain to be
done, but, on the current proposal, to be an impost on a newly created division
of the Federal Court’.[105]
Although the government sees this conferral of the
relevant appeal jurisdiction on the Federal Court as central to the structural
reform of the courts, the majority report of the Senate Committee disagreed
with this view. The Senate Committee recommended that an appellate division of
the Federal Court of Australia not be created and that the existing appellate
jurisdiction of the Family Court of Australia be retained in the FCFCA
(Division 1).[106]
Transfer of proceedings
The KPMG report stated that ‘the current structure [of the
courts] does not adequately incentivise the hearing of matters in the lowest
appropriate jurisdiction’.[107]
According to the Explanatory Memorandum to the Bill, the
FCFCA ‘would provide, in effect, the single point of entry into the family law
jurisdiction of the federal court system’.[108]
It achieves this by providing for matters to be transferred between FCFCA
(Division 1) and FCFCA (Division 2) with the approval of the Chief
Justice/Chief Judge of the receiving Division. Importantly, under the Bill
those roles are held by the same person.
Division 1— transfer to the FCFCA (Division 2)
Clause 34 of the Bill permits the FCFCA (Division
1) to transfer a pending proceeding to the FCFCA (Division 2) either on
the application of a party to the proceeding or on its own initiative. A
decision by the FCFCA (Division 1) about whether to transfer a proceeding must
be based on the following:
- any
relevant Rules of Court
- whether
there are proceedings on an associated matter pending in the FCFCA
(Division 2)
- whether
the resources of the FCFCA (Division 1) are sufficient to hear and
determine the proceeding and
- the
interests of the administration of justice.
An order to transfer a proceeding may be approved (or
rejected) by the Chief Judge of the FCFCA (Division 2) in writing. If the
Chief Judge decides to approve the order for transfer, the order takes effect
on that day. A decision to transfer a proceeding is not subject to appeal.
The discretionary transfer provisions in clause 34 are
broadly consistent with those in existing section 33B of the Family Law Act.
Division 2—transfer to the FCFCA (Division 1)
Clause 117 of the Bill relates to a family law or
child support proceeding which is pending in the FCFCA (Division 2). This
reflects the original jurisdiction in such matters which is shared by the FCFCA
(Division 1) and FCFCA (Division 2).
In that case, the process for making an order to transfer
the proceeding is in equivalent terms to those relating to the transfer from
the FCFCA (Division 1) to the FCFCA (Division 2)—except that it is for the
Chief Justice of the FCFCA (Division 1) to make the final decision whether
to approve (or reject) the order to transfer a proceeding in writing.
Division 2—transfer to the Federal Court
There is no power for the FCFCA (Division 2) to transfer
pending matters relating to a Commonwealth tenancy dispute, matters falling
within the Fair Work Division of FCFCA (Division 2) or matters from the General
Division of the FCFCA (Division 2) about which jurisdiction is vested under an express
provision of another Act of Parliament to the FCFCA (Division 1).
Instead clause 120 provides where a proceeding
which is not a family law or child support proceeding is pending in the FCFCA
(Division 2) the Court may, by order, transfer the proceeding to the
Federal Court—either on its own initiative or on the application of a party to
the proceeding.
As is the case with other transfers between the Courts,
the FCFCA (Division 2) must take into account:
- any
relevant Rules of Court
- whether
there are proceedings on an associated matter pending in the Federal Court
- whether
the resources of the FCFCA (Division 2) are sufficient to hear and
determine the proceeding and
- the
interests of the administration of justice.
Similarly, the order takes effect on the day that it is
confirmed by the Federal Court. A decision to transfer a proceeding under this
clause is not subject to appeal.
The discretionary transfer provisions in clauses 117
and 120 are broadly consistent with those in existing sections 39 and 40 of
the Circuit Court Act.
Stakeholder comments
The Law Society of New South Wales has commended the
single point of entry which is a feature of the model proposed by the Bill.
However, it considers that the ‘issue of transfers will continue’.[109]
This is because it is ‘not always evident at the start of a matter whether it
is complex or likely to require more than four days of hearing’.[110]
Administration of business
Attorney-General, Christian Porter, has described the need
to simplify the current system.
It will be simpler, faster, cheaper. One single court, one
single point of entry. That court will redesign all of its rules and processes
and practice directions and procedures, so that there's one simpler set of that
type of process. And we think that we can get enormous efficiencies and make
life better for thousands of Australians who use the court. [111]
Under subclause 31(1) the Chief Justice is
responsible for ensuring the effective, orderly and expeditious discharge of
the business of the FCFCA (Division 1). Similarly subclause 112(1) provides
that the Chief Judge is responsible for the discharge of the business of the
FCFCA (Division 2). Matters of administration relate to:
- the
arrangement of business by the Chief Justice of the FCFCA (Division 1) and the
Chief Judge of the FCFCA (Division 2)[112]
- dealing
with complaints about a Judge of the FCFCA (Division 1) by the Chief Justice or
a person authorised by the Chief Justice such as the Deputy Chief Justice; and
dealing with complaints about a Judge of the FCFCA (Division 2) by the Chief
Judge or a person authorised by the Chief Judge such as the Deputy Chief Judge[113]
- the
formal protection of the Chief Justice and Deputy Chief Justice of the FCFCA
(Division 1) and the Chief Judge and Deputy Chief Judge of the FCFCA (Division
2) in discharging their responsibilities.[114]
These matters are currently set out in the Family Court
Act[115]
and the Circuit Court Act[116]
respectively. However, the Bill reframes the provisions to provide uniformity
of drafting.
In addition, subclause 112(3) formalises the role
of the Deputy Chief Judge of the FCFCA
(Division 2). No such role currently exists in the Circuit Court Act.
Practice and Procedure
The Bill provides for a common case management approach
led by judges. The FCFCA ‘will operate under the leadership of one Chief
Justice with the support of one Deputy Chief Justice, who will each hold a dual
commission to both Divisions of the FCFCA’.[117]
The appointment of a single Chief Justice and Deputy Chief Justice allows for
the implementation of common rules of court, practice and procedure and
approach to case management.
Part 5 of Chapter 3 and Part 6 of Chapter 4 of the Bill
set out various rules relating to practice and procedures for the FCFCA
(Division 1) and (Division 2) respectively. They broadly duplicate those rules
currently operating in the Family Court and the Circuit Court.
The rules that are in equivalent terms for either Court
are set out in the table below.
| Practice and procedure rules applying to both Courts |
Division 1 clause number |
Division 2 clause number |
| A party to a proceeding is not entitled to be represented
by another person unless that person is a legal practitioner, or meets other specified
requirements |
39 |
142 |
| Filing documents |
40 |
144 |
| Seal of the Court |
41 |
145 |
| Stamps of the Court |
42 |
146 |
| Issuing of writs |
43 |
147 |
| Commencement of proceedings by application |
44 |
148 |
| Giving directions about limiting the length of documents |
45 |
149 |
| Place of sitting |
46 |
150 |
| Change of venue |
47 |
151 |
| Formal defects or irregularities do not invalidate
proceedings |
47A |
156 |
| Power of the court to give directions about practice and
proceedings |
50 |
159 |
| Oaths and affirmations |
52 |
161 |
| Swearing of affidavits |
53 |
162 |
| Orders for examination of witnesses |
53A |
163 |
| Reserved judgments may be made public by another Judge |
54 |
177 |
Case management
Both the FCFCA (Division 1) and (Division 2) will be
required to comply with new rules about case management.
The overarching purpose of the family
law practice and procedure provisions is expressed in
clauses 48 and 157. That purpose is to facilitate the just
resolution of disputes according to law and as quickly, inexpensively and
efficiently as possible and includes the following objectives:
- the
just determination of all proceedings
- the
efficient use of the judicial and administrative resources available for the
purposes of the Court
- the
efficient disposal of the Court’s overall caseload
- the
disposal of all proceedings in a timely manner and
- the
resolution of disputes at a cost that is proportionate to the importance and
complexity of the matters in dispute.
Clauses 49 and 158 of the Bill require the
parties to a proceeding in either the FCFCA (Division 1) or FCFCA (Division 2)
to conduct it in a way that is consistent with the overarching purpose. In
particular, a party’s lawyer must assist their client to comply with the duty.
To that end, a Court may:
- require
a party’s lawyer to provide an estimate of the likely duration of the
proceeding and of the likely costs that the party will have to pay including
the lawyer’s costs and any other costs
- take
into account any failure by a party and the party’s lawyer to comply with the
duty when awarding costs and
- order
a party’s lawyer to bear costs personally—in which case, the lawyer must not
recover the costs from their client.
Clauses 50 and 159 permit the Court to give
directions about the practice and procedure to be followed in proceedings
before the Court. Those directions may:
- require
things to be done
- set
time limits for the doing or completion of anything
- limit
the number of witnesses who may be called to give evidence, or the number of
documents that may be tendered in evidence
- require
submissions to be made in writing including limiting the length of submissions
- waive
or vary any provision of the Rules of Court in their application to the
proceeding or
- revoke
or vary an earlier direction.
If a party fails to comply with a direction given by the FCFCA,
the Court may make an order or give a direction that it considers appropriate
including, but not limited to, dismissing the proceeding, striking out a
party’s claim or defence and awarding costs against a party.
Clauses 51 and 160 require the Chief Justice
of the FCFCA (Division 1) and the Chief Judge of the FCFCA (Division 2)
respectively, to work cooperatively with each other to ensure common approaches
to case management. This provision is somewhat unnecessary in the current
circumstances as the positions are held by the same person.
Comment
The Circuit Court annual report for the 2017–18 financial
year provides some sense of what the case management system might look like:
A new case management pilot commenced in the Brisbane
registry in June 2018, whereby three judges are dedicated solely to dealing
with matters at their first event, essentially ‘triaging’ the cases, ordering
alternative dispute resolution and mediation before they are allocated a trial.
The practice allows the Court to identify the most difficult cases, or the
cases in which children are most at risk, and to allocate those cases to the
most experienced judges. The remaining judges are allocated to trial work.
Despite being in its early stages, judges are positive about the pilot which
has been extended from its original six months to continue until 30 June 2019.
Although a quantitative evaluation of the pilot will be necessary to measure
success, the early indicators are positive, as trial dates have been brought
forward from 2019 to late 2018.[118]
The perceived benefits of the case management system are:
- greater consistency by consolidating the management of cases to a
limited number of judges
- reduced timelines by identifying matters that can be settled
earlier in the life of the case
- improved outcomes by using additional forms of alternative
dispute resolution
- improved efficiency by ensuring resources such as family
consultants are used consistently and effectively
- reduced impact to litigants by lessening the time at court, and
the number of visits to court
- better information for stakeholders, and
- reduced impact of the introduction of digital changes in family
law.[119]
Rules of Court
Currently the Rules of Court for the Family Court are made
by the Judges of that Court, by majority.[120]
Similarly, Rules of Court for the Circuit Court are made by the Judges of that
Court, by majority.[121]
Clause 56 empowers the Chief Justice to make Rules
for the FCFCA (Division 1). Similarly, clause 184 empowers the Chief
Judge to make Rules for the FCFCA (Division 2).
Management and
administration
As with practice and procedure, many of the clauses under
this heading in Chapter 3 and Chapter 4 of the Bill are in equivalent terms.
They cover matters including, but not limited to:
- who
is responsible for the management of the administrative affairs of the FCFCA
(Division 1) and the FCFCA (Division 2)[128]
- arrangements
with other courts,[129]
agencies and organisations[130]
- arrangements
for sharing court rooms and facilities[131]
and
- protection
of persons handling complaints.[132]
Registries and registrars
Under the
Bill, the Minister is empowered to cause
Registries to be established for both the FCFCA (Division 1) and (Division
2).[133]
In addition, both Divisions of the FCFCA are to have Registrars and Deputy
Registrars as necessary.[134]
Clauses 62 and 216 allow for the position of
Chief Executive Officer whose function is to assist the Chief Justice and the
Chief Judge respectively in managing the administrative affairs of the FCFCA.
According to the Explanatory Memorandum to the Bill:
As there would be only one statutory Chief Executive
Officer (CEO) position for the Federal Court responsible for the single
federal court corporate entity to assist both the Chief Justice of the Federal
Court and the Chief Justice/Chief Judge of the FCFC in the administration of
the courts, both FCFC (Division 1) and the FCFC (Division 2) would be able to
draw from a single pool of Registrars. This would ensure that litigants
experience a streamlined procedure, especially in family law matters, instead
of navigating two sets of procedures for different courts.[135]
Other provisions for the FCFCA (Division 2)
Clauses 123–134 in Chapter 4 of the Bill set out
detailed processes to be followed in the FCFCA (Division 2) in respect of
dispute resolution proceedings—other than proceedings under the Family Law
Act.[136]
This reflects the broader jurisdiction of the FCFCA (Division 2).
Importantly under clause 132 the Rules of the Court
may make provision for the costs of dispute resolution processes and the
assessment or taxation of those costs in certain circumstances.
Concluding comments
There seems no question that there is a deep discontent
amongst users of the Family Court—both within the legal profession and without.
A range of reviews over the past decade have made recommendations to improve
the Family Court but at the time of writing this Bills Digest the overwhelming
message is that the Family Court has been chronically underfunded in a period
during which matters have become increasingly complex.
There is broad support for the ‘harmonisation of
regulations, including the Rules of Court, governing the details, operations,
and practice and procedures of the family law jurisdiction of the federal court
system’.[137]
However, there is concern that the model proposed by the
Bill, in particular the removal of the Appeal Division of the Family Court and
the creation of new appellate division of the Federal Court will ‘remove the
specialisation that has been developed to aid families in crisis who are
dealing with multiple and interrelated issues such as family violence,
substance misuse, mental health issues and child abuse’.[138]
Whilst the Senate Committee recommended the Bills be
passed, it also recommended that the existing appellate jurisdiction of the
Family Court of Australia be retained in the FCFCA. These recommendations seem
contradictory, as transfer of the appeals function from the (current) Family
Court to a new Division of the Federal Court is one of the major policy changes
that would be enacted by the passage of the Bills. Indeed, as noted earlier in
this Digest, this change is described as ‘central to the structural reform of
the courts’.[139]
If the
government is persuaded by the Committee’s view on appellate jurisdiction,
these Bills will need careful amendment before they are considered by the
Senate.