Family Court to merge with the Federal Circuit Court – a setback in curbing domestic violence?

The 2019 Federal Circuit and Family Court of Australia Bill is intended to combine the two family courts into the singular Federal Circuit and Family Court of Australia. The bill passed in the Senate during February following support from key crossbencher, Rex Patrick.

Members of the Australian public who have not encountered the family court system may not understand its importance to our democracy and the deliverance of fair, impartial, and expeditious decisions.

The merger will become law following passage by the lower house and it set to have adverse effects on the reduction of instances of family violence in Australia.

The Law Council of Australia is concerned that this will happen if the existence of the specialist functions of the family court are removed.[i] The Family Court’s expert and experienced judges can afford to victims of family violence serious protection in their time of need. The judges have intimate knowledge of and the capacity to recognise the warning signs of family violence.

Angela Lynch, from the Women’s Legal Services Australia, claims the merger and removal of the specialist judges dilutes protection to children and domestic violence victims.[ii] This is especially considering 85% of matters heard throughout the Australian family law system involve acts of domestic physical abuse.[iii]

Perhaps one of the most damaging changes is the loss of the appeal court within the current family law system. Judges with no background in family law will become the arbiters of matters as the Federal Court will be introduced to preside over appeals.

Former Family Court Chief Justice Alastair Nicholson has stated the merger could introduce judges with “no real knowledge” of family law.[iv] This could culminate in even longer delays for families trying to settle disputes and is markedly opposite to Attorney General Christian Porters hopes for a “simpler, faster and, as a result, cheaper system.[v]

Rex Patrick secured an amendment that ensures a ‘specialist family law body’ within the singular court. However, what is worrying for stakeholders in family law is that this body is not enshrined in and protected by law. The specialist unit exists only by regulation, something that is easily changeable and thus could be short-lived.

Stephen O’Ryan QC asserts that he is “absolutely horrified” about the proposed changes and declaims the family court has been “effectively abolished.[vi]

The family law system in Australia is not without its funding flaws, back logs, and holistic challenges. Yet, the government has refused simpler reforms regarding placing more judges on current courts and properly funding the family law system.[vii]

Even so, in foremostly prioritising victims of family violence, the merger will not help and has potential to make matters worse. This office is particularly concerned about the potential loss of the Family Court Appeal List.

Notes

[i] Passage of Flawed Merger Bill Tasks Family Law Judges with an Impossible Task. Joint Statement from Women’s Legal Services Australia, Community Legal Centres Australia, Law Council of Australia, National Aboriginal and Torres Strait Islander Legal Services, 18 Feb. 2021.

[ii] “Family Court to Merge with Federal Circuit Court.” ABC Radio, 18 Feb. 2021, www.abc.net.au/radio/newsradio/family-court-to-merge-with-federal-circuit-court/13166450. Accessed 3 Mar. 2021.

[iii] Ibid.

[iv] Lipson, David. “‘A Devastating Moment’: Family Law Experts, Former Judges React to Family Court Merger.” Www.abc.net.au, 18 Feb. 2021, www.abc.net.au/news/2021-02-18/family-court-merger-federal-circuit-court-reactions/13168506. Accessed 3 Mar. 2021.

[v] “Parliament Backs Overdue Reform of Family Courts.” Attorney-General for Australia and Minister for Industrial Relations, 18 Feb. 2021, www.attorneygeneral.gov.au/media/media-releases/parliament-backs-overdue-reform-family-courts-18-february-2021.

[vi] Lipson, David. “‘A Devastating Moment’: Family Law Experts, Former Judges React to Family Court Merger.” Www.abc.net.au, 18 Feb. 2021, www.abc.net.au/news/2021-02-18/family-court-merger-federal-circuit-court-reactions/13168506. Accessed 3 Mar. 2021.

[vii] Passage of Flawed Merger Bill Tasks Family Law Judges with an Impossible Task. Joint Statement from Women’s Legal Services Australia, Community Legal Centres Australia, Law Council of Australia, National Aboriginal and Torres Strait Islander Legal Services, 18 Feb. 2021.