Earlier this year, Federal Parliament passed legislation that would amalgamate the Federal Circuit Court of Australia and the Family Court of Australia into one Court, known as the Federal Circuit and Family Court of Australia. The new Court comprises two Divisions and has operated from 1 September 2021, under a single set of rules.
The merger and its critics
Amid concerns from legal professionals, the Federal Government passed legislation to merge the Family Court of Australia (Family Court) and the Federal Circuit Court of Australia (Federal Circuit Court).
On 5 December 2019, the Federal Government introduced the Federal Circuit and Family Court of Australia Bill 2019 and the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019 (the Bills) into the lower house. The government argued that a single-entry point would help to reduce delays and backlogs in the family law courts by driving a faster, cheaper, and more consistent resolution.
The Bills were met with significant controversy after family law experts, peak legal bodies and members of parliament opposed the merger, arguing that a stand-alone specialist family court is necessary to ensure the safety of children and victims of family violence. 157 stakeholders, including 11 retired family law judges and two former chief justices, signed an open letter to the Attorney-General expressing their concerns about the proposed merger.
Notwithstanding this substantive opposition, the Bills narrowly passed in the Senate on 17 February 2021 and received Royal Assent on 1 March 2021.
Structural reforms
The legislation merges the Family Court and the Federal Circuit Court to create the Federal Circuit and Family Court of Australia (FCFCOA). The FCFCOA commenced on 1 September 2021. It hears all family law matters and other federal matters in accordance with new rules, which govern the operations and practice and procedure of the FCFCOA.
The FCFCOA comprises two Divisions. Division 1 is a continuation of the former Family Court, and Division 2 is a continuation of the former Federal Circuit Court. All applications must be filed in Division 2, and more complex matters are transferred to Division 1 where appropriate. This represents a departure from the previous system, where parties could elect to initiate complex family law matters in the Family Court.
The FCFCOA operates under the leadership of a Chief Justice with the support of a Deputy Chief Justice, each of whom holds a dual commission to both Divisions of the FCFCOA. The legislation requires that Division 1 must be made up of at least 25 judges, including the Chief Justice and the Deputy Chief Justice.1
The former Appeal Division of the Family Court has been removed, to allow all Division 1 judges to hear family law appeals.
Key takeaways
From 1 September 2021, the Federal Circuit Court and the Family Court merged into the Federal Circuit and Family Court of Australia.
The new Court compromises two Divisions: Division 1, which includes judges from the former Family Court dealing with the more complex matters and exercising appellate jurisdiction; and Division 2, consisting of judges from the former Federal Circuit Court, which is the single point of entry for family law and child support cases. Initiating applications must be filed in Division 2 and more complex matters may be transferred to Division 1 upon the direction of the Chief Justice.
A single set of rules and forms applies for all family law matters, outlined in the recently published Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
This article was originally published in April 2021 and updated in September 2021 to reflect the merger coming into effect.
1 See Federal Circuit and Family Court of Australia Act 2021 (Cth) s 9.
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