Federal Government's decision to merge the Family Court and Federal Circuit Court
Federal Parliament recently passed legislation that will 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 will comprise two Divisions and will operate from 1 September 2021, under a single set of rules.
The merger and its critics
Amid concerns from legal professionals, the Federal Government recently 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.
The legislation merges the Family Court and the Federal Circuit Court to create the Federal Circuit and Family Court of Australia (FCFCA). The FCFCA will commence on 1 September 2021. It will hear all family law matters and other federal matters in accordance with new rules, which will govern the operations and practice and procedure of the FCFCA.
The FCFCA will comprise two Divisions. Division 1 will be a continuation of the Family Court, and Division 2 will be a continuation of the Federal Circuit Court. All applications must be filed in Division 2 and more complex matters will be transferred to Division 1 where appropriate. This represents a departure from the current system, where parties can elect to initiate complex family law matters in the Family Court.
The FCFCA will operate under the leadership of a Chief Justice with the support of a Deputy Chief Justice, each of whom will hold a dual commission to both Divisions of the FCFCA. 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
For the first 18 months of operation, the rules for each Division will be made by the Chief Justice and the corresponding Chief Judge. Following the initial period, the rules will be made by majority decision of all FCFCA judges.2
The current Appeal Division of the Family Court will be removed, to allow all Division 1 judges to hear family law appeals.
From 1 September 2021, the Federal Circuit Court and the Family Court will merge into the Federal Circuit and Family Court of Australia.
The new Court will compromise two Divisions. Division 1 will include judges from the Family Court dealing with the more complex matters and exercising appellate jurisdiction, while Division 2 will consist of judges from the Federal Circuit Court, which will be 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.
There will be a single set of rules and forms for all family law matters, which will be made by the Chief Justice in consultation with other judges.
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