Family law disputes have become notorious for unacceptable delays and sometimes excessive legal costs amidst complaints of a chronically underfunded and under-resourced Court system. Some families have waited years for a final judgement from the court.
Despite criticism and controversy, there may be hope on the horizon. A new merged Court that the Government says will focus on quick and inexpensive dispute resolution is about to start operating.
On 1 September 2021 the Federal Circuit Court of Australia and the Family Court of Australia will merge to form a new court known as the Federal Circuit and Family Court of Australia.
We are told that the new Court intends to facilitate the conduct of proceedings with the least possible acrimony to minimise harm to children and families by:
- Putting a greater emphasis on encouraging parties to settle before issuing proceedings (when a Certificate must be filed confirming a genuine attempt to settle has been made).
- Providing for one set of Court rules, forms, practices and procedures.
- Providing for one point of entry for all proceedings.
- Facilitating parties participating in some form of dispute resolution (such as conferences or mediation) within five months of filing an application in the Court to ensure there is an opportunity for parties to settle before they incur significant legal costs and becoming entrenched in the system.
- Ensuring that 90 per cent of cases proceed to hearing and a decision within 12 months of an application being filed – a significant improvement on the existing lengthy lists.
- Emphasising compliance with Court orders through a new National Contravention List.
The new Court will comprise of two divisions. Judges in Division 2 will hear more complex matters and appeals from decisions in Division 1. Division 1 of the new Court will deal only with family law matters. Division 2 will also deal with general federal law matters (such as bankruptcy, migration and consumer matters).
On 11 November 2019 numerous stakeholders (including eleven retired family law judges and two former chief judges) wrote an open letter to the Attorney-General proposing that a stand-alone specialist court is necessary to ensure the safety of children and victims of family violence. Many argue that a specialist court is considered internationally to be best practice.
The primary concern raised by this cohort was that the merger will result in the loss of specialist family law expertise as there will no longer be a specialist Family Law court in Australia.
The legislature has sought to address the issue of specialisation but not the issue of a specialist court. All new judges appointed must by their “knowledge, skills, experience and aptitude” be suitable to deal with family law matters, including family violence.
Nevertheless, the single point of entry, the harmonisation of Court procedures and an increased emphasis on dispute resolution appear to have merit and it is difficult to see how they could not lead to a more streamlined and effective family law process.
Since the merger was endorsed by Parliament the government has significantly increased the number of appointments of registrars and judges to both courts – in anticipation of the new Court. This vested interest in achieving a simplified approach and an efficient outcome is a welcome development.
Only time will tell if this new Court is indeed able to improve on the performance of the system that it replaces. If the new Court structure is adequately funded that factor alone may have a significant role in creating a responsive and more effective family dispute resolution system for Australian families.
At Ballinger Legal, we assist clients with advice and representation in relation to property division on the breakdown of relationships and children’s matters. We actively promote alternative dispute resolution and only recommend Court proceedings as a matter of last resort or where there is no alternative.
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