The new Federal Circuit and Family Court of Australia and what it means!

The problems with Australia’s family law system are well known and have been reported on extensively.  The focus criticism has been the (in some cases extensive) delays experienced by those involved in the system.

The family law system can be complicated.  Relatively simple matters where both parties consent can be dealt with in the Local Court.  Where some type of decision on a contested matter is required then it is necessary to go to either the Federal Circuit Court (which handles approximately 80% of all family law matters), or the Family Court.  There is a protocol for deciding which of these is the appropriate forum – essentially the Family Court is reserved for (amongst other things) matters with an international element, particularly complex matters or where the hearing is expected to go for longer than four days.

In a sense some delay is not unexpected.  In the 2016-2017 financial year some approximately 85,500 family law applications were filed in the Federal Circuit Court which gives one some idea of the volume of work in the family law space.  Those numbers don’t include applications dealt with in the Local Court and the Family Court.

Of the applications noted above 68% of those applications were finalised within a year.  It is important to note however that approximately half of those are divorce applications which are almost always uncontested, skewing the numbers finalised within a year heavily.  We don’t have more up to date numbers to hand, but expect that number would be lower now.

There are stories of matters that take 3 years or longer to finalise.  3 years is a long time in any kind of legal process, but when the dispute is potentially about seeing one’s children, or finalising the financial affairs of a broken down relationship so that both parties can move on, it must feel like a lifetime.

Last week the Attorney General for Australia announced a significant change to the way family law matters will be dealt with from January 2019.  The intention is to merge the Federal Circuit Court and the Family Court to make the new “Federal Circuit and Family Court of Australia”.  It is said that this change is designed to “dramatically increase the number of family law matters finalised each and every year, and reduce the backlog of unresolved cases on hand at any one time”.

This is a noble aim and one that few would quibble with.  The idea is that there will be less transferring of matters between the Federal Circuit Court and the Family Court with the result that the system will work much more efficiently.  Indeed, the Attorney General has been quoted as saying that the efficiency will improve by “up to a third”.

I think we are entitled to approach these claims with a fair degree of scepticism.  There is only so much that a simplified system can achieve without additional resources being devoted it, or without diluting its specialist nature.  For example, will cases in the new merged Court be heard solely by specialist family law judges?  One expects not.

Justice Thackary (formerly of the Family Court) has publicly said that retiring Judges are either “not replaced or replaced with inordinate delay” and the current Chief Justice has also emphasised the Court’s under resourced state noting the lack of ability to provide any post-order service to check whether family orders were being complied with, and a shortage of Registrars.  It would be a hard enough job already, very emotionally draining, without the additional strains of overwork and lack of resources.

The NSW Law Society President has chimed in saying ” the Law Society is firmly of the view that the system also requires additional resources to cope with the increased complexity of matters and the current unmanageable workloads of many judges.”

Family law matters are often extremely emotive and can be very difficult to deal with.  Very often the people involved will be going through the single worst experience of their lives.  The people working in the system are highly specialised and qualified, but they are increasingly being asked to do more with less, and the result is worse outcomes for everyone involved.

The legislation for the changes is yet to be seen and of course a final opinion should be reserved until then. There is a real danger however that without an accompanying increase in resources this could become an expensive re-branding exercise that fails to address the underlying problems.