CHANGES TO AUSTRALIA'S FAMILY LAW SYSTEM
The Attorney-General has announced that in January 2019 the Federal Circuit Court and the Family Court was set to be merged to become one “super-court”, with the aim of cutting down wait times and making the family law system more “user friendly” as it aims to help families achieve faster resolutions at a lower cost.
Prior to the reform, the Family Court (‘FC’) handled the more serious and complex family law matters, and the Federal Circuit Court (‘FCC’) handled the rest. The split is about 13% and 87% respectively. Each court has a different set of rules, forms and procedures, which can make the application process confusing for the high number of self-represented litigants.
In 2015-2016 there were more than 100,000 family law applications. Due to backlogs, families have been waiting months and even years for their matters to be heard and finalised. The Attorney-General claims that the proposed changes will cut down the waiting times from filing to hearing to trial, and an extra 8,000 matters will be resolved each year.
On 5 December 2019 new federal family law court reformation legislation was introduced by the Australian government.
Following the merger, and under the new legislation, the Family Court and the Federal Circuit Court of Australia will be brought together as the Federal Circuit and Family Court of Australia (FCFC). This will comprise of two division and each would be continuation of either the Family Court (Division 1) or Federal Circuit Court (Division 2) and will preserve the current cohort of judges of the Family Court and the Federal Circuit Court.
There are some clear advantages…
• All new family law cases will enter through one entry point with a single set of rules and procedure
• Eliminates the need to transfer cases between the two different courts, which can increase time and expense
• Some say that the reason behind delays is a lack of judges and a lack of funding (which hasn’t increased in line with inflation since Abbott was elected). The proposal does not include more funding or judge appointments. So how will the merger cut down wait times and increase efficiency with the same number of judges and court staff? Will this mean that serious complex issues are not given the time they deserve?
• Some in the legal arena are afraid that the merging of the two courts will result in the phasing out of family law specialist judges. These specialists are vital to the resolution of more complex and sensitive family law cases, which may involve child sexual abuse and domestic violence.
• When it comes to appeals in the new system, one judge will hear an appeal instead of the former three. Is it really an effective and safe appeal process if a single judge looks over the decision of another single judge? That being said, this is usual practice for non-family related Federal Court appeals. • Whilst most people would agree that there is a need for reform, there has been backlash for the decision to make this change before the Commission has given its report. This means that the change will be made without having evidence to back it up, and without consultation with judges, legal practitioners and the public.
What it comes down to for families
Regardless of the effectiveness of this reform, we believe that in most occasions the best option for couples and families is to avoid the courts altogether. Negotiating with your partner to agree on the terms of a property settlement and / or parenting arrangement will save both of you the expense, time, and stress of court proceedings. Additionally, you will retain control over your affairs, which you would both sacrifice when applying to the Court for orders, which the Court has discretion to make.
We understand that the end of a relationship is a stressful time for both parties, and you may already anticipate that negotiating on your own will get you nowhere. Engaging a solicitor to represent your interests can help to create a degree of separation between you and your partner, and to help the negotiation process to move along smoothly. You may also choose to arrange a private mediation with a jointly-appointed, impartial mediator who can assist you to come to a mutually beneficial decision. If you need advice about separation, Nathan White Lawyers is here to help.