The Family Court merger: What’s happening?

Professor Richard Chisolm¹

Legislation effective 1 September will substantially change the courts that administer family law. Broadly speaking, the substantive law will not change, although there will be changes of practice and procedure.

The legislation

Two Acts are involved, the Federal Circuit and Family Court of Australia Act 2021 (the ‘main Act’) and the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act.

There are also to be new rules of court, which will replace the existing rules of the Family Court of Australia (the Family Law Rules 2004) and of the Federal Circuit Court (the Federal Circuit Court Rules 2001). The new rules will be ‘harmonised’ between Division 1 (corresponding to the Family Court of Australia) and Division 2, (corresponding to the Federal Circuit Court).

The Consequential Amendments Act repeals the Federal Circuit Court Act.² Broadly, the provisions of that Act will be replicated in the main Act, especially in Chapter 4 (which deals with Division 2). The new legislation also amends the Family Law Act, mainly so that provisions referring to the Family Court of Australia and the Federal Circuit Court will now refer to the Federal Circuit and Family Court of Australia.

The courts

There will be a single new entity, known as the “Federal Circuit and Family Court of Australia” (FCFCA). It will have two Divisions. Essentially, Division 1 will replicate the existing Family Court of Australia, and Division 2 will replicate the existing Federal Circuit Court.

How it will work

All family law cases will now start in Division 2, so there will be a single-entry point.  Cases will be dealt with in Division 2 unless they are transferred to Division 1.

Appeals will go to Division 1, to be heard by a single Division 1 judge unless the Chief Justice considers it appropriate for the appeal to be heard by a Full Court.  All Division 1 judges will be able to hear appeals; there will no longer be an Appeal Division.

Why it is happening

The most authoritative statement of the purpose of the changes is probably the EM to the main Act.  It is apparent that the purpose has to do with improving the processing of cases rather than changing their outcomes. The EM states that the bill

would bring the Federal Circuit Court of Australia (the Federal Circuit Court) and the Family Court of Australia (the Family Court) together into an overarching, unified administrative structure to be known as the Federal Circuit and Family Court of Australia (FCFC). These structural reforms facilitated by the Bill would create a framework in the FCFC for common leadership, common management and a comprehensive and consistent internal case management approach.

A new approach to procedure and practice?

There are at least two indications that the new court will deal vigorously with procedural matters. First, a National Contravention List (with a new Practice Direction) is to be introduced on 1 September 2021 “to address the expectation that all parties will comply with orders of the Court, and that alleged breaches of court orders will be taken seriously and will be dealt with quickly”.

Second, and no doubt more important, under the heading “Case Management”, the Act sets out an “overarching principle”.³ In substance, this is the just resolution of disputes according to law, and as quickly, inexpensively and efficiently as possible, and also the efficient use of the Court’s resources, the efficient disposal of the Court’s overall caseload, the disposal of all proceedings in a timely manner, and the resolution of disputes at a cost proportionate to the importance and complexity of the matters in dispute. That principle is the “overarching purpose of the family law practice and procedure provisions”.

Such a legislative provision is not new.⁴ It can be seen in the Federal Court of Australia Act 1976, Part VB, and in the Family Court of Australia’s Family Law Rules 2004. However, there was no equivalent provision in the Federal Circuit Court Act or the Federal Circuit Court Rules 2001. It remains to be seen what impact this principle will have in practice. Much will depend on the approach of the judges, of course, and the government’s decision to appoint one person as Chief Justice for both Division 1 and Division 2, and the proposed harmonisation of the rules, will presumably create a context that will enable, and arguably encourage, a vigorous approach to the enforcement of practice and procedural requirements.

The primary documents are of course the two Acts mentioned, and - when they become available - the new Rules. The EM to the main Act spells out the intentions behind the legislation. All these documents can readily be found at the Federal Register of Legislation: https://www.legislation.gov.au/.

Helpful secondary materials will be found on the forthcoming website of the new Court (fcfcoa.gov.au), and on the websites of the Family Law Section of the Law Council of Australia and the Attorney-General’s Department.

Professor Richard Chisolm Professor Chisholm is an Honorary Professor at the ANU College of Law. He graduated from Sydney and Oxford universities and was a Judge of the Family Court of Australia. Professor Chisolm’s publications include LexisNexis flagship family law title, Australian Family Law.