21 June 2018

The Restructure of the Family Courts

The government last week announced a proposal to restructure the family court system.  The proposal is one of most significant changes to Australian family law in many years.

The proposed changes have been met with widespread media attention and scrutiny.  Several of our clients and referrers have asked us what the proposed amendments involve.

The current system

Currently, the Family Court system across Australia comprises of two courts:

  1. the Federal Circuit Court of Australia – which deals with the vast majority of general family law matters; and
  2. the Family Court of Australia – which deals with complex, lengthy and involved parenting and property disputes.

The Family Court of Australia is the higher court.  Its judges bear the title of “Justice” while the Federal Circuit Court judges are titled “Judges”.  Often judges in the Federal Circuit Court will transfer a matter to the Family Court if they consider it complex enough to warrant the transfer.  Examples of matters dealt with by the Family Court include high nett worth and complex property disputes, international relocation applications and parenting matters containing serious and significant allegations of abuse against children.

The proposed changes

The government’s proposed changes can be summarised into three main points:

  1. A merger of the courts

The Family Court and Federal Circuit Court will be merged to create a new court called, the Federal Circuit and Family Court of Australia.

There will be a single entry point to the court.  All family law disputes, regardless of how complex and involved, will be commenced and dealt with by the new court.

Initially, there will be two divisions of the new court.  Division 2 will essentially be the Federal Circuit Court as we know it. Division 1 will essentially be the current Family Court.

  1. One set of rules and forms

Currently, the Family Court and Federal Circuit Court have an individual set of rules and forms.  Under the new court, there will be a single set of rules and forms.

  1. The eventual extinction of the Family Court and its judicial officers

Division 1 (the new Family Court) will eventually cease to exist under the proposed changes.  Judges are required to retire upon turning 70 years of age.  The government will not appoint any further Family Court judges.  Upon the retirement of the current Family Court judges, the Family Court, or the new division 1 will become extinct.

The scrutiny

There has been significant media attention and debate following the government’s recently announced changes.

A lot of scrutiny appears to be regarding the lack of prior consultation that the government had with relevant family law bodies and the current Family Court themselves, about the proposal.

Much attention has also been focused on the failure of the government to propose further funding for the Family Court system or appoint new judges, in a court system which is considered by many to be suffering from lack of funding and lengthy delays.

On the other hand, the government has received praise for its attempts to simplify and cut unnecessary delays and costs from the courts.

Where to from here

While it may be one of the most significant changes to Australian family law in some time, we are likely to see many more changes in the next three years.  In late 2017, the government appointed a commission to conduct a review of family law in Australia.  The review is separate from the government’s proposed changes to the court system and is likely to bring with it significant change to family law in Australia as we know it.

For more information please contact our family law team on 07 4036 9700.

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