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Federal Circuit and Family Court of Australia Bill 2018 [and] Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018



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ISSN 1328-8091

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BILLS DIGEST NO. 79, 2018-19 4 APRIL 2019

Federal Circuit and Family Court of Australia Bill 2018 [and] Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018 Paula Pyburne Law and Bills Digest Section

Contents

The Bills Digest at a glance .............................................. 3

Purpose of the Bills ......................................................... 5

Structure of the Bills........................................................ 5

Background ..................................................................... 5

Family law and family violence ................................... 5

Structure of federal court system ............................... 6

Graphic 1: Structure of Australia’s federal court system 6 The Western Australian model ................................. 7

Reviews of the court system ....................................... 7

2008—Semple Review .............................................. 7

2012—Skehill Review ................................................ 8

2014—review of performance and funding .............. 9 2018—review of efficiency of courts’ operation .... 10 Committee consideration .............................................. 11

Senate Legal and Constitutional Affairs Committee ................................................................. 11

Majority view .......................................................... 11

Dissenting report ..................................................... 11

Additional comments .............................................. 11

Aftermath of the report .......................................... 12

Date introduced: 23 August 2018

House: House of Representatives

Portfolio: Attorney-General

Commencement: Various dates as set out in the body of this Bills Digest. Links: The links to the Bills, their Explanatory Memoranda and second reading speeches can be found on the Bills’ home pages for the Federal Circuit and Family Court of Australia Bill 2018 and the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at April 2019.

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Senate Standing Committee for the Scrutiny of Bills ............................................................................ 13

Policy position of non-government parties/independents.................................................... 14

Labor .......................................................................... 14

Centre Alliance .......................................................... 15

Position of major interest groups................................... 15

Financial implications .................................................... 15

Statement of Compatibility with Human Rights.............. 16

Parliamentary Joint Committee on Human Rights ... 16 Key issues and provisions .............................................. 16

Commencement ........................................................ 16

Establishing the FCFCA .............................................. 16

The problem to be addressed ................................. 16

What the Bill does ................................................... 17

Stakeholder comments ........................................... 17

Constitution of the FCFCA ......................................... 18

Key issue—qualities of judges ................................. 18

Terms and conditions ................................................ 19

Jurisdiction ................................................................ 19

Division 1 Court ....................................................... 19

Division 2 Court ....................................................... 20

Certain powers relating to jurisdiction ..................... 20 Appeals ...................................................................... 21

Stakeholder comments ........................................... 22

Transfer of proceedings ............................................ 23

Division 1— transfer to the FCFCA (Division 2) ....... 23 Division 2—transfer to the FCFCA (Division 1) ........ 24 Division 2—transfer to the Federal Court ............... 24 Stakeholder comments ........................................... 24

Administration of business ....................................... 25

Practice and Procedure ............................................. 25

Case management ..................................................... 26

Comment ................................................................. 27

Rules of Court ............................................................ 28

Management and administration ............................. 29

Registries and registrars .......................................... 29

Other provisions for the FCFCA (Division 2) ............ 29 Concluding comments ................................................... 29

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The Bills Digest at a glance

Purpose of the Bills

The purpose of the Federal Circuit and Family Court of Australia Bill 2018 (the Bill) is to bring about structural reform of the federal courts (excluding the High Court of Australia). The Bill achieves this by merging the Family Court of Australia (Family Court) and the Federal Circuit Court (the Circuit Court) to create the Federal Circuit and Family Court of Australia (FCFCA) comprising two divisions.

The purpose of the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018 (the Consequential and Transitional Bill) is to make necessary amendments to other Commonwealth Acts and Regulations which are affected by the passage of the Bill.

Key features

The key features of the proposed arrangements are as follows:

• the Court which is currently operating as the Family Court of Australia will become the FCFCA (Division 1) with jurisdiction to hear complex family laws matters. The Full Court of the Family Court is abolished. Appeals from decisions of the FCFCA (Division 1) will be considered by the newly established Family Law Appeal Division of the Federal Court of Australia

• the Court which is currently operating as the Federal Circuit Court will become the FCFCA (Division 2) and will continue to have a broad jurisdiction to hear matters arising from a suite of Commonwealth statutes

• the Bills provide that there is to be a Chief Justice of the FCFCA (Division 1) and a Chief Judge of the FCFCA (Division 2). However, the Bill also provides that a single person can hold both positions and the Explanatory Memorandum states that this is the Government’s intention

• the Bills also provide for the making of new rules of the FCFCA which will mean that a single set of rules and single set of forms will apply to Divisions 1 and 2.

Concerns about the Bill

Submitters to the Senate Legal and Constitutional Affairs Committee inquiry into the Bills have raised a number of concerns including that they will operate to:

• diminish the specialisation and status of family law by allowing for the appointment of judicial officers to Division 2 of the Court who have no specialised knowledge and experience of family law

• be driven by, and almost exclusively are focused on, financial efficiencies instead of the safety and wellbeing of Australian families and

• repose the rule making power in the Chief Justice and the Chief Judge (who are one and the same), rather than with a majority of judges as is common elsewhere.

Committee recommendations

The final report of the Senate Legal and Constitutional Affairs Committee recommended that the Bills be passed but recommended:

• the existing appellate jurisdiction of the Family Court of Australia be retained

• the qualifications of judges in Division 2 include that they have the appropriate skills, knowledge, experience and personality and

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• the Australian Government pursue the immediate appointment of suitable candidates to vacant judiciary positions in the family courts and consider whether there is a need to appoint additional judges.

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Purpose of the Bills The purpose of the Federal Circuit and Family Court of Australia Bill 2018 (the Bill) is to bring about structural reform of the federal courts (excluding the High Court of Australia). The Bill seeks to merge the Family Court of Australia (Family Court) and the Federal Circuit Court (the Circuit Court) to create the Federal Circuit and Family Court of Australia (FCFCA) comprising two divisions.

The purpose of the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018 (the Consequential and Transitional Bill) is to make necessary amendments to other Commonwealth Acts and Regulations which are affected by the passage of the Bill.

Structure of the Bills The Bill contains five Chapters:

• Chapter 1 sets out preliminary matters including relevant definitions

• Chapter 2 creates the Federal Circuit and Family Court of Australia comprised of Division 1 and Division 2

• Chapter 3 relates to the operation and management of the Federal Circuit and Family Court of Australia (Division 1)

• Chapter 4 relates to the operation and management of the Federal Circuit and Family Court of Australia (Division 2) and

• Chapter 5 sets out miscellaneous matters including the functions and powers of the Chief Executive Officer.

The Consequential and Transitional Bill has 10 Schedules, many of which amend multiple statutes to reflect the newly named FCFCA (Division 1) and (Division 2).

Together, the Bills amount to more than 500 pages of legislative amendments. That being the case, this Bills Digest does not analyse the content of each of the Schedules to the Bills but rather highlights the key features in the Bills with a view to providing an overview of their intent and operation.

Background

Family law and family violence Over the last decade there have been a number of reviews, at both state and federal levels, of the performance and/or funding of the Federal Court of Australia (Federal Court), the Family Court and the Circuit Court. The context of many of these reviews has been the need for courts with a family law jurisdiction to deal with matters of family violence.1

In its 2017 publication, A Better Family Law System to Support and Protect Those Affected by Family Violence, the House of Representatives Standing Committee on Social Policy and Legal Affairs (the House Committee) expressed its concern that the current design of the family law system can fail to support and protect families affected by family violence. In particular the House Committee drew attention to:

1. For example, House of Representatives Standing Committee on Social Policy and Legal Affairs, A better family law system to support and protect those affected by family violence, Canberra, December 2017; Australasian Institute of Family Studies, Evaluation of the 2012 Family Violence Amendments, 2015; Australian Law Reform Commission (ALRC), Family violence—a national legal response, report, 114, ALRC, Sydney, 2010.

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• the difficulties posed by an adversarial family law system

• the existence of inappropriate responses to reports of family violence

• the legal fees and complex court procedures which reduce the accessibility of the family law system and

• the complexity in navigating state, territory, and federal jurisdictions.2

A comprehensive review of the family law system by the Australian Law Reform Commission (ALRC) was announced by the Government on 27 September 2017. The review commenced on 1 October 2017 and is due to report by 31 March 2019.3 The Bills which are discussed in this Bills Digest deal only with the structure of federal courts—not with underlying discontent about the manner in which the family law system applies to those persons who are subject to it.

Structure of federal court system The graphic below sets out the current structure of Australia’s federal court system.4

Graphic 1: Structure of Australia’s federal court system

High Court of Australia (HCA) The highest court in the Australian judicial system designed to decide cases of special federal significance, including challenges to the constitutional validity of laws and to hear appeals by special leave from Federal, State and Territory Courts.

 

Federal Court of Australia (FCA) A superior court of record and a court of law and equity. The FCA has a wide and varied jurisdiction relating to matters such as taxation, trade practices, native title, intellectual property, industrial relations, corporations and bankruptcy, and appellate jurisdiction in matters on appeal from single judges of the FCA, from the FCC (in non-family law matters) and Supreme Courts of the States and Territories.

Family Court of Australia (FCoA) A specialist family court designed to resolve the most complex legal family disputes. Like the FCA, the FCoA is a superior court of record, but has jurisdiction relating to family law matters such as divorce, parenting matters and matters arising under the welfare jurisdiction of the Family Law Act 1975, child support, leave to adopt, certain civil matters arising under section 1337C of the Corporations Act 2001 and the Bankruptcy Act 1966, property alteration and maintenance.

 

Federal Circuit Court of Australia (FCC) A court of record and a court of equity designed to provide a simple and accessible alternative to litigation in the FCA and the FCoA, and to relieve the workload of the aforementioned Courts. The FCC has a broad and diverse jurisdiction relating to matters concerning family law and child support, administrative law, admiralty, anti-terrorism, bankruptcy, copyright, human rights, migration, privacy and trade practices. Source: KPMG, Review of the performance and funding of the Federal Court of Australia, the Family Court of Australia and the Federal Circuit Court of Australia, 5 March 2014, p. 9.

2. House of Representatives Standing Committee on Social Policy and Legal Affairs, A better family law system to support and protect those affected by family violence, op. cit., p. iii. 3. G Brandis (Attorney-General), First comprehensive review of the Family Law Act, media release, 27 September 2017. 4. KPMG, Review of the performance and funding of the Federal Court of Australia, the Family Court of Australia and the Federal

Circuit Court of Australia, 5 March 2014, p. 9.

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The Western Australian model Neither the Commonwealth nor the states and territories have exclusive jurisdiction over family law matters. The Australian Constitution gives the Commonwealth the power to make laws with respect to marriage,5 and with respect to divorce and matrimonial causes; and in relation thereto, parental rights and the custody and guardianship of infants.6

Additionally, states (with the exception of Western Australia) have referred their state powers to the Commonwealth. This has had the effect of the federal parliament having jurisdiction over marriage (including same-sex couples), divorce, parenting and family property upon separation, while the state and territory governments have retained jurisdiction over adoption and child welfare.

The Family Law Act 1975 allows federal family law jurisdiction to be vested in state family courts, by agreement between a state government and the Australian Government.7 Western Australia is the only state to have entered into such an agreement. That being the case, the Family Court of Western Australia (FCWA) is the only state family court in Australia.8

Appeals from a decision of the FCWA in the federal jurisdiction are determined by the Full Court of the Family Court. Appeals in the state jurisdiction are determined by the Court of Appeal of the Supreme Court of Western Australia.

Reviews of the court system

2008—Semple Review In 2008, the first of a series of reviews of the operation of the Family Court and the Circuit Court (formerly known as the Federal Magistrates Court) was undertaken. The report of the Future Governance Options for Federal Family Law Courts in Australia (known as the Semple Review), acknowledged that, at that time, the arrangement of business and resources between the courts did not enable the most efficient utilisation of the resources provided to the family law system. According to the Semple Review:

… there exists a significant level of duplication of administrative structures and corporate services across the Family Court and the [Circuit Court] and … the existing and proposed duplication is not financially sustainable and utilises resources that could be directed more effectively to assisting litigants. The combined future levels of expenditure will, under current arrangements of the Family Court and [Circuit Court], significantly exceed their annual allocations and are unsustainable for future years.

9

[emphasis added]

The Semple Review recognised that in part, this problem is a result of the way in which the Circuit Court was established.

… it was established as a separate court but without resources comparable to those of the other federal courts. This made it dependent on resources provided by the Federal Court and the Family Court. The growth of the [Circuit Court] to become the largest federal court and substantial shifts of family law work from the Family Court to the [Circuit Court] have compounded this problem; 79% of

5. Constitution, section 51(xxi). 6. Constitution, section 51(xxii). 7. Family Law Act, section 41. 8. The FCWA is established by the Family Court Act 1997 (WA). 9. D Semple, Future governance options for federal family law courts in Australia, Attorney-General’s Department, Canberra,

2008, p. 5.

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family law applications (excluding divorces and consent orders) are filed in the [Circuit Court]. 10

[emphasis added]

The Semple Review recommended a merger of most of the Circuit Court with the Family Court and a merger of the remainder of the Circuit Court, being the part which did work other than family law, with the Federal Court. To achieve this, it proposed a structure in which the Circuit Court would constitute a ‘second tier’ in the superior Courts.11

2012—Skehill Review In 2012, the Strategic Review of Small and Medium Agencies in the Attorney-General’s portfolio (known as the Skehill Review) considered a number of options for action which were intended to improve the efficiency and effectiveness of courts administration.12

One of those options (option 4) was for the courts to formalise their informal working relationship by entering into a Memorandum of Understanding under which the heads of each court would ‘meet no less than quarterly to discuss and agree upon a program of work for the examination and, … the implementation of initiatives for joint or shared administration across the Courts’.13 This was the preferred option for the courts as it could ‘deliver results’ without the need for substantial structural change.14

However, an alternative option was also mooted. Under option 7, the separate administrative structures (but not the judicial structures) of the Federal Court, Family Court and Circuit Court would be collapsed into a single agency.15 This would operate so that each Head of Jurisdiction would remain responsible for the judicial leadership and functioning of his or her Court, whilst a combined governance structure would be responsible for the single administration.16 The advantage of option 7 was that it provided the potential to optimise economies of scale in the provision of the full range of court administration services, not limited to corporate services and registry services.17

Whilst the Skehill Review ultimately recommended that the government should adopt option 4, it recommended that option 7 be retained as a future possibility if efficiencies and effectiveness were not adequately achieved through option 4.18

In the wake of the Skehill Review, the Courts and Tribunals Legislation Amendment (Administration) Act 2013 created a single agency known as the Family Court and Federal Circuit Court with a single Chief Executive Officer for both the Family Court and the Circuit Court.19

10. Ibid. 11. Ibid., p. 7. Delays in implementing the recommendations of the Semple review occurred while the Government considered the implications of the High Court’s decision in Lane v Morrison [2009] HCA 29, which related to the validity of a proposed Military Court of Australia. See also J Fogarty, ‘Why should the Federal Magistrates Court be abolished?’ Australian Journal of

Family Law, 23(2), 2009, pp. 79-103. 12. S Skehill, Strategic review of small and medium agencies in the Attorney-General’s portfolio, Department of Finance and Deregulation, Canberra, 2012, pp. 31-66. 13. Ibid., p. 41. 14. Ibid., p. 52. 15. The agency would be regulated by the Financial Management and Accountability Act 1997 which was a precursor to the Public

Governance, Performance and Accountability Act 2013. 16. Skehill, Strategic review of small and medium agencies in the Attorney-General’s portfolio, op. cit., p. 47. 17. Ibid. 18. Ibid., recommendation 5.1, p. xvii. 19. This had effectively already been in place. While the Chief Executive Officers of the Circuit Court and the Family Court had

been separate statutory offices, they had been filled since at least 2008 by a single person who held dual appointments.

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However, the merging of the administration functions of all three courts did not proceed at that time.

2014—review of performance and funding In 2014, KPMG undertook a review of the performance and funding of the Federal Court, the Family Court and the Circuit Court (the KPMG review). Setting the scene for the review, the report of the KPMG review states:

… it is recognised that the FCA, FCoA and FCC operate in a broader (constrained) fiscal environment which necessarily impacts on timely, efficient, equitable access to justice and facilitation of judicial decision-making. Equally, reported increases in case complexity and changes to the client profile mean that the courts are operating in a new landscape which presents challenges to the timely, equitable and efficient administration of justice.

20

At the time of the KPMG review all three courts had projected budget deficits from the financial year 2014-15 and it was recognised that there were ‘entrenched structural funding issues’.21 Amongst other things the KPMG review concluded:

The current funding model for the Courts is not sustainable. The question of sustainability cannot simply be addressed through the injection of additional funds or one-off cuts, rather it requires more fundamental amendments to the model.

To achieve the current budget across the forward estimates for all three Courts would require significant cuts to service and staffing levels. Such cuts to administrative services are unlikely to form a sustainable basis or driver for long-term efficiencies. 22

[emphasis added]

The KPMG review made 19 separate recommendations intended to guide future strategic decision-making about the courts.

Following the KPMG review, the Government enacted the Courts Administration Legislation Amendment Act 2016 (the Amending Act) to achieve greater efficiencies in the corporate management of the Federal Court, the Family Court and the Circuit Court.23 The Amending Act designated the Courts a single administrative entity under the Public Governance, Performance and Accountability Act 2013 (the PGPA Act), and as a single statutory agency under the Public Service Act 1999. In addition the Amending Act placed responsibility for the corporate management of the three Courts with the Chief Executive Officer (CEO) of the Federal Court.24 This was consistent with what the Skehill Review had envisaged in 2012.

The merging of the courts’ corporate functions was expected to deliver efficiencies to the courts of $9.4 million over the six financial years to 2020-21 and result in ongoing annual efficiencies of $5.4 million from that time.25

20. KPMG, Review of the performance and funding of the Federal Court of Australia, the Family Court of Australia and the Federal Circuit Court of Australia, op. cit., p. 24. 21. Ibid., p. vi. The KPMG report revealed the courts were on track for combined losses of $75 million by 2017-18. N Berkovic, ‘Federal Court to run bigger courts’, The Australian, 6 November 2015, p. 27. 22. Ibid., p. xii. 23. N Berkovic, ‘Federal Court put in charge of stretched Family Court system’, The Australian, 2 December 2015, p. 1. 24. M Coombs, Courts Administration Legislation Amendment Bill 2015, Bills digest, 76, 2015-16, Parliamentary Library, Canberra,

2016.

25. Explanatory Memorandum, Courts Administration Legislation Amendment Bill 2015, p. 3.

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2018—review of efficiency of courts’ operation In 2018, the Attorney-General’s Department commissioned PwC to review the operations of the courts in relation to family law matters (the PwC report).26 The PwC report measured the performance of the Family Court and the Circuit Court in the following ways:

• by backlog: over the past five years, pending cases older than 12 months have grown by 38 per cent in the Circuit Court, compared to five per cent in the Family Court. Around 29 per cent of all Circuit Court pending final order cases are older than 12 months, compared to 42 per cent in the Family Court27

• by time to trial: over the past five years, the national median time to trial has grown from 11.5 months to 17 months in the Family Court, while in the Circuit Court the median time to trial has grown from 10.8 months to 15.2 months28

• by the cost of finalisation: in the Family Court it costs near to $17,000 per finalised matter. In the Circuit Court, the cost is approximately $5,50029

• by the amount of final orders: on a judicial full-time equivalent basis, approximately 114 final orders are finalised per Family Court judge per annum. In the Circuit Court, approximately 338 final orders are finalised per judge per annum30 and

• by the cost to litigants: the party/party costs to be paid by litigants are estimated to be in the order of $110,000 per matter in the Family Court (including court fees, but excluding appeals), while in the Circuit Court this is closer to $30,000.31

Importantly, the PwC report measured performance in economic terms and could not take into account ‘the complexity of cases’ which were before the Family Court—and the extra resources which might be expended in dealing with them.32

PwC concluded that the different operational practices of the courts were leading to variations in efficiency levels. Those practices related to:

• the way first instance matters are handled between the courts

• the initial case management and allocation of those cases

• the practices of judges and

• the scheduling and listing of appeals.33

PwC identified a number of opportunities that it considered would have the potential to significantly improve the efficiency of the family law system by reducing the backlog of the family law courts and drive faster and cheaper resolution of matters for litigants.34

Although it is the PwC report which has formed the basis of the model for the Family Court and the Circuit Court proposed by the Bill, it has been the subject of some criticism for containing ‘multiple inaccuracies and unsubstantiated assumptions’.35 It was also criticised because ‘the

26. PwC, Review of efficiency of the operation of the federal courts, final report, April 2018. 27. Ibid., p. 4. 28. Ibid. 29. Ibid. 30. Ibid. 31. Ibid. 32. Ibid., p. 47. 33. Ibid., p. 5. 34. Ibid., p. 7. 35. Law Institute of Victoria, Submission to the Senate Legal and Constitutional Affairs Committee, Inquiry into the Federal Circuit

and Family Court of Australia Bill 2018 [and] Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018, [Submission no. 60], 23 November 2018, p. 7. See also The Law Society of New South Wales,

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conclusions advanced on the basis of the statistics [in the report] do not accord with the experience of litigants and practitioners routinely appearing before the Courts’.36

Committee consideration

Senate Legal and Constitutional Affairs Committee The Bills were referred to the Senate Standing Committee on Legal and Constitutional Affairs (the Senate Committee) for inquiry and report.37 The report of the Senate Committee was published on 14 February 2019.38

Majority view The majority view of the Senators who participated in the inquiry into the Bills was that the Bills should be passed subject to the following qualifications:

• the proposed new divisions of the Federal Circuit and Family Court of Australia be provided with additional resources for Registrars to assist with the backlog of cases

• an appellate division of the Federal Court of Australia not be created and instead the existing appellate jurisdiction of the Family Court of Australia be retained into the Federal Circuit and Family Court of Australia (Division 1)

• the qualifications of judges in Division 2 include that they have the appropriate skills, knowledge, experience and personality and

• the Australian Government pursue the immediate appointment of suitable candidates to vacant judiciary positions in the family courts and consider whether there is a need to appoint additional judges.39

Dissenting report Australian Labor Party (Labor) members of the Senate Committee submitted a dissenting report in respect of the Bills. Citing the ongoing inquiry by the Australian Law Reform Commission, the Labor Senators contended that consideration of the Bills should occur after that inquiry is complete.40

Additional comments Senator Rex Patrick of the Centre Alliance made additional comments in respect of the Bill, acknowledging the ‘overwhelming view amongst the majority of submitters and witnesses that the

Submission to the Senate Legal and Constitutional Affairs Committee, Inquiry into the Federal Circuit and Family Court of Australia Bill 2018 [and] Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018, [Submission no. 49], 22 November 2018, p. 2. 36. NSW Bar Association, Submission to the Senate Legal and Constitutional Affairs Committee, Inquiry into the Federal Circuit and Family Court of Australia Bill 2018 [and] Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018, [Submission no. 68], 23 November 2018, p. 15. 37. Details of the Committee’s terms of reference, submissions received and the final report are available on the inquiry homepage. 38. Senate Standing Committee on Legal and Constitutional Affairs, Federal Circuit and Family Court of Australia Bill 2018 [Provisions] and Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018 [Provisions], The Senate, Canberra, February 2019. 39. Ibid., p. vii. 40. Labor Senators, Interim dissenting report, Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Federal Circuit and Family Court of Australia Bill 2018 [Provisions] and Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018 [Provisions], The Senate, Canberra, pp. 57-58.

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proposed legislation will not achieve the legislation’s stated objectives’.41 He indicated the key issues that had been raised during the Senate Committee’s inquiry were:

• the dangers of relying on the statistical report produced by PwC in considering the operation of courts that deal with complex personal issues

• the lack of proper consultation with both judicial officers and the broader legal profession

• the breakdown in the specialisation of the family law courts system that would result if the Bill was enacted and

• the effect of the Bill on existing Western Australian appeals arrangements which did not need to be changed.

Senator Patrick acknowledged that the Bill ‘had good intentions’ but stated that ‘the idea of handing sole rule making power to the Chief Justices in perpetuity is fundamentally flawed’.42 He recommended that the Bills not be passed.43

Aftermath of the report Some of the evidence to the Senate Committee was to the effect that the Family Court had been starved of resources and that the Government intended to make no new appointments to that Court—effectively closing it down over time.44

Since then the following appointments to the Family Court have been announced by the Attorney-General, Christian Porter:

• on 8 February 2019: Judge Jillian Williams and Judge Louise Henderson 45

• on 22 February 2019: Judge Ciara Tyson 46

• on 11 March 2019: Judge Joshua Wilson and Judge Robert Harper 47 and

• on 14 March 2019: Dr Timothy McEvoy QC.48

This represents a partial response to the recommendations of the Senate Committee as set out above. However it is noted that four of the six appointees to the Family Court were already Judges of the Federal Circuit Court.

Further stakeholder comments are addressed under the heading ‘Key issues and provisions’ below.

41. R Patrick, Additional comments, Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Federal Circuit and Family Court of Australia Bill 2018 [Provisions] and Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018 [Provisions], The Senate, Canberra, pp. 59-60.

42. Ibid., p. 59. 43. Ibid., p. 60. 44. R Burr (Former Family Court Justice speaking in a private capacity), Evidence to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Federal Circuit and Family Court of Australia Bill 2018 [Provisions] and Federal Circuit

and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018 [Provisions], 11 December 2018, p. 28. 45. C Porter (Attorney-General for Australia), Appointments to the Family Court of Australia, media release, 8 February 2019. 46. C Porter (Attorney-General for Australia), Appointment to the Family Court of Australia, media release, 22 February 2019. 47. C Porter (Attorney-General for Australia), Appointments to the Family Court of Australia, media release, 11 March 2019. 48. C Porter (Attorney-General for Australia), Appointments to the Family Court of Australia and Federal Circuit Court of Australia, media release, 14 March 2019.

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Senate Standing Committee for the Scrutiny of Bills The Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee) commented on the broad delegation of a number of administrative powers in the Bill.49 In particular the Scrutiny of Bills Committee drew attention to:

• the ability of the Chief Justice and the Chief Judge to delegate his, or her, authority to deal with a complaint about another judge of the Court to a broad class of persons50 and

• the ability of the Marshal or Deputy Marshal or the Sheriff or Deputy Sheriff to authorise persons to assist them in the exercise of certain coercive powers.51

Accordingly the Scrutiny of Bills Committee sought further information from the Minister about these matters.

Attorney-General, Christian Porter responded on 4 October 2018.52 In relation to the delegation of power to deal with a complaint about a judge, Mr Porter stated:

The Federal Court, the Family Court and the Federal Circuit Court all employ a consistent practice in relation to the authorisation of persons or bodies to handle complaints. In each Court, the respective Chief Justice or Chief Judge has authorised the Deputy Principal Registrar of that Court to assist with the handling of complaints against judges of that Court. In the Family Court, the Chief Justice has also authorised the Deputy Chief Justice to assist with the handling of complaints. The Deputy Principal Registrars are legally qualified, experienced and occupy Senior Executive positions. Each Court has complaint handling strategies, which include the escalation of complaints to the Chief Justice or Deputy Chief Justice, as appropriate.

53

Whilst the Committee accepted the Minister’s explanation, it considered that it would be appropriate for the Principal Bill to be amended to require the Chief Justice (Division 1) and the Chief Judge (Division 2) of the Federal Circuit and Family Court to be satisfied that persons authorised to handle complaints possess appropriate expertise. In addition, the Committee requested the information provided by the Attorney-General be included in the Explanatory Memorandum to the Bill.54

In relation to the delegation of powers of sheriffs and marshals, Mr Porter stated:

These provisions would allow the Sheriff, the Deputy Sheriff, the Marshal and the Deputy Marshal of the FCFC (Division 1), the FCFC (Division 2) and the Federal Court to authorise any person to assist in exercising powers or performing functions. These provisions are modelled on existing provisions in the FLA (section 38P(4)), the FCCA Act (sections 108 and 111) and the FCA Act (section 18P(4)).

Those persons currently authorised to provide such assistance within the Family Court, the Federal Circuit Court and the Federal Court are State and Territory Sheriff's officers. These officers execute the Courts' orders in relation to civil enforcement matters. As such, they execute civil enforcement warrants to seize and sell property or take vacant possession of property in strict accordance with the order issued by the respective Court. State and Territory Sheriff's officers perform the same duties in relation to enforcement orders issued by State and Territory Courts, are trained in accordance with State and Territory requirements and are generally uniformed and carry photo identity cards. Where violence is

49. Scrutiny of Bills Committee, Scrutiny digest, 10, 2018, 12 September 2018, pp. 1-4. 50. Subclause 32(3) in Chapter 3 of the Bill; subclause 113(3) in Chapter 4 of the Bill. 51. Clause 72 in Chapter 3 of the Bill; clauses 234 and 235 in Chapter 4 of the Bill. 52. Scrutiny of Bills Committee, Scrutiny digest, 12, 2018, 17 October 2018, pp. 84-89. 53. Ibid., p. 85. 54. Ibid., p. 86.

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anticipated, authorised officers seek assistance of local police and do not arrest people in connection with this type of process. 55

The Committee considered that it would be appropriate for the Principal Bill to be amended to require the Sheriff, Deputy Sheriff, Marshal or Deputy Marshal of the Federal Circuit and Family Court and the Federal Court to be satisfied that persons authorised to assist those officers in the performance of their functions possess appropriate expertise. In addition, the Scrutiny of Bills Committee requested that the information provided by Mr Porter be included in the Explanatory Memorandum.56

Policy position of non-government parties/independents

Labor Labor does not support the Bills. Speaking in relation to the Bills in the House of Representatives, Graham Perrett MP identified three reasons why Labor would not support the Bills—firstly due to the lack of consultation about the Bills, secondly the lack of time available to consider the content of the Bills in the context of the Senate Committee inquiry into the Bills and the review which is currently being undertaken by the Australian Law Reform Commission and thirdly because the case for the particular changes which would arise from the passage of the Bills ‘has not been made’.57

Dr Mike Freelander, MP expressed his concerns as follows:

This Bill, put forth by the government, seeks to combine the Federal Circuit Court and the Family Court into one court, establishing the new Federal Circuit and Family Court of Australia …

While the two amalgamated entities will undertake the same roles and functions under this legislation as they currently do, it's worth noting that the Attorney-General has expressed an intention not to appoint new judges to FCFC Division 1 as they retire. This is a Division that, under this legislation, will effectively replace the existing Family Court. This is a major concern. What this means, in not so many words, is that this legislation would amount to a gradual abolition of the Family Court over time.

58

[emphasis added]

Anthony Albanese MP stated:

… these reforms are significant. They would fundamentally change the way that families, lawyers and advocates interact with the family law sector. The Bill before us won't solve the present-day problems in the Family Court …

What it will do instead is end specialist expertise in Family Court matters, handing all family law matters to the more generalist Federal Circuit Court. While the Federal Circuit Court currently handles a large number of these cases, the most complex cases are reserved for the Family Court. This court is presided over by specialist judges with appropriate experience, which is why these cases can take longer to resolve. It certainly is not a reason to get rid of the court altogether. The government also wants to

55. Ibid., pp. 87-88. 56. Ibid., p. 89. 57. G Perrett, ‘Second reading speech: Federal Circuit and Family Court of Australia Bill 2018 [and] Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018’, House of Representatives, Debates,

26 November 2018, p. 11348. 58. M Freelander, ‘Second reading speech: Federal Circuit and Family Court of Australia Bill 2018 [and] Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018’, House of Representatives, Debates,

26 November 2018, p. 11400.

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abolish the specialist appeals division of the Family Court and hand that function to the Federal Court instead. That is in spite of the fact that the Federal Court has never handled family law before. 59

Centre Alliance Similarly, Senator Patrick of the Centre Alliance does not support the Bills. His additional comments to the Senate Committee report into the Bills are set out above.60

Position of major interest groups The Senate Committee received 114 submissions some of which expressed regret that the Bill did not go further and reform the family law itself—in particular, matters relating to shared parenting.

Women’s Legal Services Australia (WLSA) agreed that the current system needs reform but contends that ‘the current Bills are not the solution’.61 The Bills will, in their view:

1. Diminish the specialisation and status of family law at a time when more, not less, specialisation is required to address the increasing complexities of modern Australian society, families and the needs of children.

2. Be driven by, and almost exclusively are focused on, financial efficiencies instead of the safety and wellbeing of Australian families.62

The Family Law Practitioners Association Qld (FLPA) expressed the following concerns about the Bills:

 The two proposed Divisions of the Court will have the same ‘head’ and ‘deputy head’ holding commission across both Divisions. The rule making power is reposed only in the Chief Justice and the Chief Judge (who is, notably, the same person).

 The criteria for appointment of judicial officers to Division 2 of the Court is less than what is required for Division 1. In our view, that should not be so and a degree of specialised knowledge and experience is essential for both Divisions.

 It is imperative that appeals from judges of both Divisions be determined by an appellate court with specialised family law background. 63

Financial implications According to the Explanatory Memorandum to the Bill, as part of the 2018-19 Budget, $4 million was allocated to assist with the implementation costs of the structural reform of the federal courts.64

59. A Albanese, ‘Second reading speech: Federal Circuit and Family Court of Australia Bill 2018 [and] Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018’, House of Representatives, Debates, 26 November 2018, p. 11410.

60. R Patrick, Additional comments, Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Federal Circuit and Family Court of Australia Bill 2018 [Provisions] and Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018 [Provisions], op. cit., p. 60.

61. Women’s Legal Services Australia, Submission to the Senate Legal and Constitutional Affairs Committee, Inquiry into the Federal Circuit and Family Court of Australia Bill 2018 [and] Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018, [Submission no. 18], 27 October 2018, p. 5.

62. Ibid., p. 4. 63. Family Law Practitioners Association Qld, Submission to the Senate Legal and Constitutional Affairs Committee, Inquiry into the Federal Circuit and Family Court of Australia Bill 2018 [and] Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018, [Submission no. 40], 15 November 2018, p. 2.

64. Explanatory Memorandum, Federal Circuit and Family Court of Australia Bill 2018, p. 5.

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However, should the recommendations of the majority Senators on the Senate Committee be adopted, additional funding for Registrars would need to be allocated so that the current backlog of cases can be addressed.

Statement of Compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bills’ compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bills are compatible.65

Parliamentary Joint Committee on Human Rights The Parliamentary Joint Committee on Human Rights considered that the Bills did not raise human rights concerns either because the Bills do not engage or promote human rights and/or permissibly limit human rights.66

Key issues and provisions

Commencement Sections 1 and 2 of the Bill commence on Royal Assent. Sections 3-249 of the Bill (as introduced) are said to commence on 1 January 2019.

However during debate on the Bills in November 2018 it was acknowledged that, due to the ongoing Senate Committee inquiry, the commencement date of 1 January 2019 was ‘no longer achievable’.67 That being the case, amendments to the Bill were introduced and passed by the House of Representatives so that the proposed commencement date of the Bill is:

A single day to be fixed by Proclamation. However, if the provisions do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. 68

Amendments were also made to the commencement dates of the various provisions of the Consequential and Transitional Bill to reflect that change.69

Establishing the FCFCA

The problem to be addressed One of the problems to be addressed by the Bill is that with two courts—that is, the Family Court and the Circuit Court—people ‘are moved from one court to the other and so suffer unnecessary cost and delay’.70

65. The Statements of Compatibility with Human Rights can be found at pages 6-14 of the Explanatory Memorandum to the Bill and pages 5 to 11 of the Explanatory Memorandum to the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018.

66. Parliamentary Joint Committee on Human Rights, Scrutiny report, 9, 2018, 11 September 2018, p. 22. 67. S Robert, ‘Second reading speech: Federal Circuit and Family Court of Australia Bill 2018 and Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018’, House of Representatives, Debates, 27 November 2018, p. 11646.

68. Federal Circuit and Family Court of Australia Bill 2018, House of Representatives, Amendments, 18 February 2019. 69. S Robert (Assistant Treasurer), ‘Consideration in detail: Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018, House of Representatives, Debates, 27 November 2018, p. 11652; Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018, House of

Representatives, Amendments, 18 February 2019.

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There seems to be widespread agreement that ‘the current system is letting Australian families down’.71 In order to address the problems faced by users of the Family Court a number of different models for change have been put forward over time. The question is whether the model which this Bill proposes would improve the current system.

What the Bill does Chapter 2 of the Bill establishes the single court which results from the merging of the Family Court and the Circuit Court.

Clause 8 of the Bill establishes the Federal Circuit and Family Court of Australia (FCFCA) comprising two Divisions. Once the Bill is enacted, the Family Court continues in existence as the FCFCA (Division 1) and the Circuit Court continues in existence as the FCFCA (Division 2).

Under clause 9 of the Bill, Division 1 of the FCFCA will consist of a Chief Justice, a Deputy Chief Justice and Senior or other Judges who hold office under the FCFCA Act (when enacted). Under clause 10 of the Bill, Division 2 of the FCFCA will consist of a Chief Judge, a Deputy Chief Judge and other Judges who hold office from time to time.

Operation of the Consequential and Transitional Bill Item 38 of Schedule 1 to the Consequential and Transitional Bill repeals Part IV of the Family Court Act which establishes the Family Court and Schedule 4 to the Consequential and Transitional Bill repeals the Federal Circuit Court of Australia Act 1999 (Circuit Court Act).

Stakeholder comments The Law Council of Australia strongly opposes the merger.72 Law Council President, Arthur Moses SC, has stated:

… the Family Court’s work was highly specialised, with its problems rooted in chronic underfunding by successive governments …

Without doubt Australia’s family law system is in need of reform, but the proposed restructure would compound the court’s problems, not solve them. 73

The Queensland Law Society (QLS) acknowledged that ‘the existence of two separate courts, with different rules, procedures and processes produces unnecessary complexity’.74 To that end it ‘supports the creation of a single, specialist court for determining family law matters’.75 However, the QLS does not consider that ‘the amalgamation of the Family Court and the Federal Circuit Court, as proposed in the Bills’ will achieve this on the grounds that ‘in effect, there is no true amalgamation’.76

70. C Porter (Attorney-General for Australia), Speech at the opening plenary session, The State of the Nation 18th Biennial National Family Law Conference, 3 October 2018, p. 2. 71. Quoted by The Law Society of New South Wales, Submission to the Senate Legal and Constitutional Affairs Committee, Inquiry into the Federal Circuit and Family Court of Australia Bill 2018 [and] Federal Circuit and Family Court of Australia

(Consequential Amendments and Transitional Provisions) Bill 2018, [Submission no. 49], op. cit., p. 1. 72. Law Council of Australia, Report highlights why ‘catastrophic’ Family court merger must be rejected by Senate, media release, 19 February 2019. 73. Ibid. 74. Queensland Law Society, Submission to the Senate Legal and Constitutional Affairs Committee, Inquiry into the Federal Circuit

and Family Court of Australia Bill 2018 [and] Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018, [Submission no. 5], 28 September 2018, p. 2. 75. Ibid. 76. Ibid.

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Constitution of the FCFCA Part 1 of Chapter 3 and Part 1 of Chapter 4 of the Bill describe how Division 1 and Division 2 of the FCFCA respectively are constituted. The relevant clauses are in broadly equivalent terms to those under the Family Law Act 1975 and the Circuit Court Act so that matters such as the appointment of judges,77 their assignment to a specific location or division,78 the manner in which they are to be addressed79 and the oath or affirmation to be given before proceeding to discharge the duties of their office are largely unchanged.80

In addition, clauses 20 and 97 of the Bill allow dual appointments so that the Chief Justice of the FCFCA (Division 1) may be appointed to, and hold at the same time, the office of Chief Judge of the FCFCA (Division 2) and vice versa. Similarly, the Deputy Chief Justice of the FCFCA (Division 1) may be appointed to, and hold at the same time, the office of Deputy Chief Judge of the FCFCA (Division 2) and vice versa.

According to the Explanatory Memorandum to the Bill:

Crucially, the Government intends that the FCFC would operate under the leadership of one Chief Justice supported by one Deputy Chief Justice, who would each hold a dual commission to both FCFC (Division 1) and FCFC (Division 2) … The appointment of a single Chief Justice/Chief Judge would ensure more effective allocation of cases between the two Divisions. It would also enable the FCFC to take consistent internal approaches to case management, practice and procedure, resulting in the more efficient handling of family law matters.

81 [emphasis added]

Accordingly, the Honourable William Alstergren, has been appointed to the roles of both the Chief Judge of the Federal Circuit Court of Australia and Chief Justice of the Family Court with effect from 10 December 2018.82

Key issue—qualities of judges Existing subsection 22(2) of the Family Law Act provides that a person shall not be appointed as a Judge in the Family Court unless, amongst other things, the person is a suitable person to deal with matters of family law by reason of training, experience and personality. The Bill (at paragraph 11(2)(b)) replicates those terms for a person who is appointed as a judge in the FCFCA (Division 1). However, the same requirement that a person has the requisite personality is not an explicit condition of appointment to the FCFCA (Division 2) (see paragraph 79(2)(b)). Former Chief Justice of the Family Court, Diana Bryant stated:

We’re called upon to make orders which deeply affect people’s lives, that intrude into intimate relationships, orders which affect whether people can move their home or can see their children or

77. Clause 11 of Chapter 3 of the Bill; clause 79 of Chapter 4 of the Bill. See section 22 of the Family Law Act 1975 and clause 1 of Schedule 1 to the Federal Circuit Court of Australia Act 1999. 78. Clause 12 of Chapter 3 of the Bill; clause 80 of Chapter 4 of the Bill. See subsections 22(2AAA)-(2AAC) of the Family Law Act 1975 and clause 1A of Schedule 1 to the Federal Circuit Court of Australia Act 1999. 79. Clause 14 of Chapter 3 of the Bill; clause 82 of Chapter 4 of the Bill. See subsection 22(4) of the Family Law Act 1975 and

clause 2 of Schedule 1 to the Federal Circuit Court of Australia Act 1999. 80. Clause 16 of Chapter 3 of the Bill; clause 83 of Chapter 4 of the Bill. See section 26 of the Family Law Act 1975 and clause 3 of Schedule 1 to the Federal Circuit Court of Australia Act 1999. 81. Explanatory Memorandum, Federal Circuit and Family Court of Australia Bill 2018, p. 16. 82. C Porter (Attorney-General), Appointments of Chief Justice and Deputy Chief Justice of the Family Court of Australia, media

release, 27 September 2018.

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regulate how they see their children. These are not powers to be exercised lightly and section 22 provides a good framework for sound decision-makers to be appointed. 83

The majority report of the Senate Committee agreed with this view, recommending the qualifications of judges in Division 2 include that they have the appropriate skills, knowledge, experience and personality.84

Terms and conditions Judges in both Division 1 and Division 2 of the FCFCA are paid remuneration as determined by the Remuneration Tribunal under the Remuneration Tribunal Act 1973.85 They may resign or be removed from office in the same manner.86

Clauses 90-95 in Chapter 4 of the Bill set out the disability and death benefits which are payable to judges of the FCFCA (Division 2). These clauses are in equivalent terms to existing sections 9A- 9F of Schedule 1 to the Circuit Court Act.

Operation of the Consequential and Transitional Bill Amendments to preserve the entitlements of the judges in the FCFCA (Division 1) are contained in the Consequential and Transitional Bill. Currently the Judges (Long Leave Payments) Act 1979 provides for payments on the retirement or death of a Judge (other than the High Court or the Federal Circuit Court of Australia). Items 467-469 in Schedule 2 to the Consequential and Transitional Bill amend that Act so that references to the Federal Circuit Court of Australia are substituted with references to the FCFCA (Division 2). Amendments are made by items 470-476 in Schedule 2 to the Consequential and Transitional Bill to the Judges’ Pensions Act 1968 to preserve the entitlements of certain judges under that Act being certain judges of the FCFCA (Division 1) whilst not extending them to a judge of the FCFCA (Division 2). In addition, amendments are made by items 477-482 in Schedule 2 to the Consequential and Transitional Bill to the Judicial and Statutory Officers (Remuneration and Allowances) Act 1984 to preserve the entitlements of persons set out in Part 2 of Schedule 1 of that Act.

Jurisdiction Part 2 of Chapter 3 and Part 2 of Chapter 4 set out the jurisdictions of the FCFCA (Division 1) and (Division 2) respectively.

Division 1 Court Under clause 24 of the Bill the FCFCA (Division 1) has original jurisdiction which is the same as that currently exercised by the Family Court,87 that is:

• with respect to matters in respect of which proceedings may be instituted under the Family Law Act

83. D Bryant (former Chief Justice of the Family Court), Submission to the Senate Legal and Constitutional Affairs Committee, Inquiry into the Federal Circuit and Family Court of Australia Bill 2018 [and] Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018, [Submission no. 71], n.d., p. 3.

84. Senate Standing Committee on Legal and Constitutional Affairs, Federal Circuit and Family Court of Australia Bill 2018 [Provisions] and Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018 [Provisions], op. cit., recommendation 3, p. vii.

85. Clause 17 of Chapter 3 of the Bill; clause 84 of Chapter 4 of the Bill. 86. Clauses 18 and 19 of Chapter 3 of the Bill; clauses 88 and 89 of Chapter 4 of the Bill. 87. Family Law Act, section 31.

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• with respect to matters arising under the Marriage Act 1961 in respect of which proceedings (other than proceedings under Part VII of that Act) are instituted under that Act

• with respect to matters arising under a law of a Territory (other than the Northern Territory) concerning the adoption of children; the property of the parties to a marriage or either of them; or the rights and status of a person who is an ex-nuptial child

• as is conferred on the Court, or in respect of which proceedings may be instituted in the Court, by any other Act.

Under clause 25 of the Bill the FCFCA (Division 1) may hear appeals from:

• a judgment of a court of summary jurisdiction88 of a State or Territory exercising jurisdiction under the Family Law Act or

• a judgment of a court of summary jurisdiction of a State or Territory exercising jurisdiction under the Child Support (Assessment) Act 1989 or the Child Support (Registration and Collection) Act 1988.

Clause 27 of the Bill provides that whether the FCFCA (Division 1) is sitting in its original jurisdiction or as an appellate court it will be constituted by a single judge. This is different from the current arrangements whereby the Full Court of the Family Court may hear appeals.89 (See further discussion below under the heading ‘Appeals’.)

Division 2 Court Clauses 99-101 of the Bill reflect the broader original jurisdiction of the FCFCA (Division 2). Clause 100 replicates clause 24 so that both Division 1 and Division 2 have original jurisdiction:

• with respect to matters in respect of which proceedings may be instituted under the Family Law Act

• with respect to matters arising under the Marriage Act 1961 in respect of which proceedings (other than proceedings under Part VII of that Act) are instituted under that Act

• with respect to matters arising under a law of a Territory (other than the Northern Territory) concerning the adoption of children; the property of the parties to a marriage or either of them; or the rights and status of a person who is an ex-nuptial child

• as is conferred on the Court, or in respect of which proceedings may be instituted in the Court, by any other Act.

In addition, the FCFCA (Division 2) has original jurisdiction as is vested in it by laws made by the Parliament under clause 99 and in Commonwealth tenancy disputes under clause 101. These clauses replicate existing sections 10 and 10AA of the Circuit Court Act respectively.

Clause 102 replicates clause 25 so that both Division 1 and Division 2 of the FCFCA share the appellate jurisdiction which is to be exercised by the Court constituted by a single Judge.90

In addition, clause 104 of the Bill replicates the provisions of section 10A of the Circuit Court Act so that the FCFCA (Division 2) comprises the General Division and the Fair Work Division.

Certain powers relating to jurisdiction Both Division 1 and Division 2 of the FCFCA are empowered to make orders of the kind that the Court considers appropriate and to issue, or direct the issue of writs.91 Similarly, Division 1 and

88. Under section 2B of the Acts Interpretation Act 1901 a court of summary jurisdiction means any justice of the peace, or magistrate of a State or Territory, sitting as a court of summary jurisdiction. 89. Family Law Act, subsection 22(2AA) and section 28. 90. Clause 106 of Chapter 4 of the Bill.

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Division 2 of the FCFCA have the same power to punish a contempt of their authority as that of the High Court.92

The FCFCA (Division 2) has additional powers to make declarations of right and to give summary judgment.93 The relevant clauses are in equivalent terms to sections 16 and 17A of the Circuit Court Act respectively.

Appeals Clause 37 in Chapter 3 and clause 122 in Chapter 4 of the Bill provide that appeals from a judgment of the FCFCA (Division 1) and the FCFCA (Division 2) respectively may not be brought directly to the High Court. If these provisions are found to be inconsistent with section 73 of the Constitution (which sets out the appellate jurisdiction of the High Court), provision is made for such appeals to be brought with special leave of the High Court.94

Clause 122 of the Bill which applies to the FCFCA (Division 2) is broadly consistent with existing section 20 of the Circuit Court Act.

The Appeal Division of the Family Court is repealed and a new Family Law Appeal Division is inserted in the Federal Court Act by the Consequential and Transitional Bill.

Operation of the Consequential and Transitional Bill Item 2 of Schedule 1 repeals the definition of Appeal Division of the Family Court; item 11 repeals the definition of Full Court and item 38 repeals Part IV of the Family Law Act. Federal Court—Family Law Appeal Division The Federal Court is to have a Family Law Appeal Division.95 Proposed section 13A of the Federal Court Act empowers the Chief Justice to make written instruments which authorise a Judge to manage a specified class or classes of proceedings.96 The effect of this provision is that, even if a Federal Court judge has not been assigned to the Family Law Appeal Division, the Chief Justice may authorise him, or her, to undertake proceedings in that Division. The Federal Court may be constituted by a single Judge or as a Full Court.97 A Full Court consists of three or more Judges sitting together—although in some circumstances, the Full Court may comprise two Judges sitting together.98 Proposed section 16 of the Federal Court Act provides that if the Judges of a Full Court are divided in opinion as to the judgment to be pronounced:  if there is a majority—judgment is to be pronounced according to the opinion of the majority  if the Judges are equally divided in opinion—then in the case of an appeal from a judgment of

the FCFCA (Division 1) the judgment is to be affirmed.99 Appellate jurisdiction Proposed subsections 24(2)-24(7) of the Federal Court Act set out the jurisdiction of the

91. Clause 29 of Chapter 3; clause 108 of Chapter 4 of the Bill. 92. Clause 30 of Chapter 3; clause 110 of Chapter 4 of the Bill. 93. Clauses 109 and 111 of Chapter 4 of the Bill. 94. Subclause 37(2) of Chapter 3; subclause 122(2) of Chapter 4 of the Bill. 95. Items 190-194 in Part 1 of Schedule 1 to the Consequential and Transitional Bill amend section 13 of the Federal Court of

Australia Act 1976 (Federal Court Act) so that the Federal Court will comprise three Divisions being the General, Fair Work and Family Law Appeal Divisions. 96. Inserted by item 195 in Part 1 of Schedule 1 to the Consequential and Transitional Bill. 97. Federal Court Act, subsection 14(1). 98. Federal Court Act, subsections 14(2) and (3). 99. Inserted by item 200 in Part 1 of Schedule 1 to the Consequential and Transitional Bill.

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Federal Court Family Law Appeal Division as follows: in relation to matters arising under:  the Family Law Act  the Child Support (Assessment) Act  the Child Support (Registration and Collection) Act (other than section 72Q of that Act)  Regulations made under an Act referred to in the preceding three dot points and  any other law in relation to a matter in a family law or child support proceeding. Proposed paragraph 24(2)(b) of the Federal Court Act provides that the Federal Court has jurisdiction for appeals from a judgment of a Family Court of a State or a Supreme Court of a State or Territory constituted by a single Judge where that court is exercising original or appellate jurisdiction under the Family Law Act, the Child Support (Assessment) Act, or the Child Support (Registration and Collection) Act. Proposed paragraph 24(2)(c) additionally provides that the Federal Court has jurisdiction to determine appeals regarding a judgment or decision of a Judge exercising original or appellate jurisdiction rejecting an application that the Judge disqualify himself or herself from further hearing the matter.100

According to the Explanatory Memorandum to the Consequential and Transitional Bill:

The conferral of appellate jurisdiction for family law and child support matters is central to the structural reform of the courts. By investing the Federal Court with appellate jurisdiction, and removing most of the appellate jurisdiction of the Family Court, judicial resources of the FCFC (Division 1) will be able to be redirected to hear more first instance family law matters. It is appropriate for appellate jurisdiction to be conferred on the Federal Court as it is a superior court with experienced Judges.

101

[emphasis added]

Stakeholder comments Stakeholders were highly critical of the move to create a Family Law Appeal Division in the Federal Court as it would represent a move away from family law specialisation. The QLS opined:

The proper determination of family law matters requires a high level of skill and extensive knowledge of issues and areas of substantive law, including property, commercial law, taxation, trusts, family violence, child development, social and psychological issues impacting on litigants and children, post-separation family dynamics, diverse family structures and cultural awareness.

102

The Senate Committee was told in oral evidence:

The pertinent issue is the loss of specialisation which is threatened by these Bills. So, while specialisation is important for all family law matters, as we've heard from several of the previous witnesses, we would argue that it's cases of domestic and family violence that are perhaps the most complex and have the most at stake for both the parents as well as the children and demand a much higher level of specialisation … these bills threaten to reduce that specialisation in a number of ways [including] through the loss of the specialist appellate jurisdiction of the Family Court.

103

100. Inserted by item 227 in Part 1 of Schedule 1 to the Consequential and Transitional Bill. 101. Explanatory Memorandum, Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018, p. 73. 102. Queensland Law Society, Submission to the Senate Legal and Constitutional Affairs Committee, Inquiry into the Federal Circuit

and Family Court of Australia Bill 2018 [and] Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018, op. cit., p. 2. 103. K McIntyre, (Rape and Domestic Violence Services Australia), Evidence to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry into the Federal Circuit and Family Court of Australia Bill 2018 [Provisions] and Federal Circuit

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The members of the Victorian Family Law Bar Association strongly oppose the abolition of the Appeals Division of the Family Court stating:

… it is proposed that the abolition of the Appeal Division of the Family Court will “enable the existing judicial resources of the Family Court to be refocused to finalise more first instance family law matters and to clear the backlog of pending matters”. 104

However, as there are just ten judges assigned to the Appeals Division of the Family Court, the amendments ‘will have little impact on the existing case load. In any event, the appeal work will remain to be done, but, on the current proposal, to be an impost on a newly created division of the Federal Court’.105

Although the government sees this conferral of the relevant appeal jurisdiction on the Federal Court as central to the structural reform of the courts, the majority report of the Senate Committee disagreed with this view. The Senate Committee recommended that an appellate division of the Federal Court of Australia not be created and that the existing appellate jurisdiction of the Family Court of Australia be retained in the FCFCA (Division 1).106

Transfer of proceedings The KPMG report stated that ‘the current structure [of the courts] does not adequately incentivise the hearing of matters in the lowest appropriate jurisdiction’.107

According to the Explanatory Memorandum to the Bill, the FCFCA ‘would provide, in effect, the single point of entry into the family law jurisdiction of the federal court system’.108 It achieves this by providing for matters to be transferred between FCFCA (Division 1) and FCFCA (Division 2) with the approval of the Chief Justice/Chief Judge of the receiving Division. Importantly, under the Bill those roles are held by the same person.

Division 1— transfer to the FCFCA (Division 2) Clause 34 of the Bill permits the FCFCA (Division 1) to transfer a pending proceeding to the FCFCA (Division 2) either on the application of a party to the proceeding or on its own initiative. A decision by the FCFCA (Division 1) about whether to transfer a proceeding must be based on the following:

• any relevant Rules of Court

• whether there are proceedings on an associated matter pending in the FCFCA (Division 2)

• whether the resources of the FCFCA (Division 1) are sufficient to hear and determine the proceeding and

• the interests of the administration of justice.

and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018 [Provisions], 12 December 2018, p. 55. 104. Victorian Family Law Bar Association, Submission to the Senate Legal and Constitutional Affairs Committee, Inquiry into the Federal Circuit and Family Court of Australia Bill 2018 [and] Federal Circuit and Family Court of Australia (Consequential

Amendments and Transitional Provisions) Bill 2018, [Submission no. 44], n.d., p. 9. 105. Ibid. 106. Senate Standing Committee on Legal and Constitutional Affairs, Federal Circuit and Family Court of Australia Bill 2018

[Provisions] and Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018 [Provisions], op. cit., recommendation 2, p. vii. 107. KPMG, Review of the performance and funding of the Federal Court of Australia, the Family Court of Australia and the Federal Circuit Court of Australia, op. cit., p. 39. 108. Explanatory Memorandum, Federal Circuit and Family Court of Australia Bill 2018, p. 3.

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An order to transfer a proceeding may be approved (or rejected) by the Chief Judge of the FCFCA (Division 2) in writing. If the Chief Judge decides to approve the order for transfer, the order takes effect on that day. A decision to transfer a proceeding is not subject to appeal.

The discretionary transfer provisions in clause 34 are broadly consistent with those in existing section 33B of the Family Law Act.

Division 2—transfer to the FCFCA (Division 1) Clause 117 of the Bill relates to a family law or child support proceeding which is pending in the FCFCA (Division 2). This reflects the original jurisdiction in such matters which is shared by the FCFCA (Division 1) and FCFCA (Division 2).

In that case, the process for making an order to transfer the proceeding is in equivalent terms to those relating to the transfer from the FCFCA (Division 1) to the FCFCA (Division 2)—except that it is for the Chief Justice of the FCFCA (Division 1) to make the final decision whether to approve (or reject) the order to transfer a proceeding in writing.

Division 2—transfer to the Federal Court There is no power for the FCFCA (Division 2) to transfer pending matters relating to a Commonwealth tenancy dispute, matters falling within the Fair Work Division of FCFCA (Division 2) or matters from the General Division of the FCFCA (Division 2) about which jurisdiction is vested under an express provision of another Act of Parliament to the FCFCA (Division 1).

Instead clause 120 provides where a proceeding which is not a family law or child support proceeding is pending in the FCFCA (Division 2) the Court may, by order, transfer the proceeding to the Federal Court—either on its own initiative or on the application of a party to the proceeding.

As is the case with other transfers between the Courts, the FCFCA (Division 2) must take into account:

• any relevant Rules of Court

• whether there are proceedings on an associated matter pending in the Federal Court

• whether the resources of the FCFCA (Division 2) are sufficient to hear and determine the proceeding and

• the interests of the administration of justice.

Similarly, the order takes effect on the day that it is confirmed by the Federal Court. A decision to transfer a proceeding under this clause is not subject to appeal.

The discretionary transfer provisions in clauses 117 and 120 are broadly consistent with those in existing sections 39 and 40 of the Circuit Court Act.

Stakeholder comments The Law Society of New South Wales has commended the single point of entry which is a feature of the model proposed by the Bill. However, it considers that the ‘issue of transfers will

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continue’.109 This is because it is ‘not always evident at the start of a matter whether it is complex or likely to require more than four days of hearing’.110

Administration of business Attorney-General, Christian Porter, has described the need to simplify the current system.

It will be simpler, faster, cheaper. One single court, one single point of entry. That court will redesign all of its rules and processes and practice directions and procedures, so that there's one simpler set of that type of process. And we think that we can get enormous efficiencies and make life better for thousands of Australians who use the court.

111

Under subclause 31(1) the Chief Justice is responsible for ensuring the effective, orderly and expeditious discharge of the business of the FCFCA (Division 1). Similarly subclause 112(1) provides that the Chief Judge is responsible for the discharge of the business of the FCFCA (Division 2). Matters of administration relate to:

• the arrangement of business by the Chief Justice of the FCFCA (Division 1) and the Chief Judge of the FCFCA (Division 2)112

• dealing with complaints about a Judge of the FCFCA (Division 1) by the Chief Justice or a person authorised by the Chief Justice such as the Deputy Chief Justice; and dealing with complaints about a Judge of the FCFCA (Division 2) by the Chief Judge or a person authorised by the Chief Judge such as the Deputy Chief Judge113

• the formal protection of the Chief Justice and Deputy Chief Justice of the FCFCA (Division 1) and the Chief Judge and Deputy Chief Judge of the FCFCA (Division 2) in discharging their responsibilities.114

These matters are currently set out in the Family Court Act115 and the Circuit Court Act116 respectively. However, the Bill reframes the provisions to provide uniformity of drafting.

In addition, subclause 112(3) formalises the role of the Deputy Chief Judge of the FCFCA (Division 2). No such role currently exists in the Circuit Court Act.

Practice and Procedure The Bill provides for a common case management approach led by judges. The FCFCA ‘will operate under the leadership of one Chief Justice with the support of one Deputy Chief Justice, who will each hold a dual commission to both Divisions of the FCFCA’.117 The appointment of a single Chief Justice and Deputy Chief Justice allows for the implementation of common rules of court, practice and procedure and approach to case management.

109. The Law Society of New South Wales, Submission to the Senate Legal and Constitutional Affairs Committee, Inquiry into the Federal Circuit and Family Court of Australia Bill 2018 [and] Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018, op. cit., p. 4.

110. Ibid. By way of example a filing party may be unaware of substance abuse or mental health issues or criminal behaviour of the other party and this only becomes evident once the other party raises these issues or when subpoenas are issued and inspected.

111. C Porter, Interview with Michael Rowland, transcript, ABC News Breakfast, 30 May 2018. 112. Clause 31 of Chapter 3; clause 112 of Chapter 4 of the Bill. 113. Clause 32 of Chapter 3; clause 113 of Chapter 4 of the Bill. 114. Clause 33 of Chapter 3; clause 116 of Chapter 4 of the Bill. 115. Family Law Act, subsections 21B(1) and (1A) (arrangement of business); subsections 21B(1B), (3A) and (3B) (complaints); and

subsections 21(4) and (5) (protections). 116. Circuit Court Act, subsections 12(1)-(3) (arrangement of business); subsections 12(3AA) and (3AB) (complaints); and subsections 12(6A) and (6B) (protections). 117. Attorney-General’s Department (AGD), ‘Structural reform of the federal courts’, Fact sheet 1, AGD website.

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Part 5 of Chapter 3 and Part 6 of Chapter 4 of the Bill set out various rules relating to practice and procedures for the FCFCA (Division 1) and (Division 2) respectively. They broadly duplicate those rules currently operating in the Family Court and the Circuit Court.

The rules that are in equivalent terms for either Court are set out in the table below.

Practice and procedure rules applying to both Courts Division 1 clause number

Division 2 clause number

A party to a proceeding is not entitled to be represented by another person unless that person is a legal practitioner, or meets other specified requirements

39 142

Filing documents 40 144

Seal of the Court 41 145

Stamps of the Court 42 146

Issuing of writs 43 147

Commencement of proceedings by application 44 148

Giving directions about limiting the length of documents 45 149

Place of sitting 46 150

Change of venue 47 151

Formal defects or irregularities do not invalidate proceedings 47A 156

Power of the court to give directions about practice and proceedings 50 159

Oaths and affirmations 52 161

Swearing of affidavits 53 162

Orders for examination of witnesses 53A 163

Reserved judgments may be made public by another Judge 54 177

Case management Both the FCFCA (Division 1) and (Division 2) will be required to comply with new rules about case management.

The overarching purpose of the family law practice and procedure provisions is expressed in clauses 48 and 157. That purpose is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible and includes the following objectives:

• the just determination of all proceedings

• the efficient use of the judicial and administrative resources available for the purposes of the Court

• 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 that is proportionate to the importance and complexity of the matters in dispute.

Clauses 49 and 158 of the Bill require the parties to a proceeding in either the FCFCA (Division 1) or FCFCA (Division 2) to conduct it in a way that is consistent with the overarching purpose. In

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particular, a party’s lawyer must assist their client to comply with the duty. To that end, a Court may:

• require a party’s lawyer to provide an estimate of the likely duration of the proceeding and of the likely costs that the party will have to pay including the lawyer’s costs and any other costs

• take into account any failure by a party and the party’s lawyer to comply with the duty when awarding costs and

• order a party’s lawyer to bear costs personally—in which case, the lawyer must not recover the costs from their client.

Clauses 50 and 159 permit the Court to give directions about the practice and procedure to be followed in proceedings before the Court. Those directions may:

• require things to be done

• set time limits for the doing or completion of anything

• limit the number of witnesses who may be called to give evidence, or the number of documents that may be tendered in evidence

• require submissions to be made in writing including limiting the length of submissions

• waive or vary any provision of the Rules of Court in their application to the proceeding or

• revoke or vary an earlier direction.

If a party fails to comply with a direction given by the FCFCA, the Court may make an order or give a direction that it considers appropriate including, but not limited to, dismissing the proceeding, striking out a party’s claim or defence and awarding costs against a party.

Clauses 51 and 160 require the Chief Justice of the FCFCA (Division 1) and the Chief Judge of the FCFCA (Division 2) respectively, to work cooperatively with each other to ensure common approaches to case management. This provision is somewhat unnecessary in the current circumstances as the positions are held by the same person.

Comment The Circuit Court annual report for the 2017-18 financial year provides some sense of what the case management system might look like:

A new case management pilot commenced in the Brisbane registry in June 2018, whereby three judges are dedicated solely to dealing with matters at their first event, essentially ‘triaging’ the cases, ordering alternative dispute resolution and mediation before they are allocated a trial. The practice allows the Court to identify the most difficult cases, or the cases in which children are most at risk, and to allocate those cases to the most experienced judges. The remaining judges are allocated to trial work. Despite being in its early stages, judges are positive about the pilot which has been extended from its original six months to continue until 30 June 2019. Although a quantitative evaluation of the pilot will be necessary to measure success, the early indicators are positive, as trial dates have been brought forward from 2019 to late 2018.

118

The perceived benefits of the case management system are:

 greater consistency by consolidating the management of cases to a limited number of judges

 reduced timelines by identifying matters that can be settled earlier in the life of the case

118. Federal Circuit Court of Australia, Annual report 2017-18, Commonwealth of Australia, 2018, p. 6.

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 improved outcomes by using additional forms of alternative dispute resolution

 improved efficiency by ensuring resources such as family consultants are used consistently and effectively

 reduced impact to litigants by lessening the time at court, and the number of visits to court

 better information for stakeholders, and

 reduced impact of the introduction of digital changes in family law. 119

Rules of Court Currently the Rules of Court for the Family Court are made by the Judges of that Court, by majority.120 Similarly, Rules of Court for the Circuit Court are made by the Judges of that Court, by majority.121

Clause 56 empowers the Chief Justice to make Rules for the FCFCA (Division 1). Similarly, clause 184 empowers the Chief Judge to make Rules for the FCFCA (Division 2).

Operation of the Consequential and Transitional Bill This Bill also amends various rules, including the Federal Court Rules 2011,122 the Family Law Rules 2004,123 the Federal Circuit Court Rules 2001124 and creates Rules of Court for both divisions of the FCFCA, and for other courts exercising jurisdiction under the Family Law Act.125 Many of the changes are nominal, by updating references to the Family Court or the Federal Circuit Court. Rules of Court for FCFCA (Division 1) Schedule 7 of the Consequential and Transitional Bill provides that the term standard Rules of Court means the Rules of Court made under the Family Law Act. Under item 2 of Schedule 7 the standard Rules of Court which are in force immediately before the commencement date will be called the Federal Circuit and Family Court of Australia (Division 1) Rules 2018 with some modifications. Those modifications account for the new transfer provisions,126 the creation of the Family Law Appeal Division, and accommodate the case management provisions.127 Rules of Court for FCFCA (Division 2) Item 1 in Part 1 of Schedule 8 of the Consequential and Transitional Bill provides that the Federal Circuit Court Rules 2001 that are in force immediately before the commencement date are to be known as the Federal Circuit and Family Court of Australia (Division 2) Rules 2018. The Rules are subject to the modifications in Part 1 of Schedule 8. Those modifications reflect the structural changes to the federal courts and their enabling legislation.

119. Ibid., p. 9. 120. Family Law Act, section 123. 121. Circuit Court Act, section 81. 122. Schedule 6 of the Consequential and Transitional Bill. 123. Schedule 9 of the Consequential and Transitional Bill. 124. Part 1 of Schedule 8 of the Consequential and Transitional Bill. 125. Schedule 7 of the Consequential and Transitional Bill. 126. Rules of Court for this purpose may be made under clause 35 of Chapter 3 of the Bill. 127. Explanatory Memorandum, Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional

Provisions) Bill 2018, p. 6.

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Management and administration As with practice and procedure, many of the clauses under this heading in Chapter 3 and Chapter 4 of the Bill are in equivalent terms. They cover matters including, but not limited to:

• who is responsible for the management of the administrative affairs of the FCFCA (Division 1) and the FCFCA (Division 2)128

• arrangements with other courts,129 agencies and organisations130

• arrangements for sharing court rooms and facilities131 and

• protection of persons handling complaints.132

Registries and registrars Under the Bill, the Minister is empowered to cause Registries to be established for both the FCFCA (Division 1) and (Division 2).133 In addition, both Divisions of the FCFCA are to have Registrars and Deputy Registrars as necessary.134

Clauses 62 and 216 allow for the position of Chief Executive Officer whose function is to assist the Chief Justice and the Chief Judge respectively in managing the administrative affairs of the FCFCA. According to the Explanatory Memorandum to the Bill:

As there would be only one statutory Chief Executive Officer (CEO) position for the Federal Court responsible for the single federal court corporate entity to assist both the Chief Justice of the Federal Court and the Chief Justice/Chief Judge of the FCFC in the administration of the courts, both FCFC (Division 1) and the FCFC (Division 2) would be able to draw from a single pool of Registrars. This would ensure that litigants experience a streamlined procedure, especially in family law matters, instead of navigating two sets of procedures for different courts.

135

Other provisions for the FCFCA (Division 2) Clauses 123-134 in Chapter 4 of the Bill set out detailed processes to be followed in the FCFCA (Division 2) in respect of dispute resolution proceedings—other than proceedings under the Family Law Act.136 This reflects the broader jurisdiction of the FCFCA (Division 2).

Importantly under clause 132 the Rules of the Court may make provision for the costs of dispute resolution processes and the assessment or taxation of those costs in certain circumstances.

Concluding comments There seems no question that there is a deep discontent amongst users of the Family Court—both within the legal profession and without. A range of reviews over the past decade have made recommendations to improve the Family Court but at the time of writing this Bills Digest the overwhelming message is that the Family Court has been chronically underfunded in a period during which matters have become increasingly complex.

128. Clause 57 in Chapter 3; clause 211 in Chapter 4 of the Bill. 129. Clause 58 in Chapter 3; clause 212 in Chapter 4 of the Bill. 130. Clause 59 in Chapter 3; clause 213 in Chapter 4 of the Bill. 131. Clause 60 in Chapter 3; clause 214 in Chapter 4 of the Bill. 132. Clause 78 in Chapter 3; clause 243 in Chapter 4 of the Bill. 133. Clause 64 in Chapter 3; clause 218 in Chapter 4 of the Bill. 134. Clause 65 in Chapter 3; clause 219 in Chapter 4 of the Bill. 135. Explanatory Memorandum, Federal Circuit and Family Court of Australia Bill 2018, p. 120. 136. Processes to be followed in dispute resolution proceedings under the Family Law Act are set out in Parts II, III, IIIA and IIIB of

that Act.

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There is broad support for the ‘harmonisation of regulations, including the Rules of Court, governing the details, operations, and practice and procedures of the family law jurisdiction of the federal court system’.137

However, there is concern that the model proposed by the Bill, in particular the removal of the Appeal Division of the Family Court and the creation of new appellate division of the Federal Court will ‘remove the specialisation that has been developed to aid families in crisis who are dealing with multiple and interrelated issues such as family violence, substance misuse, mental health issues and child abuse’.138

Whilst the Senate Committee recommended the Bills be passed, it also recommended that the existing appellate jurisdiction of the Family Court of Australia be retained in the FCFCA. These recommendations seem contradictory, as transfer of the appeals function from the (current) Family Court to a new Division of the Federal Court is one of the major policy changes that would be enacted by the passage of the Bills. Indeed, as noted earlier in this Digest, this change is described as ‘central to the structural reform of the courts’.139

If the government is persuaded by the Committee’s view on appellate jurisdiction, these Bills will need careful amendment before they are considered by the Senate.

137. Law Institute of Victoria, Submission to the Senate Legal and Constitutional Affairs Committee, Inquiry into the Federal Circuit and Family Court of Australia Bill 2018 [and] Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018, op. cit., p. 7.

138. Ibid. 139. Explanatory Memorandum, Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018, p. 73.

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