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Federal Circuit and Family Court of Australia Bill 2019 [and] Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019



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ISSN 1328-8091

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BILLS DIGEST NO. 42, 2020-21 27 JANUARY 2021

Federal Circuit and Family Court of Australia Bill 2019 [and] Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019 Claire Petrie Law and Bills Digest Section

Contents

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

History of the Bill ............................................................ 4

Purpose of the Bill ........................................................... 4

Structure of the Bills........................................................ 4

Background ..................................................................... 4

Family law system in Australia .................................... 4

Family law in the federal courts ................................ 5

Case backlogs and resourcing ................................... 6

2020-21 Budget ...................................................... 7

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

2008—Semple Review .............................................. 8

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

2014—KPMG Review ................................................ 9

2018—PwC Review ................................................. 10

2019—Australian Law Reform Commission Review ..................................................................... 11

2020—Joint Select Committee Inquiry ................... 13 Committee consideration .............................................. 13

Legal and Constitutional Affairs Committee ............. 13 2019 Bills ................................................................. 13

2018 Bills ................................................................. 14

Senate Standing Committee for the Scrutiny of Bills ............................................................................ 14

Policy position of non-government parties/independents.................................................... 16

Date introduced: 5 December 2019

House: House of Representatives

Portfolio: Attorney-General

Commencement: The main Bill commences at the earlier of Proclamation or six months after commencement. The Consequential Amendments Bill commences at various dates. Links: The links to the Bills, the Explanatory Memoranda and second reading speeches can be found on the Bills’ homepages for the Federal Circuit and Family Court of Australia Bill 2019 and the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019.

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 January 2021.

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Federal Circuit and Family Court of Australia Bill 2019 [and] Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019 2

Position of major interest groups................................... 17

Loss of specialist, standalone court .......................... 18

Family Court 2.0 model ........................................... 20

Nature of reforms needed ........................................ 21

Need for greater resourcing .................................... 21

More fundamental reforms .................................... 22

Efficiencies ................................................................. 23

Rules Harmonisation Project ..................................... 24

Financial implications .................................................... 24

Statement of Compatibility with Human Rights.............. 24

Parliamentary Joint Committee on Human Rights ... 24 Key issues and provisions .............................................. 25

Establishing the FCFC ................................................ 25

Summary of changes from the 2018 Bills ............... 25 Single point of entry ................................................ 26

Transfer of proceedings .......................................... 26

Appeals ...................................................................... 27

Appellate jurisdiction .............................................. 28

Constitution of appellate court ............................... 28

Stakeholder comments ........................................... 29

Consequential amendments ................................... 30

Appointment of judges ............................................. 30

Summary of changes from the 2018 Bills ............... 30 Qualifications........................................................... 30

Minimum number of judges ................................... 31

Terms of office ........................................................ 32

Stakeholder comments ........................................... 32

Rules of the Court ..................................................... 33

Practice and procedure ............................................. 34

Statutory review ........................................................ 36

Concluding comments ................................................... 36

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Federal Circuit and Family Court of Australia Bill 2019 [and] Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019 3

The Bills Digest at a glance Purpose

The Federal Circuit and Family Court of Australia Bill 2019 (the FCFC Bill) seeks to merge the Family Court of Australia and the Federal Circuit Court of Australia to create the Federal Circuit and Family Court of Australia (FCFC) comprising two divisions. The FCFC (Division 1) is largely modelled on the jurisdiction of the existing Family Court, and the FCFC (Division 2) on the Federal Circuit Court.

The Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019 contains consequential amendments to a large number of Acts, as well as transitional provisions providing for continuity of judicial officers and the handling of matters.

Differences between 2018 and 2019 Bills

The Bills were first introduced in 2018 and lapsed at the end of the 45th Parliament on 1 July 2019. The 2019 FCFC Bill includes the following changes from the 2018 version:

• Rather than both Divisions sharing the same original jurisdiction, there will be a single point of entry to the Court, with all matters initially filed in the FCFC (Division 2) and the ability to transfer cases between Divisions

• The FCFC (Division 1), rather than the Federal Court of Australia, will be responsible for hearing family law and child support appeals

• The criteria for judicial appointments has been amended to require FCFC (Division 2) Judges to have the appropriate knowledge, skills, experience and aptitude to deal with the kinds of matters that might be expected to come before them, including family violence in the case of family law matters. An express reference to family violence has also been added to the criteria for appointment of FCFC (Division 1) Judges and

• Regulations may (but are not required to) prescribe a minimum number of FCFC (Division 1) Judges—the Government has stated this number is intended to be 25.

Senate Committee inquiry

The Senate Legal and Constitutional Affairs Committee inquired into the Bills and reported on 20 November 2020. The Committee recommended the Bill be passed. Australian Labor Party (Labor) Senators and the Australian Greens (Greens) issued separate dissenting reports, each opposing the Bill.

Stakeholder comments

The legal profession and others working in the family law system have opposed the merger, arguing that it will lead to the loss of specialisation cultivated in a stand-alone family court. Particular concerns have been raised about the implications for family law jurisprudence from the loss of a separate Appeals Division and the setting of a minimum number of Division 1 Judges by delegated rather than primary legislation.

The majority of submitters to the Senate Inquiry argued that greater resourcing, rather than structural change, was required to address the issues facing the family law system. They also called on the Government to respond to the recommendations of the Australian Law Reform Commission in its 2019 report, Family Law for the Future.

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History of the Bill The Federal Circuit and Family Court of Australia Bill 2018 (2018 Bill) and Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018 (2018 Consequential Amendments Bill) were introduced into the House of Representatives on 23 August 2018. They passed the House on 27 November 2018, but were not debated in the Senate and lapsed at the end of the 45th Parliament on 1 July 2019.1

The present Bills were introduced into the House of Representatives on 5 December 2019. While they have the same purpose as the 2018 Bills, and many identical provisions, they contain a number of differences in relation to the proposed merger of the Family Court of Australia and the Federal Circuit Court of Australia.

A Bills digest was prepared in respect of the 2018 Bills.2 Parts of that digest are replicated in this one.

Purpose of the Bill The purpose of the Federal Circuit and Family Court of Australia Bill 2019 (the FCFC Bill) is to merge the Family Court of Australia and the Federal Circuit Court to create the Federal Circuit and Family Court of Australia (FCFC) comprising two divisions.

The purpose of the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019 (the Consequential and Transitional Bill) is to make necessary amendments to other Commonwealth Acts which are affected by the passage of the FCFC Bill.

Structure of the Bills The FCFC 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 FCFC (Division 1)

• Chapter 4 relates to the operation and management of the FCFC (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 five Schedules, amending multiple statutes to reflect the newly named FCFC (Division 1) and (Division 2).

Background

Family law system in Australia 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

1. Parliament of Australia, ‘Federal Circuit and Family Court of Australia Bill 2018 homepage’, Australian Parliament website, n.d.; Parliament of Australia, ‘Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018’, Australian Parliament website, n.d.

2. P Pyburne, Federal Circuit and Family Court of Australia Bill 2018 [and] Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018, Bills digest, 79, 2018-19, Parliamentary Library, Canberra, 4 April 2019.

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respect to marriage,3 and with respect to divorce and matrimonial causes; and in relation thereto, parental rights and the custody and guardianship of infants.4

Additionally, states (except for Western Australia) have referred their state powers to the Commonwealth. Consequently, the federal parliament has 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.5

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.6 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.7 Appeals from a decision of the FCWA in the federal jurisdiction are determined by the Full Court of the Family Court.8 Appeals in the state jurisdiction are determined by the Court of Appeal of the Supreme Court of Western Australia.9

Family law in the federal courts The Family Court and Federal Circuit Court are the two federal courts with original jurisdiction (that is, the power to hear a matter at first instance) in respect of matters under the Family Law Act.10

The Federal Circuit Court was established (originally as the Federal Magistrates Court) to provide a simple and accessible alternative to litigation in the Federal Court and Family Court, and to relieve the workload of those courts. Its jurisdiction is not limited to family law and child support matters, but includes administrative law, admiralty, anti-terrorism, bankruptcy, copyright, human rights, industrial relations and migration. However, approximately 90 per cent of the Federal Circuit Court’s workload concerns family law.11

The Family Court is a specialist family court designed to resolve the most complex legal family disputes. Like the Federal Court (but unlike the Federal Circuit Court) it is a superior court of record.12 It has jurisdiction relating to all aspects of the Family Law Act, as well as under other federal laws including the Marriage Act 1961, Bankruptcy Act 1966, and child support legislation. The Family Court typically deals with:

• complex parenting cases—such as those involving a child welfare agency or allegations of serious physical abuse of a child, family violence and/or mental health issues with other

3. Constitution, section 51(xxi). 4. Constitution, section 51(xxii). 5. 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: recommendations for an accessible, equitable and responsive family law system

which better prioritises safety of those affected by family violence, House of Representatives, Canberra, December 2017, p. 24. 6. Family Law Act 1975, section 41. Federal jurisdiction may be vested in state courts: Constitution, section 71. 7. The Family Court of Western Australia was established by the Family Court Act 1975 (WA) and is continued by the Family

Court Act 1997 (WA). 8. Family Court Act 1997 (WA), section 210; Family Law Act 1975, section 94. 9. Family Court Act 1997 (WA), subsection 211(3). 10. Family Law Act, Part V sets out the jurisdiction of the courts. 11. Federal Circuit Court of Australia (FCCA), ‘About the Federal Circuit Court’, FCCA website, 1 July 2016. 12. A court of record has the power to make determinations and enforce those decisions. Courts may be classified as either

superior or inferior—the High Court, Federal Court and Family Court, as well as the Supreme Court of each State and Territory, are all superior courts. There are a number of differences between superior and inferior courts, including that an order of a superior court is assumed valid unless and until set aside while a decision of an inferior court that exceeds jurisdiction is a nullity, and does not need to be formally set aside before the matter can be reheard. See: J Wheeler, ‘Classification of courts’, Halsbury’s Laws of Australia, 17 February 2017, Lexis Advance database.

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complexities, international child abduction under the Hague Convention or international relocation and

• complex financial cases—such as those involving multiple parties, valuation of complex interests in trust or corporate structures, or complex issues concerning superannuation.13

A Protocol for the division of work between the Family Court of Australia and the Federal Circuit Court sets out the types of matters which will typically be heard in the Family Court.14

Case backlogs and resourcing The Attorney-General’s Department has argued that the proposed merger aims to address issues associated with the significant family law caseload—and increasing backlog—of the Family Court and Federal Circuit Court:

In 2018-19, there were around 19,000 final order applications across both courts, which is the key driver of caseload. Final orders require judicial determination and therefore require significant court time and judicial effort. Over the past five years, the number of applications for final orders in family law matters has fluctuated between around 19,300 and 20,600. From 2014-15 to 2018-19, the number of pending final order family law matters in the Family Court and the Federal Circuit Court grew from around 19,000 to 20,450. Since 2014-15, the age of pending applications in the Family Court also increased from 28% being at or older than 12 months, to 38% being at or older than 12 months in 2018-19.15

The Productivity Commission’s Report on Government Services 2020 has similarly highlighted an increase in the backlog of cases in the Family Court and Federal Circuit Court (that is, cases in the courts for over 12 months). It identified a 34 per cent increase in the Family Court’s backlog between 2012-13 and 2018-19, and a 63 per cent increase in the Federal Circuit Court.16

In respect of funding and judicial appointments across the same period, the NSW Bar Association provides the following summary:

… there had been an increase of just 2.73 percent, or $6.724 million, in the operating appropriation provided to the Federal Court, Federal Circuit Court and the Family Court together from 2013-14 to 2017-18.

Real recurrent expenditure in the Family Court has almost halved, from $101,940,000 in 2012-13 to $57,689,000 in 2018-19. Real recurrent expenditure in the Federal Circuit Court increased from $113,486,000 in 2012-13 to $154,942,000 in 2018-19.

… From 30 June 2013 to 19 January 2018, only two additional judicial officers were added to each of the Federal Circuit Court and the Family Court of Australia, bringing the total to 66 FCC Judges and 33 Family Court Judges, representing a total increase of 4.2 percent.

13. Family Court of Australia (FCA), Annual report 2019-20, FCA,2020, p. 9. 14. FCA, ‘Protocol for the division of work between the Family Court of Australia and the Federal Circuit Court’, FCA website, 12 April 2013. 15. Attorney-General’s Department (AGD), Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry

into the Federal Circuit and Family Court of Australia Bill 2019 and Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019, [Submission no. 18], June 2020, p. 4. Citations omitted. 16. Productivity Commission, ‘Part C—Justice’, Report on Government Services 2020, table 7A.21; NSW Bar Association, Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Federal Circuit and Family Court

of Australia Bill 2019 and Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019, [Submission no. 10], 6 April 2020, pp. 10-11.

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At 30 June 2019, there were 69 Judges in the Federal Circuit Court including the Chief Judge and 34 Family Court Judges. The Federal Circuit Court has now been without a separate dedicated Chief Judge since December 2018.17

Source: NSW Bar Association, Submission, op. cit., p. 14 (data from Family Court Annual Reports)

2020-21 Budget In the 2020-21 Budget, the Commonwealth made multiple funding commitments for the federal family law courts, including:

• $35.7 million over four years in additional resources and judges for the Federal Circuit Court to assist with the timely resolution of family law and migration matters and

• $2.5 million over two years from 2020-21 for federal family law courts to maintain specialised court lists for urgent matters arising from COVID-19.18

On 13 November 2020, Attorney-General, Christian Porter, announced two new judicial appointments—current Federal Circuit Court Judge Thomas Altobelli to the Family Court, and Kylie Beckhouse to the Federal Circuit Court.19

Reviews of the court system20 The Attorney-General’s Department has acknowledged ‘widespread agreement’ amongst those accessing the family law courts, practitioners, the wider family law sector and the community, that the current court structure ‘does not serve families as it should’. However, it notes that there has ‘over a long period of time continued to be disagreement as to how to address the structural issues of a split court system’.21

Over the last decade there have been multiple reviews, at both state and federal levels, of the performance and/or funding of the federal courts, which have considered these issues.

17. NSW Bar Association, Submission, op. cit., pp. 13-14. 18. Australian Government, Budget measures: budget paper no. 2: 2020-21, pp. 55-56; M Brennan, ‘Federal courts and COVID-19’, Budget review 2020-21, Research paper series, 2020-21, Parliamentary Library, Canberra, October 2020, pp. 102- 104.

19. C Porter (Attorney-General), Appointments to the Family Court of Australia and Federal Circuit Court, media release, 13 November 2020. 20. This section substantially replicates information in: Pyburne, Federal Circuit and Family Court of Australia Bill 2018, op. cit., pp. 7-11. 21. AGD, Submission, op. cit., p. 4.

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2008—Semple Review In 2008, the first of a series of reviews of the operation of the Family Court and the Federal Circuit Court was undertaken. The report 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 [Federal 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 [Federal Circuit Court], significantly exceed their annual allocations and are unsustainable for future years.22

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

… [I]t 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 [Federal Circuit Court] to become the largest federal court and substantial shifts of family law work from the Family Court to the [Federal Circuit Court] have compounded this problem; 79% of family law applications (excluding divorces and consent orders) are filed in the [Federal Circuit Court].23

The Semple Review recommended a merger of most of the Federal Circuit Court with the Family Court and a merger of the remainder of the Federal 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.24

This recommended model has been adopted by the NSW Bar Association as an alternative to the FCFC proposal, which retains family court specialisation. It has been endorsed by a large number of legal practitioners and others working in the family law system. For further information, see ‘Family Court 2.0 model’ below under ‘Position of major interest groups’.

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.25

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’.26

22. D Semple, Future governance options for federal family law courts in Australia: striking the right balance, (Semple Review), AGD, Canberra, 2008, p. 5. 23. Ibid. 24. Ibid., pp. 7-8. 25. S Skehill, Strategic review of small and medium agencies in the Attorney-General’s Portfolio: report to the Australian

Government, (Skehill Review), Department of Finance and Deregulation, Canberra, January 2012, pp. 31-66. 26. Ibid., p. 41.

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This was the preferred option for the courts as it could ‘deliver results’ without the need for substantial structural change.27

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 Federal Circuit Court would be collapsed into a single agency.28 This would operate so that each Head of Jurisdiction would remain responsible for the judicial leadership and functioning of their Court, whilst a combined governance structure would be responsible for the single administration.29 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.30

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 4.31

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

2014—KPMG Review In 2014, KPMG undertook a review of the performance and funding of the Federal Court, the Family Court and the Federal 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.32

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’.33 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.

27. Ibid., p. 52. 28. The agency was to be regulated by the Financial Management and Accountability Act 1997 which was a precursor to the Public Governance, Performance and Accountability Act 2013. 29. Skehill Review, op. cit., p. 47. 30. Ibid. 31. Ibid., recommendation 5.1, p. xvii. 32. 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, report prepared for the Attorney-General’s Department, KPMG, [Australia], 5 March 2014, p. 24. 33. 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.

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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.34 [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 Federal Circuit Court.35 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.36 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.37

2018—PwC Review 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).38 The PwC report measured the performance of the Family Court and the Federal Circuit Court in the following ways:

• by backlog: between 2012-13 and 2016-17, pending cases older than 12 months grew by 38 per cent in the Federal Circuit Court, compared to five per cent in the Family Court. Around 29 per cent of all Federal Circuit Court pending final order cases were older than 12 months, compared to 42 per cent in the Family Court39

• by time to trial: between 2012-13 and 2016-17, the national median time to trial grew from 11.5 months to 17 months in the Family Court, while in the Federal Circuit Court the median time to trial grew from 10.8 months to 15.2 months40

• by the cost of finalisation: in the Family Court it cost near to $17,000 per finalised matter. In the Federal Circuit Court, the cost was approximately $5,50041

• by the amount of final orders: on a judicial full-time equivalent basis, approximately 114 final orders were finalised per Family Court judge per annum. In the Federal Circuit Court, approximately 338 final orders were finalised per judge per annum42 and

• by the cost to litigants: the party/party costs to be paid by litigants were estimated to be in the order of $110,000 per matter in the Family Court (including court fees, but excluding appeals), while in the Federal Circuit Court this was closer to $30,000.43

34. KPMG, Review of the performance and funding, op. cit., p. xii. 35. N Berkovic, ‘Federal Court put in charge of stretched Family Court system’, The Australian, 2 December 2015, p. 1. 36. M Coombs, Courts Administration Legislation Amendment Bill 2015, Bills digest, 76, 2015-16, Parliamentary Library, Canberra, 3 February 2016.

37. Explanatory Memorandum, Courts Administration Legislation Amendment Bill 2015, p. 3. 38. PricewaterhouseCoopers Australia (PwC), Review of efficiency of the operation of the federal courts, final report, PwC, [Australia], April 2018. 39. Ibid., p. 4. 40. Ibid. 41. Ibid. 42. Ibid. 43. Ibid.

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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.44

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.45

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.46

Although the Government has cited the PwC report as providing the evidentiary basis for the proposed Family Court and the Federal Circuit Court merger,47 the report has been the subject of criticism for containing ‘multiple inaccuracies and unsubstantiated assumptions’.48 The Law Council of Australia set out detailed criticisms of the report in its submission to the Senate Inquiry into the 2019 Bills, and stated:

… it is remarkable, given the number of limitations and disclaimers made by PwC, that the Government has chosen to so heavily rely on the findings of PwC as justification for its proposed restructure.

… in addition to the limitations that PwC itself identified, the [Law Council of Australia] and the legal profession … have identified other key flaws in the PwC Report which significantly undermine the alleged efficiency gains that can be achieved by a restructure of the kind proposed by the Government. The [Law Council] notes that consultation with external stakeholders in the family law system and more broadly within the family law courts would likely have led to less errors being made about key aspects of the current operation of the courts, and thus a more reliable analysis.49

2019—Australian Law Reform Commission Review In 2017, then Attorney-General, Senator George Brandis, commissioned the Australian Law Reform Commission (ALRC) to undertake a comprehensive review of the family law system.50 The terms of reference for the review specified that the ALRC should consider whether, and if so what, reforms to the family law system were necessary or desirable, particularly with regard to a number of specified matters, including:

• collaboration, coordination and integration between the family law system and other Commonwealth, state and territory systems

44. Ibid., p. 47. 45. Ibid., p. 5. 46. Ibid., p. 7. 47. Attorney-General’s Department, Submission to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into

the Federal Circuit and Family Court of Australia Bill 2018, Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018, [Submission no. 56], 23 November 2018, pp. 11-13, 15. 48. Law Institute of Victoria (LIV), Submission to the Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Federal Circuit and Family Court of Australia Bill 2018, Federal Circuit and Family Court of Australia (Consequential

Amendments and Transitional Provisions) Bill 2018, [Submission no. 60], 23 November 2018, p. 7. 49. Law Council of Australia, Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Federal Circuit and Family Court of Australia Bill 2019 and Federal Circuit and Family Court of Australia (Consequential Amendments

and Transitional Provisions) Bill 2019, [Submission no. 8], 2 April 2020, p. 16. 50. G Brandis (Attorney-General), First comprehensive review of the Family Law Act, media release, 27 September 2017.

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• whether the adversarial court system offers the best way to support the safety of families and resolve matters in the best interests of children

• mechanisms for reviewing and appealing decisions

• rules of procedure and rules of evidence that would best support high quality decision-making in family disputes and

• the skills required of professionals in the family law system.51

The ALRC released its final report in March 2019.52 The Commission noted a number of key themes emerging from its consultations, including that the family law system:

• is unsafe and fails to adequately respond to safety concerns

• does not enforce parenting orders adequately

• is overly complex, expensive and slow and

• lacks accountability.53

The ALRC found that there were ‘structural and systemic difficulties within the current Australian family law system’. It pointed to the bifurcated legislative regimes that require parties to navigate multiple courts across state and federal jurisdictions, as failing to meet the needs of children and families across family law, child protection and family violence jurisdictions.54 It also identified ‘two major deficiencies’ at the systemic level—the ‘impenetrable’ nature of the Family Law Act and the fact that the family law system has been:

… deprived of resources to such an extent that it cannot deliver the quality of justice expected of a country like Australia, and to whose family law system other countries once looked and tried to emulate. There is a chronic lack of funding for the appointment and proper training of judicial resources (including judges, judicial registrars - none of whom are currently employed within the courts, and registrars), court-based social services professionals (including Family Consultants and Indigenous Liaison Officers), and legal aid services (including Independent Children’s Lawyers). As a consequence, children and families are deprived of sufficient time and attention being given to their matter at all stages of the process, with the obvious risks that this entails.55

It concluded that the existing jurisdictional framework does not provide an appropriate framework for ‘collaboration, coordination and integration’ between the family law system and other Commonwealth, state and territory systems, including family support services and family violence and child protection systems. It also found that the existing system ‘inhibits the possibility for children’s matters arising from family separation, at least where family violence and/or child abuse is present, from being dealt with in the same proceedings’.56

The ALRC made 60 recommendations. The most significant of these was a substantial restructuring of the family law system in Australia, including the establishment of state and territory family courts, with consideration given to the eventual abolition of first instance federal family courts.57

The ALRC also recommended a range of amendments to the Family Law Act to (amongst other things) better promote the best interests of the child; simplify and clarify the approach to property

51. Ibid. 52. Australian Law Reform Commission (ALRC), Family law for the future: an inquiry into the family law system: final report, ALRC report, 135, ALRC, Brisbane, March 2019. 53. Ibid., pp. 107-108. 54. Ibid., pp. 31-32. 55. Ibid., p. 32. 56. Ibid., pp. 112-113. 57. Ibid., p. 113 (Recommendation 1).

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division; encourage amicable resolution and increase the scope of matters which may be arbitrated; and improve case management processes in the courts.58

The Government has not responded to the ALRC’s report at the time of writing.

2020—Joint Select Committee Inquiry A Parliamentary Joint Select Committee on Australia’s Family Law System was appointed in September 2019. Under its terms of reference, the Committee is to inquire into and report on matters including:

• ongoing issues and further improvements relating to the interaction and information sharing between the family law system and state and territory child protection systems, and family and domestic violence jurisdictions

• beyond the proposed merger of the Family Court and the Federal Circuit Court, any other reform that may be needed to the family law and the current structure of the Family Court and the Federal Circuit Court

• the financial costs to families of family law proceedings, and options to reduce the financial impact

• the effectiveness of the delivery of family law support services and family dispute resolution processes and

• the impacts of family law proceedings on the health, safety and wellbeing of children and families involved in those proceedings.59

The Committee released an interim report in October 2020.60 This noted that as at 6 October 2020, the Committee had received 1,523 individual submissions as well as 169 submissions from organisations, academics and other professionals.61 The Committee’s final report is due on the last sitting day in February 2021.

The Government has stated that it is ‘carefully considering’ the ALRC report and will also give thorough consideration to the recommendations of the Joint Select Committee when it reports. However, it has stated that this should not impede passage of the current Bills:

… the purpose of the Bills is to address a known problem and place the federal family law courts in the best position to deal with matters efficiently and effectively. The implementation of the Bills can be done separately to those reviews, so that Australian families experience the benefits of a more efficient federal family law court system sooner.62

Committee consideration

Legal and Constitutional Affairs Committee

2019 Bills The Bills were referred to the Senate Standing Committee on Legal and Constitutional Affairs for inquiry and report. Twenty-two submissions were received, two of them confidential. Details of the inquiry are at the inquiry homepage.

58. Ibid., pp. 15-23. For more information about the ALRC’s recommendations, see: C Lorimer, ‘’, Briefing book: key issues for the 46th Parliament, Parliamentary Library, Canberra, July 2019, pp. 184-187. 59. Joint Select Committee on Australia’s Family Law System (JSCAFLS), ‘Terms of reference’, Australian Parliament website, n.d. 60. JSCAFLS, Improvements in family law proceedings: interim report, JSCAFLS, Canberra, October 2020. 61. Ibid., p. 5. 62. AGD, Submission, op. cit., p. 6.

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The Committee issued its report on 20 November 2020, with the majority recommending the Bills be passed.63 The Committee acknowledged concerns raised by submitters about the model of reform proposed by the Government, but stated it was satisfied the Bills ‘contain provisions to ensure that families accessing the family law system will have access to a range of specialised services and experienced judges’.64 However, it urged the Government to ‘strongly consider amending the FCFC bill to legislate a minimum of 25 judges in Division 1’. The Committee noted that the proposed reforms ‘are just one part of the government's response to the complexities of the family law system’.65

Labor Senators and the Australian Greens issued separate dissenting reports opposing the Bills. These are discussed below under ‘Policy position of non-government parties/independents’.

2018 Bills The Committee also inquired into the 2018 Bills, receiving 114 submissions and conducting five public hearings.66 The Committee issued its report on 14 February 2019, and recommended two amendments:

• that instead of creating an appellate family law division of the Federal Court, the existing appellate jurisdiction of the Family Court be retained into Division 1 of the amalgamated court and

• the qualifications of judges in Division 2 of the amalgamated court be amended to ensure they have the appropriate skills, knowledge, experience and personality.

Both recommendations have been incorporated in the 2019 Bills, in addition to a number of other changes. The Committee also recommended:

• the proposed amalgamated court be provided with additional resources for Registrars to assist with the backlog of cases and

• the 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.67

Labor Senators issued a dissenting report, and Senator Rex Patrick issued additional comments.

Senate Standing Committee for the Scrutiny of Bills In its scrutiny digest dated 5 February 2020, the Senate Standing Committee for the Scrutiny of Bills drew Senators’ attention to its comments in relation to the 2018 Bills.68 In respect of these Bills, the Committee had commented on the broad delegation of a number of administrative powers in the Bill, in particular:

• the ability of the Chief Justice and the Chief Judge to delegate their authority to deal with a complaint about another judge of the Court to a broad class of persons and

63. Senate Legal and Constitutional Affairs Legislation Committee, Federal Circuit and Family Court of Australia Bill 2019 [Provisions] Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019 [Provisions], The Senate, Canberra, November 2020, p. vii.

64. Ibid., p. 34. 65. Ibid. 66. Senate Legal and Constitutional Affairs Legislation Committee, ‘Federal Circuit and Family Court of Australia Bill 2018, Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018’, Inquiry homepage,

Australian Parliament Website, n.d. 67. Senate Legal and Constitutional Affairs Legislation Committee, 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, p. vii. 68. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 1, 2020, The Senate, 5 February 2020, p. 20.

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• 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.69

The Bills Digest for the 2018 Bills provides the following summary of the Minister’s response to the Committee’s concerns:70

Attorney-General, Christian Porter responded on 4 October 2018.71 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.72

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.73

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 anticipated, authorised officers seek assistance of local police and do not arrest people in connection with this type of process.74

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.75

69. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 10, 2018, The Senate, 12 September 2018, pp. 1-4. 70. Pyburne, Federal Circuit and Family Court of Australia Bill 2018, op. cit., pp. 13-14. 71. Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 12, 2018, The Senate, 17 October 2018, pp. 84-89. 72. Ibid., p. 85. 73. Ibid., p. 86. 74. Ibid., pp. 87-88. 75. Ibid., p. 89.

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The amendments suggested by the Committee have not been made in the current Bills.

Policy position of non-government parties/independents The ALP does not support the Bills. As noted above, Labor Senators issued a dissenting report to the Legal and Constitutional Affairs Committee report, describing the merger proposal as ‘almost universally condemned’ and arguing that the Government should:

… abandon these bills and instead engage with stakeholders to develop different models for reforming the family courts - models that will result in increasing specialisation in both family law and family violence and address the needs of Australian families.76

The dissenting report stated that the Committee had not received any persuasive evidence that the Bills would address the issues facing the family law system, and expressed concern that the Family Court and Federal Circuit Court had failed to provide responses to ‘over 50 questions on notice’ prior to the tabling of the Committee’s report:

Those questions predominantly relate to the current workload in the two courts and the significant delays being experienced by Australian families. In other words, those questions go to the heart of the problems that the Government says the bills are designed to address.

It is deeply disappointing that the Committee has been deprived of an opportunity to consider the responses to those questions prior to the completion of this inquiry.

Labor Senators also note that the Chief Justice of the Family Court and the Chief Judge of the Federal Circuit Court, The Honourable Justice Alstergren, recently wrote a letter to the Committee (the content of which is confidential). […] As a result of it not being provided to the secretariat, the Committee was not able to properly consider that letter prior to the tabling of this report.77

The dissenting report further argued that the Government should do ‘much more’ to address the family law system’s resourcing issues and should provide a comprehensive response to the ALRC report.78

The Australian Greens also oppose the Bills. In their dissenting report to the Legal and Constitutional Affairs Committee report, the Greens recommended the Bills not be passed, stating:

The Australian Greens believe that significant changes to the family law system, like the one proposed in these bills, must strengthen the family law system and move it to being a person-focused, trauma informed, collaborative, holistic, and culturally safe system.

These bills do not do that.79

The Greens instead recommended the Government ‘properly consider the better alternative of the ‘Family Court 2.0’ that is supported and preferred by stakeholders’, and also recommended

76. Australian Labor Party (Labor) Senators, Dissenting report, Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into Federal Circuit and Family Court of Australia Bill 2019 [Provisions] Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019 [Provisions], The Senate, Canberra, November 2020, pp. 35-37.

77. Ibid., p. 37. 78. Ibid., p. 36. For similar comments by the Australian Labor Party (ALP), see: ALP, Additional comments, JSCAFLS, Improvements in family law proceedings: interim report, JSCAFLS, Canberra, October 2020, pp. 318-319; M Dreyfus (Shadow Attorney-General), Family Court abolition to put families at greater risk, media release, 9 October 2020.

79. Australian Greens, Dissenting report, Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into Federal Circuit and Family Court of Australia Bill 2019 [Provisions] Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019 [Provisions], The Senate, Canberra, November 2020, pp. 43-46.

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significant Government funding for legal assistance providers, social and support services for families and survivors of family and domestic violence, and the courts.80

Senator Pauline Hanson is reported to support the Bills on the basis that the merger will ‘streamline the legal processes’.81 Senator Jacqui Lambie is reported to oppose the merger, with Senators Stirling Griff and Rex Patrick stating that they are undecided.82 Senator Patrick opposed the 2018 Bills as drafted, stating in additional comments to the Senate inquiry report:

I have never observed or sat on an inquiry where there has been such an overwhelming view amongst the majority of submitters and witnesses that the proposed legislation will not achieve the legislation’s stated objectives.

… The Family Court system is severely under resourced, and while I appreciate that the Government is seeking to find efficiencies, it seems to be ignoring a basic reality that more resources are needed as part of the solution mix.83

The 2019 Bills passed the House of Representatives on 1 December 2020. Independents Dr Helen Haines, Zali Steggall and Andrew Wilkie, and Centre Alliance MP Rebekha Sharkie, voted against the legislation.84 In her second reading speech, Dr Haines stated:

As an independent, I am committed to evaluating each and every bill that passes through this place on its individual merits. Among other questions I ask myself are these ones: does this bill have a robust evidence base? Is this bill founded on principles of good governance? Does it serve the people it's intended to serve? I am sorry to say that this bill fails to answer many of those questions.85

Ms Steggall stated:

There is no doubt we need reform in the family law system, but the merger is the wrong move. Lawyers, judges and families are united in their opposition. We need to help the courts better service distressed families, we need specialisation of professionals and we need to make sure that it is properly resourced and funded. We need more legal aid in the system so both parties to disputes can have access to assistance. We need more counselling for men and women. We need more funding for specialist judges and experts.86

Position of major interest groups The Bills have been opposed by a large number of legal organisations and other stakeholders involved with the family law system. In November 2019, over 100 organisations signed an open letter to the Attorney-General expressing concern about the proposed merger and advocating for further discussion of the different options for reform.87 In October 2020, Community Legal Centres

80. Ibid., pp. 45-46. 81. N Berkovic, ‘Hanson backs court merger’, The Australian, 25 November 2020, p. 4. 82. Ibid. 83. R Patrick, Additional comments, Senate Legal and Constitutional Affairs Legislation Committee, 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, pp. 59-60. 84. Australia, House of Representatives, ‘Federal Circuit and Family Court of Australia Bill 2019’, Votes and proceedings, 87, 1 December 2020, p. 1447; Australia, House of Representatives, ‘Federal Circuit and Family Court of Australia (Consequential

Amendments and Transitional Provisions) Bill 2019’, Votes and proceedings, 87, 1 December 2020, p. 1451. 85. H Haines, ‘Second reading speech: Federal Circuit and Family Court of Australia Bill 2019, Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019’, House of Representatives, Debates,

30 November 2020, p. 9927. 86. Z Steggall, ‘Second reading speech: Federal Circuit and Family Court of Australia Bill 2019, Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019’, House of Representatives, Debates,

30 November 2020, p. 9921. 87. ‘Concerns about proposed family court merger’, open letter to the Attorney-General from Women’s Legal Services Australia, signed by 117 organisations and individuals, 11 November 2019.

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Australia, National Aboriginal and Torres Strait Islander Legal Services, Women’s Legal Services Australia and the Law Council of Australia issued a joint media release reiterating their opposition to the merger and pointing to the NSW Bar Association’s ‘Family Court 2.0’ model (discussed further below) as a preferred approach.88

The majority of submissions to the Senate Committee inquiry did not support the Bill. While there was broad support for a single point of entry to the family law courts, many submitters argued that, despite improvements from the 2018 Bills, the proposed merger would not address the root cause of the issues facing the family law system.

The broad concerns raised by stakeholders are summarised below. Concerns raised regarding specific provisions of the Bills are explained under the Key issues and provisions section below.

Loss of specialist, standalone court A key concern raised by many submitters was that the proposed merger, with its changes to the appointment of judges, management of cases between Divisions and hearing of appeals, will effectively result in the abolition of a stand-alone, specialist family court. Legal stakeholders emphasised that the legal and factual complexity of family law requires specialisation in its judicial officers, case management practices and Court Rules and procedures.89

The Law Council of Australia noted that the Family Court has had ‘a long history of adapting to changes in the nature of the disputes before it, and in developing innovative responses’.90 These include less adversarial trials, which are less formal and more flexible than the traditional trial, and the Magellan List, in which cases involving serious allegations of child abuse are subject to a fast-tracked and more intensively-managed process.

The Law Council pointed to the Family Court’s development and trialling of new case management strategies throughout its history to ‘deal with the challenges of increasing workloads and complexities of cases’, contrasting this with the fact that the Federal Circuit Court’s case management practices have not changed significantly over the last 15 years.91 In evidence before the Senate Inquiry into the 2019 Bills, Law Council President Pauline Wright stated:

The difference between the Federal Circuit Court and the Family Court at the moment is that the Family Court has the wraparound services associated with it. It has the counselling services and all of those wraparound specialist services, which the Federal Circuit Court doesn’t have. If we are to bring the Family Court into the Federal Circuit Court space you would lose that.92

The Law Council further argued that the Appeal Division of the Family Court has played a significant role in developing family law jurisprudence, providing guidance to judges at the trial level.93 The Law Institute of Victoria (LIV) also raised this point, noting that family law litigation ‘is

88. Community Legal Centres Australia, National Aboriginal and Torres Strait Islander Legal Services, Women’s Legal Services Australia and the Law Council of Australia, Dire Federal Circuit Court backlogs prove family court merger a risk to families, judges, media release, 23 October 2020.

89. For example: Law Council of Australia, Submission, op. cit., p. 31; NSW Bar Association, Submission, op. cit., p. 52; LIV, Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Federal Circuit and Family Court of Australia Bill 2019 and Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019, [Submission no. 17], 15 May 2020, p. 8.

90. Law Council of Australia, Submission, op. cit., p. 31. 91. Ibid., p. 31. 92. P Wright (Law Council of Australia), Evidence to Senate Legal and Constitutional Affairs Legislation Committee, Federal Circuit and Family Court of Australia Bill 2018, 9 October 2020, p. 6.

93. Law Council of Australia, Submission, op. cit., pp. 31-34.

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extremely complex and requires jurisprudence to evolve at a fast pace to meet community expectations’.94

The NSW Bar Association similarly emphasised the importance of specialisation within family law, which it argued was ‘the area of law by which most people will come into contact with the justice system’. It stated:

Judges working in this area not only require specialist technical knowledge, legal reasoning, fact finding and analytical skills, they also require highly effective communication and interpersonal skills and experience in social dynamics. Judges perform this important work in a difficult, high-pressure environment that carries the risk of physical danger to themselves and their families, as well as the gravity of knowing that their decisions, especially regarding children, could in some instances provoke extreme responses resulting in violence to a child or a party, or in some tragic cases death.95

The Association further argued:

folding a stand-alone specialist court into a generalist court that is already overburdened and under-resourced is inconsistent with the advice of expert reports and research which is urging a trend towards specialisation to keep victims of family violence safe.96

The National Aboriginal and Torres Strait Islander Legal Services (NATSILS) expressed the view that the Family Court’s specialisation increases the safety of families, particularly those disproportionately impacted in the family law and family violence systems, but argued that this specialisation ‘has to be backed up with a significant contribution of public funding to the Family Court’.97

While supportive of a single entry point and harmonisation of rules so that the family law system is easier to navigate, Women’s Legal Services Australia recommended the merger not proceed. It argued that if the merger did go ahead, it should be to a ‘specialist family law and family violence court with increased specialisation in family law and family violence of judicial officers and other professionals working in the family law system’.98 This call was supported by Community Legal Centres Australia, which stated that ‘any reform should strengthen a system, not lead to the diminution of specialisation’.99

The Attorney-General’s Department disputed the claim that the merger effectively abolishes either the Family Court or Federal Circuit Court, arguing that Division 1 of the FCFC will be a continuation of the Family Court, ‘a superior court of record that specialises in the exercise of family law jurisdiction’.100 It stated that the Bills enable all existing judges of the Family Court to continue as judges of the FCFC (Division 1), and pointed to the inclusion of qualification

94. LIV, Submission, op. cit., p. 8. 95. NSW Bar Association, Submission, op. cit., p. 52. 96. Ibid., p. 39. 97. National Aboriginal and Torres Strait Islander Legal Services (NATSILS), Submission to Senate Legal and Constitutional Affairs

Legislation Committee, Inquiry into the Federal Circuit and Family Court of Australia Bill 2019 and Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019, [Submission no. 13], April 2020, p. 12. 98. Women’s Legal Services (WLS) Australia, Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Federal Circuit and Family Court of Australia Bill 2019 and Federal Circuit and Family Court of Australia (Consequential

Amendments and Transitional Provisions) Bill 2019, [Submission no. 12], 6 April 2020, p. 6. 99. Community Legal Centres Australia, Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Federal Circuit and Family Court of Australia Bill 2019 and Federal Circuit and Family Court of Australia (Consequential

Amendments and Transitional Provisions) Bill 2019, [Submission no. 9], 3 April 2020, p. 1. 100. AGD, Submission, op. cit., p. 7.

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requirements for new judicial appointments to ensure a person appointed as a family law judge is a suitable person to deal with family law matters.101

Professor Patrick Parkinson, from the University of Queensland but submitting in his personal capacity, expressed support for the merger. He agreed with the Department’s claim that the Bills do not abolish the Family Court, stating that ‘while the rhetoric from the Government initially indicated an intention to phase out the Family Court, this policy has clearly been abandoned now’.102

Family Court 2.0 model Multiple submissions pointed to a court model proposed by the NSW Bar Association as an alternative to the model proposed by the Bills. In its submission to the Senate Inquiry, the NSW Bar Association explained that the model reflects the recommendations of the 2008 Semple Report to ensure there is one specialist family law court.

Under this model (a diagram of which is provided below), the federal family law jurisdiction is consolidated into a stand-alone, specialist Court in which the Family Court is maintained in Division 1, and Federal Circuit Court Judges who currently hear family law matters are incorporated into Division 2. The Family Court’s Appeal Division is retained.103

The NSW Bar Association has noted that this structure is already in place for the Family Court of Western Australia, which ‘comprises effectively two divisions, of magistrates and Judges, seamlessly operating to determine family law issues in that state’.104

101. Ibid., p. 11. 102. P Parkinson, Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Federal Circuit and Family Court of Australia Bill 2019 and Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019, [Submission no. 4], April 2020, pp. 2-3.

103. NSW Bar Association, Submission, op. cit., pp. 34-36. 104. Ibid., p. 37.

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Source: Bar Association of NSW, Submission, op. cit., p. 36.

Nature of reforms needed

Need for greater resourcing All submitters to the Senate Inquiry acknowledged the need for reforms to the family law system; however, the majority argued that the measures proposed by the current Bills do not address the core problems facing the system. A recurring issue raised in submissions was the need for greater funding. NATSILS pointed to a ‘chronic lack of public funding’ as being responsible for the failure of the system to serve the best interests of Aboriginal and Torres Strait Islander children or families, and argued:

The issues with the [Family Court] and the family law system do not arise out of its specialisation or its structure, rather the courts, legal assistance services like ATSILS and Family Violence Prevention Legal Services and other Aboriginal Community Controlled Organisations do not receive enough public funds to provide the level of care, attention, and service that facilitates an easy access to justice.105

The Australian Women Against Violence Alliance (AWAVA) similarly argued that the ‘key reason why the system struggles to meet the needs of families in Australia is chronic under-funding’, and noted that the proposed reforms do not allow for further resources.106 The Law Council

105. NATSILS, Submission, op. cit., pp. 8, 11. 106. Australian Women Against Violence Alliance (AWAVA), Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Federal Circuit and Family Court of Australia Bill 2019 and Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019, [Submission no. 2], 25 March 2020, p. 8.

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recommended that the stated aims of the Bills could be better achieved by proper funding of the existing court system and of Legal Aid, asking:

Would we be having this debate about the family law courts structure had there not been a chronic underfunding of the system and a failure to make timely appointments of judicial officers when retirements occurred?107

The Law Council also recommended other measures including more timely judicial appointments, improved case management and more intensive use of Registrars.108 It also expressed the view that any final consideration of the Bills should stand over until the Government responds to the ALRC final report.109

More fundamental reforms In addition to greater resourcing, some submissions to the Senate Inquiry called for more fundamental reforms to the family law court system. NATSILS argued that the current system was not serving the best interests of Aboriginal and Torres Strait Islander children or families as well as it needed to, and was:

… struggling to provide adequate care for people experiencing family violence through holistic, trauma-informed care, culturally safe support services, early intervention and prevention programs, community based healing programs, or counselling.110

NATSILS stated that the merger proposal ‘does not remove the significant barriers in accessing culturally safe and speedy justice for Aboriginal and Torres Strait Islander people’. It called for a more holistic, structural reform of the family law system, with a view to eliminating jurisdictional gaps, improved information sharing, and a greater focus on family violence.111

The National Aboriginal Community Controlled Health Organisation (NACCHO) pointed to barriers to accessing family law services for Aboriginal and Torres Strait Islander people, and recommended changes to address these. Its recommendations included that greater cultural competency training and practices be embedded through the FCFC, enhancement of service collaboration (including via referral pathways into culturally safe support services and the creation of a ‘roadmap’ of services) and the building and strengthening of the Aboriginal and Torres Strait Islander workforce across the FCFC.112

Relationships Australia described the current family law system as ‘innately and irretrievably unsuited to the needs and legitimate expectations of Australian families’, and advocated for its replacement with a ‘family wellbeing system’ that offers therapeutic approaches to supporting children’s developmental needs; sufficiently resources services and institutions engaging with separating families; is not centred on ‘win/loss outcomes’; and includes a specialist body for parenting matters.113

107. Law Council of Australia, Submission, op. cit., pp. 6, 40. 108. Ibid., p. 6. 109. Ibid., p. 40. 110. NATSILS, Submission, op. cit., p. 11. 111. Ibid., pp. 12-13. 112. National Aboriginal Community Controlled Health Organisation (NACCHO), Submission to Senate Legal and Constitutional

Affairs Legislation Committee, Inquiry into the Federal Circuit and Family Court of Australia Bill 2019 and Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019, [Submission no. 14], April 2020, pp. 2-6. 113. Relationships Australia, Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Federal Circuit and Family Court of Australia Bill 2019 and Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019, [Submission no. 3], 30 March 2020, pp. 2-3.

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The Australian Women Against Violence Alliance (AWAVA) argued that the proposed merger was not designed to serve the needs of victims/survivors of family violence, and called for action to be taken to further increase family violence specialisation in the family law system, through measures including effective family violence risk assessment practices, early determination of family violence and increased family violence competency of all professionals in the system.114

Efficiencies The Attorney-General’s Department has claimed that the reforms will:

… increase the efficiency of the courts in dealing with family law disputes safely and effectively. The anticipated efficiency gains will be even more critical in a post-COVID-19 environment where the courts anticipate a significant increase in caseload notwithstanding the best efforts of the courts to deal with urgent family law matters during the pandemic.115

However, submitters expressed doubt that the proposed merger would produce the efficiencies claimed by the Government, and argued that the PwC review which recommended the merger had been discredited. The LIV argued:

… the proposal to merge the two federal family law courts relies too heavily on the findings of the PwC Report. This is especially so where, in the LIV’s view the PwC Report erroneously assesses the efficiency and productivity of the [Federal Circuit Court and Family Court] on a purely numerical and statistical analysis, without sufficient consideration of the unique features of the family law jurisdiction …116

The NSW Bar Association noted that the Government was effectively already trialling the merged courts with one head of jurisdiction and some common points of entry, but ‘with no discernible impact’.117 It further suggested that a merger may in fact be counterproductive:

Providing just outcomes, as per the object in clause 5(b) of the Amended Merger Bill, does not require change for the sake of change, but rather proper resourcing, careful attention to the ALRC’s recommendations, and meaningful consultation with stakeholders and community.

Once in the proposed Federal Circuit and Family Court of Australia, all family law matters will have to compete for judicial resources and court time with other matters of federal jurisdiction, including a growing migration caseload. There is a risk the restructure will impose further significant pressures and more complex and lengthy cases on already over-burdened Federal Circuit Court Judges.118

The Bar Association of Queensland opposed the proposed restructure and expressed concern that ‘the philosophy behind the 2019 Bill is fundamentally wrong, and will not assist (and does not purport to assist) in the alleviation of any delays inherent in the family law system’.119

In contrast, Professor Parkinson argued that many sections of the Bill introduce new powers and impose new obligations which have ‘great potential to improve the efficiency of the courts and to reduce the delays in getting matters to trial that need a hearing’.120

114. AWAVA, Submission, op. cit., p. 4. 115. AGD, Submission, op. cit., p. 3. 116. LIV, Submission, op. cit., pp. 14-15. Also see: Law Council of Australia, Submission, op. cit., pp. 11-25; NSW Bar Association, Submission, op. cit., p. 42; NATSILS, Submission, op. cit., pp. 12-13.

117. NSW Bar Association, Submission, op. cit., p. 38. 118. Ibid., p. 39. 119. Bar Association of Queensland, Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Federal Circuit and Family Court of Australia Bill 2019 and Federal Circuit and Family Court of Australia (Consequential

Amendments and Transitional Provisions) Bill 2019, [Submission no. 1], 20 March 2020, p. 1. 120. Parkinson, Submission, op. cit., p. 2.

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Women’s Legal Services Australia warned against a focus on efficiency alone, stating that the overarching purpose of legislation, policies and procedures relating to the family law system must also consider the safety of children and adult victims/survivors of family violence.121

Rules Harmonisation Project A number of submitters to the Senate Inquiry also pointed to the Rules Harmonisation Project currently being carried out by the Family Court’s Rules Committee, which is focused on harmonising rules and court forms to establish unified procedures across the Family Court and Federal Circuit Court.122 The LIV suggested that this work, including the issuing of Joint Practice Directions, better assists users of the court system and demonstrates ‘effective ongoing consultation with the family law judiciary, the legal profession and key stakeholders, which encourages greater compliance with the court rules created as a result of the consultation’.123

The Law Council similarly argued that the move to a single point of entry, harmonisation of rules and forms, and unification of procedures in the family law system should continue to be implemented in consultation with the legal profession, and does not require legislative amendments.124 It noted that draft Rules of the FCFC had not yet been made available, making it difficult to properly assess the proposed merger.125

Financial implications The Explanatory Memorandum states that $4 million was allocated from the 2018-19 Budget to assist with the implementation costs of the structural reforms of the federal courts. A further $3.7 million was provided over the forward estimates for an additional judge to hear family law appeals as part of the 2018-19 Mid-Year Economic and Fiscal Outlook.126

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.127

Parliamentary Joint Committee on Human Rights The Parliamentary Joint Committee on Human Rights had no comment on either the 2019 or 2018 Bills.128

121. WLS Australia, Submission, op. cit., p. 6. 122. Family Court of Australia and Federal Circuit Court of Australia, The Family Court of Australia and Federal Circuit Court of Australia takes a vital step towards reform and engages the Honourable Dr Chris Jessup QC to oversee development of unified family law processes, media release, 5 April 2019.

123. LIV, Submission, op. cit., p. 14. 124. Law Council of Australia, Submission, op. cit., pp. 7, 12. 125. Ibid., pp. 43-44. 126. Explanatory Memorandum, Federal Circuit and Family Court of Australia Bill 2019, p. 6. 127. The Statement of Compatibility with Human Rights can be found at pages 7-17 of the Explanatory Memorandum to the FCFC

Bill and pages 4-7 of the Explanatory Memorandum to the Consequential and Transitional Bill. 128. Parliamentary Joint Committee on Human Rights (PJCHR), Human rights scrutiny report, 1, 2020, 5 February 2020, p. 95; PJCHR, Human rights scrutiny report, 9, 2018, 11 September 2018, p. 22.

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Key issues and provisions

Establishing the FCFC

Summary of changes from the 2018 Bills The 2019 Bills make significant changes to the proposed court restructure from the 2018 Bills.

The 2018 Bills proposed an amalgamated Federal Circuit and Family Court of Australia (FCFC), with two Divisions. Each Division had the same original jurisdiction in relation to family law matters (that is, the ability to hear cases at first instance rather than on appeal), with Division 1 to take on more complex matters as determined by the Chief Justice. Both Divisions had the jurisdiction to hear family law and child support appeals from courts of summary jurisdiction. Otherwise, all family law appeals were to be heard by a new family law appeals division of the Federal Court of Australia.

In comparison, the 2019 Bills confer on FCFC (Division 1) the broad appellate jurisdiction originally envisioned for the Federal Court of Australia. This includes the ability for Division 1 to constitute a Full Court, consisting of three or more Judges, to hear certain appeals.

The 2019 Bills also create a single point of entry into the federal family law court system, with all first instance family law and child support matters to be lodged in FCFC (Division 2). The Chief Justice/Chief Judge and the Court will have the discretion to transfer matters across the two divisions.

Clause 8 of the FCFC Bill establishes a new federal court—the Federal Circuit and Family Court of Australia (FCFC)—to replace the Family Court of Australia and Federal Circuit Court of Australia. The Consequential and Transitional Bill repeals the Federal Circuit Court of Australia Act 1999,129 as well as the relevant Parts of the Family Law Act which established the Family Court,130 which will have the effect of abolishing these two existing courts.

The FCFC will have two Divisions, with Division 1 largely reflecting the functions and jurisdiction of the existing Family Court, and Division 2 the functions and jurisdiction of the Federal Circuit Court.

Division 1 will comprise a Chief Justice, Deputy Chief Justice, as well as Senior Judges and other Judges appointed under the Act.131 Division 2 comprises a Chief Judge, two Deputy Chief Judges, and other Judges as appointed under the Act.132

It is intended that there will be a single Chief Justice, supported by one Deputy Chief Justice (Family Law), with each holding a dual commission to both Divisions. The additional Deputy Chief Judge will cover Division 2’s General and Fair Work jurisdiction.133 The Honourable William Alstergren has been both Chief Justice of the Family Court and Chief Judge of the Federal Circuit Court since December 2018.134

Chapter 3 of the Bill deals with the constitution, jurisdiction, procedures and administration of Division 1, while Chapter 4 deals with the same matters in respect of Division 2.

129. Consequential and Transitional Bill, item 1 of Schedule 3. 130. Consequential and Transitional Bill, item 36 of Schedule 1. 131. FCFC Bill, subclause 9(2). 132. FCFC Bill, subclause 10(2). 133. Explanatory Memorandum, FCFC Bill, op. cit., p. 3. 134. 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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Single point of entry While the 2018 FCFC Bill conferred the same family law jurisdiction on both FCFC Divisions, the 2019 FCFC Bill creates a ‘single point of entry’ for family law and child support matters. The Explanatory Memorandum states that this will ensure the FCFC is ‘simpler to use and more efficient’.135

This means that all family law and child support matters will be commenced, at first instance, in the FCFC (Division 2).136 The Chief Justice or Division 2 Court may subsequently order the transfer to Division 1 of matters pending in Division 2, either on the application of a party to the proceeding or on their own initiative.137

The FCFC (Division 2) also retains the Federal Circuit Court’s existing general jurisdiction over a range of matters, as provided for in a range of Acts and instruments.138 This includes migration, consumer, and privacy matters.139 It also includes the Federal Circuit Court’s existing jurisdiction in respect of civil matters arising under the Fair Work Act 2009 (and related industrial laws).140 The FCFC (Division 2) will be split into a General Division and a Fair Work Division.141

Transfer of proceedings In deciding whether to transfer a proceeding between Divisions, the Chief Justice or Court must have regard to:

• any applicable Rules of the Court (discussed further below)

• whether proceedings in respect of an associated matter are pending in the other Division

• whether the resources of the other Division are sufficient to hear and determine the proceeding and

• the interests of the administration of justice.142

The Chief Justice may delegate their transfer power to other Judges in Division 1.143 A transfer decision is non-appellable.144

Where a matter is transferred from Division 2 to Division 1, the Chief Justice may order it be transferred back to Division 2.145 In such circumstances, the Chief Judge may subsequently order the proceedings be transferred back to Division 1.146

Clauses 53 and 151 provide that the Rules of Court may make provision in relation to the transfer of proceedings between the Divisions (by the Chief Justice or Division 2 Court, respectively), including by specifying matters to which the Chief Justice/Court must have regard in deciding whether to transfer a proceeding.

135. Explanatory Memorandum, FCFC Bill, op. cit., p. 7. 136. FCFC Bill, clause 132. Any family law or child support proceedings which are instituted in Division 1 will be transferred to Division 2 (unless they are transferred to the Federal Court): clause 50. 137. FCFC Bill, clauses 25, 51, 149. 138. FCFC Bill, clause 131. 139. FCCA, ‘General federal law jurisdictions’, FCCA website, published 8 March 2018. 140. FCCA, ‘Industrial law’, FCCA website. 141. FCFC Bill, clause 135. 142. FCFC Bill, subclauses 51(3), 52(3), 149(3). 143. FCFC Bill, clause 54. 144. FCFC Bill, subclauses 51(4), 52(4), 149(4). 145. FCFC Bill, clause 52. 146. FCFC Bill, clause 150.

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Under the current system, the Protocol for the division of work between the Family Court of Australia and the Federal Circuit Court specifies the types of matters which should ordinarily be filed and/or heard in the Family Court, if judicial resources permit. These matters include international child abduction; international relocation; disputes as to whether a case should be heard in Australia; special medical procedures; serious allegation of sexual or physical abuse of a child or serious controlling family violence; and complex questions of jurisdiction or law.147

It is not clear whether the same types of cases will be transferred to Division 1 under the proposed merger. The Attorney-General’s Department has stated:

While ultimately a matter for the courts, the department anticipates that the most complex family law matters will continue to be dealt with by the FCFC (Division 1) within the framework provided by the Bills.148

The Law Council, while supporting a single point of entry to the family law jurisdiction, expressed concerns with how transfers may operate, warning of the potentially disruptive effect they may have on effective case management, and the risk of multiple transfers heightening the traumatic effect of family law litigation on the parties. It recommended that the exercise of the Chief Justice’s discretion to transfer a matter should require balancing of these considerations.149

Appeals Currently, the Appeals Division of the Family Court is responsible for hearing appeals from its own decisions (unless made by the Full Court), as well as decisions of a State Family Court or Supreme Court of a State or Territory constituted by a single Judge, made under the Family Law Act. The Family Court also hears appeals from family law decisions of the Federal Circuit Court, Magistrates Court of Western Australia, and some decisions by courts of summary jurisdiction of a State or Territory.150

The 2018 Bills proposed the creation of a Family Law Appeal Division within the Federal Court, which would hear and determine appeals from family law and child support judgements of the FCFC, a Family Court of a State, or a Supreme Court of a State or Territory constituted by a single Judge.151 This proposal was the subject of significant criticism from interest groups, who argued that vesting the appellate jurisdiction in the Federal Court would represent a move away from family law specialisation.152 The Senate Legal and Constitutional Affairs Committee also did not support the proposal, noting that it:

[shared] the concerns of submitters and witnesses that this reform as proposed by the bills would have the effect of appeals no longer being heard by judges with extensive experience and expertise in family law.

The Committee recommended against vesting appellate family law jurisdiction in the Federal Court, and that instead, the existing appellate jurisdiction of the Family Court be retained in the FCFC (Division 1).153

147. FCA, ‘Protocol for the division of work’, op. cit. 148. AGD, Submission, op. cit., p. 11. 149. Law Council of Australia, Submission, op. cit., pp. 40-42. 150. Family Law Act 1975, sections 93A, 94, 94AAA, 96. 151. 2018 Consequential and Transitional Bill, Schedule 1, items 190-194, 227. 152. Pyburne, Federal Circuit and Family Court of Australia Bill 2018, op. cit., pp. 22-23. 153. Senate Legal and Constitutional Affairs Legislation Committee, 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., pp. vii, 54-55 (recommendation 2).

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Appellate jurisdiction The Senate Committee’s recommendation has been followed in the 2019 FCFC Bill, which confers the family law appellate jurisdiction on the FCFC (Division 1). Clause 26 of the FCFC Bill sets out this jurisdiction, which includes hearing and determining appeals from:

• a judgment of the FCFC (Division 1) in its original jurisdiction, or in its appellate jurisdiction where the decision is made by a single Judge in respect of a judgment of a State or Territory court of summary jurisdiction

• a judgment of the FCFC (Division 2) in respect of family law or child support matters and

• a judgment of a State or Territory court exercising jurisdiction under the Family Law Act or child support legislation.154

Leave to appeal will be required for certain proceedings, including child support judgments and other judgments as prescribed by the Rules of Court.155

Constitution of appellate court In performing its appellate functions, the Court’s constitution will depend on the type of matter. The appellate jurisdiction will be exercised by a single Judge in relation to:

• a judgement of a single Judge of the FCFC (Division 2) or the Magistrates Court of Western Australia156

• procedural applications in relation to the appeal, such as applications for an extension of time; applications for leave to amend the grounds of appeal or to stay a Court order; or an application for security for costs157

• other interlocutory, procedural or non-substantive matters, including joining or removing a party to the appeal; giving summary judgment; making interlocutory orders or consent orders; dismissing appeals on certain grounds; and giving directions158 and

• a judgment of a court of summary jurisdiction of a State or Territory.159

In other circumstances appeals will be heard by a Full Court—this is typically three Judges.160 Additionally, where an appeal would usually be heard by a single Judge (other than an appeal from a State or Territory court of summary jurisdiction), the Chief Justice of Division 1 may instead decide that it is appropriate for it to be heard by a Full Court.161

The Attorney-General’s Department has stated:

Currently, appeals from the Federal Circuit Court to the Family Court can be heard by a single judge. In 2018-19, however, approximately 82 per cent of appeals were heard by a Full Bench of three Family Court judges. This is in contrast to the Federal Court, where the majority of appeals from the Federal Circuit Court in general federal law matters were heard by a single judge.

The exercise of the appellate jurisdiction of the FCFC (Division 1) by a single judge will contribute to the FCFC being able to hear more matters each year.162

154. FCFC Bill, subclause 26(1). 155. FCFC Bill, clause 28. 156. FCFC Bill, paragraph 32(1)(a). 157. FCFC Bill, subclause 32(2). 158. FCFC Bill, subclause 32(3). 159. FCFC Bill, clause 42. 160. FCFC Bill, clause 17 161. FCFC Bill, sub-paragraph 32(1)(a)(ii), paragraphs 32(2)(f) and (g). 162. AGD, Submission, op. cit., p. 9.

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In comparison with the current Appeals Division of the Family Court, all Judges in the FCFC (Division 1) will have the power to hear appeals. The Department states that this will give the Division increased flexibility as to how it manages its appeal workload.163

Stakeholder comments A number of legal organisations, while supporting the changes from the 2018 Bills which sought to vest the family law appellate jurisdiction in the Federal Court, nonetheless expressed concern about the appellate arrangements in the 2019 FCFC Bill. In particular, they suggested that the removal of the Family Court’s appeals division would negatively impact on the development of family law jurisprudence. The Law Council stated:

The Appeal Division of the Family Court presently contains 10 members with vast family law experience. For over 40 years they have developed a substantial body of jurisprudence. The LCA notes the following 2018 submission from the LIV:

The LIV considers a bench of three Judges deciding appeals allows for more considered and better jurisprudence. As noted above, family law is an incredibly complex area of law, that is expected to respond to community expectations by quickly evolving to make sure the law is in line with community understanding of different issues at a much faster pace than other areas of law. As noted by [former Justice of the FCoA] Stephen O’Ryan QC, robust debate amongst three expert Judges promotes responsive and strong jurisprudence, and its removal may result in ‘a downgrading, a depressing of the standard of jurisprudence required of an intermediate appeal court.164

The Law Council argued that removing an appeal division and allowing all judges to hear appeals would be ‘destructive of the specialised knowledge that [Family Court] judges of the existing Appeal Division have at the appellate level and the guidance they therefore give to the judges at trial level’.165 It claimed there was no sound business case for savings that would result from the proposed changes, and also noted that the ALRC report did not make any recommendations for changes to the existing appeals process, despite this being part of the Terms of Reference for the inquiry.166

Women’s Legal Services similarly expressed concern about the removal of a family law Appeal Division, noting the importance of specialisation given the complexity of family law court proceedings, the majority of which involve allegations of family violence. It recommended that appeals continue to be generally heard by Family Court Appeal Division Judges, and by three or more Judges (a majority of which are members of the Appeal Division).167 Community Legal Centres Australia expressed support for this recommendation.168

In contrast, Professor Patrick Parkinson supported the hearing of appeals from Division 2 Judges by a single Division 1 Judge, unless the issues in the case warrant consideration by a larger appellate bench. Professor Parkinson cited the productivity benefits from such a practice as a means of reducing delays, and stated:

163. Ibid., pp. 8-9. 164. Law Council of Australia, Submission, op. cit., p. 34. 165. Ibid., p. 34. 166. Ibid., p. 38. 167. WLS Australia, Submission, op. cit., pp. 9-11. 168. Community Legal Centres Australia, Submission, op. cit., pp. 1-2.

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There are ways of ensuring that cases which appear likely to involve significant issues of law or practice going beyond the immediate matter at hand, will be heard by a larger appellate bench.169

Professor Parkinson also recommended the Government consider appointing suitable Judges from the Federal Court to hold joint appointments with the FCFC if they are willing to serve in an appellate capacity to hear family law matters. While noting the risk to family law specialisation from the measure, he suggested that such judges may bring ‘helpful, fresh perspectives and a new rigour to decision-making’, and the measure could enable a broader range of judges to gain knowledge of family law.170

Consequential amendments Item 109 of Schedule 1 of the Consequential and Transitional Bill repeals Part X of the Family Law Act, which provides for the hearing of appeals by the Family Court.

Item 69 of Schedule 1 inserts proposed Division 4 into Part V of the Family Law Act. This provides for appeals heard by courts other than the FCFC. The Explanatory Memorandum notes that ‘[s]elect appeals from courts of summary jurisdiction will be heard by courts other than the FCFC (Division 1) necessitating this Division’.171

Appointment of judges

Summary of changes from the 2018 Bills As recommended by the Senate Legal and Constitutional Affairs Committee, the 2019 FCFC Bill amends the qualification requirements for the appointment of Judges in both Divisions.

Under the 2018 FCFC Bill, there was no ‘suitability’ requirement for Division 2 Judges. While there was such a requirement for Division 1 Judges, the 2018 Bill contained no express reference to family violence.

In comparison, the 2019 FCFC Bill requires a Division 1 Judge, by reason of their ‘knowledge, skills, experience and aptitude’, to be a suitable person to deal with family law matters, including matters involving family violence. A Division 2 Judge must be a suitable person to deal with the kinds of matters expected to come before them—if these include family law matters, they must also be a suitable person to deal with matters involving family violence.

Further changes in the 2019 Bill include provision for the regulations to prescribe a minimum number of Division 1 Judges, and altered remuneration provisions which better preserve the existing distinction between the remuneration of Judges of the Family Court and Federal Circuit Court.

Qualifications Clause 11 provides for the appointment of Judges to the FCFC (Division 1). To be appointed, a person must:

• be or have been a Judge of another Australian court, or enrolled as a legal practitioner of the High Court, or the Supreme Court of a State or Territory for at least five years and

169. Parkinson, Submission, op. cit., p. 5. 170. Ibid., p. 6. 171. Explanatory Memorandum, Consequential and Transitional Bill, op. cit., p. 29.

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• by reason of ‘knowledge, skills, experience and aptitude’ be a suitable person to deal with family law matters, including matters involving family violence.172

This is similar, but not identical, to the existing requirement for judges of the Family Court, who by reason of ‘training, experience and personality’, must be a suitable person to deal with ‘matters of family law’.173 The inclusion of an express reference to family violence in clause 11 is a change from both the current provision in the Family Law Act, and from the equivalent provision in the 2018 Bill.

Appointments to the FCFC Division 2 are dealt with under clause 111. This provides that a person is not to be appointed as a Judge unless they:

• have been enrolled as a legal practitioner of the High Court, or a Supreme Court of a State or Territory, for at least five years and

• by reason of knowledge, skills, experience and aptitude, are a suitable person to deal with the kinds of matters that might be expected to come before them.

Subclause 111(3) clarifies that if the kinds of matters that may be expected to come before the person are family law matters, they must, by reason of their knowledge, skills, experience and aptitude, be a suitable person to deal with those matters, including matters involving family violence. This subclause was not in the 2018 Bill.174

The amendment to the FCFC (Division 2) eligibility requirements addresses a recommendation by the Senate Legal and Constitutional Affairs Committee from its inquiry into the 2018 Bills. The Committee recommended that the qualifications of judges in Division 2 be amended to ensure they have the appropriate skills, knowledge, experience and personality.175 The Committee stated:

The committee accepts that it is critically important for those presiding in family law cases to be qualified for the position, with respect not only to their extensive experience and knowledge in the subject matter, but also to their personal suitability to manage difficult and complex cases as is common in family law.176

Item 184 of Schedule 1 of the Consequential and Transitional Bill amends the Federal Court of Australia Act 1976 to provide that a person shall not be appointed as a Judge of the Federal Court unless they have the appropriate knowledge, skills and experience to deal with the kinds of matters that may come before the Court.

Minimum number of judges Subclause 9(3) provides that regulations made under the Act may prescribe a minimum number of Judges to hold office within Division 1.177 The 2018 Bills did not provide for any minimum level. The Explanatory Memorandum states that it is the Government’s intention to prescribe 25 as the minimum number of Judges to hold office.178 However, prescribing a minimum number is not mandatory—it would be open to the Government of the day to vary the number as it sees fit, or to not set a minimum at all.

172. FCFC Bill, subclause 11(2). 173. Family Law Act, paragraph 22(2)(b). 174. 2018 FCFC Bill, clause 79. 175. Senate Legal and Constitutional Affairs Committee, 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. 55 (Recommendation 3). 176. Ibid. 177. FCFC Bill, subclauses 9(2), (3). 178. Explanatory Memorandum, FCFC Bill, op. cit., p. 19.

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Terms of office The 2019 FCFC Bill maintains the remuneration arrangements for Division 1 Judges which currently apply to Judges of the Family Court.179 Clause 18 provides that Division 1 Judges are to receive the salary, annual allowances and travelling allowances at such respective rates as are fixed from time to time by the Parliament. Subclause 18(3) appropriates the Consolidated Revenue Fund for this purpose. In comparison, Division 2 Judges are to be paid such remuneration as is set by the Remuneration Tribunal, preserving the current arrangements which apply for Federal Circuit Court Judges.180

This is a change from the 2018 Bill, under which the remuneration of Judges for both FCFC Divisions was to be set by the Remuneration Tribunal, thus applying the Federal Circuit Court arrangements to both Divisions.181

Other provisions in the Bill for the appointment, terms and conditions of Judges are broadly equivalent to those under the Family Law Act and Federal Circuit Court Act.

Stakeholder comments The 2019 Bills seek to address a number of the concerns raised by stakeholders in respect of the 2018 Bills in relation to judicial appointments and the impact of the proposed merger on the retention of a specialised family law court. However, the majority of submissions to the Senate Inquiry into the current Bills argue that the amendments—while an improvement on the original Bills—do not sufficiently address their concerns about the merger.

For example, although subclause 9(3) provides for the prescription of a minimum number of Division 1 Judges, stakeholders strongly argued that this was an inadequate protection against the loss of family law specialisation. The NSW Bar Association claimed that a minimum number must be expressly mandated in the Act itself, not in subordinate legislation, ‘to ensure that a Chapter III Court cannot be dismantled by stealth or attrition’.182 It also suggested that the Government’s proposed minimum threshold of 25 is inappropriate, noting that this number was based on the 2008 Semple Report benchmark rather than the current family law workloads of the Courts.183 The Law Council echoed this view, arguing that giving the Executive the power to change the minimum number of Division 1 Judges ‘is entirely inappropriate’, and that any such number should be ‘enshrined in statute and subject to amendment by the Parliament’.184

The Senate Legal and Constitutional Affairs Committee ‘urge[d] the Government to strongly consider’ amending the Bill to legislate a minimum of 25 Judges, rather than prescribing this in regulation.185

Similarly, legal organisations suggested the proposed qualification requirements for Judges are not sufficient to ensure an appropriate level of specialisation and experience. Women’s Legal Services Australia stated that the requirements for appointing Division 2 Judges under clause 111 fall short

179. Family Law Act, section 25. 180. FCFC Bill, clause 116. For the current arrangements see: Federal Circuit Court of Australia Act 1999 (Cth), Schedule 1, clause 5. 181. 2018 FCFC Bill, clause 17. 182. NSW Bar Association, Submission, op. cit., p. 49. 183. Ibid., p. 48. 184. Law Council of Australia, Submission, op. cit., p. 26. 185. Senate Legal and Constitutional Affairs Legislation Committee, Federal Circuit and Family Court of Australia Bill 2019

[Provisions] Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019 [Provisions], op. cit., p. 34.

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of the ALRC recommendation that all federal judicial officers appointed to make decisions in family law matters have experience in family law and family violence.186

The LIV expressed concern that future appointees to Division 1 of the FCFC may lack the necessary experience and specialisation normally expected of family law judges, which it suggested ‘may contribute to the demise of the [Family Court]’.187 It also noted that the lack of specialist family law judges in Division 2 could lead to an increase in appeals, and consequently, higher costs and uncertainty for parties.188 While welcoming the express references to family violence in clauses 11 and 111, the LIV suggested that the requirement that a Judge be ‘suitable’ to handle matters involving family violence falls short of its recommendation of a requirement for specialist family violence competency. It urged that a sufficient level of family violence competency be codified as a pre-requisite for judicial appointment.189 The LIV also expressed concern on behalf of some of its members that the reference to ‘training’ in the current Family Law Act provision for judicial suitability, has not been included in clauses 11 and 111 of the Bill.190

Professor Patrick Parkinson welcomed the eligibility requirements in the Bill, but noted that ‘the reality is that Governments have not infrequently ignored the statutory criteria entirely’.191 He recommended the establishment of an independent Judicial Appointments Commission for all federal courts and tribunals, and that all recommendations to Cabinet (and consequently the Governor-General) for judicial appointments be accompanied by a detailed statement of how, and the extent to which, the nominated person satisfies the relevant statutory criteria.192

Rules of the Court Clause 76 provides that the Chief Justice may make Rules of Court for the FCFC (Division 1), with clause 217 providing for the Chief Judge to make Rules of Court for the FCFC (Division 2). The Rules of Court may provide for (amongst other things) the practice and procedure to be followed in the relevant Division, the transfer of proceedings between Divisions, the time and manner of instituting appeals in Division 1, and penalties for offences against the Rules.193

Clauses 77 and 218 provide that before making Rules of Court, the Chief Justice of Division 1 or Chief Judge of Division 2, respectively, must be satisfied that there has been appropriate consultation with other Judges. Additionally, the provisions are subject to the requirement under the Legislation Act 2003 that rule-makers be satisfied that any appropriate and reasonably practicable consultation is undertaken before a legislative instrument is made.194 However, the absence of consultation does not affect the validity or enforceability of the Rules.195

186. WLS Australia, Submission, op. cit., pp. 7-8. 187. LIV, Submission, op. cit., p. 7. 188. Ibid., p. 13. 189. Ibid., pp. 10-12. 190. Ibid., p. 12. 191. Parkinson, Submission, op. cit., p. 4. 192. Ibid., pp. 4-5. 193. FCFC Bill, 76 and 217. Clauses 53 and 151 state that the Rules of Court (Division 1) and Rules of Court (Division 2),

respectively, may provide for transfer of proceedings between the Divisions; clause 154 provides that the Rules of Court (Division 2) may provide for the transfer of proceedings from Division 2 to the Federal Court of Australia. 194. Legislation Act 2003 (Cth), section 17. 195. FCFC Bill, subclause 77(2) and 218(2); Legislation Act, section 19.

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Transitional provisions

A Note to subclauses 76(1) and 217(1) states that the power to make Rules of Court will be amended two years after commencement, to provide for the Rules to be made by Judges, or a majority of them, instead of by the Chief Justice/Chief Judge alone.

This amendment will be achieved by Part 4 of Schedule 1 of the Consequential and Transitional Bill, which will amend the FCFC Act two years after commencement to replace references to the Chief Justice or Chief Judge with references to Judges, in respect of the making of Rules of Court. This will bring the procedure for the making of Rules of Court in line with what currently occurs in both the Family Court and Federal Circuit Court.196

Some stakeholders have expressed concern about the fact that the Chief Justice will have sole responsibility for making Rules of Court for the first two years of the FCFC. Women’s Legal Services Australia stated:

It is important that Judges and the legal profession are consulted on Rules of Court and that consultation with the legal profession includes all legal assistance service providers. In addition to legal aid commissions this must include Aboriginal and Torres Strait Islander community controlled legal services such as Family Violence Prevention Legal Services and Aboriginal and Torres Strait Islander Legal Services and community legal services, including specialist women’s legal services.197

The Law Council noted that vesting a head of jurisdiction of a Superior Court with sole rule-making power was a ‘significant departure’ from the arrangements for every other Superior Court in Australia, in which rule-making power is vested in either all of the judges of that court or in a rule committee made up of judges and sometimes external stakeholders.198 The Law Council expressed concern that clauses 76 and 217 have the potential to risk a breakdown in the relationship between judges and the effective management of each Division, and to risk that stakeholder views are not taken into account. It further stated:

The input of a broad range of judicial officers who sit in different registries and who have different skills and experience in particular types of work undertaken by the courts, is likely to enable the courts to develop Rules which allow them to more efficiently manage its caseload and to adequately address the differences in practices around the country.199

The LIV similarly suggested that the proposed approach ‘has the potential to inhibit effective case management of each Division’. It also raised concerns that this may impact on the Court’s relationship with its key stakeholders, including the legal profession.200

Practice and procedure The FCFC Bill provides for a common case management approach, in which the FCFC ‘will operate under the leadership of one Chief Justice with the support of one Deputy Chief Justice, who will

196. Family Law Act, section 123; Federal Circuit Court Act, section 81. 197. WLS Australia, Submission, op. cit., p. 13. 198. Law Council of Australia, Submission, op. cit., p. 42. Attachment A to the Submission provides examples of the relevant provisions for each Superior Court in Australia.

199. Law Council of Australia, Submission, op. cit., p. 43. 200. LIV, Submission, op. cit., pp. 13-14.

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each hold a dual commission to both Divisions of the FCFC’.201 This allows for the implementation of common rules of court, practice and procedure and approach to case management.

Both Divisions will be required to comply with new rules about case management. Clauses 67 sets out the overarching purpose of family law practice and procedure provisions—the Rules of Court and any other legislative provisions with respect to the practice and procedure of the FCFC (Division 1)—as being to facilitate the just resolution of disputes (a) according to law and (b) as quickly, inexpensively and efficiently as possible. This includes (but is not limited to) the following objectives:

• the just determination of all proceedings before Division 1

• the efficient use of the available judicial and administrative resources

• the efficient disposal of the Court’s overall caseload

• the disposal of all proceedings in a timely manner and

• the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

Clause 190 provides for the civil practice and procedure provisions in respect of FCFC (Division 2). These are in the same terms as those under clause 67.

Clauses 68 and 191 require parties to a proceeding before Divisions 1 and 2, respectively, to conduct the proceeding in a way that is consistent with the overarching purpose. A party’s lawyer must assist their client to comply with the duty. The Court may, to this end, require a party’s lawyer to give the party an estimate of the likely duration of the proceeding (or part of the proceeding) and the likely costs.202 Where there is a failure to comply with these requirements, the Court may also order a party’s lawyer to bear costs personally.203

The FCFC may give directions about the practice and procedure to be followed in relation to a civil proceeding before the Court. Where a party fails to comply with a direction, the Court may do a range of things including dismissing the proceeding, striking out or limiting any part of a party’s claim or defence, rejecting any evidence, or awarding costs against a party.204

Women’s Legal Services Australia has expressed concern about the ‘overarching purpose’ provisions, suggesting that an emphasis on efficiency can detract from proper attention to risk and safety. It stated:

WLSA is deeply concerned that the strong focus on resolution of disputes as “quickly, inexpensively and efficiently as possible” will lead to pressure being exerted on families experiencing or at risk of experiencing family violence to agree to unsafe outcomes that are not in the best interests of children.

The focus should be on safety and reducing risk and not primarily on financial efficiencies. If there is to be the inclusion of an overarching purpose in family law practice and procedure it must include safety.205

201. AGD, ‘Structural reform of the federal courts’, fact sheet: overview of reforms, AGD, [Canberra], December 2019. Clauses 70 and 193 require the Chief Justice of Division 1 and Chief Judge of Division 2, respectively, to work cooperatively to ensure common approaches to case management. However, as the positions are intended to be held by the same person, these provisions currently appear to be of limited effect.

202. FCFC Bill, subclauses 68(3), 191(3). 203. FCFC Bill, subclauses 68(4)-(6), 191(4)-(6). 204. FCFC Bill, clauses 69, 192. 205. WLS Australia, Submission, op. cit., p. 12.

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Statutory review Clause 284 requires a review of the operation of the FCFC Act within six months after the fifth anniversary of the Act’s commencement. The person who conducts the review must give the Minister a written report, which the Minister must table in Parliament within 15 sitting days. This provision was not in the 2018 Bill.

The Bar Association of Qld expressed doubt about the timeframe for such a review. It stated that it was ‘entirely unclear’ how long the Court will take to implement the proposed changes, ‘casting into doubt any statistics upon which such a review may be based’. It further pointed to the ‘numerous reviews’ of the family law system undertaken in the previous five years, and argued:

It is difficult to contemplate the purpose of such a review, if the review process is time and resource intensive, the recommendations of existing substantial reviews have not been adopted and the model may not be sufficiently operative for a review to give an accurate reflection of the model.206

Concluding comments The reintroduced Bills contain changes from their 2018 versions. These include establishing a single point of entry to the FCFC; moving the proposed appellate jurisdiction from the Federal Court to the FCFC (Division 1); providing for regulations to prescribe a minimum number of Division 1 Judges; and strengthening the family law suitability requirements for judicial appointments.

Some of these changes appear to be aimed at assuaging the concerns of legal practitioners and others involved in the family law courts system that the proposed merger will lead to the abolition of a specialist Family Court and the loss of family law expertise. The Attorney-General’s Department has stated:

The most common misconception voiced by some stakeholders is that the Bills will abolish the Family Court. This is not the case. In accordance with clause 6 of the FCFC Bill, the Family Court and Federal Circuit Court will each clearly continue in existence, as the FCFC (Division 1) and the FCFC (Division 2) respectively. The FCFC (Division 1) will remain a superior court of record, and will continue hearing all family law appeals. Judges will continue to be appointed to each separate court, with a specific commitment to maintaining numbers of judges in the FCFC (Division 1).207

Nonetheless, while welcoming the changes as improvements on the original Bills, the legal profession and others involved within the family law system continue to oppose the merger. They have expressed strong concerns about the loss of a stand-alone, specialist family court and its impact on appropriate case management of complex cases and the development of family law jurisprudence. Many stakeholders have argued that structural reforms will not resolve the caseload issues facing the federal courts, and that greater resourcing—both in terms of judicial appointments and public funding—is required.

206. Bar Association of Queensland, Submission, op. cit., p. 3. 207. AGD, Submission, op. cit., p. 11.

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