3 March, 2021
By Jacky Campbell, Forte Family Lawyers
Q. What is the name of the new court?
A. Federal Circuit and Family Court of Australia
Q. When will the new court commence operation?
A. On 1 September 2021.
Q. Will there be only one court?
A. There will be one court, but there will be two divisions of that court. The Family Court of Australia will become the Federal Circuit Court and Family Court of Australia (Division 1). The Federal Circuit Court of Australia will become the Federal Circuit Court and Family Court of Australia (Division 2).
Q. Where will family law applications be filed?
A. All initiating applications will be filed in Division 2. All appeals will be filed in Division 1.
Q. Will Division 2 only hear family law matters?
A. No. Division 2 will continue to exercise the general federal law jurisdiction of the existing Federal Circuit Court.
Q. What applications will be heard in Division 1?
A. Appeals will be heard by Division 1. The Chief Justice can also direct that a matter be transferred from Division 2 to Division 1. Court rules will give guidance to the Chief Justice, and the Chief Justice will also be required to take into account whether proceedings in an associated matter are pending in Division 1, whether the resources of Division 1 are sufficient to hear and determine the proceeding, and the interests of the administration of justice.
Q. Is there an appeal from a ruling from the Chief Justice as to whether or not a matter should be transferred from Division 2 to Division 1?
Q. Will there be new court rules?
A. Yes. The rules of the new court will probably be based on the Harmonised Rules which are being developed quite separately from the merger and may be implemented before the merger.
Q. Will the Family Court completely disappear?
A. No. That appeared to be the Federal Government’s original plan, but the legislation was amended to provide for a minimum of 25 judges in the new Division 1. The Federal Government has said that before the merger there will be 35 specialist judges in Division 1 (currently 33) and 43 in Division 2 (currently 40) and any retiring judges will be replaced. However, after the merger there will no longer be a specialist family law court in Australia, which is considered internationally to be best practice.
Q Will the new merged court be better than the current family law court structure?
A. There is a diversity of views about this. The Government says it will be better but considerable concerns have been expressed by community groups (including those dealing with family violence), the Law Council of Australia and lawyers. To a large extent we will need to wait and see, but most stakeholders agree that the new court won’t be better unless the Government directs more resources to it. The Hon William Alstergren J — who will be Chief Justice of Division 1 and Chief Judge of Division 2 — said in a media release on 23 February 2021:
“The Courts will also continue to seek further resources from Government to carry out these important reforms and other measures to reduce delays and chronic backlogs.”
Source: Jacky Campbell, The Family Law Court Merger: 10 things you need to know, 2 March 2021.