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Structural reform of the federal courts

On 18 February 2021, the Federal Circuit and Family Court of Australia Act 2021 and the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Arrangements) Act 2021 passed through Parliament.

Under the legislation, the Family Court of Australia and the Federal Circuit Court of Australia will be brought together into a unified administrative structure to be called the Federal Circuit and Family Court of Australia (FCFC).

These reforms received Royal Assent on 1 March 2021 and will commence on a date to be fixed by Proclamation or 6 months from Royal Assent (1 September 2021).

Benefits of the reforms

The Australian Government introduced this legislation to structurally reform the federal family law courts.

The current court structure and overlapping family law jurisdiction between the Family Court and FCC leads to significant inefficiencies, confusion, delays, additional costs and unequal experiences for many families. This results in poor outcomes for some children and families, including those affected by family violence.

The reforms will help Australian families resolve their disputes faster by improving the efficiency of the family law system, reducing the backlog of matters before the family law courts, and driving faster, cheaper and more consistent dispute resolution.

They will:

  • establish a single point of entry for federal family law matters
  • establish a single set of court rules, forms, practices, and procedures,
  • enhance judicial appointment criteria
  • streamline the family law appeals pathway.

Structure of the FCFC

The FCFC will comprise 2 divisions:

  • The FCFC (Division 1) will be a continuation of the Family Court of Australia and will comprise the existing judges of the Family Court.
  •  The FCFC (Division 2) will be a continuation of the Federal Circuit Court of Australia.

As such, the FCFC will preserve the current cohort of judges of the Family Court and Federal Circuit Court, including their extensive family law and family violence expertise.

The FCFC will operate under the leadership of one Chief Justice with the support of one Deputy Chief Justice, who will each hold a dual commission to both Divisions of the FCFC. There would also be a second Deputy Chief Judge (General and Fair Work) of the FCFC (Division 2).

The FCFC (Division 1) will deal only with family law matters, while the FCFC (Division 2) will deal with both family law and general federal law matters. The FCC’s existing general federal law jurisdiction and fair work jurisdiction will not be impacted by the establishment of the FCFC, with no changes to the existing appeal pathway. The current Fair Work Division of the FCC will be retained in the FCFC (Division 2).

To ensure the continued existence of the Family Court, the legislation mandates that a minimum of 25 judges, must be appointed to the FCFC (Division 1). This figure of 25 judges includes the Chief Justice and Deputy Chief Justice of Division 1 but does not include judges who are also judges of the Family Court of Western Australia.

Judicial expertise

People appointed to either division of the FCFC will need to satisfy additional appointment criteria to ensure that they have the necessary knowledge, skills, experience and aptitude to deal with the types of matters coming before them. Where these matters are family law matters, this includes matters involving family violence.

Case management approach

The FCFC will be a single point of entry for all family law matters. All federal family law matters will be filed in the FCFC (Division 2).

Judges and registrars will lead a common case management approach for all matters. Urgent and high risk cases will continue to be prioritised, and all cases will be allocated at the earliest possible point to the most appropriate judge in the most appropriate division.

Once a matter has been allocated to the most appropriate division, only the Chief Justice or Chief Judge will be able to transfer it between divisions.

Rules of court

The Chief Justice and Chief Judge are obliged to work cooperatively to ensure common rules of court and forms, and common practices and procedures across both divisions of the FCFC.

The Chief Justice and Chief Judge will have the power to make the rules of court for their respective divisions for the first 18 months after the new court structure commences. After this, the power will revert back to judges or a majority of judges of each respective division. Any proposed rules of court after this 18 month period cannot be made if the Chief Justice or Chief Judge considers they are inconsistent with the aim of ensuring common rules of court and forms.

This approach will provide families with greater certainty about how their disputes will be resolved, enabling information to be readily available about what to expect and when, and providing an earlier sense of the likely time and cost implications of lodging a family law application.

Appeals

The FCFC (Division 1) will retain jurisdiction to hear family law appeals. However, there will be no Appeal Division in the FCFC (Division 1). All FCFC (Division 1) judges will be able to hear appeals either as a single judge or as part of a Full Court.

All appeals of FCFC (Division 2) and Family Law Magistrates of Western Australia decisions will be heard by a single judge, unless the Chief Justice of the FCFC (Division 1) considers it appropriate for the appeal to be heard by a Full Court.

This will help the FCFC to:

  • hear more matters each year
  • reduce the backlog in first instance family law matters
  • reduce median case waiting times.  

There will be no changes to the rights to appeal as currently provided for under the Family Law Act 1975.

Transitional arrangements

Transitional arrangements will be put in place for proceedings before the courts when the reforms commence to ensure they are dealt with as effectively and efficiently as possible.

Legislation

Evidence base for reforms

If you require a copy of the reports (other than the House of Representatives Report) in an accessible format, contact LSCoord@ag.gov.au for an alternate version.

A number of the reports have been redacted to remove information that would not be in the public interest to disclose. Such information includes material pertaining to matters ordinarily within the purview of the courts, material pertaining to the internal operations of the courts that are not publicly available and comments attributable to particular people.