The Australian family court system is notorious for its fragmentation and
complexity. People who approach the system are often overwhelmed by
its complexity, with confusion starting right from thinking about which
court they should turn to—the Family Court or the Federal Circuit Court?
Thanks to two recent bills passed by the Federal Parliament, this
confusion about the right choice of court will be finally dispelled because
soon there will be only one court to deal with family law matters.
Two New Acts
In late February, the Parliament passed the Federal Circuit and Family
Court of Australia Act 2020 and The Federal Circuit and Family Court of
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Australia (Consequential Amendments and Transitional Provisions) Act
2020, which are expected to take effect upon a forthcoming Royal
Assent.
Under the new Acts, the Family Court of Australia and the Federal Circuit
Court of Australia will be merged into a single generalised court: the
Federal Circuit and Family Court of Australia (FCFC). The FCFC will
comprise two Divisions: Division 1 would be a continuation of the Family
Court and Division 2 would be a continuation of the Federal Circuit
Court.
Key Changes of The Reform
One of the key changes brought by the structural reform is to provide a
single point of entry into the family law jurisdiction of the federal court
system. Matters would be filed in the FCFC (Division 2) and then
transferred to the FCFC (Division 1) as appropriate.
A framework will be created to facilitate the Chief Justice of the FCFC to
assess the relative complexity of matters in a more timely and stringent
manner, therefore allocating cases more effectively between the two
FCFC Divisions.
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In addition to the single point of entry, the reform aims to create
consistent internal approaches to case management, practices and
procedures for handling family law cases. These consistent approaches
are expected to help to reduce the growing backlog of pending cases in
the system and reduce the average time it takes to
resolve family law matters.
Therefore, Applicants will most likely find the court system easier to
navigate and experience a shorter wait.
Can A Decided Case Be re-decided?
The answer is No. Rice and Asplund (1979) FLC 90-725 sets out the
threshold test for a case to be reopened or a matter to be reinstituted. It
requires a change to be significant in circumstances or a new factor to be
introduced. In the case of applications for variation of existing orders,
the variation will only be allowed if the Applicant can show some
significant change in circumstance since the time of the making of the
original order.
Relevantly and importantly, the Government has stated that the current
reform does not of itself meet the test of Rice and Asplund. This means
that if a family law matter has been decided, the Acts would not change
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the outcome of that decision for the parties.
The Loss of a Specialist Court
While the functions of the Family Court will be largely preserved in
Division 1, there will no longer be a stand-alone dedicated Family Court.
This diminution of specialization has caused community-wide concern,
particularly in the context of an increasing number of family law cases
involving family violence and child abuse.
Most notably, an open letter signed by over 155 stakeholders stresses
the importance of allowing specialised judges — in dealing with cases
involving family violence and child abuse — to give full attention to the
needs of family law clients. It voices the concern that the reform would
divert the judges’ attention by requiring them to exercise other
unrelated jurisdictions, pointing to a danger that the increase of
efficiency might come at the cost of the safety of children and adult
victims-survivors of family violence.
While the full implications of the reform remain to be seen, there is no
doubt that the Australian family law system will remain complicated.
With the new changes forthcoming, quality legal service is more than
ever needed to assist Applicants in the navigation of the system.
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RN LEGAL has assisted many clients in resolving their family law
matters. RN LEGAL has the experience, expertise, and resources to help
you through your family law dispute. Contact us on (02) 9191 9293 or
mail@rnlegal.org if you require advice in relation to your family law
matters
