Chief Justice: Merged FCC and Family Court can be world-leading family law system

Federal Circuit and Family Court of Australia Chief Justice Will Alstergren has broken his silence on last week’s controversial passage of legislation to amalgamate the Federal Circuit Court and Family Court of Australia – saying the newly minted laws can be the start of a “world-leading family law system”.

Chief Justice Alstergren, in a statement obtained by QLS Proctor, said he believed the merger of the two courts would in no way hinder the obligations to protect the rights of children, to promote their welfare, protect them from family violence, and handle each individual matter in a manner that was efficient and fair to all parties.

The Federal Government’s court merger Bill passed through the Senate last Wednesday night (17 February) and attracted immediate and scathing criticism from former judges, Australia’s peak law body and myriad other stakeholders. 

The Law Council of Australia (LCA), Women’s Legal Services Australia, Community Legal Centres Australia and the National Aboriginal and Torres Strait Islander Legal Services were among a coalition of more than 155 stakeholders who opposed the Government’s Bill to abolish the specialist, standalone Family Court.

The LCA and its supporters, in a joint statement, said: “The passage of the Government’s flawed merger Bill by the barest of margins is a disappointing outcome for Australian children and families and tasks Australian judges with an impossible task.’’ 

Attorney-General Christian Porter has said the changes would result in a simpler, faster and cheaper legal system for those hoping to settle family disputes. 

Chief Justice Alstergren said that, while the courts were always reluctant to comment on Government policy, he believed it was important that as the jurisdiction’s chief he reassure all Australian’s that an amalgamated court would continue in its primary function of treating everyone in a manner that was efficient and fair.

“The courts have consistently declined to comment on Government policy,” he said. “The role of the courts is to apply the law of Australia by hearing and deciding cases and interpreting legislation created by the Parliament.

“The Parliament has now passed the Federal Circuit and Family Court of Australia Act 2020 and the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2020, which awaits Royal Assent.’’

Under the existing system, the Federal Circuit Court has jurisdiction over a broad range of matters, including bankruptcy, copyright, migration and family law. The FCC was established to alleviate the strain on the Federal Court and Family Court, by dealing with less complex cases.

Chief Justice Alstergren said the new Acts would create an amalgamated Federal Circuit and Family Court of Australia (FCFCA) with two Divisions.

“One which will include judges of the Family Court of Australia dealing with the most complex matters and exercising appellate jurisdiction,” he said. “The other consisting of judges of the Federal Circuit Court of Australia, which will be the single point of entry for family law and child support cases.”

In the exercise of its new jurisdiction, Chief Justice Alstergren said the FCFCA would continue to have a statutory obligation to have regard to the need to protect the rights of children and to promote their welfare, and protect them from family violence.

“The prioritisation of the safety of children, vulnerable parties and litigants, as well as the early and ongoing identification and appropriate handling of issues of risk, including allegations of family violence, are essential elements of all case management,” he said.

“The courts will continue to provide specialisation in family law. Both courts already have specialist family law judges, with 33 family law judges in the Family Court of Australia and 40 specialist judges that deal exclusively with family law cases in the Federal Circuit Court of Australia (FCC).”

Chief Justice Alstergren said it was expected the number of specialist judges under the new structure would increase and that by August this year there would be as many as 35 specialist judges.

“The legislation also prescribes that the number of judges in the Family Court or Division 1 cannot be below 25 (and) … the Attorney-General has assured the Courts that any retiring judge will be replaced.

“The courts will continue to focus on implementing key case management improvements and family violence-related reforms such as rules harmonisation, the Lighthouse Project and the national COVID-19 List.

“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.

“To improve the system we need a streamlined single point of entry, as well as harmonised rules, forms and case management approaches. 

“With change comes opportunity. I ask that we work together to create a world-leading family law system – one that we can all be proud of and one that the people of Australia and future generations of Australians deserve.”

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