Recently, there has been a lot of noise surrounding the Family Court. In 2017, the attorney-general at the time George Brandis announced a long-overdue review of the system. This was to be the first comprehensive review of the Court since its inception in 1976. The cornerstone of this review was a proposal to merge the Family Court of Australia and the Federal Circuit Court. However, prominent voices in the legal profession have criticised this measure, most notably the Law Council of Australia. Further, there have been calls to decentralise the system and move it to the jurisdiction of the States.
Most notably, a bill to implement some of these measures failed to pass the Senate. We all know that the Family Court system has inherent issues, but solving them is a more complex task.
Problems in the current system
Those who are currently in the Family law system know too well the problems it has. Underfunding and scarce resources have led to delays in the system. The delays are so severe that there are cases that have been in the Courts for close to a decade. This also means that the process is extremely costly for litigants. Legal, Court and administrative fees can easily get into the triple-figures for drawn-out Court cases.
Further, although the Family Court has wide-ranging jurisdiction, there are often issues which overlap with the jurisdiction of other Courts. Another issue is the transfer of matters between the Federal Circuit Court and Family Courts. The Federal Circuit Court was created to hear shorter, less complex cases and the Family Court more complex ones. However, transfers themselves put cases on hold.
A state-based system?
The Australian Law Reform Commission has published recommendations to ‘fix’ the problematic system. One such recommendation was that State Courts hear family law matters. The motivation behind this was that some issues (such as those involving DFACs) can be neglected due to different jurisdictions. However, it’s unclear how a state-based system would be funded, in addition to the Civil and Criminal Courts
One of Australia’s peak legal bodies, the Law Council of Australia have criticised the proposed reforms. The Law Council has said that combining the Courts would likely increase the delays and frustrations that are already present within the system. Arthur Moses, president-elect of the Council notes that these problems will only be tackled properly if the real root of the issue is addressed – underfunding.
For now, it looks like these reforms are on hold. Further, pending the outcome of the election next month, plans to combine the FCA and FCC may be scrapped all together.
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