The report found that the FCC’s pending migration law case load spiked by 58 per cent, up from 7,641 applications in 2017-18 to 12,158 in 2019-20. If these current filing rates continue, the FCC warned that without further resources, the pending case load would overtake the pending family law case loads in less than two years. 

Of more concern is that the FCC disposed of just 62 per cent of final order applications within 12 months, falling significantly short of a target of 90 per cent of the second year in a row. The FCC said this target drop is contributing to ongoing delays, leaving clients and their families in limbo and often at risk while waiting for their matter to be heard. 

Despite this data, the government is pushing ahead with a merger bill during its spring parliamentary sittings. A coalition of stakeholders is calling on the government to drop the bill, warning the figures confirm that the merger will put children, families, survivors and victims’ at risk while increasing the burden on judges facing unsafe workloads.  

“The merger bill would abolish the specialist, stand-alone Family Court as we know it, subsuming it into one of the country’s biggest courts, the lower level FCC. The FCC is already struggling through chronic under-resourcing and under-funding to manage the less complex family matters alongside its crushing, growing migration workload,” said the Law Council of Australia’s (LCA) president Pauline Wright. 

Ms Wright added that when the merger bill was proposed in May 2018, it was opposed out of concern that it would not realise efficiencies and further harm families, especially those who were left waiting for more than three years to have their matters resolved. The concerns are even more acute now, Ms Wright warned the government. 

“The FCC cannot get through existing backlogs and is now starting down a tsunami of incoming migration work [together with] the COVID-19 pandemic, which has continued to create urgent demand for family law services. While the recent budget had included funding for the FCC, this is inadequate to address the scale of the present crisis,” said Ms Wright, adding that it would not reverse “years of chronic under-funding”. 

Community Legal Centres Australia chief executive Nassim Arrage said over 30 per cent of help requests from the community relate to family violence. With that in mind, she said the move away from a specialist family court would be a “retrograde step”. 

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Agreeing with this sentiment, Women’s Legal Services Australia spokesperson Angela Lynch AM said family violence best practice responses worldwide recommended that there be an enhancement of family violence specialisation in courts, not a move away. 

“With about 70 per cent of final matters in the family law courts involving this violence, reforms must prioritise child and victim safety. The government’s proposed model will not achieve this,” Ms Lynch criticised. 

In 2018 and 2019, there was sufficient concern with the Parliament not to pass the bill. When reintroduced last December, along with a few amendments, the bill was still met with fierce opposition from more than 110 legal individuals and organisations. 

The opposition claimed that the superior court ecosystem would be collapsed into what would be an “inferior, generalist, overworked and under-resourced” FCC. It would be to the detriment of families’ wellbeing and would result in further stress for the courts. 

National Aboriginal and Torres Strait Islander Legal Services’ (NATSILS) chair Cheryl Axelby said the reforms will disproportionately affect the most vulnerable, including the Aboriginal and Torres Strait Islander communities who “need the most support”. 

“They will lead to a range of unintended consequences including a reduced number of specialist family law judges and increased costs for litigants,” Ms Axelby said. 

“From our experience, as Aboriginal organisations, we say that mainstreaming doesn’t achieve efficiency or better outcomes for our people and that specialisation in the law is important and it works. Our main call is for more specialisation and more resourcing into the cultural competence of the family court system,” Ms Axelby said. 

Ms Axelby added that the introduction of specialist Aboriginal courts in the family law system has seen an increase in Aboriginal participation. She has implored government to “do the right thing by our communities” and reject the bill, which “does not address the root causes of these problems”. 

“We fear, in the middle of this global pandemic, the bill will exacerbate the issues that our communities are facing,” Ms Axelby said.