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Controversial Family Court merger bill set to become reality
Despite concerns from key legal professionals and associations, the government will move ahead with the proposed Family Court merger with the Federal Circuit Court after it received the support that it needed from an independent senator.
Naomi Neilson
After a promise that the government will guarantee that there is a minimum number of specialist family law judges, senator Rex Patrick has thrown his support behind a merger that is likely to become a reality by the end of the week. While legislation has already been debated, the final vote confirming the change will come later.
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The merger will move forward despite strong criticisms from major legal bodies and legal professionals, including former chief justices the Honourable Elizabeth Evatt AC and the Honourable Alastair Nicholson AO RFD QC. They are just two of the 157 signatories who have signed a letter opposing the upcoming legislation.
Late last year when the merger was once again being debated in government, Ms Evatt said it would lead to “undesirable outcomes for children and families”.
“Merging the Family Court into a generalist court will undermine the integrity and the structural specialisation of the Family Court. The impact of losing this institutional specialisation is not properly understood and has been downplayed,” she said.
In response to both the letter and the decision to move forward with the merger, the Australian Bar Associations’ (ABA) president Matthew Howard SC confirmed that the member body was still against the change and concerned that it will “not significantly and positively impact on the problems that the family law system” faces.
“As the ABA has stressed previously, the Family Court of Australia has been under-resourced for many years and before dismantling the court, careful consideration must be given to the value that maintaining a properly resourced specialist court would bring,” Mr Howard said.
The merger would mean that family law matters will have to proceed through the Federal Circuit Court and while it is intended to streamline the process, it could instead lead families into gridlocks and greater delays. The court already struggles with the lack of resourcing to manage family law matters alongside its migration, admiralty, administrative, consumer, human rights, privacy matters and more.
Mr Howard said the ABA would support steps being taken to address the “practical” challenges faced in the family law jurisdiction, including proper resourcing, an implementation of harmonised rules and forms between the Family Court and the Federal Circuit Court and simplification of part VII of the Family Law Act.
“The ABA sees the principal problem with the family law system as being one of chronic under resourcing and the ‘proposed merger’ does not address the problems that necessarily flow from such under resourcing,” Mr Howard said.
Since the legislation was introduced in 2019, legal bodies across Australia have time and again called on the government to abandon the plan. The NSW Bar said in December last year that it would only increase the workload for judges.
“The legal profession is the only stakeholder that stands to gain from the merger, with the further delays, costs and confusion it will create,” president Michael McHugh SC said. “We remain opposed as it is not in the best interests of families.”
