In a statement about the merger, Attorney-General Christian Porter boasted that the Morrison government is the first of many to secure “much-needed” reform by being behind a system that he said will implement a consistent set of court rules and make navigating the system simpler, despite concerns from the profession that it will not. 

The Law Council of Australia, Women’s Legal Services Australia, Community Legal Centres and the National Aboriginal and Torres Strait Islander Legal Service issued a statement soon thereafter with concerns that the decision to merge has been based on a “widely discredited” PwC report and distributed by stakeholders. They said there is evidence to support the “damage that will be done” by the merger. 

The legal bodies said that those who have voted for the bill – including senators Rex Patrick and Pauline Hanson – have “tasked the courts” to deliver outcomes with fewer resources than they have. At this stage, there are eight judicial vacancies that are yet to be filled and at least 10 judges in family law due to retire in 2021-22. 

Then there is the “heavy scrutiny” that the government and new court will be under to resolve 8,000 additional cases, reduce costs, reduce the time separating families will spend before the court and reduce delays, “even allowing for the impact” of COVID. 

“Like many others, we have warned of the dangers this legislation poses for the most vulnerable in our community at a time of relationship breakdown. We now call on the government to step up and properly fund the family law system and legal assistance, and to repair the years of government neglect of this critical infrastructure,” the legal bodies said. 

“We will continue to do whatever is possible to support the new court delay in the delivery of justice to Australian children and families in this most critical of areas.”

In his statement, Mr Porter claimed that the “loudest voices” who have opposed the reforms have made “wild assertions” about the consequences because he believed they had a vested interest in maintaining a status quo that “fuelled further delays causing increasing tensions between parties and rising costs and who have failed to present alternative approaches”. 

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While he never referred to a specific person or party in this criticism, many of the voices that have responded to the merger since it was announced have been in the legal profession – including a letter signed by 157 leading and key professionals that include the Honourable Elizabeth Evatt AC and the Australian Bar Association. 

“Families who need to use the court to resolve matters at the end of a relationship have a right to expect that the system will help them settle their matters quickly, efficiently and at as low cost as possible,” Mr Porter wrote. “Unfortunately, for too many families, this has not been the reality as the system itself has been exacerbating the stress and pressure being experienced by users of the court.” 

Mr Porter failed to refer to the “stress and pressure” that have been facing judges and court staff. In a report from the Federal Circuit Court in October 2020, data found that the merger would only increase the burden on judges who are already facing an unsafe workload due to backlogs caused by the coronavirus pandemic. 

As for alternative approaches, legal bodies such as the NSW Bar Association have spent years calling for the government to provide more resources and address the lack of funding that has prevented it from making structural changes. In January 2020, the Bar said it had been “neglected, underfunded and under-resourced for decades” which has led to the delays and costs referred to by Mr Porter. 

Responses from family lawyers

While the merger may look good on paper and while it may come with government promises that it will introduce a more streamlined approach, the family lawyers that Lawyers Weekly has reached out to are concerned it is a “recipe for disaster”.

Madison Marcus special counsel Alicia Huppatz said that there is “little doubt that these perceived benefits are outweighed by the uncertainty about how this is all going to work in practical terms”. She said families will not have their matters heard any earlier than the current wait times like the government was hoping for. 

“What should be occurring is transferring all family law matters being dealt with in the Federal Circuit Court into the Family Court and appointing more judges and registrars to work through the backlog. We desperately need an early intervention triage service run by registrars to identity matters that are suitable for a less adversarial pathway,” she said. “This will free up judges so that their attention can be solely focused on the more serious matters requiring specialist attention.” 

Separate Together founder and director Siobhan Mullins mirrored this in her own response, commenting that the justification of the merger “appears largely based on how the system operates” but that it is a resource issue, not systematic. 

“These systematic issues do not actually solve the core and complex problems that people in need of help through the Family Court face – that is family violence, child abuse and neglect, and issues about safety, mental health and substance abuse,” she said.

Ms Mullins added that if the government were to look at the Family Court like a business, it would “look to meaningfully solve its markets problems”.

“This would require the government to commit ample resources and funding. It would require dedication, focus and devotion to understanding the needs of people in the system and their complex problems to then provide meaningful solutions. Only then can the Family Court achieve success in its pursuit of facilitating better outcomes for families. Just imagine what our Family System could do for couples and their children if it were appropriately and properly resourced,” Ms Mullins said. 

Brisbane Family Law Centres’ Kiarah Kelly said that while the idea of having one point of entry is attractive, the legislation places it at the expense of “essential specialisation”. She added that greater resourcing and innovation are key and the legislation as it stands is “flawed” in its approach to solving the system’s issues. 

“Family law problems that reach the court process and require determination should only be those that cannot be resolved any other way to have very complex questions to be answered. The dynamics in these matters can be extremely difficult. These matters must be determined by experts,” Ms Kelly said. 

“Change in the area of family law is much needed, but a solution which jeopardises matters being determined by experts is not it.” 

Divorce Done Differently mediator Shelby Timmins also commented that the merger will come with consequences, warning that to “truly consider the needs of families we work with in the family law space”, there needs to be a different approach. 

“The Family Court merger removes the specialist care separating families so desperately desire and deserve. It has the potential to place some of societies’ most vulnerable and victims of violence – including children – at risk,” Ms Timmins said.