A review of the Federal Circuit and Family Court of Australia Act 2021 flagged both positive and negative feedback, but opinions were divided on whether more should be done to further refine it.
A review of the Federal Circuit and Family Court of Australia Act 2021 (FCFCOA Act) by Linda Dessau AC CVO and Professor Helen Rhoades OAM revealed the parts of the courts that are working well, highlighted concerns from survey participants, and made three key recommendations to improve its overall accessibility.
The review was mandated every three years from the commencement of the legislation, under section 284 of the FCFCOA Act.
Attorney-General Michelle Rowland said the timely review of the FCFCOA was “important to ensure the significant changes introduced to the court’s structure and procedures are working in practice”.
The Albanese government tabled the review late last week.
“The government will consider the report and its recommendations in due course,” Rowland said in a statement.
The reviewers consulted 59 judges, registrars and senior executives and 58 professionals whose work intersects with the federal courts, in addition to the 96 responses from two online surveys.
Issues found via these consultations included the “widespread dislike” of the new names for the court, and the use of “merger” to describe the reforms or a belief that the FCFCOA is a single court.
Further, despite an expectation that the FCFCOA could address the growing backlog of pending cases, the review found there was still a “heavy” caseload that hampered its ability to “reap the full benefit of the reforms”. However, promising signs point to improvement.
In this part of the research, Dessau and Rhoades identified that while courts were able to pinpoint that 69 per cent of matters were resolved before a compliance and readiness hearing, there was no data about the stages along the case management pathway or events.
A bigger concern was the construction of section 50 of the FCFCOA Act, which prohibits instituting family law or child support proceedings in division one. To combat this, judges are able to uplift and determine an amended application or response before them, so as to bring “all justiciable matters to conclusion at the same time”.
While there is a plan to improve this concern, the reviewers said this process was “only recently put in place, and is as yet untested”.
In one of their three recommendations, Dessau and Rhoades suggested amending the FCFCOA Act to bring “clarity and certainty” to the operation of section 50 and resolve concerns from litigants.
The increasing complexity of general federal law matters was also highlighted as a primary concern, with review participants and family lawyers flagging that there were a “number of consequences of having cases with complex features listed before a judge who lacks specialist understanding of the jurisdiction”.
There was “insufficient” material for change, but a recommendation that the Attorney-General investigate whether there is a need for reforms to the general federal law jurisdiction of the FCFCOA’s division two.
A third recommendation was to consider the courts’ name.
Dessau and Rhoades made special mention of the areas of the FCFCOA that are working well, including the dual appointments regime, the single point of entry and original jurisdiction in family law, the family law specialisation, and changes to the appellate jurisdiction.
“The prevailing impression conveyed by the consultations for this review is that, with the exception of the court’s names and the problems created by section 50, the aims of the FCFCOA reforms have been largely successful,” the review said.
While a “number of problems and cautions” were raised, the reviewers said there was also a “strong view” that practice and procedure in family law have seen significant improvement.
For example, one of those factors concerns the dual position Chief Justice Will Alstergren holds as both the Chief Justice of the FCFCOA (division one) and Chief Judge of the FCFCOA (division two).
A small number of respondents expressed a preference to separate heads of jurisdiction, but others expressed anxiety that much of what has been achieved “could be undermined by a return to separate heads of jurisdiction for the two family courts”.
Women’s Legal Services Australia spokesperson Meaghan Bradshaw said the scope was “very limited” and did not reflect the full range of issues “experienced by our clients when engaging with the courts”.
“Our services see every day the significant barriers that remain, particularly for First Nations women,” Bradshaw said.
“The system must do more to ensure it is culturally safe, LGBTI-inclusive and disability-aware. Achieving this requires ongoing reform and greater investment in the family law system.”
Bradshaw added that the courts and services remain “under-resourced”.
“The complexity of family law means that victim-survivors need legal representation, yet the cost is prohibitive and funding for legal assistance is inadequate,” Bradshaw said.
“Without addressing these fundamental resource and access issues, the safety of women and children will continue to be at risk.”
Chief Justice Alstergren said the courts were “delighted” by the positive findings, but he has established a working group to “carefully consider any ongoing refinements” flagged in the review.
“We will continue to work closely with the Attorney-General, the Honourable Michelle Rowland MP, and the government, to provide the best system of justice available for Australian families and the people we serve,” Chief Justice Alstergren said.
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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