The proposed merger
Currently, family law matters are dealt with by both the FCA and FCC. Whereas the FCC was established to provide a faster and more accessible alternative to the FCA, the reality is that family law matters make up most of the FCC’s workload.
In 2016–17, 91 per cent of family law matters in Australia were dealt with by the FCC. On the other hand, the FCA handled only 9 per cent of all family law matters — one would expect that the specialist family law judges of the FCA would process the bulk of family law matters in Australia.
Subject to the passage of legislation, the FCA will merge with the FCC to form the Federal Circuit and Family Court of Australia (FCFCA). The FCFCA will have two divisions.
One division will deal solely with family law matters while the other division will deal with both family law and general federal law matters. Both the divisions will employ current judges from the FCA and FCC, with a single chief justice presiding over both divisions. A new appeal division, to be known as the Family Law Appeal Division, will also be established and will hear all family law appeals from the FCFCA, including some from the Family Court of Western Australia.
However, considering that the merger will nonetheless create two divisions — both to deal with family law matters — it is just not clear as to how such an identical dual court structure will streamline the current dual court system. Further, since the ALRC’s review of the family law system is still underway and there was very little, if any, public consultation on the proposed merger, whether the establishment of the FCFCA will resolve the main problems of the family law system, is another question altogether.
The archaic family law legislation
Having a dual court system is only part of the problem. Many family law experts believe that the outdated Family Law Act 1975 (the act) is the main reason why family law disputes are so litigious, costly and inefficient.
For example, Part VII of the act contains a framework under which the courts make orders about the care of children, such as who a child lives with or the allocation of parental responsibility for the child.
When making such orders, the best interests of a child should be the courts’ paramount consideration, taking into account two considerations: the need to protect the child from any form of harm, such as family violence; and the need for the child to benefit from a meaningful relationship with both parents.
In practice, however, balancing the two considerations has created more confusion and proven to be a challenge for judges, especially when Part VII provides that a child cannot have more than two parents.
As such, it is abundantly clear that besides a dual court system, the anachronic and undesirable multilayered litigious complexities of the act are what cause a lot of the inefficiency, delay and confusion in family law disputes.
Since a comprehensive review of the family law system is still underway, the proposed merger appears to be a hasty initiative.
Over the years, we have seen that reactive patches, such as the 2006 amendments, have created more confusion and complexity than eliminated them from the family law system. No doubt, the 2006 amendments were intended to be a departure from litigation and towards a co-operative parenting outcome for the best interests of the child.
However, in practice, it created more conflict and confusion between the best interests of the child and the “rights” of the parents. Such a confusion of conflicting interests further brewed an increased, seemingly endless and somewhat inconclusive litigation processes, certainly not helping the already emotionally-damaged parents or their adversely affected children.
Similarly, while the proposed merger is intended to improve delays and inefficiencies, the flip side is that quicker decisions may not necessarily mean better outcomes for families and children, especially when allegations of child abuse or family violence are involved.
Therefore, given the complex and outdated nature of the act, in my opinion, a completion of the ALRC’s review of the act is desirable, first.
Arthur Marusevich is a lawyer based in Canberra. He uses his five language skills to help people from disadvantaged backgrounds. Having written his first book, Arthur is an aspiring novelist and aims to publish one novel a year.