New family law court structure introduced into parliament

The Federal Circuit and Family Court of Australia Bill 2018 (FCFC Bill) and the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018 have both been read in parliament.

Both were immediately referred to the Senate Legal and Constitutional Affairs Legislation Committee, with its report due by 15 April 2019.

The FCFC Bill would bring the Family Court of Australia and the Federal Circuit Court of Australia together to be known as the Federal Circuit and Family Court of Australia (FCFC).

The FCFC would comprise two ‘divisions’:

  1. the Federal Circuit and Family Court of Australia (Division 1) (FCFC (Division 1)) would be a continuation of the Family Court.
  2. the Federal Circuit and Family Court of Australia (Division 2) (FCFC (Division 2)) would be a continuation of the Federal Circuit Court.

To give effect to this structural reform, there are a number of amendments to be made to Commonwealth laws to reflect and support the proposed structure.  These include:

  • amending the Federal Court of Australia Act 1976 to establish the new Family Law Appeal Division in the Federal Court of Australia;
  • amending the Family Law Act 1975 to ensure that it continues to operate effectively in the context of the FCFC;
  • amending court-related Regulations and Rules of Court to ensure that they continue to operate effectively following the commencement of the FCFC and the Family Law Appeal Division of the Federal Court, and
  • making minor consequential amendments to other Commonwealth Acts and relevant subordinate legislation (to accommodate references to the FCFC and the Family Law Appeal Division of the Federal Court).

Significantly, as part of these amendments, the appellate function of the Family Court would largely be removed and placed in the new Family Law Appeal Division of the Federal Court.

The FCFC (Division 1) would only retain a limited appellate jurisdiction to hear appeals from State and Territory courts of summary jurisdiction exercising federal family law jurisdiction. As there will be significantly fewer appeals handled by the FCFC (Division 1), these amendments enable the existing judicial resources of the Family Court to be refocussed to finalise more first instance family law matters and to clear what is a large backlog of pending matters.

The Family Law Appeal Division of the Federal Court would be given appellate jurisdiction in relation to appeals from judgments of the FCFC (Division 1) and FCFC (Division 2) as well as appeals from judgments of the Family Court of Western Australia in relation to federal family law matters.

The conferral of family law jurisdiction on the Federal Court is not intended to impact on its general federal law caseload or operations.

The government claims that the establishment of the FCFC and the creation of the Family Law Appeal Division in the Federal Court will increase efficiencies, reduce delays, and lead to better outcomes in the family law jurisdiction of the federal court system.

The bankruptcy jurisdiction of the new court remains largely the same, though appeals involving bankruptcy will now be heard by the Federal Court, in its Family Law Appeal Division.

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