Structural reform of the federal courts
The Federal Circuit and Family Court of Australia (FCFC) commenced operation on 1 September 2021.
The FCFC brings together the Family Court of Australia and the Federal Circuit Court of Australia under a unified administrative structure. Each court continues to exist as divisions of the FCFC.
Benefits of the reforms
The Australian Government introduced this structural reform of the federal family law courts to address problems with the previous court structure.
The overlapping family law jurisdiction between the previous Family Court and Federal Circuit Court of Australia (FCC) led to significant inefficiencies, confusion, delays, additional costs and unequal experiences for many families. This resulted in poor outcomes for some children and families, including those affected by family violence.
The new court structure will help Australian families resolve their disputes faster by improving the efficiency of the family law system, reducing the backlog of matters before the family law courts, and driving faster, cheaper and more consistent dispute resolution.
The government’s reforms have:
- established a single point of entry for federal family law matters
- established a single set of court rules, forms, practices, and procedures
- strengthened judicial appointment criteria
- streamlined the family law appeals pathway.
Structure of the FCFC
The FCFC comprises 2 divisions:
- The FCFC (Division 1) is a continuation of the Family Court of Australia.
- The FCFC (Division 2) is a continuation of the Federal Circuit Court of Australia.
As such, the FCFC preserves the cohort of judges of the previous Family Court and Federal Circuit Court, including their extensive family law and family violence expertise.
The FCFC operates under the leadership of one Chief Justice with the support of one Deputy Chief Justice, who each hold a dual commission to both Divisions of the FCFC. There is also a second Deputy Chief Judge (General and Fair Work) of the FCFC (Division 2).
The FCFC (Division 1) deals only with family law matters, while the FCFC (Division 2) deals with both family law and general federal law matters. The previous FCC’s general federal law jurisdiction and fair work jurisdiction has not been impacted by the establishment of the FCFC, with no changes to the previous appeal pathway. The Fair Work Division of the previous FCC has been retained in the FCFC (Division 2).
To ensure the continued existence of the previous Family Court, the legislation mandates that a minimum of 25 judges must be appointed to the FCFC (Division 1). This figure includes the Chief Justice and Deputy Chief Justice of Division 1 but does not include judges who are also judges of the Family Court of Western Australia.
Judicial expertise
People appointed to either division of the FCFC will need to satisfy additional appointment criteria to ensure that they have the necessary knowledge, skills, experience and aptitude to deal with the types of matters coming before them. Where these matters are family law matters, this includes matters involving family violence.
Case management approach
The FCFC has a single point of entry for all family law matters. All federal family law matters will be filed in the FCFC (Division 2).
Judges and registrars will lead a common case management approach for all matters. Urgent and high risk cases will continue to be prioritised, and all cases will be allocated at the earliest possible point to the most appropriate judge in the most appropriate division.
Once a matter has been allocated to the most appropriate division, only the Chief Justice or Chief Judge will be able to transfer it between divisions.
Rules of court
The Chief Justice and Chief Judge are obliged to work cooperatively to ensure common rules of court and forms, and common practices and procedures across both divisions of the FCFC.
The Chief Justice and Chief Judge have the power to make the rules of court for their respective divisions for the first 18 months after the new court structure commences. After this, the power will revert back to judges or a majority of judges of each respective division. Any proposed rules of court after this 18 month period cannot be made if the Chief Justice or Chief Judge considers they are inconsistent with the aim of ensuring common rules of court and forms.
The Chief Justice and Chief Judge have made a single set of harmonised court rules for family law and child support matters that will apply to both divisions of the FCFC.
This approach will provide families with greater certainty about how their disputes will be resolved, enabling information to be readily available about what to expect and when, and providing an earlier sense of the likely time and cost implications of lodging a family law application.
Appeals
The FCFC (Division 1) retains jurisdiction to hear family law appeals. However, there is no Appeal Division in the FCFC (Division 1). All FCFC (Division 1) judges are able to hear appeals either as a single judge or as part of a Full Court.
All appeals of FCFC (Division 2) and Family Law Magistrates of Western Australia decisions will be heard by a single judge, unless the Chief Justice of the FCFC (Division 1) considers it appropriate for the appeal to be heard by a Full Court.
This will help the FCFC to:
- hear more matters each year
- reduce the backlog in first instance family law matters
- reduce median case waiting times.
There are no changes to the rights to appeal as previously provided for under the Family Law Act 1975.
Transitional arrangements
Transitional arrangements are in place for proceedings that were before the courts when the reforms commenced to ensure they are dealt with as effectively and efficiently as possible.