The merger of the Family Courts – What does it mean to you?

A brief review of the evolution of the family court system in Australia will help you to gain an understanding of the recent changes to the system which have resulted in the establishment of the newly created Federal Circuit and Family Court of Australia 2021 (“FC&FCA”).

The Family Court of Australia (“Family Court”) was established in 1976.  This Court was established to hear matters in the family law jurisdiction under the provisions of the revolutionary Family Law Act 1975.  In 1999, due to ever increasing demands made on the Family Court, the Federal Magistrates Court of Australia was established in order to ease the workload on the Family Court.  This court was subsequently named the Federal Circuit Court of Australia (“the Federal Circuit Court”).

Broadly speaking, the Federal Circuit Court was granted jurisdiction to hear less complex cases, with the aim of freeing up the Family Court to deal with the more complex cases.  This two-court system has operated since that time.  However, the workload of both courts has increased exponentially to a point where the system was so overloaded that it was besieged with unacceptable delays and inefficiencies.  This had devastating consequences on both the families who found themselves in need of court intervention and the courts who struggled to deal with the massive workloads.   The situation was even more disturbing where children were caught up in this cycle of delay and uncertainty.

The proposed solution to this problem is the recent merger of both courts into one entity called the Federal Circuit and Family Court of Australia 2021.  Quite a mouthful!

What does this mean to you?

The stated aim of the new merged court system is to streamline procedures and to assist parties to resolve their disputes in a timely manner through more simplified procedures and with less access to court intervention.

Parties are obliged to comply with a series of preliminary steps before they can start a proceeding in court.  These steps are known as pre-action procedures.  The pre-action procedures certainly make it more difficult for people to access the courts.  A major change in the rules is that prospective parties are required to genuinely try to resolve their dispute by attempting some form of alternate dispute resolution before they can start a proceeding.

Historically, parties who had the financial means to readily access the court have had a distinct advantage over those who did not.  The new system levels the playing field somewhat as all parties must comply with the pre-action procedures before they can resort to court litigation.  The aim is clearly to reduce the amount of matters that are heard by the Court by forcing parties to attempt to resolve their disputes in the hope that they might resolve the matter themselves without the need of the court.

There are limited exemptions from the need to comply with pre-action procedures, but in the past it has proved very difficult to obtain leave to avoid these requirements.

Time will tell how effective these new strategies are.  There is no doubt that the previous system was in desperate need of reform.  However, restricting access to the courts has the potential to work great hardship on those who are in urgent need of court intervention but are unable to obtain it.

Our Senior Associate Shelley Johnson is closely following these developments in the family court and is ready to advise you on how these changes might affect you in your particular situation.  Call us now to arrange for a fixed fee consultation on 3808 7777.