Federal Circuit and Family Court of Australia

By Alex Mondia – October 2021

The Australian family law system has been criticised by the media, politicians, the wider community and unsurprisingly, the litigants who have had the unfortunate experience of being exposed to it for many years.  The legal profession has also at times been critical of the lack of resources allocated to the system which has led to an inadequate amount of judicial officers and caused significant delay for litigants.

The Family Court of Australia was established in 1975.  Approximately 21 years ago, the Government of the day thought that a second court to handle less complicated matters would be the solution and thus created the Federal Magistrate’s Court of Australia (later named the Federal Circuit Court).

This meant in all states other than Western Australia had a court structure with both the Family Court of Australia and the Federal Circuit Court of Australia administering the Family Law Act 1975, with both Courts having the power to deal with family law matters despite each operating under a different set of rules.

This structure was criticised for inefficiencies such as delays and unnecessary costs being incurred, confusion and an unequal experience for litigants.

On 1 September 2021, the Federal Circuit Court of Australia and the Family Court of Australia officially became the Federal Circuit and Family Court of Australia (FCFCOA).

The Chief Justice of Division 1 of the FCFCOA and Chief Judge of Division 2, the Honorable Will Alstergren, has said that “the new court provides an opportunity to change the conversation about family law litigation”.  

The new court has therefore brought with it a number of major changes, the goals of which are to ensure the effective and efficient delivery of justice (including an increased focus on the use of alternative dispute resolution) by applying common approaches in a simplified court system.

Here is what you need to know about the key changes and what they mean.

How will the FCFCOA operate?

The FCFCOA was established by the Federal Circuit and Family Court of Australia Act 2021 and will deal with family law and general federal law matters (such as migration and bankruptcy).

There will therefore be no specialist family law court in Australia which deals exclusively with family law matters (other than the Family Court of Western Australia (FCWA)).  Whilst there is no specialist family law court, there will be a minimum number of specialist family judges at all times and all judges dealing with family law matters must satisfy additional appointment criteria that they have the “necessary knowledge, skills, experience and aptitude” to do so.

The FCFCOA is made up of two divisions.

Division 1 will be a continuation of the Family Court of Australia and deal exclusively with family law matters (including family law appeals either by single judge or as part of a Full Court).  This division will have a minimum 35 specialist family law judges.

Division 2 is a continuation of the Federal Circuit Court of Australia and deal with family law matters and general federal law matters.  This division will have 76 judges, 55 of which will be specialist family law judges.  This division will be the single entry point for all matters (including all family law matters) commenced in the FCFCOA with the matter to then be allocated to the most appropriate division as early as possible.

Both divisions of the FCFCOA exercising family law jurisdiction are governed by the Federal Circuit and Family Court of Australia (Family Court) Rules 2021 and all matters will aim to follow a nationally consistent case management pathway aiming to ensure that 90% of matters are resolved within 12 months of filing.

How will the changes impact Western Australia?

When the Family Court of Australia was established in 1975, Western Australia decided to establish its own court to deal exclusively with family law matters, namely, the FCWA.

The FCWA has both state and federal jurisdiction in family law matters and deals with all aspects of family law for married and de facto couples for litigants who are either living in Western Australia or are sufficiently connected to the state.

Until recently, the FCWA was governed by the Family Law Rules 2004 (which were the same rules which governed the former Family Court of Australia) and the Family Court Rules 1998, however, recently the FCWA has adopted and is now governed by its own new rules, namely, the Family Court Rules 2021.

The formation of the FCFCOA and the changes made to the family law system applicable in the other states will therefore have little impact on Western Australian litigants. In fact, the only circumstances in which a Western Australian litigant may find themselves in the FCFCOA would be if they were a party to a marriage who was appealing a decision of the FCWA.

In the rare circumstance that a Western Australian litigant finds themselves needing to commence proceedings in the FCFCOA, there is a FCFCOA Appeals Registry located at the FCWA. The FCFCOA Appeals Registrar may make some procedural orders, however, more complex hearings will need to be heard by a Judge of the FCFCOA or the Full Bench of the FCFCOA (three judges of the FCFCOA sitting together).

We’re Here to Help

Family law matters can be difficult and complex. If you require any assistance with a family law dispute, always contact a legal practitioner who will be able to help.

O’Sullivan Davies has practitioners experienced in dealing with all family law issues. More information about our services can be found at our About Us page here.

Disclaimer

This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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