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Here's to the family court merger

Train tracks merging
Photo by Lance Grandahl on Unsplash

On 1 September 2021 the Australian family court and federal circuit court (the “FCC”) will merge.

And I can’t wait.

At the moment the vast majority of relatively simple family law matters in Australia are dealt with by the FCC. The family court hears more complex matters involving issues such as international relocation, child abduction or serious allegations of child sexual abuse.

However (randomly), the family court also deals with the simplest way to finalise a family law matter in court: consent orders (which involve couples agreeing property and parenting arrangements and lodging them with the family court to approve).

Each of the family court and the FCC have their own set of rules. But they’re slightly different. And if your matter is in the FCC but the FCC rules don’t cover an issue then you can refer to the family court rules (even though you’re in the FCC).

Are you confused yet? Read on.

The family court was established in the year of my birth, 1975 (which must be prophetic). It all seemed to be going pretty well until 1999 (the year I became a lawyer, pure coincidence). This is the year that the powers-that-be decided the family court needed a little help and established the FCC.

The FCC was designed to provide a simple, accessible and informal alternative to litigation in the family court. Barristers didn’t need to wear wigs or robes (except in final hearings) and streamlined procedures were implemented. However, somewhere along the way, it became complicated.

Was it because the people running the FCC just replicated the formality of the family court (habit is very habit-forming)? Or was it the existence of separate rules that made the whole system a little unwieldy? Whatever the reason (and for more than just structural issues) current consensus is that the system is fairly broken.

In summary, for 22 years the family court and FCC have run, side-by-side, but not together. I have come to learn that family lawyers are very intelligent and organised. For all that time, they’ve managed to figure out and roll with these two courts and two sets of rules.

Unfortunately, family lawyers (like most lawyers) are bloody expensive. So for those who can’t afford upwards of $300 an hour, self-represented litigants have been largely lost at sea trying to seek justice in whichever court they manage to figure out can help them.

So, the main reason I am excited by the impending merger is that it will take a step towards a goal that is very close to my heart: access to justice. One entry point and one set of rules means more people who can’t afford lawyers, but may not be eligible for legal aid, will have a shot at judicial resolution.

The other reason I’m excited by the merger is that the same leadership team who orchestrated it has implemented two pathways which are blazing a trail for the vulnerable and the disenfranchised: the lighthouse project and the discrete property list. But I’ll save those for another post.

As Henry Ford said, “Coming together is a beginning, staying together is progress and working together is success”. Here’s to making the newly merged court a success, together.



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