Dissecting the Merger Bill
The last 12 months have seen a litany of changes proposed or introduced into the family law system none more significant than the Federal Circuit and Family Court of Australia Bill 2018. Introduced into Federal Parliament on 23 August 2018, the Bill is currently before the Senate Legal and Constitutional Affairs Committee for report back to the Senate by 28 September 2018 (delayed to 23 November 2018). The debate about the bill has been extensive and public with exchanges between the Commonwealth Attorney General, Judges and representative associations of solicitors, barristers and the Family Law Section. But what does the Bill actually contain? Here is my attempt to dissect the Bill.
Whilst the issue regarding the creation of just one court to deal with all family law matters is not a new idea, the announcement from the Federal Government to combine the two courts came as somewhat of a surprise to many family law practitioners. The foundation for such surprise was that the former Attorney-General, Sen. Brandis had only just announced the Government’s intention to direct the ALRC to comprehensively review the family law system, with Terms of Referencebeing sent on 27 September 2017. It could be inferred by virtue of those terms, that the operations of the Family Court and Federal Circuit Court of Australia would fall within that review.
Thus, when the new Commonwealth Attorney-General Christian Porter announced in May 2018 the Government’s plan to consolidate the two courts into one Court and to move the appellate jurisdiction of the former Family Court of Australia to the Federal Court of Australia from 1 January 2019, with the ALRC still to report in March 2019, concerns were raised about the breadth of Government consultation regarding the necessity and manner of the proposed changes. In response to such criticism, it became apparent that a Final Report into the Review of Efficiency of the Operation of the Federal Courts had been received supporting the Government’s push for change.
In the document titled Structural reform of the federal courts, the Attorney-General's Department expanded upon the purpose of such consolidation;
It is estimated that structural reforms will improve the efficiency of the federal family law system by up to a third, with the potential in time to allow up to an extra 8,000 cases to be resolved each and every year.
It is estimated that consolidating first instance family law jurisdiction into a single court entity with a single point of entry could result in finalising up to an additional 3,500 family law matters each and every year.
It is estimated that a common structured initial case management process and managed case listing could result in up to 3,000 additional family law matters being finalised every year.
It is estimated that better management of appeals could result in up to 1,500 additional family law matters being finalised every year.As a result the proposed reforms will enable the courts to clear more cases than they receive in applications each year – reducing the currently growing backlog of pending cases on hand, and reducing the average time it takes to deal with family law matters.
Suffice it to say that there has been some criticism of the above report relating to the terms of reference and the perhaps the confounding of “cases resolved” with “cases settled” with little or no judicial intervention (i.e. consent orders) where the FCC processes a large volume of those settlements and the FCA, because of the complexity of cases it handles, processes minimal consent orders.
The purpose of this article is not to critique the Bill but to step through the proposed Bill and dissect the merger of the two courts.
Dissecting the Merger
What immediately seems apparent is that there is not really a merger of the two courts. Whilst the proposed reform was create a first instance family law jurisdiction "into a single court entity", this does not appear to be the case on the face of the Bill.
Section 8 to 10 provide that “The federal court known as the Family Court of Australia continues in existence as the Federal Circuit and Family Court of Australia (Division 1) (with) original jurisdiction in family law and child support matters…..The federal court known as the Federal Circuit Court of Australia continues in existence as the Federal Circuit and Family Court of Australia (Division 2) (with) original jurisdiction in general federal law matters, as well as family law and child support mattes.”
Whilst Division 1 Judges must have experience in family law (sect 11(2)(b)) the same is not required for Division 2 Judges (sect 79(2)(b). If the premise for the Bill was provide better outcomes for families in courts where the significant volume of work in that court is family law, it would not be unrealistic to expect practitioners with sufficient expertise in that field are appointed - to do otherwise could cut across the part of purpose of the Bill namely consistent outcomes in a timely manner. Section 79 seems to carry on the existing provisions of the Federal Circuit Court of Australia Act 1999 and it is difficult to see how sect 79 meets the mandate of section 22(2)(b)of the Family Law Act. Sections 80 and 81 provide for assignment of judges to divisions and authorising judges to manage class of proceedings but this does not go as far as sect. 22 of the FLA.
Apart from the provision permitting dual appointments, where the Chief Justice of Division 1 can also be the Chief Judge of Division 2 and that Chief Justice (Div 1) “must work cooperatively” with the Chief Judge (Div 2) to ensure “common” rules of court and forms and common practices and procedures (sect. 55), (and vice versa sect. 183) it is easy to criticise the legislation for creating no new singular court and therefore, no legislative imperative to create only the one set of rules. This seems even more so when Chapter 3 lays out the relevant provisions referable to Division 1 Courts while Chapter 4 contains those referable to Division 2 with many of the provisions being repeated.
This could be a pernickety interpretation of the Bill, with the true spirit of the proposed legislation being taken up by the Chief/s when drafting the Rules of Court that are, for all intents and purposes, the same set of rules for both Courts.
The removal of the appellate division of the Family Court of Australia to a single judge of the Federal Court of Australia stands apart as the most significant change brought about by the Bill.
The Overarching Purpose
All proceedings before the FCFCA are subject to case management with the “overarching purpose of case management” being the facilitation of the just resolution of disputes according to law as “quickly, inexpensively and efficiently as possible” with parties and lawyers to cooperate with the FCFCA and among themselves” to assist in achieving the purpose(sect. 6).
“Overarching purpose” for Division 1 Courts is set out in sect. 48(1) whilst for Division 2 Courts is set out in sect. 157(1).
Sections 48 and 157 contain mirror provisions with familiar motherhood statements of requiring determinations to be according to law, quick, inexpensive, efficient and in a proportionate manner.
Importantly, sections 49 and 158 cast an obligation upon parties and by extension their lawyer to conduct proceedings “(including negotiations for settlement of the dispute…) in a way that is consistent with the overarching purposes” with failure to comply with these obligations a relevant costs issue.
Central to these provisions are the “family law practice and procedure provisions” (or in the case of Div 2 Courts the “civil practice and procedure provisions”).
But what are the family law practice and procedure provisions? In short, we do not yet know. Sect. 44(4) and sect. 157(4) provide that the family law practice and procedure provisions are set out in (a) the Rules of Court and (b) any other provision made by or under the Act.
If the Rules ultimately incorporate provisions similar to the existing Pre-Action Procedures, consistent enforcement of these provisions will, in my humble view, attract greater efficiency in both Courts with less matters being litigated unnecessarily together with greater emphasis upon reducing issues for trial.
It should be noted that a single Judge may give directions about how a particular proceeding before that Court is conducted (see sect. 50 and 159 for Div 1 and Div 2 respectively). This adopts a theme – uncommonly adopted and, if so, rarely consistently – contained in sect. 69ZNof the Family Law Act.
The Rules of Court are made by the Chief Justice (sect. 56) or in the case of Division 2, the Chief Judge (sect. 184). This is potentially in contrast to sect. 123 of the Family Law Act which provides that “The Judges, or a majority of them, may make Rules of Court.” Whether or not this will mean the Rules Committees of either Courts will be disbanded is unclear.
Dispute resolution provisions in the Act only relate to non-family law matters (Division 2 Courts) which is disappointing unless those requirements are picked up in the Rules of Court. It was the Submission of the Bar Association of Queensland to the ALRC that dispute resolution be given greater prevalence as a means of reducing matters being filed in courts.
Families as Football
One of the other mischiefs the merger Bill was set to address was the transfer of proceedings between the Family Court of Australia and the Federal Circuit Court.
Section 34 provides for the transfer of Division 1 matters to Division 2 either on the court’s own initiative or the upon the application of a party with the principles applicable to such application enshrined in sub-sec. 34(3). These principles mirror section 33B of the Family Law Act. Again, the Rules of Court may specify relevant factors to consider in relation to such transfer but again, until such Rules are published it is premature to suggest existing protocols will continue.
Section 35 continues the prohibition against appeal of a transfer decision as was the case in sections 33B and 33C. What is different is the inclusion of sect. 34(5) which permits the Chief Judge (Div 2) to approve of the transfer. No appeal or review of the decision to approve or refuse to approve the transfer (sect. 35(8). Conceptually this means that a Div 1 Judge’s decision can be refused, in chambers, by a Division 2 Chief Judge.
It is unclear then how this will meet the mischief of treating families as footballs and it is suspcted that the Rules may address this issue.
For Division 2 Courts, the Bill is consistent in this respect. Sect. 117 provides for a Judge to transfer a proceeding to a Div 1 Court with the Chief Justice to have sole discretion to approve or refuse such transfer with same being neither appealable nor reviewable (sect 117(8)).
Appellate Jurisdiction Gone
It can be seen that pursuant to sect. 25 the appellate jurisdiction of Div 1 (and Div 2) is limited to only judgments of courts of summary jurisdiction of the States or Territories whereas under section 94of the Family Law Act the appellate jurisdiction included single judge (trial) decisions of the Family Court and decisions of the Federal Circuit Court. The Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018 provides relevant repealing amendment and transitional provisions relating to the creation of the Federal Court of Australia’s Family Law Appeal Division.
One of the underlying messages from the PWC report was the concern that the Appeal Division of the Family Court ties up valuable judge resources with three judges sitting on that Court. There has been significant debate about the necessity and / or efficacy of such a proposed change.
We are told that the necessity of action vis-à-vis the federal courts exercising family courts, as argued by the Government, is revealed in the body of the PWC report. If such report recommends the consoliditation or merger of the two courts to achieve efficiency, then the question that will be investigated by the Senate Committee will be whether this Bill meets that objective.
If the provisions providing for the Chief Justice and the Chief Judge potentially being the same judicial officer and the Rules of Court are “common” (as Chapter 3 and 4 of the Bill suggest) with the primary objective being to implement the overarching purposes of case management then a merger might, on the face of the Bill, be achieved if not in name but in practice.
On the other hand, if the Bill merely achieves a re-badging of two courts with nothing more than a legislative imprimatur to be more co-operative and adopt common (but not necessarily the same) rules, whilst removing an important appellate function, then the Bill may not achieve that goal.
[Update 2 October 2018 - The A-G has now appointed the current Chief Judge of the FCC as Chief Justice of the Family Court (i.e. dual commission) commencing 10 December 2018. This would seem to have the practical effect of consolidating the two courts if that were to remain]
The Commonwealth Attorney-General is due to address the National Family Law Conferenceon 3 October 2018 together with Chief Justice Pascoe, Chief Judge Alstergren and Wendy Kayler-Thomson of the Family Law Section. The State of the Nation Address might be an opportunity to assist family law practitioners understand better the need for this proposed Bill.