In his first media release as AG in the 46th Federal Parliament, Mr. Porter announced; “In the Attorney-General’s portfolio there are a number of major reforms on the Government’s agenda which I will be working to achieve early in the 46th Parliament,” the Attorney-General said. “The highest priority will be the structural reform of the family law courts to ensure families requiring the assistance of the courts to finalise their relationships are able to have their matters dealt with as quickly, efficiently and cheaply as possible." But how and when remain the biggest questions to be answered.
It is perhaps old news now but the Merger Bills did not pass the 45th Parliament after the Senate Legal and Constitutional Affairs Committee reported back to the Senate on 14 February 2019. That Committee considered many submissions from peak bodies including existing and retired justices of the FCA, law societies and bar associations of most states and experts in law.
The recommendation of the majority of the committee was as follows;
Recommendation 1 — in addition to the allocated funding as detailed in the Explanatory Memorandum—that the proposed new divisions of the Federal Circuit and Family Court of Australia be provided with additional resources for Registrars to assist with the backlog of cases.
Recommendation 2 - The committee recommends that an appellate division of the Federal Court of Australia not be created and instead the existing appellate jurisdiction of the Family Court of Australia be retained into the Federal Circuit and Family Court of Australia (Division 1).
Recommendation 3 - The committee recommends that the qualifications of judges in Division 2, as per proposed paragraph 79(2)(b), be amended to ensure that they have the appropriate skills, knowledge, experience and personality.
Recommendation 4 - The committee recommends that the Australian Government pursue the immediate appointment of suitable candidates to vacant judiciary positions in the family courts and consider whether there is a need to appoint additional judges.
Recommendation 5 - Subject to the adoption of the above recommendations, the committee recommends that the bills be passed.
In an interim report, Labor Senators recommended the Bills not pass preferring to wait until after the ALRC report is available. The argument that I would make in that respect is that none of the questions raised in the ALRC Issues Paper or the Proposals and Questions for Further Submissions in the Discussion Paper point toward restructure of the courts beyond extending particular services the courts offer or the way in which the courts deliver their services.
Senator Rex Patrick of the Centre Alliance Party also declined to support the Bills passing in their current form recommending a significant increase in resourcing as part of any family law court reform.
The May 19 election returned the Morrison Government with not just a majority in the House of Representatives but with having now to deal with 6 cross-benchers in the Senate (as opposed to 10 in the last parliament) will this mean Merger Bill 2.0 might pass ?
Alternatively, will Recommendation 1 of the ALRC Family Law System Review attract attention from the Federal (and State) Governments.
To recap, Recommendation 1 proposed as follows;
The Australian Government should consider options to establish state and territory family courts in all states and territories, to exercise jurisdiction concurrently under the Family Law Act 1975 (Cth), as well as state and territory child protection and family violence jurisdiction, whilst also considering the most efficient manner to eventually abolish first instance federal family courts.
Merger Bill 2.0 could be passed into law within a matter of months. The ALRC approach would take significiantly longer and may require the consent of the States to participate in such a redistribution of jurisdiction for family law matters.
What does this mean then for litigants ? Status quo, which in turn means that the primary dispute alternatives of mediation and arbitration need to be genuinely considered as the only quick, effecient and inexpensive models for resolving family law disputes.