The Merger Act - A Quick Look
The Federal Circuit and Family Court of Australia Acts (FCFCA Act) has now received Royal Assent and will commence the earlier of Proclamation or six months from the date of Royal Assent.
Probably better known as the “Merger Acts”, the first iteration of this controversial batch of legislation was the subject of a paper from this writer to this same conference on 13 March 2019. Two significant criticisms of the original version of the proposed legislation was the abolishment of the appellate division of the Family Court of Australia and the lack of specialisation required for Division 2 judges conducting family law matters.
Despite the narrative being adopted of a “merger” of the Courts or of a “merger down” of the Family Court of Australia into the Federal Circuit Court of Australia, it is difficult to see how that can be supported upon a plain reading of the FCFCA Act. There remain two separate courts, the Family Court, being rebadged as the Federal Circuit Court and Family Court of Australia Division 1, and the FCC becoming Division 2. There also remains two separate heads of each division. The intent behind the legislative measure is to amalgamate the administrative structures if the FCC and the FCA into one.
The Second Reading Speech of the Attorney-General in relation to the FCFCA Act reads;
The Federal Circuit and Family Court of Australia Bill brings together the Family Court of Australia and the Federal Circuit Court of Australia as an overarching, unified administrative structure to be known as the Federal Circuit and Family Court of Australia. The Family Court will continue in existence as the Federal Circuit and Family Court (Division 1), and the Federal Circuit Court will continue in existence as the Federal Circuit and Family Court (Division 2).
This bill creates a consistent pathway for Australian families in having their family law disputes dealt with in the federal courts. Under the government's reforms, there will be a single point of entry for the federal family law jurisdiction and, ultimately, a common set of rules, procedures, practices and approaches to case management. The reforms enabled by these bills will improve user experience for those Australian families that unfortunately need the assistance of the courts to resolve their disputes and promote improved practices by both courts and legal practitioners.
The structural reforms and legislation to give them effect have been developed and informed by a number of substantial inquiries over the last decade, including the 2008 Semple review, the 2014 KPMG review, the 2015 EY report, the 2017 House of Representatives Standing Committee on Social Policy and Legal Affairs inquiry, and most recently a 2018 PwC report, and these were all tabled in the parliament when the bills were first introduced.
Since the bills were last before the parliament, the government has carefully considered the comments made and issues raised by court users, legal and other professional stakeholders, House of Representative members, the Senate Legal and Constitutional Affairs Legislation Committee and members of the general public.
And, while there was disagreement about what approach the government should take, there is widespread recognition that the current structural arrangements in the courts are simply not working to the benefit of Australian families. The government remains committed to resolving these structural failings.
To address some of the key concerns identified by stakeholders, the government has made several changes to the package as it was before the last parliament.
The government will no longer create a family law appeals division in the Federal Court. The bill, instead, preserves the existing Family Court's appellate jurisdiction within the FCFC (Division 1). While the bill will retain the appellate jurisdiction in the FCFC (Division 1), the bill provides that there will no longer be an appeals division for select judges to be appointed to but, rather, Division 1 judges will be able to hear appeals, both as individual judges and as members of a Full Court.
Further, the bill will enable the court to deal with appeals more efficiently, as appeals from decisions of the FCFC (Division 2) will be ordinarily dealt with by a single judge from Division 1. The Chief Justice will have the ability to convene a Full Court to hear an appeal from Division 2, where appropriate. This will provide flexibility for a Full Court to hear appeals involving novel or complex questions of law.
Both of these changes reflect the approach taken in the appellate jurisdiction of the Federal Court, which successfully exercises a substantial and diverse appellate jurisdiction. This approach will enhance the courts' ability to resolve family law matters.
The bill also now makes much clearer how the single point of entry for first instance family law matters in the Federal Circuit and Family Court will operate by providing that all original jurisdiction family law applications should be made to the FCFC (Division 2), with matters able to be transferred to Division 1 as appropriate. Implementing a single point of entry in this way is a significant and long called for reform to improve the user experience with the family law courts and enhance the unified identity of the Federal Circuit and Family Court. Coupled with the harmonisation of rules and case management approaches, it will reduce confusion and create a much simpler pathway for resolving disputes.
Another recommendation of the Senate Legal and Constitutional Affairs Committee was to require judicial appointments to the FCFC (Division 2) to involve consideration of whether the person has the appropriate skills, knowledge, experience and personality to undertake family law matters. The Australian Law Reform Commission made a similar recommendation for the appointment of judicial officers exercising family law to involve consideration of the person's knowledge, experience, skills and aptitude relevant to hearing family law cases, including cases involving family violence.
The bill now provides that for a person to be appointed to the FCFC (Division 1) or appointed to the FCFC (Division 2) and expected to deal with family law matters, the person is, by reason of knowledge, skills, experience and aptitude, suitable to deal with family law matters, including matters involving family violence.
In addition, the bill now provides for:
- a time-limited period for the Chief Justice and Chief Judge of the FCFC to be empowered to make rules of court that ensure they are consistent across both divisions. After a period of two years, the power to make rules will revert to the judges of each court or a majority of them;
- retaining the existing parities between the Family Court of Western Australia and the federal courts; and
- requiring the legislation to be reviewed five years after commencement.
What immediately seems apparent is that there is not really a merger of the two courts other than from an administrative framework.
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.”
Division 1 Judges must have experience in family law including matters involving family violence (sect 11(2)(b)).
It has been a repeated complaint by many legal associations and bodies reviewing the family law system that appointments to the Federal Circuit Court by previous governments of practitioners with little or no background in family law – where the significant volume of work in that court is family law – in of itself causes of delay (appeals) and stress to litigants.
The Government has responded to that complaint. Section 111(3) makes it clear that a judge appointed to Div 2, if expected to deal with family law matters must have experience in family law including matters involving family violence.
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 it is arguable that 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.
Since the original iteration of this bill in 2018, Chief Justice Alstergren was appointed dual Chief Justice of the Family Court of Australia and Chief Judge of the Federal Circuit Court and the Rules Harmonisation Committee of both courts is significantly advanced in the drafting of a common set of rules. The Objects of the Act underpin harmonisation.
From a practice perspective, legal practitioners are urged to consider carefully those prts of the FCFCA Act that provide for case management.
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. 67(1) whilst for Division 2 Courts is set out in sect. 190(1).
Sections 67 and 190 contain mirror provisions with the usual motherhood statements of determinations being according to law, quick, inexpensive, efficient and with the resolution of disputes being in a proportionate manner.
Importantly, sections 68 and 191 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”).
Sect 67(4) defines “family law practice and procedure provisions” thus:
The family law practice and procedure provisions are the following, so far as they apply in relation to civil proceedings:
- the Rules of Court;
- any other provision made by or under this Act, or any other Act, with respect to the practice and procedure of the Federal Circuit and Family Court of Australia (Division 1).
Section 190(4) is the corresponding Div 2 provision.
In stark contrast to sect. 123 of the Family Law Act which provides that “The Judges, or a majority of them, may make Rules of Court.” The power to make Rules of Court is vested initially in the Chief Justice of Div 1 or Chief Judge of Div 2.
A Note to subclauses 76(1) and 217(1) states that the power to make Rules of Court will be amended two years after commencement, to provide for the Rules to be made by Judges, or a majority of them, instead of by the Chief Justice/Chief Judge alone.
This amendment will be achieved by Part 4 of Schedule 1 of the Consequential and Transitional Bill, which will amend the FCFC Act two years after commencement to replace references to the Chief Justice or Chief Judge with references to Judges, in respect of the making of Rules of Court. This will bring the procedure for the making of Rules of Court in line with what currently occurs in both the Family Court and Federal Circuit Court.
Dispute resolution provisions in the Act only relate to non-family law matters (Division 2 Courts) which is disappointing but combined with the overarching purpose of the Act, there is the prospect that 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.
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.
Part 3 of the Merger Act provides a prohibition against initiating family law or child support proceedings (other than appellate proceedings) in Div 1.
Section 51 however provides that the Chief Justice may order transfer of a proceeding to Div 1 on the application of a party or on the Chief Justice’s own initiative. Section 51(3) sets out guidelines for whether to transfer a proceeding. Section 52 also provides for the same process where a matter is pending in Div 1.
Other than the sole decision resting in the Chief Justice as to transfer, it is unclear then how this will meet the mischief of treating families as footballs without the relevant Chief Judge or Justice keeping strict supervision of transfers.
Appellate Jurisdiction retained
It can be seen that pursuant to sect. 26 the appellate jurisdiction of Div 1 is retained. Pursuant to sec 32(1), an appeal from Div 2 or Magistrates Court if WA is to be exercised by a single judge unless the Chief Justice “considers that it is appropriate for the appellate jurisdiction to be exercised by the Full Court.
One of the underlying opportunities 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. Under the Merger Bills it would appear that Div 1 justices are both trial and appeal justices.