Budget Review 2020–21 Index
Additional funding has been provided
to federal courts to support more timely resolution of issues in recognition of
the impact of COVID-19 on courts generally and family law and family violence
cases in particular.
Federal court funding
Since 1 July 2016, the
Federal Court of Australia (FCA), the Family Court of Australia (Family Court)
and the Federal Circuit Court of Australia (Federal Circuit Court) have shared
a single administrative body with a single appropriation. (The Federal
Circuit and Family Court of Australia Bill 2019, introduced into Parliament
on 5 December 2019, proposes
the merger of the Family Court and the Federal Circuit Court. The Bill is
currently being examined
by the Senate Legal and Constitutional Affairs Committee (the Committee), which
is due to report by 20 November 2020.)
Impact of COVID-19
COVID-19 is having a ‘substantial
impact’ on federal and state court functions, in civil and criminal cases throughout
Australia, requiring modifications
to practice and procedure, including minimising in-person attendance
at court premises, restricting face-to-face registry services,
hearings, staggering hearing
times and suspending
jury trials. The Chief Justice of the Family Court, the Hon William
Alstergren, in a statement
issued on 26 March 2020, recognised the special impact that COVID-19 is having
on parties to family law matters concerning parenting arrangements. In
particular, Chief Justice Alstergren acknowledged that ‘in the highly unusual
circumstances now faced by Australian parents and carers, there may be
situations that arise that make strict compliance with current court orders very
difficult, if not, impossible’, which in turn could lead to increased demand
for changes to previously agreed parenting arrangements. Coupled with the modifications
to court processes, this increase in demand has inevitably affected the
timeliness of court outcomes.
To expedite urgent matters, the Family Court and Federal Circuit
Court have each established National
COVID-19 court lists ‘dedicated to dealing exclusively with urgent family
law disputes that have arisen as a direct result of the COVID-19 pandemic’. If
a case is accepted onto the list, it is dealt with in an expedited manner—the
that cases on the lists will receive a first return date within three business
days of the application being assessed, or more quickly if the application is
assessed as critically urgent. The courts further advise that the following are
of applications that may be suitable for filing in the COVID-19 list:
- Supervised contact: the current parenting
arrangements involve supervised contact, and the contact centre is closed or
the supervisor is unable to perform their role, and the parties cannot agree on
an alternative arrangement.
- Border restrictions: the parties live in different
States or Territories and the child cannot travel between the parties’
residences due to border restrictions.
- Medical: the parties and/or child have tested
positive for COVID-19 and cannot fulfil the parenting obligations due to
sickness or concerns of infection.
- Family violence: there has been an increase in risk
due to family violence resulting from the restrictions imposed on families
during the COVID-19 pandemic.
Relevant to the last point, a survey of 15,000 Australian
women by the Australian Institute of Criminology (AIC) in May 2020 reported
that ‘two-thirds of women who experienced physical or sexual violence by a
current or former cohabiting partner since the start of the COVID-19 pandemic
said the violence had started or escalated in the three months prior to the
survey’. The AIC notes that various factors have been identified as contributing
to a potential increase in both the prevalence and severity of domestic
violence during the COVID-19 pandemic, including:
- victims and offenders spending more time together;
- increased social isolation and decreased social movement, which
may restrict avenues for women to seek help;
- increased situational stressors associated with domestic violence
(e.g. financial stress and job insecurity);
- offenders feeling out of control due to situational factors and
using violence and abuse as a means of creating a sense of control; and
- increased alcohol consumption among domestic violence
perpetrators [citations removed].
is not peculiar to Australia, with the United Nations recognising:
Violence against women and girls is increasing globally as
the COVID-19 pandemic combines with economic and social stresses and measures
to restrict contact and movement. Crowded homes, substance abuse, limited
access to services and reduced peer support are exacerbating these conditions. Before
the pandemic, it was estimated that one in three women will experience violence
during their lifetimes. Many of these women are now trapped in their homes with
It is in this context that the Government has provided the
following court-related funding:
- $35.7 million over four years from
2020-21 in additional resources and judges for the Federal Circuit Court to
assist with the timely resolution of migration and family law matters (Budget Measures: Budget Paper No. 2: 2020–21, p. 56). The Family Court and Federal Circuit Court explained
that in addition to contributing to the funding of existing positions, this measure
will be used for four additional Federal Circuit Court judges, two additional
migration registrars and five additional family law registrars, as well as
their support staff.
- $2.5 million over two years from
2020-21 for federal family law courts to maintain specialised court lists for urgent matters arising from COVID-19 (Budget Paper No. 2, p. 55). The Family Court and Federal Circuit Court explained
that this measure will provide funding to 30 June 2022 for four registrars and
two registrar support staff.
- $7.7 million over four years from
2020-21 for works to improve the safety and security of the Rockhampton and Launceston
Federal Circuit Court buildings (Budget Paper No. 2, p. 56).
- $5.6 million over two years from
2020-21 to the states and the ACT to support the placement of state child
protection and policing officials in family law courts to facilitate
information sharing between family law, child protection and family violence
systems (Federal Financial Relations: Budget Paper No. 3:
2020–21, p. 71). (Note that this
funding is not reflected in the graph below, as it is provided to states and
territories, rather than the courts.)
- $4.8 million in 2020-21 to support
the Family Violence and Cross-examination of Parties
Scheme (Budget Paper No. 2, p. 56). (Note that this funding is not reflected in
the graph below, as it is provided to legal aid commissions, rather than the
- $1.8 million over four years from
2020-21 to implement Federal Family Violence Orders under the National Domestic Violence Order Scheme (Budget Paper No. 2, p. 56). (Note that this funding is not reflected in
the graph below, as it is not provided to the courts.)
The Government notes that the increased funding will be
‘partially offset by an increase in Federal Circuit Court filing fees for
migration litigants’ (Budget
Paper No. 2, p. 56).
Graph 1 reflects the changes in federal court funding
included in the Budget.
Court, Family Court and Federal Circuit Court
Source: Australian Government, Portfolio
budget statements 2020–21: budget related paper no. 1.2: Attorney-General's
Portfolio, p. 253; Australian Government, Portfolio
budget statements 2019–20: budget related paper no. 1.2: Attorney-General's
Portfolio , p. 141; Australian Government, Portfolio
budget statements 2018–19: budget related paper no. 1.2: Attorney-General's
Portfolio, p.141; Australian Government, Portfolio
budget statements 2017–18: budget related paper no. 1.2: Attorney-General's
Portfolio, p. 218; Australian Government, Portfolio
budget statements 2016–17: budget related paper no. 1.2: Attorney-General's
Portfolio, p. 228.
Stakeholder and media comment
Council of Australia ‘applauded’ the additional funding for the Federal Circuit
Court, considering it ‘a step in the right direction’. However, the Law Council
considered that the budgeted increase in Federal Circuit Court filing fees for
migration litigants ‘is likely to increase social disadvantage to those who can
least afford it’. The Law Council was also disappointed that the Budget did not
provide additional funding for the legal assistance sector, stating ‘a properly
funded legal assistance sector, together with adequate funding for Commonwealth
courts and tribunals, are essential components to the COVID-19 crisis recovery’.
While welcoming the extra funding for the family law system,
which she ‘hoped would speed up hearings for families in dangerous situations’,
Women’s Safety NSW CEO Hayley Foster was critical
of the lack of funding in the Budget to assist women escaping domestic violence.
Journalists Kishor Napier-Raman and Amber Schultz commented
‘Australia’s chronically backlogged, under-funded Family Court system will get
a much needed injection of cash’ and speculated that ‘this could represent a
shift for the Coalition, which has long toyed with a complete overhaul of the
Family Court system’.
All online articles accessed October 2020
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