1.1
On 5 December 2019 the Senate referred, contingent upon introduction in the House of Representatives, the provisions of the Federal Circuit and Family Court of Australia Bill 2019 and the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019 (the bills) to the Legal and Constitutional Affairs Legislation Committee (the committee) for inquiry and report by 20 November 2020.
1.2
The Senate referred the bills to the committee following a recommendation from the Selection of Bills Committee. The report of the Selection of Bills Committee outlined multiple reasons for referral, including to understand the impacts on families across Australia and to hear the view of legal professionals, stakeholder groups and members of the Australian community who may have used the family courts.
Previous bill and committee inquiry
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The bills are broadly the same as the Federal Circuit and Family Court of Australia Bill 2018 and the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2018 (the 2018 bills).
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The 2018 bills were introduced in the House of Representatives on 23 August 2018 and in the Senate on 3 December 2018.
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On 23 August 2018, the Senate referred the 2018 bills to the committee for inquiry and report by 15 April 2019. The committee received 115 submissions and held five public hearings. The committee presented its report on 14 February 2019 with five recommendations, including that the bill be passed. Labor senators presented a dissenting report which included a recommendation that the Senate reject the bills. Senator Rex Patrick presented additional comments with two recommendations, including that the bills not be passed in their current form.
Conduct of the inquiry
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Details of the inquiry were advertised on the committee's webpage. The committee called for submissions to be received by 2 April 2020 and also wrote to a range of organisations inviting them to submit. The committee received 22 submissions, which are listed at Appendix 1.
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The committee held two public hearings in Canberra on 9 October 2020 and 6 November 2020. Witnesses who appeared at the hearings are listed at Appendix 2.
Acknowledgements
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The committee thanks all submitters and witnesses for their participation in the inquiry.
Note on references
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In this report, references to Committee Hansard are to proof transcripts. Page numbers may vary between proof and official transcripts.
Structure of this report
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This report consists of two chapters:
This chapter outlines the key provisions of the bill and provides administrative details relating to the inquiry.
Chapter 2 examines the keys issues raised in evidence and provides the committee's view and recommendations.
Purpose of the bills
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The bills were introduced into the House of Representatives on 5 December 2019 by the Attorney-General, Minister for Industrial Relations and Leader of the House, the Hon Christian Porter MP. In his second reading speech in relation to the Federal Circuit and Family Court of Australia Bill 2019 (FCFC Bill), the minister stated:
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.
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In relation to the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Bill 2019 (Consequential Amendments Bill), the minister stated:
This bill is a companion bill to the Federal Circuit and Family Court of Australia Bill 2019 (the primary bill). It facilitates the transition for court users from the Family Court and the Federal Circuit Court to the Federal Circuit and Family Court of Australia, which will become known as the FCFC, on commencement of the legislation.
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In addition to the creation of a consistent pathway for access to family law courts, the Attorney-General's department (the department) identified three further key objectives of the legislation:
to ensure family law disputes are resolved in the most timely, informed and cost effective manner possible
to create a better legislative framework for the courts to implement consistent processes for the early identification of urgent and high risk matters, including in relation to family violence, and
to retain existing arrangements for general federal law matters.
The family law system
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The power to legislate with respect to family law resides with both the Commonwealth and the states and territories. Under the Constitution, the Commonwealth has the power to legislate with respect to 'marriage' and 'divorce and matrimonial cases; and in relation thereto, parental rights and the custody and guardianship of infants'. In addition, all states (excluding Western Australia) have referred their powers to the Commonwealth, providing it with the jurisdiction to legislate with respect to matters of family law.
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There are two Commonwealth courts that consider family law matters under the Family Law Act 1975 (Cth) (the Family Law Act):
Family Court of Australia (the Family Court); and
Federal Circuit Court of Australia (Federal Circuit Court).
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The Family Court of Western Australia (FCWA) hears family law matters under both state and federal jurisdictions.
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The federal Family Court exercises original and appellate jurisdiction in family law, including in a number of highly specialised areas. It determines cases with the most complex law, facts and parties, and considers appeals from decisions of single judges of the Family Court, from judges of the Federal Circuit Court in family law matters and from the Family Court of Western Australia. The Family Court has jurisdiction under all aspects of the Family Law Act.
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The Federal Circuit Court hears matters with respect to all aspects of the Family Law Act with the exception of adoption and applications for nullity or validity. In addition, the Federal Circuit Court has jurisdiction to hear any matter within the jurisdiction of the Family Court that the Family Court transfers to it. The Court has the same jurisdiction as the Family Court in relation to child support. In addition to family law matters, the Federal Circuit Court also hears matters in relation to migration law, and areas of general federal law, including administrative law, admiralty law, bankruptcy, consumer law (formerly trade practices), human rights, industrial, intellectual property and privacy.
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The FCWA was established in 1976 to consider matters under both state and federal law and deals primarily with disputes arising out of relationship breakdowns.
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Further discussion of the functions, jurisdiction and structures of all three courts is outlined in the committee's report on the 2018 bills.
Background and context of the bills
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The need for reform to family law courts, and the family law system more generally, has been considered in a number of reviews for government, including:
the 2008 Semple Review, Future Governance Operations for the Federal Family Law Courts in Australia: Striking the Right Balance;
a 2014 KPMG Review, Review of the Performance and Funding of the Federal Court of Australia, the Family Court of Australia and the Federal Circuit Court of Australia;
a 2015 EY Report, High Level Financial Analysis of Court Reform Initiatives;
the 2017 House of Representatives Standing Committee on Social Policy and Legal Affairs Report, A better family law system to support and protect those affected by family violence: Recommendations for an accessible, equitable and responsive family law system which better prioritises safety of those affected by family violence;
a 2018 PricewaterhouseCoopers Report, Review of the efficiency of the operation of the federal courts; and
the 2019 Australian Law Reform Commission report, Family law for the Future – An Inquiry into the Family Law System.
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The committee's report on the 2018 bills discussed in some detail the nature and findings of the above reports, excluding the ALRC’s report which is discussed below.
Australian Law Reform Commission’s 2019 report
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On 9 May 2017, the government announced its intention to direct the ALRC to conduct a comprehensive review of the family law system. This was the first of its kind since the commencement of the Family Law Act in 1976.
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The terms of reference required the ALRC to consider the need for, and make recommendations of, reform to the Family Law Act and related legislation, in the context of the following:
the appropriate, early and cost-effective resolution of all family law disputes;
the protection of the best interests of children and their safety;
family law services, including (but not limited to) dispute resolution services;
family violence and child abuse, including protection for vulnerable witnesses;
the best ways to inform decision makers about the best interests of children, and the views held by children in family disputes;
collaboration, coordination, and integration between the family law system and other Commonwealth, state and territory systems, including family support services and the family violence and child protection systems;
whether the adversarial court system offers the best way to support the safety of families and resolve matters in the best interests of children, and the opportunities for less adversarial resolution of parenting and property disputes;
rules of procedure, and rules of evidence, that would best support high quality decision making in family disputes;
mechanisms for reviewing and appealing decisions;
families with complex needs, including where there is family violence, drug or alcohol addiction or serious mental illness;
the underlying substantive rules and general legal principles in relation to parenting and property;
the skills, including but not limited to legal, required of professionals in the family law system;
restriction on publication of court proceedings; and
improving the clarity and accessibility of the law.
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In the course of its inquiry, the ALRC produced an issues paper, to which it received 240 submissions, and a discussion paper, to which it received 186 submissions. It undertook three rounds of consultations:
preliminary consultations between October 2017 and February 2018;
second round consultations between March and August 2018; and
final round consultations between October 2018 and February 2019.
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The ALRC's final report made 60 recommendations relating to a number of matters including:
'closing the jurisdictional gap';
a simplified approach to property division;
encouraging amicable resolution;
case management: efficiency and accountability;
compliance with children's orders;
support services in the courts;
building accountability and transparency;
Joint Select Committee on Australia’s Family Law System
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The Joint Select Committee on Australia's Family Law System was appointed by resolution of the Senate on 18 September 2019 and resolution of the House of Representatives on 19 September 2019.
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The committee was established to inquire and report on various issues relating to family law, including:
beyond the proposed merger of the Family Court and the Federal Circuit Court any other reform that may be needed to the family law and the current structure of the Family Court.
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The committee tabled an interim report in October 2020 and is to table its final report on the last sitting day in February 2021.
Key provisions of the bills
One court comprising of two divisions
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The bills propose to establish the Federal Circuit and Family Court of Australia (FCFC), which would comprise of two divisions—Division 1 would be a continuation of the Family Court of Australia (Family Court), while Division 2 would be a continuation of the Federal Circuit Court (FCC). Division 1 would be considered a superior court of record and a court of law and equity, and Division 2 would be a court of record and a court of law and equity.
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The FCFC would operate under the leadership of one Chief Justice, supported by a Deputy Chief Justice, with each holding a dual commission to both Division 1 and Division 2. The Deputy Chief Justice would hold a dual commission as Deputy Chief Judge (Family Law) of the FCFC (Division 1). There would also be a second Deputy Chief Judge (General and Fair Work) of the FCFC (Division 2).
Single point of entry
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The bills would establish a single point of entry into the federal family law system, providing that all first instance family law and child support matters would be filed in Division 2 of the FCFC and applicants would be barred from filing such matters in Division 1. Matters could be subsequently transferred to Division 1 as appropriate.
Exercise of appellate jurisdiction
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The bills would preserve the existing Family Court appellate jurisdiction within the FCFC Division 1. The bills provide that there would no longer be an appeals division to which select judges would be appointed, rather, Division 1 judges would be able to hear appeals, both as individual judges and as members of a full court.
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Appeals from decisions of the FCFC Division 2 would be ordinarily dealt with by a single judge from Division 1. The Chief Justice would have the ability to convene a Full Court to hear an appeal from Division 2, where appropriate.
Consequential amendments and transitional provisions
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The Consequential Amendments Bill would make consequential amendments across Commonwealth statutes to update other references to legislation. The bill would also ensure that appropriate transitional arrangements are in place, including for matters before the federal courts at the time of commencement of the FCFC Bill.
Differences between the 2018 and 2019 bills
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A number of changes have been made to the bills as they were presented in 2018, including changes to address this committee's recommendations and stakeholder concerns. Key changes include that:
the bills provide that all federal family law and child support matters are to be filed in the FCFC Division 2;
the FCFC bill provides that the regulations may prescribe a minimum number of judges for Division 1 (the government’s intention is to make a regulation that would prescribe 25 as the minimum number of judges to hold office in the FCFC Division 1);
the FCFC bill includes a new qualification requirement for proposed judicial appointments to Division 1 and Division 2, that explicitly refers to a need for a person appointed as a judge to be a suitable person to deal with family law matters, including matters of family violence;
all Division 1 judges would be able to hear appeals as individual judges and members of a full court;
the bills provide for two Deputy Chief Judges in the FCFC Division 2 with one responsible for family law matters and the other responsible for general federal law and fair work matters, and the Deputy Chief Justice of Division 1 may be dually appointed to Division 2;
the bills would create the position of Chief Executive Officer and Principal Registrar Division 1 to assist the Chief Justice of Division 1 and Chief Judge of Division 2;
the bills would enable the Chief Justice and Chief Judge to make Rules of the Court for each respective court for a period of two year during the harmonisation phase before reverting to rules being made by a majority of judges; and
the bills provide for a review of the operation of the legislation to be conducted within six months after the fifth anniversary of the commencement of the Act.
Consideration by other parliamentary committees
Senate Scrutiny of Bills Committee
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The Scrutiny of Bills Committee (the scrutiny committee) drew attention to its comments in relation to the earlier versions of these bills regarding two concerns about the broad delegation of administrative powers in the 2018 bills.
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The 2018 bills provided that the Chief Justice may authorise, in writing, 'a person or a body' to assist in the handling of a complaint, where a complaint is made about a Judge of Division 1 or Division 2 of the FCFC. The scrutiny committee raised concerns that the bills delegate administrative powers 'to a relatively large class of persons, with little or no specificity as to their qualifications or attributes'.
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Following the response provided by the Attorney-General, the scrutiny committee requested that the explanatory memorandum be amended to require the Chief Justice and Chief Judge to be satisfied that person is authorised to handle complaints possess appropriate expertise. The explanatory memorandum to the Federal Circuit and Family Court Bill 2018 and subsequently the 2019 bill were amended to include:
It is anticipated that the persons authorised to handle complaints would continue to be limited to the Deputy Principal Registrars and the Deputy Chief Justice of the FCFC (Division 1). However, as stated above, giving the Chief Justice broad delegation power in subclause 48(2) will allow the necessary and appropriate flexibility in the complaint handling process.
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The scrutiny committee also raised the concern that the 2018 bills allowed the Sheriff, Deputy Sheriff, Marshall, or Deputy Marshall of Divisions 1 and 2 of the FCFC and the Federal Court of Australia to authorise 'any person' to assist in the exercise of powers and performance of functions.
1.41
Following the response provided by the Attorney-General, the scrutiny committee requested that the explanatory memoranda provide further clarity about the types of persons who may be authorised to assist officers of the federal courts in performing their functions. The explanatory memoranda to the 2018 bills and subsequently the 2019 bills were amended to include:
It is noted that those persons currently authorised to provide assistance are State and Territory Sheriff's officers…the persons authorised under the provisions would continue to be limited to State and Territory Sheriff's officers.
Parliamentary Joint Committee on Human Rights
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The Parliamentary Joint Committee on Human Rights had no comment on the bills.