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NSW Bar proposes ‘Family Court 2.0’
The NSW Bar Association has offered an alternative reform structure for the family law courts system to the one proposed earlier this year by Attorney-General Christian Porter.
Jerome Doraisamy
The association has suggested, by way of a discussion paper, that a specialist “Family Court of Australia 2.0” be put in place instead of the proposed amalgamated entity called the Federal Circuit and Family Court of Australia, with a new Family Law Appeal Division in the Federal Court.
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NSW Bar president Arthur Moses SC said the association agrees with the government that the experiment of sharing jurisdiction between two federal courts and running family law matters in separate courts with separate rules and procedures had failed.
“However, we believe that further consolidation must be given to the question of whether the model proposed by the attorney-general is the only way forward,” he said.
“There is an opportunity for a national discussion to consider whether an alternate federal court restructure might be possible to realise the cost and time efficiencies proposed while retaining a single court entity as a specialised, properly resourced Family Court of Australia 2.0.”
The Federal Circuit Court currently has a “crushing workload”, he continued, with delays of up to three or more years and judges having 500 matters in their case lists, and thus it seems odd to collapse into that complex Family Court matters which involve care of children and relationship issues.
As such, NSW Bar’s discussion paper has suggested that consideration be given to an alternate restructure model whereby the Federal Circuit Court ceases to operate as a separate, third federal court and its current family law jurisdiction and workload is transferred to a new lower level division to be created in the Family Court 2.0, with its non-family law work moving to a new lower level division in the Federal Court.
Further, the Federal Circuit Court’s judges and resources should be divided and re-allocated between the new divisions of the Family Court 2.0 and the Federal Court, consistent with the proportion of work undertaken, and the Family Court 2.0 should retain its appellate family law jurisdiction.
“There is a need for a national discussion to consider whether this alternate model will streamline resourcing, reduce costs and provide greater consistency, as well as opportunities for specialisation, career development and progression of judges,” Mr Moses noted.
For forty years, the Family Court of Australia has been “one of Australia’s premier legal institutions”, he argued, as a specialist superior court admired by other family law jurisdictions for its innovative management of complex and difficult family law matters.
“A specialist family court should not be disassembled without informed consideration of alternative options,” he concluded.
“The Family Court can be a gold star institution once again but this requires reform in two key areas: structural improvement to unify the family law system by creating a single family court, and a proper funding and resource commitment from government.”
“It is time we had a national conversation about a Family Court of Australia 2.0.”
NSW Bar’s proposal follows commentary from lawyers across the country, including boutique practitioners who slammed the proposed amalgamated court structure.
