Message from the President - Passage of Family Courts Merger Bill

22/02/2021

The New South Wales Bar Association echoes the disappointment expressed by many over the passing of the Government’s merger bill by the Parliament last week, including the Law Council of Australia, Women’s Legal Services Australia, Australian Women Against Violence Alliance, Community Legal Centres Australia, NATSILS, retired Chief Justices and retired judges.

The Family Court of Australia 2.0 model put forward by the Association in July 2018 as an alternative to the merger remains the model preferred by more than 155 individuals and organisations who work in the family law system serving families and children.

Unlike the Family Court of Australia 2.0 model, the Government’s merger will have the effect of abolishing a stand-alone specialist Family Court as we know it, collapsing it into the under-resourced and over-worked Federal Circuit Court.

In proposing the 2.0 model, the Association said that there was a “pressing need for a national discussion about the future of family law in Australia” and a “national conversation about the benefits of preserving a specialist family court in Australia”.

In the course of parliamentary debate on the 2019 merger bill, the Association’s 2.0 model was referred to on more than 30 occasions in the House of Representatives and the Senate.

While the Association is disappointed with the outcome of the vote, we are proud to have made an important contribution to informing this critical public discussion and advocating for the best interests of Australian children, families and victims of family violence. We will continue to do so.

As stakeholders said last week, the interests of families and children have always been at the heart of the legal profession’s advocacy on this critical issue and we will continue to do whatever is possible to support the new Court in the delivery of justice to Australian children and families.

The Association said in 2018 that the Family Court could not be a gold star institution without “proper funding and resource commitment from government”. Regrettably, the merger bill was not accompanied by any additional funding for many states and territories, including NSW.

This is despite the fact that even before the COVID-19 pandemic, the Family Court and Federal Circuit Court were each already facing backlogs of more than a year’s worth of cases.

As at November 2020, five Federal Circuit Court Judges in the Sydney registry had between 300 to 400 cases each in their dockets. Another Sydney-based Federal Circuit Court Judge and three Federal Circuit Court Judges at the Parramatta Registry had between 400-500 cases in their dockets. One further Judge in the Parramatta Registry is currently not sitting. The single Federal Circuit Court Judge in the Wollongong registry had more than 600 cases in their docket and has not been replaced since being elevated to the Family Court. The Chief Judge of the Federal Circuit Court, as his Honour then was, had suggested some years ago that reforms to reduce the number of cases to something like 100 cases per judge would be needed to significantly reduce delays. Regrettably, that has not occurred and these reforms will not do so.

More than 10 Judges across the Family Court and Federal Circuit Court nationally will be retiring in 2021-22. It is critical that these appointments are promptly replaced to avoid contributing to further delays for parties.

The single most significant driver of legal costs in family law is delay in having matters proceed through the courts and this will be compounded by the merger. The Association will continue to work with stakeholders to advocate for proper resourcing of the NSW registries in a system that has been neglected for more than a decade.

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