Family Court merger opposed by 155 stakeholders, including 13 retired judges

` We believe an increase in specialisation in family law and family violence will increase the safety of children and adult victims-survivors of family violence...

More than 155 stakeholders in Australia’s family law system have now signed an Open Letter to the Attorney-general opposing the Government’s “flawed bill” to abolish the specialist, stand-alone Family Court. These signatories represent a range of professions and community organisations who work with Australian families and include 13 retired Family Court and Federal Circuit Court judges, in addition to former Chief Justices the Hon Elizabeth Evatt AC and the Hon Alastair Nicholson AO RFD QC. This Open Letter was originally issued in November 2019 and was updated this month.

Dear Attorney-general,

We, the undersigned, are writing to you about the Government’s proposal to merge the Family Court of Australia and the Federal Circuit Court of Australia into a single generalised court: the Federal Circuit and Family Court of Australia.

Any reform should strengthen a system, not lead to the diminution of specialisation. If the Government’s proposed reforms proceed, we will lose a stand-alone specialist superior family court.

In acknowledging the need to prioritise the safety of children and adult victims-survivors of family violence in the family law system, government commissioned inquiry after inquiry has recommended increasing specialisation in both family law and family violence, including the recent Australian Law Reform Commission inquiry into the family law system. We believe this should be a Government priority.

We understand and support having a single entry point to the family courts and common rules so the family law system is easier for families to navigate. We understand this is a key reason why the Government is seeking to reform the family courts.

However, there are different ways this can be achieved. And this can be done without abandoning the benefits otherwise available to children and families from a properly resourced and specialised court system.

The Family Court of Australia has said “common rules, forms and complementary case management systems... can be achieved without legislative amendment”.

The Federal Circuit Court of Australia has acknowledged the importance of a single point of entry and common case management system “whether or not the enabling legislative framework is in place”.

Similarly, there are different models for reforming the family courts other than the model proposed by the Government.

The NSW Bar Association has proposed keeping the stand-alone specialist superior family

court. Family Court Judges would be in Division 1 of the Family Court of Australia. Federal Circuit Court judges who are hearing family law matters would move across to Division 2 of the Family Court of Australia.

In this way, federal judges hearing only family law matters would be in a single specialist family court offering judicial, social science and other services.

We believe an increase in specialisation in family law and family violence will increase the safety of children and adult victims-survivors of family violence. This is particularly the case for groups that are disproportionately impacted in the family law and family violence systems, including Aboriginal and Torres Strait Islander people. The need for increased specialisation of courts to improve decisions and outcomes for families is supported by the evidence of many inquiries.

We advocate for further discussion of the different options.

We prefer a model that retains a stand-alone specialist superior family court and increases family law and family violence specialisation, such as the proposal by the NSW Bar Association. The safety of children and adult victims-survivors of family violence requires increased specialisation. The proposed merger serves only to undermine that important need.

While we support just, quick and cheap access to justice and there is a role for increasing efficiencies within our court systems, this must not come at the cost of the safety of children and adult victims-survivors of family violence. These two important imperatives are not mutually exclusive, and one ought not be abandoned at the expense of the other.

Safety must come first in family law.

We would welcome further consultations on alternative models of structural, holistic reform to benefit children, families and victims-survivors of family violence.

Action can also be taken now to further increase family violence specialisation in the family law system through:

• Introducing effective ongoing court-based family violence risk assessment practices

• Early determination of family violence, and

• Increasing family violence competency of all professionals in the family law system.