Legal bodies slam Family Court merger bill

The legislation burdens Australian judges with an “impossible task,” the bodies say

Legal bodies slam Family Court merger bill

A number of legal bodies have slammed the recent passage of the bill that merges the Family Court with the Federal Circuit Court.

Over 150 stakeholders opposed the legislation, including the Law Council of Australia, Women’s Legal Services Australia, Community Legal Centres Australia and the National Aboriginal and Torres Strait Islander Legal Services.

In a joint statement, the bodies called the bill’s passage “a disappointing outcome for Australian children and families” and expressed their concern that abolishing the Family Court would do more harm than good.

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“There is much more evidence to support the damage that will be done by the merger, including harm to families and people experiencing family violence,” the group said. “The government and new court will be under heavy scrutiny to deliver court efficiency, resolve 8,000 additional cases, reduce costs, reduce the time separating families will spend before the court and reduce delays, even allowing for the impact of COVID-19.”

The coalition also highlighted the evidence given by the attorney-general’s department last December to the inquiry into family, domestic and sexual violence – the department said that “there hasn't been a specific study of what impact the merger would have with respect to family and domestic violence issues.” In addition, the department had not consulted with children’s services, children’s groups or children’s advocates nor established a working group with the Office of Women in the process of developing the merger.

“As the impacts of the devastating shadow pandemic of family violence experienced during the COVID-19 pandemic continue, now is not the time to proceed with an unnecessary, risky bill that has been opposed by all non-government members of the House of Representatives,” Law Council President Dr Jacoba Brasch QC said.

Angela Lynch AM, spokesperson for Women’s Legal Services Australia, said that the organisation opposed the bill with the view of “ensuring the safety and best interests of the child and the safety of adult victim-survivors of family violence in family law proceedings.”

“The merger would move away from a specialist family court model, exposing survivors of family violence to unnecessary risk,” Community Legal Centres Australia CEO Nassim Arrage said.

Moreover, the bodies’ joint statement said that the legislation “tasks Australian judges with an impossible task,” pointing out that there were eight unfilled judicial vacancies in the Family Court and the Federal Circuit Court as the bill went through the Consideration of Detail stage.

“At least ten judges practising in family law are to retire in 2021-22,” the group of stakeholders said. “Those voting for the bill have tasked the court to deliver the projected outcomes with fewer resources than are needed to do the job.”

Another dissenter was the Australian Bar Association (ABA), which posited that the merger would not “significantly and positively” affect the country’s family law system and pointed to a lack of resources as the main issue a merger would not fix.

“The Family Court of Australia has been under-resourced for many years and before dismantling the court, careful consideration must be given to the value that maintaining a properly resourced specialist family court would bring,” ABA President Matthew Howard SC said. “The ABA fully supports steps being taken to address the practical challenges faced in the family law jurisdiction, including proper resourcing, implementation of harmonised rules and forms between the Family Court of Australia and the Federal Circuit Court and simplification of the Part VII of the Family Law Act.”

However, Attorney-General Christian Porter said in a statement published by ABC that the reforms would make the legal system faster and cheaper for those seeking resolution to family disputes.

“Successive governments have been talking about delivering reform of the family courts for decades – the Morrison Government has delivered,” he said.

The Senate passed the Family Court merger bill on Wednesday.

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