Background to proposed changes to the Courts that deal with family law

Towards the end of the last millennia, when John Howard was Prime Minister, changes were made to the family law system. A new, simpler streamlined court for matters that were not complex enough to justify going to the Family Court of Australia would be dealt with by the new Federal Magistrates Court.


Now, under the Turnbull government, it seems that we are to have a new, simplified streamlined court process which will involve merging the Federal Circuit Court (previously the Federal Magistrates Court) and the Family Court of Australia.


There were some cynics at the time of the introduction of the Federal Magistrates Court who noted that the Chief Justice of the Family court was being critical of government policy and by creating a new court structure the relevance and power of the Chief Justice would be diminished.


The structure then in place for the Family Court of Australia was somewhat unwieldy. The author can recall that in Brisbane, for instance, certain simple matters could be dealt with by one of the  six  or so Registrars, more complex issues could be sent to the single Judicial Registrar who would probably not have time to deal with them but then farm them off to the various judges who could deal with more complicated issues.


The role of the Judicial Registrar was, it seemed, thankless and somewhat inefficient.


The new system created a Federal Magistrate level to deal with matters that would otherwise have taken time in the Family court or the Federal Court. One difficulty this raised was that some of the new Magistrates had family law experience and some had Federal Court experience (for example bankruptcy), and now they had to be able to do both.


Because the new court was expected to be able to deal with simpler matters it had a streamlined process that was meant to be easier to follow and less rigid than the Family Court. Matters were handled by the same judge from start to finish using the “Docket system” where each case was allocated to a judge and stayed with them.


The family court was able to do away with the Registrar/Judicial Registrar/judge process and matters would simply be listed before a registrar who would deal with them before they were ready to go before a judge.


A further complication was the Magellan system that was introduced 15 years ago in the Family Court for dealing with serious allegations of physical and sexual child abuse. Matters of that nature would be taken from the Federal Circuit Court to be dealt with in a more specialised matter.


Budgetary restraints introduced by the federal government meant that the mediation process previously provided by the family courts could no longer be funded in all matters and so there was an increased use of external mediation providers.


Over time there became a recognition that there was a shortage of both Family Court Judges and Federal Magistrates.


Complaints about underfunding of the system have been frequent in recent years.


There have been complaints about the length of time it takes to bring matters to trial. There of property always been complaints that they have become more frequent of late, it seems.


So the Federal Government has decided to innovate and merge the courts back together again.


We shall review the proposed changes in a further article.


Patrick Earl

Senior Solicitor

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