Family Court of Australia

The Family Court of Australia is a superior Australian federal court of record which deals with family law matters, such as divorce applications, parenting disputes, and the division of wealth when a couple separate. Together with the Federal Circuit Court of Australia, it covers family law matters in all states and territories of Australia except Western Australia. Its core function is to determine cases with the most complex law, facts and parties, to cover specialised areas in family law, and to provide national coverage as the national appellate court for family law matters.^[1]

The Court is especially controversial, largely because it is given wide discretion to decide outcomes without clear rules. It can determine the "best interest of the child", but has used that power ^[2] to ensure that engaged Australian fathers do not get equal time with children, post-separation. The Family court can also determine what a "just and equitable"^[3] distribution of family wealth is in each and every divorce. The Courts supporters say the system is hugely under funded, and that is why delays of 2 to 4 years arise in making decisions.^[4] It critics say The Court is a lawless void that simply exists to transfer wealth from families to family lawyers. The government is considering closing down The Family Court experiment.^[5]

Establishment

Established by the passing of Family Law Act 1975, under Chapter 3 of the Australian Constitution,^[6] it commenced operations on 5 January 1976. It currently comprises a Chief Justice, Deputy Chief Justice, Appeal Division judges and other judges. In July 2008, there were 44 judges (5 of whom were also Judges of the Family Court of Western Australia), 2 judicial registrars and 1 senior registrar.^[6] The Court maintains registries in all Australian states and territories except Western Australia.^[7]

The Court has had three Chief Justices to date, Elizabeth Evatt AC, Alastair Nicholson and Diana Bryant QC (Formerly Chief Federal Magistrate, appointed to current role in 2004).^[8] The Deputy Chief Justice is John Faulks (appointed as a Judge in 1994 and to his current position in 2004).^[9]

The 2008–09 federal budget provided for Family Court expenditure of $137m (including services provided free to the Federal Magistrates' Court).^[1]

Jurisdiction over marriage

Commonwealth family law is dealt with by the Family Law Act 1975, the Family Law Regulations 1984 and the Marriage Act 1961.^[10] In 1986–87, the States agreed that children should be dealt with under the same legislation. The Family Law Act 1975 was amended in 1988 to reflect this agreement (although this did not happen in relation to Queensland until 1990). Western Australia, however, did not enter into the agreement and has maintained its own separate Family Court which deals with federal legislation (such as the Family Law Act) as well as state legislation such as the Family Court Act (WA).^[11]

The Court has jurisdiction over all marriage-related cases in all states and territories of Australia,^[10] except Western Australia^[12] which has its own family court. An avenue of appeal to the Family Court of Australia does however exist in relation to judgments in the Western Australian court.

Its jurisdiction covers applications for declarations of the validity or nullity of marriages, divorces, residence, contact, maintenance, child support and property issues. This jurisdiction, granted under the Family Law Act 1975, is a Commonwealth responsibility under the 'matrimonial causes' head of power in Section 51(xxii) of the Australian Constitution. Prior to 1975, jurisdiction over family law matters was held and exercised largely by state Supreme Courts under the Matrimonial Causes Act.

Difference between married and de facto relationships

The Commonwealth power to legislate for marriage and ‘matrimonial causes’ is supported by sections 51(xxi) and (xxii) of the Constitution, whereas the power to legislate for de facto financial matters largely relies on referrals by States to the Commonwealth in accordance with section 51(xxxvii) of the Australian Constitution. A special cause was created called a ‘de facto financial cause’; see the Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008^[13] Explanatory Memorandum.

However, the definitions of ‘matrimonial cause’ and ‘de facto financial cause’ differ in some respects, due to the different sources of Commonwealth power to legislate for these matters. Paragraphs (a) to (d) of the definition of ‘de facto financial cause’, in the Family Law Act 1975 therefore, limit the proceedings within each of those sections to proceedings taken once the relevant de facto relationship has broken down.

Limited jurisdiction over de facto relationships since 1 March 2009

Hence, from 1 March 2009 a new section in the Family Law Act 1975 has limited jurisdiction over de facto relationships that have a geographical connection with a participating State or Territory, sections 90RG,90SD and 90SK of the Family Law Act. Participating states and territories are: New South Wales, Victoria, Queensland, South Australia, Tasmania, the Australian Capital Territory, the Northern Territory, Norfolk Island, Christmas Island or the Cocos (Keeling) Islands. The states referred de facto matters under Section 51(xxxvii) of the Australian Constitution.

Children of de facto relationships

The Family Court also has jurisdiction over the children of de facto couples and those that have never lived together.^[10] This jurisdiction was acquired by the Commonwealth through a referral of powers agreed between the Commonwealth and all states except Western Australia). The initial referral referred to custody and access in the breakdown of de facto relationships.

Appeals from first instance decisions

Appeals from first-instance decisions of the Court lie to Appeals Division, which includes the Full Court of the Family court.^[10] From the Full court, the only possible avenue of appeal lies to the High Court of Australia, an action which requires the grant of special leave from the High Court.

Relationship with Federal Magistrates' Court

With the establishment of the Federal Magistrates' Court (FMC) in 1999, the Family Court has concurrent jurisdiction in most areas, with the FMC. The FMC was initially given jurisdiction to hear applications for nullity and dissolution of marriage, family law property disputes (where the property in dispute was worth less than $0.3m, or property disputes worth more than this if the parties consented), parenting orders providing for matters such as contact, maintenance and specific issues, and where the parties consented, parenting orders providing for the residence of a child. In December 2000, its jurisdiction was extended to encompass ‘residence’.^[6] The majority of proceedings under the Family Law Act are now filed in the FMC.^[14] In general practice, only the more complex and intractable family law cases are transferred from the Federal Magistrates' Court to the Family Court.^[6]

Proposed changes

In 2008, the federal Attorney-General announced a review^[15] of the delivery of family law services by the Family Court of Australia and the Federal Magistrates Court. A November 2008 report^[16] set out a possible framework of governance options to achieve a more integrated system of case management practices across the family law jurisdiction, with changes in judicial structures and reporting relationships. The report concluded that "there exists a significant level of duplication of administrative structures and corporate services across the Family Court and the FMC and that the existing and proposed duplication is not financially sustainable".

According to the report, all review submissions, with the exception of that provided by the Federal Magistrates' Court, "considered that the most effective model for the delivery by the Courts of family law services would be a single family court, with two separate judicial divisions serviced by a single administration."^[16] The proposed model is similar to that of the Family Court of Western Australia, which the Law Council of Australia, in its submission, had noted as providing a useful model of the structure and functioning of an integrated Family Court. The Law Council stated that "Chapter III courts exercising largely identical jurisdictions, with separate administrations and competing for funds and resources, is wholly unacceptable and that rationalisation and integration of the two federal courts exercising family law jurisdiction is urgently required."^[17]

In her written submission to the Attorney-General, the current Chief Justice, Diana Bryant, noted "the budgetary pressures facing both existing Courts", and that as far as litigants and the public were concerned, there appeared to be significant duplication of resources and functions. She noted that "there are at present two courts with concurrent jurisdiction doing first instance family law work with no legislative differentiation." Her submission favoured combining the current family law functions of the Federal Magistrates Court with the Family Court of Australia under a new Court, with a new name.^[18]

Less adversarial trials

In July 2006, under Division 12A of Part VII of the Family Law Act, the Court implemented its model for 'less adversarial trials' – to be applied to all new child related proceedings in the Family Court, without the need for consent of the parties.^[6] According to the Court, the change from a traditional common law approach to a less adversarial trial "has significant implications, not only for the conduct of family law litigation, but also for the conduct of litigation as a whole."^[1]

According to the Family Court,^[1] "in a less adversarial trial:

• no affidavits are filed before the trial—parents only complete a questionnaire
• the judge, rather than the parties or their lawyers, decides how the trial is conducted
• the judge controls the case and keeps everyone concentrated on the major disagreements about their children’s best interests
• parents and carers can speak directly to the judge, not simply through their lawyers
• the judge identifies the issues to be decided and the evidence to be heard, and
• the judge is assisted by evidence from a family consultant."

Miscellaneous

When the Family Court was established, an attempt was made to make the court less formal and more ‘family friendly’, with a proposal that wigs should not be worn, although gowns would be retained. In 1987, the requirement to wear wigs were reinstated. Judges and judicial registrars of the Family Court of Australia wore a black silk gown, a bar jacket with either bands or a jabot and a bench wig. Now judges wear a black gown (with a red stripe on appeals and formal sittings).

All 3 Courts continue to be under funded. Current delays (2016) range between 2 years (Adelaide) and 4 years (rural Australia). Some divorce proceedings last over a decade. Increasing levels of community dissatisfaction with the delays and the haphazard nature of outcomes, is leading to calls for more substantive reform. Competing reform options include a fast 50/ 50 split(the New Zealand model, now favoured by The Productivity Commission ^[19]), substantially reducing judicial discretion by codifying the existing law , calls for more government funding (The Law Society), calls for more mediation, and "peoples juries" (One Nation)

References

External sources

• Annual Budgetary Statement 2008–09
• Family Law Act 1975
• Family Law Regulations 1984
• Family Law Rules 2004
• Significant judgments of the Family Court of Australia
• Significant family law judgments of the Federal Magistrates' Court
• Significant judgments of the Full Court of the Family Court of Australia
• Family Law and the Family Court of Australia: The First 25 Years – by former Chief Justice Nicholson and M Harrison (Melbourne University Law Review)