The Malcolm Turnbull government has announced it will merge the Family Court of Australia into the Federal Circuit Court (FCC), a move it says will allow the federal court system to reduce its growing backlog of family law cases, some of which date back years.
But is this rationalisation due to a desire to improve the system, or due to a lack of funding and appointment of judges and court officials, which has greatly undermined the Family Court’s ability to effectively implement divorce law?
Is it a politically motivated decision that seeks to undermine the special brief and work that the Family Court was created to deal with? Since its inception, the Family Court has helped raise the public visibility of violence against women and children in family contexts, earning it the ire of “men’s rights” activists and right-wing religious groups.
Perhaps the federal government’s decision is due to deals it has struck in the Senate to get government legislation adopted in that house. This would seem to be a motivating factor for Attorney-General Christian Porter, who began talks with senators Pauline Hanson and Derryn Hinch, opponents of the Family Court, only hours after the proposed merger was announced on May 29.
Likely, it is a consequence of all three.
Controversial court
Following its election in 1972, the Gough Whitlam Labor government took steps to improve the situation of women. Among them was the creation of the Family Court as a second federal court alongside the Federal Court of Australia.
At the time, women had no financial independence to open a bank account and needed a male guarantor to purchase a car or house. Rape in marriage was not recognised by the law.
In 1973, the Whitlam government introduced the family law bill that led to the establishment of the Family Court in 1975.
The Family Court set the framework for the dissolution of a marriage: a no-fault divorce based simply on the grounds that the marriage had broken down. This was very different from the preceding punitive, male-dominated legal framework for divorce.
Where there were no disputed parenting issues, such as financial support, property distribution or arrangements for children, the court essentially played no active role.
But where such items were contested, the Family Court prioritised the best outcome for children in its considerations. This was especially the case for situations involving physical violence and sexual mistreatment of children or violence against their mothers – what became known as domestic violence.
The Family Court generated a great deal of opposition, especially from the Roman Catholic and Protestant churches, who view the family unit as a private institution within which the man stands at its head.
A change in the federal court structure took place under the John Howard Coalition government.
Motivated by its belief that men and boys were being disadvantaged by the Family Court, the Howard government established the FCC in December 1999.
The stated aims of the FCC were to deal with the expanding backlog of cases in the Federal Court and Family Court and, through its unique regional circuit routine, provide more accessibility to justice.
The FCC’s brief was to operate informally and use streamlined procedures to deal with supposedly less controversial cases. However, given the complexity of contested cases involving children, delays often occur as cases are shifted between the FCC and Family Court.
‘Insidious campaign’
Alastair Nicholson, a chief justice of the Family Court from 1988 to 2004, sees the merger proposal as an “insidious campaign” by the Turnbull government “to undermine the Family Court” and get rid of the specialist family law division of the courts system.
Nicholson has also questioned the timing of Turnbull’s announcement, given that the Australian Law Commission is in the process of carrying out a detailed examination of what it describes as “a root-and-branch review of the family law system”.
It is not that critics like Nicholson do not see the need for the kinds of changes that such a report might generate. Rather, it is that the current proposal coming from Turnbull and Porter flies in the face of expert evidence gathered through research and parliamentary inquiries, which is readily available to the government.
Much of this evidence points to the fact that the loss of a specialist family law division would increase the risk of violence towards women and children. And these risks are all too real: so far this year, 39 women in Australia have been killed as a result of domestic violence.