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Issue #1951 • 1st March, 2021

Safety must come first

Don’t abolish the Family Court!

On Wednesday, 17th of February, a Bill passed the Commonwealth Parliament to merge the Federal Circuit Court with the Family Court of Australia. The move has been broadly criticised by community advocates, legal scholars, and survivors of domestic violence. It is a decision which seems at odds with the government’s commitment of $140 million in resources for federal family law cases in 2020. The merger process is set to begin within six months.

The Family Court of Australia was established in 1975 to deal with complex family law matters in a manner which “respect[s] the needs of separating families.” Two decades later in 1999, the Federal Circuit Court of Australia (FCC), formerly known as the Federal Magistrates’ Court, was established to relieve the workload of the Federal Court and the Family Court. It has broad jurisdiction across federal matters including industrial relations law and migration law, but the bulk of cases heard in the FCC are routine family law cases. Complex family law matters – involving large sums of money, mental health issues, international law issues, or large amounts of evidence, among other things – are heard in the Family Court.

Under Chapter III of the Constitution, the Commonwealth parliament is empowered to create and abolish Courts in accordance with certain criteria – these are known as Chapter III Courts. The Federal Court System consists of three chapter III courts – the Federal Court, the Family Court and the Federal Circuit Court. It is this section that empowered the Parliament to decide to abolish the Family Court.

In a speech to the Senate on the Bill, Liberal Senator Amanda Stoker stated that the Family Court’s abolition was intended to “end unnecessary confusion, cost and delay.” Attorney-General Christian Porter likewise summed up the change as “a simpler, faster and cheaper system.” It is difficult to see how this is the case.

This decision is a direct attack on Australian families, and especially Australian women. 155 stakeholders including CLCs Australia, Domestic Violence NSW, National Aboriginal and Torres Strait Islander Legal Services (NATSILS) and the Law Council of Australia have signed an open letter opposing the bill. It reads, in part:

“We prefer a model that retains a stand-alone specialist superior family court and increases family law and family violence specialisation ... 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”

In Victoria, there is an overarching purpose which defines the values of our civil justice system; “to facilitate the just, efficient, timely and cost effective resolution of the real issues in dispute.” There are equivalent provisions in most Australian jurisdictions, including the federal courts. The general idea is that courts ought to balance litigation costs with its complexity and potential for raising controversial issues. The ultimate aim is to reduce the workload of the Court and free it up for legally important cases to be heard in a timely manner while keeping legal costs proportionate. Therefore, a judge may decide that a case will not proceed to trial for a variety of reasons.

One way that this is done is by diverting non-complex cases into alternative dispute resolution (ADR). ADR is an umbrella term for practices like mediation, arbitration and conciliation which occur outside of the courtroom as an adjunct to formal justice. They are conducted by trained professionals who usually are not judges and are designed to be a more informal alternative to a traditional court trial.

In Australia’s common law system, a Court’s decisions may influence how the law applies in Courts of equivalent or lower authority. The Family Court is one of Australia’s most authoritative courts, second only to the High Court, and equivalent to the Federal Court. Hence, the Family Court sets potentially important precedent in cases which come before other courts. The complex matters heard there might span many areas of law and provide an opportunity for judges to develop the law. This may be seriously undermined if cases are diverted from the Court due to an increased workload.

There are arguments to be had for ADR as a preferable alternative to traditional trial-based legal action. It is cheaper, more accessible insofar as it is easier to navigate, it increases autonomy for the people involved and is more community-focused. But ADR mechanisms do not work in situations where there is a power imbalance, such as in cases of separation involving domestic violence.

Women’s Legal Services Australia suggests that up to 85 per cent of Family Court matters involve domestic violence and that many people, mostly women, turn to the Courts for protection in times of crisis. Given this, it is not appropriate to divert many family law cases from the courtroom.

Thus, even non-complex cases in family law cases may need to proceed to trial. Far from saving time and money, the merger has the potential to increase wait times and costs and place a massive burden on the FCC – the exact same burden that prompted its foundation in the first place.

As Communists, we recognise the bourgeois nature of the legal system and its courts. The capitalist nature of Australian society influences our laws, and many legal structures perpetuate systemic oppression based on race, gender and class. But while reforming these institutions cannot lead to the ultimate emancipation of the working class, they nonetheless act as a stopgap which protects some of the most vulnerable among us. Gendered rhetoric cuts across the unity of the working class and divides us internally. In particular, as working-class families become increasingly isolated, there are fewer places to turn to in times of crisis. This is before one considers how women are systematically disadvantaged in separation and divorce and are many times more likely to experience domestic violence.

The Family Court provides a forum for ensuring the rights of Australian families in difficult situations are respected and upheld according to the dictates of bourgeois law. Neoliberal political rhetoric praises the law as an impartial watchdog, protecting our rights. Whether or not this rhetoric is justified – and we would be inclined to say that it is not – institutions like the family court hold bourgeois law to account. The rights enforced by the Family Court are hard won by generations of working class activism and advocacy. The merger of the Family Court with the Federal Circuit Court ought to be condemned in the strongest possible terms, as the watering down of our hard won protections.

Next article – Qld Labor government’s misguided crackdown on juvenile crime

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