In September 2021, after years of consideration and advise, the Federal Circuit Court and Family Court were merged together. As with any large ‘merger’ there have been various teething issues identified by both Lawyers and Litigants in the past six months. Most notably, in recent weeks concerns have been raised regarding the legitimacy a certain set of Orders that the combined Court has been making.
The Age newspaper published a story on 3 April 2022 in which it advised readers that “cases that were before the old Family Court and transferred directly into the equivalent section of the merged court – known as Division 1 – could have question marks over any orders issued. Under the new laws, all cases must start in Division 2 – formerly the Federal Circuit Court – and those that are more complex are transferred to Division 1. “
There is concern regarding the Court’s jurisdiction (or power) to make Orders in cases which were filed in the old Family Court and then transferred into Division 1 (instead of Division 2) after the merger. The legislation does not properly address this issue and as a result there may be scope for parties to challenge the legitimacy of the Final Orders made.
Court experts believe that a few hundred cases may be effected by the legislative error.
The Age reported that there may be potential problems for people whose cases were filed before the merger and whose court orders had been made since September, and cases where a judge had heard evidence but was yet to make a decision. This is particularly the case for issues of enforcement, where the Orders may not be enforceable.
On 31 March 2022, the Court released a statement addressing this issue by stating that this ‘gap’ in the legislation will only effect “a small, discrete number of cases that were pending in the Family Court of Australia immediately prior to 1 September 2021”.
In the media release the Court reminded litigants that “orders of the Federal Circuit and Family Court of Australia (Division 1), as a superior court of record, are valid and enforceable unless and until set aside on appeal or pursuant to prerogative writ. The public is entitled to have confidence that the orders of the Court are valid and the Court expects that orders will be complied with. In the family law jurisdiction, this is of particular importance to ensure the safety of children and vulnerable litigants.”
The Court will work with Government to ensure a legislative clarification can be progressed at the earliest opportunity. However, it is unlikely that this issue will be resolved anytime soon as Parliament will not sit until the end of June at the earliest because of the timing of the federal election.
If you are concerned that your case may be affected by this issue we recommend that you obtain legal advice to understand your options. Our experienced Family Law team are available to answer all of your questions to help put your mind at ease.
For further information on this topic, please see the Media Statement provided by the Federal Circuit and Family Court on 31 March 2022.