Courts merger done, Christian Porter must detail how he will help forlorn families

Merging the two courts that handle family law will not be the ­calamity lawyers are claiming. Nor will it fix the nation’s dysfunctional family law system. In fact, very little is likely to change at all.

Now that Attorney-General Christian Porter has won the support of Senate crossbenchers to merge the Family Court and Federal Circuit Court, it is time he explained what else he will do to ensure families don’t stagger from this system broke — and broken — after years of trying to resolve their disputes.

The Law Council has said the merger will put victims of domestic violence at risk by collapsing a specialist court (the Family Court) into a generalist court (the Federal Circuit Court).

This fear is likely to be overblown. Both courts will continue to operate as separate divisions of the new Federal Circuit and Family Court. If anything, the bill will improve specialisation — if the government complies with it.

Lower-level judges already handle almost 90 per cent of family law cases.

For the first time, anyone appointed to the lower division must have the “knowledge, skills, experience and aptitude” to deal with family law cases, including those involving violence.

There will be a new 25-judge minimum set for the upper division. Since its creation in 1999, the Federal Circuit Court (originally the Federal Magistrates Court) has handled an increasing share of family law cases. This legislative floor will make it harder to let the Family Court wither.

The real change is that there will now be a single entry for all cases, and the courts will decide where a case should be heard.

Big bucks are involved in the family law system. NSW barrister Michael Kearney SC told a parliamentary inquiry top family law silks charged up to $20,000 a day.

Leading lawyers will no longer be able to take their cases straight to the court’s upper division — but chances are, the complex, big-money cases will be heard there anyway.

The Chief Justice will also have the power to approve one set of rules for both courts, to ensure they operate consistently, and there will be changes to appeals.

Successive governments have tried and failed to reduce the three federal courts to two.

Former attorney-general Robert McClelland tried to scrap the Federal Circuit Court by sending some of its judges to the Federal Court and some to the Family Court. The lower-level judges revolted and killed the idea.

George Brandis as attorney-general laid the groundwork for the current merger when he charged the Federal Court with running the back office of all three courts. He then appointed Will Alstergren as the chief of the Family Court and Federal Circuit Court.

The NSW Bar Association has tried to argue that McClelland’s plan should be resuscitated so Federal Circuit Court judges handling family law cases are sent to the Family Court to form a new division, but it is unclear how this would have become palatable to lower-level judges.

Once this merger is done, we can put three years of political bickering behind us.

Then it will be up to Porter to explain what else he is going to do to ensure that heartbreaking cases involving children do not drag on for years.