Proposed amalgamation of the Federal Courts

Last week the Courts Administration Legislation Amendment Bill 2015 was introduced in the Senate. The proposed legislation is intended to bring the Federal Court of Australia, the Family Court of Australia and the Federal Circuit of Australia into a single administrative entity and make legislative provision for the courts to share corporate services.

In light of the funding crisis being experienced by the Federal Courts at this time it would appear that an aim of this proposed legislation is to save money in relation to administration costs. However, a concern has been raised in relation to the Bill as to whether expected savings can be achieved - without cuts to services.

Family Courts in crisis

You may have seen some media items recently regarding the current state of the Federal Circuit Court (FCC).

The FCC is responsible for the vast majority of family court proceedings.

The media has recently reported that the Chief Judge of the FCC is considering moving Judges from the Wollongong and Parramatta registries to the Sydney registry. The Court was quick to clarify that there was no current intention to close the registries in those areas, just that it was considering moving Judges to Sydney to cover the severe time delays being experienced in the Sydney registry at the moment. It is said that these are steps that the Court does not want to take but must consider in light of the funding crisis.

The media have also reported on a KPMG report, commissioned by the current Federal government, that reportedly concluded that there was an immediate need for the injection of millions of dollars simply to preserve the operation of the Courts.

The Family Law Section of the Law Council of Australia has called on the Federal government to immediately commit the funds to ensure the continued operation of the Courts, including the immediate appointment of Judges to meet the needs of the community. The press release from the Section stated "Families involved in the family law system already face delays of more than three years in waiting for a judge to hear their case. ... For Judge Pascoe to now have to consider closure is an indictment of the government's commitment to the administration of Australia's legal system ... No government that claims to be committed to justice and to addressing the scourge of family violence could permit the Federal Circuit Court to consider the closure of these registries"

Property division 20 years after separation

In the recent case of Vega & Riggs the Court had cause to consider whether proceedings could be bought in relation to a property division some 20 years after the parties separated.

The parties were married in 1979, separated in 1990 and were divorced in November 1992. Any application for property division was therefore required to have been made by November 1993. No such application was made.

The husband commenced proceedings in 2015. The primary asset in dispute was a property the parties owned together.

Section 44 of the Family Law Act 1975 provides that the Court can grant leave for proceedings to be commenced out of time if it is satisfied that "hardship would be caused to a party … if leave were not granted".

The Court stated that two questions needed to be determined: 1) whether the Court is satisfied that hardship would be caused to the husband and 2) should the Court exercise its discretion to grant leave.

The Court stated that the test of hardship could be satisfied if the husband could establish a prima facie case that he has a claim of some significance to pursue and that he would be consequently worse off if leave was not granted for him to pursue that claim.

The Court heard that the husband had contributed to the purchase of the property, contributed his income during the marriage and had continued to pay for the mortgage and other outgoings since separation. The husband had lived in the property since separation. The husband, now 70, had significantly more constrained financial circumstances in 2015 than the wife.

The Court accepted that the husband had a prima facie claim and that he would be worse off if he could not pursue his claim.

In determining the second question of whether the Court should exercise its discretion the Court found that although there had been a delay of some 20 years the parties had in fact been in negotiations off and on during that period and that they had both participated in the delay.

The Court granted leave for the application to be made.