Written by Michaela Whitbourn - Sydney Morning Herald
A controversial Morrison government plan to merge the Family and Federal Circuit courts before the federal election has been dealt a fatal blow and would be torn up if Labor wins office.
Attorney-General Christian Porter failed to win crossbench senators' support to bring the bill to a vote on Wednesday, the final sitting day of the Senate before the federal election.
The plan to abolish the Family Court of Australia as a stand-alone court and merge it with the lower-level Federal Circuit Court – which handles some family law matters alongside other cases, including migration matters – had been roundly criticised by Labor and senior legal figures.
Mr Porter had touted the merger as a means of improving efficiency in family law cases and clearing a backlog of about 20,000 matters, but critics said resourcing was the key to fixing the problem.
Shadow attorney-general Mark Dreyfus said: "If the Coalition loses the upcoming election, this will be Mr Porter’s legacy as Attorney-General – a failed attempt to destroy the Family Court."
The peak body for the legal profession, the Law Council of Australia, had been vocal in its opposition to the merger, arguing families were better off with a specialised Family Court.
The council's president, Sydney barrister Arthur Moses, SC, said "merging one court with another does not address significant underlying issues, including chronic underfunding and under-resourcing, which have led to crippling delays, pressures and costs" in the family law system.
He called on the government to release a landmark Australian Law Reform Commission review of the family law system, which was delivered to the government on March 31.
Mr Porter told the Labor opposition on Tuesday he believed he had sufficient crossbench support to pass the bill but this could not "practically occur" on Wednesday unless Labor agreed to a vote.
Neither Labor nor the crossbench would support Mr Porter's bid to vote on the bill before the election in May. If the Morrison government is re-elected, it would have to negotiate afresh with the crossbench in a newly-constituted Senate.
A spokesman for Mr Porter said: "The government remains committed to the reform of family law courts to ensure the legal system is better able to support families going through one of the most difficult times of their lives, the breakdown of a relationship."
Mr Dreyfus said reform of the family law system would be a "high priority" for Labor, should it win the election, but "any reforms will be informed by the Australian Law Reform Commission Review and by consultation with the sector".
The government had promised a funding injection of $16 million over four years for additional judges and a registrar to help clear the family law backlog, but the promise was contingent on passage of the bill.
The Law Council urged the government to "provide an immediate funding and resourcing commitment", while Mr Dreyfus said it was "shocking" that Mr Porter had "decided to hold the family court system to hostage" by tying the funding to support for the bill.
Former Family Court judge Peter Rose, QC, who served on the bench for 13 years, said it was "only common sense to delay court restructuring until all stakeholders had a chance to read, absorb and comment on the ALRC report, which is yet to be made public".
He said most stakeholders agreed "in practice" with a single court structure, but "the obvious solution is to roll the Federal Circuit Court's family law work into the Family Court with two divisions, and thereby maintain the leading family law institution in the country".