On 1 September 2021 the long-anticipated merger of the Federal Circuit Court of Australia and the Family Court of Australia came into effect to create the Federal Circuit and Family Court of Australia (FCFCOA). The aim of the FCFCOA and the new harmonised rules is to create a modern, fair and efficient system ensuring the early settlement of disputes, provided it is safe to do so.
The FCFCOA Act 2021 provides for the continuation of the Family Court of Australia as Division 1 and the Federal Circuit Court of Australia as Division 2 of the FCFCOA. All family law applications are now commenced in Division 2 of the FCFCOA. The rules and procedures will be the same for both Divisions.
An important change is the introduction of overarching purpose applicable in both Divisions that:
- Ensure justice is delivered effectively and efficiently.
- Provide for just outcomes in family law and child support proceedings.
- Provide the framework to facilitate cooperation between Division 1 and Division 2 with the aim of commons rules, practices, procedures and approaches to court management
CCS Lawyers welcomes the recent changes that align with our philosophy:
- to reduce the stress and expense of unnecessary litigation,
- provide realistic advice and pragmatic solutions, no matter how complex your individual situation; and
- to always negotiate a settlement that is in your best interests, as effectively and efficiently as possible.
There is a new case management pathway aimed at resolving 90% of cases within 12 months, with an increased focus on dispute resolution, compliance by parties and lawyers to court orders and rules and increased transparency on legal costs. Lawyers are now required to advise their client, the Court and the other party of the legal costs paid to date, as well as an estimate of costs to finalise the matter.
It is expected that both parties and lawyers are to always do their absolute best to conduct cases in a responsible, efficient and cost-sensitive manner.
Core principles have been introduced that set the scene in relation to the conduct of family law matters.
- Management of risk
- Adoption of the overarching purpose
- Efficient and effective use of court resources
- Approach to case management
- Importance of dispute resolution
- Lawyer’s obligations in relation to costs
- Identification and narrowing of issues in dispute
- Preparation for hearings
- Efficient and timely disposition of cases
Conduct of proceedings
The new rules put an emphasis on the assessment of matters and determination of the specific pathway from the beginning of proceedings, at the time of filing. Judicial Registrars will actively assess and manage cases as they make their way through the new pathway.
A new national assessment team will work with the Chief Justice to assess how cases should be treated when proceedings are commenced. Decisions will include:
- Compliance with pre-action procedures and dispute resolution requirements,
- Allocation to specialist lists, and
- Transfer to Division 1 of the FCFCOA.
In accordance with the overarching purpose, family law proceedings commenced in the FCFCOA (other than urgent cases and cases allocated to a specific list), will be managed according to the case management pathway.
1. First Court Event
The first court event is a Directions hearing before a Judicial Registrar expected within 8 weeks from date of filing.
Aim: to assess and triage your case and make appropriate court orders to facilitate the timely disposition of your case, including consideration of:
- Compliance with pre-filing requirements
- Ensuring all necessary documents are filed
- Determine the necessity for an Interim Hearing
- Decide appropriate Dispute Resolution events
- Consider if urgent transfer to Division 1 is required
- Determine what, if any, expert evidence is required.
Parties’ and lawyers’ obligations prior the first hearing include:
- Filing and serving documents according to the FCFCOA rules.
- Filing notices to certify that clients have made a genuine effort to resolve the issues in dispute.
- Providing costs disclosure including the costs that have been incurred to date and an estimate of likely future costs.
2. Interim Hearing (if required)
This is a hearing usually before a Senior Judicial Registrar to determine any interim application brought by the parties. So as to avoid repeated returns to Court, such hearings will be listed to coincide with readiness, for example, the release of expert reports, subpoenaed documents and responses from child protection authorities.
To ensure efficient and effective conduct of the hearing parties and lawyers must come to the Interim hearing ready to proceed or face consequences of costs orders against them. Lawyers must ensure that:
- all material to be relied upon is filed at least 2 days prior to hearing,
- a case outline is filed; and
- Minutes of Consent detailing the orders sought are exchanged with each party and the Court.
3. Dispute resolution
The new FCFCOA case management pathway places significant emphasis on dispute resolution to assist parties to resolve their cases at the earliest possible opportunity and least expense. The aim is to list matters for dispute resolution within 5 months of filing.
Genuine participation in Dispute Resolution will be required for both parenting and financial matters, unless it is unsafe to do so. Depending on your matter this can take the form of internal or external family dispute resolution, including conciliation conferences for property matters. The aim is for Dispute Resolution to occur at a point in proceedings where it is most likely that matters can be finally resolved.
4. Compliance and Readiness hearing
This is a hearing that will be listed if matters remain unresolved after the Dispute Resolution event. It is a hearing before a Judge or Senior Judicial Registrar, expected no later than 6 months after filing.
Its aim is to:
- Check compliance with court orders and directions to ensure parties have made a genuine attempt to resolve issues.
- Exploration of the reasons for continuing the matter.
- Exploration of options for bringing it to a conclusion prior to trial.
- Further assessment as to appropriate Division to determine dispute.
- Allocation of a trial date.
5. Trial management hearing (if required)
This is a Directions hearing before a Judge (but not before the trial Judge), prior to the commencement of trial. The purpose is for the Judge to make any further necessary and appropriate orders and directions.
This is a final hearing before a Judge to resolve any remaining applications and issues in dispute. It is intended that trials will be listed within 12 months of filing, subject to all parties having complied with relevant orders and directions.
The aim is to deliver judgments within 3 months. Unreached matters will now be listed by the National Assessment Team to be reheard as soon as possible depending on urgency, so that parties do not have to recommence with trial preparation due to hearing delays.
National Contravention List
The expectation is that all parties will comply with orders of the Court and that any alleged breaches of orders will be taken seriously and dealt with quickly.
A National Contravention list has been introduced to deal with contravention applications with the key objectives of:
- Ensuring compliance with court orders by all parties
- Establishing a national assessment approach to ensure they are dealt with in a timely, cost-effective and safe manner.
- Allocation of a first return date within 14 days of filing
- Imposition of penalties and sanctions where contraventions have been proved
- Actively facilitating the resolution of underlying issues that lead to Contravention applications,
- Assessing and triaging appropriate matters to Dispute Resolution,
- Sensitivity to parties wishing to resolve matters without recourse to further additional court proceedings.