The Federal Circuit Court of Australia and Family Court of Australia officially merged to form the Federal Circuit and Family Court of Australia (“FCFCA”) on 1 September 2021.
The merger has enabled major structural changes to the operation of the family law system. These include a single point of entry into the court system for all family law matters, a new case management pathway, harmonised family law rules, and enhanced focus on pre-action procedures and dispute resolution.
This article summarises the key practical changes for practitioners and litigants in family law matters. Practitioners and litigants should also familiarise themselves with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 and various Practice Directions published on 1 September 2021.
The purposes of the Central Practice Direction are to outline the core principles applicable to family law proceedings and to establish a national case management system that:
- Reduces unnecessary cost and delay in family litigation and facilitates proceedings being conducted with the least possible acrimony in order to minimise harm to children and families;
- Ensures the safety of families and children; and
- Facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.
The Central Practice Direction and various other Practice Directions regarding specific subject matters were published online on 1 September 2021 and are available via the new FCFCA website.
New court events
The following listing pathway will generally apply to family law proceedings commenced in the FCFCA, other than urgent applications and cases allocated to specialist lists:
Wherever possible, matters will be listed for Final Hearing on a date earlier than 12 months from the commencement of the proceedings if final judicial determination is required.
New court forms
The Financial Proceedings and Parenting Proceedings Practice Directions set out the documents that must be filed with the FCFCA respectively. These include:
- A Genuine Steps Certificate confirming the applicant’s compliance with the pre-action procedures for parenting and/or financial proceedings;
- A Parenting Questionnaire for parenting proceedings;
- A Financial Questionnaire for financial proceedings;
- An Undertaking as to Disclosure for parenting and/or financial proceedings;
- A copy of any family violence order affecting the child or a member of the child’s family for parenting proceedings; and
- A copy of any family violence order affecting the party for financial proceedings.
The above documents are in addition to those previously required to be filed in support of an Initiating Application for parenting and property cases respectively. These include an Affidavit (when interim orders are sought), Notice of Risk, Financial Statement, family dispute resolution certificate (or an Affidavit – Non-Filing of Family Dispute Resolution Certificate).
Practice Directions regarding specific subject matters and specialist lists are available via the FCFCA website and set out the documents required to be filed with the FCFCA. These include, for example, child support and child maintenance proceedings, divorce proceedings, and the National COVID-19 List.
The aim of the pre-action procedures is to explore possibilities for resolution and, where a dispute cannot be resolved, to narrow the issues that require a court decision. This should control costs and if possible, resolve disputes quickly, ideally without the need to apply to a court. The pre-action procedures apply to anyone considering starting a case, anyone responding to a case, and their lawyers.
Parties have a duty to make timely, full and frank disclosure of all information relevant to the issues in dispute. There may be serious consequences for failing to disclose, including punishment for contempt of court.
Documents required to be disclosed in parenting cases may include, for example, medical reports, school reports, letters, drawings and photographs.
Documents required to be disclosed in financial cases may include, for example, a schedule of assets, income and liabilities, a list of documents in the party’s possession or control that are relevant to the dispute, and a copy of any document required by the other party, identified by reference to the list of documents.
The FCFCA will consider whether the pre-action procedures have been complied with and, if not, what the consequences should be (if any). Depending on the circumstances of each case, these may include cost orders. The FCFCA may also take compliance or non-compliance with pre-action procedures into account when making orders about how a case will progress through the Court.
The pre-action procedures for parenting and financial cases are summarised in the prescribed brochures available online via the new FCFCA website.
The FCFCA expects that people involved in family law disputes will only make an application to the Court when there is no other readily available means of resolving their dispute.
There is an expectation that people in dispute will attempt to resolve disputes by compromise, discussion and dispute resolution if it is safe to do so. In parenting matters, Family Dispute Resolution (FDR) is, with limited exceptions, mandatory before any application can be filed.
Dispute resolution is a broad term that includes negotiation through lawyers, conciliation, mediation or FDR and arbitration. The expectation to continue to look for opportunities to resolve disputes applies both before and during proceedings.
For more information about the Practice Directions published on 1 September 2021, please visit here.
Should you require any assistance with understanding your rights and entitlements, our Family & Relationship Law team is available to help and can be contacted during normal business hours via email (firstname.lastname@example.org) or by telephone on (03) 9663 9877.