The new FCFCOA: Pre-action procedures and managing client expectations in our new Court


Posted By on 4/08/22 at 1:55 PM

When our new court commenced on 1 September 2021, family lawyers were also faced with a new Act (The Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act)) and a new set of Rules. It has been an extensive overhaul of our court system, with the promise of stark improvement to both processes and outcomes for family law litigants.

Rule 1.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Family Law Rules) states that the overarching purpose of the new court framework was to “facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible”.

Practitioners were also issued with a Case Management Direction by our Chief Justice on 1 September 2021, which provided specific direction and guidance as to how family law cases where to be conducted moving forward.

Viewed through the lens of the overarching purpose, it is clear that the pre-action procedures are now a cornerstone of the new FCFCOA.  The clear intention is for the Court, and legal representatives to deal with family law cases in a way that minimises Court resources and legal costs, but aims to maximise potential outcomes for family law litigants by engaging in an exploration of the issues in dispute, financial disclosure and dispute resolution from the outset.

Objectives of pre-action procedures

The objectives of the pre-action procedures are stated to be to:

  1. Encourage early and full disclosure in appropriate proceedings by the exchange of information and documents;
  2. Provide parties with a process to avoid legal action by reaching a settlement of the dispute before commencing court proceedings;
  3. Provide parties with a procedure or process to resolve the proceedings efficiently and to limit legal costs;
  4. Ensure the efficient management of proceedings in the court, should it be necessary to proceed to litigation;
  5. Encourage the parties to a dispute to seek only those orders that are “reasonably achievable on the evidence”; and
  6. Give effect to the overarching purpose of the provision as specified in s67 of the Act.

The requirements set out in the pre-action procedures are regarded by the Court as the standard and appropriate approach for a person to take in most circumstances before filing an application in a court.

In summary there are three steps that must be taken to comply with the pre-action procedures which are:

  • participate in dispute resolution;
  • exchange a notice of intention and explore settlement options in correspondence; and
  • comply with the duty of disclosure.

Noncompliance is treated seriously, unless you fit within the exceptions set out in the rules.  Consequences for non-compliance include costs penalties or a stay of proceedings pending compliance.

Impact on practice of family law

The reality of this for family lawyers, is that before a matter is to be litigated, save for urgent cases, all avenues for settlement must be explored.  Parties must make genuine steps to resolve the dispute and comply with their obligations for full and frank disclosure, or face the wrath of the Court.

Further, once proceedings are issued, litigants are expected to have advanced the case from the outset ensuring that valuations and reports are obtained or, if not finalised, in the process of being finalised.  Non-urgent cases will only be granted an interim hearing if the matter is ready to proceed, and not before.  The reality of this is that those that are not prepared at the outset of the case will face significant delays in having a judicial determination despite the significant appointment of new

Judicial Registrars and Judges in each Registry.

Does this work in practice?

Whilst we applaud the ambitions of the stated overarching purpose, for us the reality has been increased requirements prior to litigation, and if a case cannot be resolved through dispute resolution or negotiation, significantly more documentation needing to be filed at Court from the outset.

All of this can be mean increased legal costs for each party, which in many way is contrary to the overarching purpose.

For further assistance or information please do not hesitate to contact a member of our Family Law team on (03) 9663 9877.

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Monica Blizzard

Monica Blizzard Director

Monica Blizzard is an Accredited Family Law Specialist with the Law Institute of Victoria, a trained mediator and collaborative lawyer, and has 20 years experience working in family law.

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