NEW FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
Did you know that the Family Court System is about to go through a major shake-up?
As of 1 September 2021, the two Family Courts that have existed side by side over the last 20 years, being:
are being merged into one Court to create the Federal Circuit and Family Court of Australia (FCFCOA).
The Old Way
In very general terms, the majority of family law cases have been managed through the FCC. Usually only very complex and high-risk cases are managed through the FCOA, as well as appeals.
Both Courts use the Family Law Act 1975 (Cth) to determine the cases; however, each Court has its own set of rules, being the Family Law Rules 2004 (Cth) for the FCOA and the Federal Circuit Court Rules 2001 (Cth) for the FCC. There are some differences in Court documents between the two Courts; however, in large, most of the rules and documents are largely the same or similar in nature.
The New Way
We understand the purpose of the new Court FCFCOA is to create a single set of harmonised rules, together with a single point of entry, additional resources, and case management reform. In our view, it is an attempt to address the many criticisms which have been outlined in the many inquiries, reviews, and reports on the family law system over the past years.
The million-dollar question is: will it actually work; or will it make the system even worse for those involved in family law cases?
The pessimist in us says that it is going to create a total administrative nightmare for at least the next 6 to 12 months, which in turn will no doubt create an increase in delays and costs.
However, the optimist in us on the contrary (which always prevails) thinks that maybe long term it could really make a difference and help, what is right now, an incredibly broken system. Particularly in light of some of the Courts initiatives established since early 2020 such as:
– The COVID-19 List; and
Our view at this point is that we commend the Courts for trying to address the broken system. Realistically everyone involved in a family law case; from the Parties going through the separation, the Family Lawyers, and Barristers as well as the Judges and other Court Experts and so on, all need to work together to do whatever they can to keep as many cases as possible out of Court and resolve matters as early as possible.
Detailed Look at the changes
Section 5 of the new Federal Circuit and Family Court of Australia Act (FCFCOA) describes the object of the merger as follows:
– to ensure that justice is delivered by Federal Courts effectively and efficiently;
– to provide for just outcomes in family law or child support proceedings; and
– to provide a framework to facilitate cooperation between Division 1 and Division 2 with the aim of ensuring: common rules of court and forms, common practices and procedures, and common approaches to case management.
Further, sections 67,68, 190 and 191 detail the broad purpose of the FCFCOA. The purpose has a real aim at timely, less complicated, and cost-effective resolutions, with additional consequences of incurring costs when not complied with.
Some noteworthy points include:
– All family law cases will now enter the Court system through Division 2 of new FCFCOA;
– There will be a new case management pathway (further details below);
– Specialist lists will form part of the new act, with further details on this still to be released;
– Family law rules which are consistent;
– New practice directions;
– An increased focus on internal dispute resolution;
– For parenting matters; further resources for reports;
– Establishment of a new website; and
– Changes to the Appellate jurisdiction in Division 1.
Leadership structure and judiciary
Things to note with regards to leadership structure and judiciary:
– As per previous, Judges continue to be specialist in the Family Law area;
– There will be change to Division 1, however, as mentioned above;
– There will be a Chief Justice and Deputy Chief Justice for Division 1;
– These Judges will be able to hear appeals from Division 2;
– Chief Justice of Division 1 will be able to determine matters which will be heard by Full Bench; and
– There will be a Deputy Chief Judge for Family Law and one for General Federal Law and Fair Work for Division 2.
There will be “Enhancements” to the Family Law Rules, applying across both divisions relating to pre-action procedures which include:
– Parties to exhaust all pre-action procedures and make genuine attempt at resolving dispute before filing court proceedings;
– For parenting, parties will need to file a Genuine Steps Certificate which certifies that they made a genuine attempt to resolve and that they have exhausted the pre-action procedures; and
– Usual exceptions still apply such as genuine urgency or safety fears apply.
Dispute resolution in the new case management pathway
The new Update to the profession No.1 details the new pathway to case management, as per the below diagram:
There is heavy importance placed on better assisting litigants with dispute resolution opportunities in the new pathway. This will mean:
– The Court has an expectation parties will make themselves available to participate at every dispute resolution opportunity;
– Standard exceptions for where it is not safe to do so; and
– Participation in dispute resolution is to occur within 5-6 months timeframe from the date of filing.
Very minor changes here. PPP500 process will continue to run for Asset Pools that meet the criteria and like Discrete Property List, property-only matters distributed out into first return list.
This project will remain the same, however, likely increase in cases expected due to inclusions in eligibility criteria. The project previously excluded Family Court matters. Parenting only matters will now be captured under new amalgamated Act.
Commonwealth Courts Portal
September 1 is the key date to note for changes to the Courts Ports. Changes include:
– From 1 September 2021, all applications will be filed under new FCFCOA;
– A new plethora of forms will be available on the site;
– A 90 day grace period for outdated forms to be phased out; and
– On 31 August 2021, any incomplete applications will be deleted.
For further information on the upcoming changes, please visit the Family Court of Australia website.
By Tegan Martens
Director & Principal Lawyer
The information contained on this site is for general guidance only. No person should act or refrain from acting on the basis of such information. Appropriate professional advice should be sought based on your particular circumstances.