On 1 September 2021, the Federal Circuit Court and Family Court of Australia merged together, leading to the introduction of the new Federal Circuit and Family Court of Australia (Family Law) Rules 2021. There is now a single set of rules and prescribed documents for matters progressing through the Court.
These new rules bring many differences for the parties and professionals, involved in, or assisting with Family Law matters. Some of the key changes we noted are listed below.
Filing an Initiating Application or Response
When filing an Initiating Application or response, whether that be for financial or parenting matters, you are now required to complete an accompanying Questionnaire (financial and / or parenting, whichever will apply to your case) and a Genuine Steps Certificate.
The Genuine Steps Certificate sets out the steps that were, or were not taken, by the parties before initiating or responding to proceedings. The certificate summarises the various pre-action procedures (and exemptions) and the parties can tick which of those have been complied with or apply to their matter.
For example, the Certificate asks whether enquiries have been made about dispute resolution, whether written notice has been given about the intention to commence proceedings and whether disclosure has been exchanged.
In theory, this document should act as a double-checking mechanism to ensure that proceedings are not being initiated frivolously and without the necessary pre-action procedures having been undertaken beforehand. While you would think this would be part and parcel of legal advice given to a client in the negotiation stage of a family law case, sadly, it clearly is not the case for everyone and why we expect the Court has introduced this certificate.
The Questionnaires on the other hand, require the completion of specific details or answers relating to the type of matter. For example, the financial Questionnaire requires the parties to list the property held by them at the commencement of the relationship and the value attributed to same, as well as the contributions made by them during the relationship and since separation. The parenting Questionnaire details the current circumstances of the parties, safety issues, the current and future parenting arrangements for the children.
Limits on Affidavits
Affidavits for Interim Application are no longer limited to 10 pages and 5 annexures. Parties can now file one Affidavit each and an Affidavit by each witness (only if that evidence is relevant and cannot be given by a party). Affidavits are now limited to 25 pages and 10 annexures.
Interim Hearings must not be longer than 2 hours, unless the Court directs otherwise, and cross-examination will be allowed only in exceptional circumstances.
Compulsory Settlement Offers
In relation to property proceedings, parties are now required to make compulsory offers to settle. Each party must make a genuine offer to settle within 28 days after a Conciliation Conference or mediation. If a Conciliation Conference or mediation has not been held, then the parties must make a genuine offer to settle within 28 days after the first court date, or at such other times Ordered by the court. An offer of settle of this kind must include a statement confirming that it has been made in accordance with the Rules.
Time periods for Orders relating to Christmas School Holidays
For parenting proceedings, there is now a time period for filing Applications that relate to Orders for end of year school holiday periods. The Application must be filed before 4pm on the second Friday in November of that year, except in cases of emergency.
Although these rules bring many changes for those involved in the system, we remain hopeful that these modifications will mean a quicker and more efficient method for parties to resolve their matters.
Although some of these changes do undoubtedly result in more paperwork and in turn, potentially additional costs incurred by parties, by compelling litigants to take the time to reflect on exactly what steps have, or have not, been taken at the outset will hopefully force the parties to use the Court as a last resort only.
Similarly, the addition of the questionnaires may also assist the Court in obtaining information that might not have otherwise been included when filing the initiating documents. For example, although a lot of this information should be included in the Affidavit evidence at the time of filing an Application or Response, unfortunately it is quite common that this is not the case, especially when parties are self-represented or represented by a Solicitor that is perhaps not experienced in family law.
Overall, these Rules will bring conformity and should assist the Court with their overall goal of creating an efficient system without unnecessary costs and delays to parties.
If you would like further information about the new rules, please visit the Federal Circuit and 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.