On 1 September 2021, Australia’s federal court system amalgamated into the Federal Circuit Court and Family Court of Australia (“FCFCOA”) under the Federal Circuit and Family Court of Australia Act 2021.
Previously, the federal court system operated through two separate courts – The Family Court of Australia and the Federal Circuit Court of Australia.
The new Federal Circuit and Family Court of Australia comprises of two separate divisions:
- Division 1 – deals only with family law matters; and
- Division 2 – deals with complex family law, migration and other general federal law matters.
As a result of this amalgamation, there have been significant changes as to how family law matters are now dealt with.
In particular, it is the first time within 21 years where the family law jurisdiction has a single point of entry, one set of court rules and forms and an updated court website.
Although many will be unaware and unaffected of these changes, the FCFCOA has placed an emphasis on resolving more than 90% of family law matters within the first 12 months of being filed.
The Federal Circuit and Family Court of Australia’s overarching purpose is to facilitate the just resolution of disputes:
- according to law; and
- as quickly, inexpensively and efficiently as possible.
What are the changes?
Harmonised rules and practice directions
The introduction of the FCFCOA has also welcomed a single set of family law rules, known as the Federal Circuit Court and Family Court of Australia (Family Law) Rules 2021.
In addition to the new rules, a Central Practice Direction provides clear guidelines on the management of family law matters within the Federal Circuit and Family Court of Australia. A suite of 14 new practice directions will ensure that family law matters are streamlined and that the case management system operates effectively.
The existing family law court forms have been comprehensively reviewed and updated to reflect the new court rules and practice directions.
In particular, the following forms (in addition to several others) have now been introduced:
- a ‘Genuine Steps Certificate’ to demonstrate the Applicant’s compliance with the pre-action procedures;
- a ‘Parenting Questionnaire’ for parenting proceedings and a ‘Financial Questionnaire’ for financial proceedings; and
- an ‘Undertaking as to Disclosure’ for parenting and/or financial proceedings.
New case management
There have also been significant changes to how family law matters will progress through the FCFCOA.
Again, there is a clear emphasis on offering as many dispute resolution opportunities to prevent matters proceeding to trial.
The Federal Circuit and Family Court of Australia has introduced a new case management pathway, which can be summarised as follows:
- Directions hearing before a judicial registration – to assess and triage the matter and make appropriate orders to facilitate a resolution and ensure pre-action compliance.
- Hearing before a Senior Judicial Registrar or Judge (if required) – to determine any interim applications brought by the parties.
- Dispute resolution event – referral to either mediation, conciliation conference or family dispute resolution.
- Compliance & readiness hearing – to assess whether parties have complied with court orders and directions and to ensure that parties have made a genuine attempt to resolve issues.
- Trial management hearing (if required) – to make any further orders and directions as considered necessary or appropriate by the trial judge.
- Trial – determination of the outstanding applications.
The Federal Circuit and Family Court of Australia has placed a significant emphasis on pre-action procedures to exhaust all opportunities to resolve disputes and if a resolution cannot be reached, to at least narrow the issues that require a decision from the FCFCOA. Consequently, the pre-action procedures should allow parties to resolve disputes quickly and without the need for court intervention or incurring significant legal fees.
Parties have a duty to make full and frank disclosure of all information relevant to the various issues in dispute. This will then encourage parties to attend dispute resolution services (ie mediation, private arbitration or a collaborative process) with a view to resolve the matter as efficiently as possible.
The pre-action procedures for parenting and financial cases are summarised in the prescribed brochures available online via the new Federal Circuit and Family Court of Australia website.
It should also be noted that as a result of the COVID-19 pandemic, the Federal Circuit and Family Court of Australia has implemented the use of electronic hearings via video link and telephone. In effect, this has improved safety and access to justice for vulnerable parties and people living in regional or remote areas.
Additionally, the FCFCOA has also published further Practice Directions which allow parties to electronically sign certain court documents to reduce the risk of COVID-19 transmission.
To facilitate the effect operation of the FCFCOA, the Federal Government has also provided more than $100 million in new funding. This has allowed the Federal Circuit and Family Court of Australia to undertake intensive recruiting of additional Registrars and family consultants and to improve the overall infrastructure of the court.
What do the changes mean for the general public?
The revised structure of the Federal Circuit and Family Court of Australia now places a greater focus on risk, responsiveness and resolution by:
- improving the safety of children and vulnerable parties through early risk identification;
- promoting innovative methods to separate with less acrimony and reducing the overall costs of the dispute;
- enhancing national access to justice for vulnerable parties and regional communities through the use of technology; and
- aiming to resolve up to 90% of cases within 12 months.
Should you wish to explore the FCFCOA’s modern and innovative approach, feel free to visit https://www.fcfcoa.gov.au.