Top 10 Major Changes In The Merger Of The Federal Circuit Court And Family Court

Family Law

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DATE PUBLISHED: September 1, 2021

The new Federal Circuit and Family Court of Australia commence operations on 1 September 2021, following legislation replacing the Federal Circuit Court of Australia and the Family Court of Australia. 

The new Court will be made up of two divisions:

  • Division 1 will be a continuation of the Family Court of Australia and will deal with family law matters only. Division 1 will retain jurisdiction to hear family law appeals from Division 2.
  • Division 2 will be a continuation of the Federal Circuit Court of Australia and will deal with both family law and general federal law matters. Division 2 will be the single point of entry for all family law matters. 


OBJECTIVES OF THE FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

The new Court aims to provide a streamlined approach to family law proceedings with an emphasis on alternative dispute resolution. 


SO, WHAT'S NEW? THE 10 CHANGES TO BE AWARE OF

1

Case management pathway

The new case management pathway will focus on an increased involvement of Senior Registrars, Registrars and Family Consultants so matters may be triaged so the first court date occurs within 8 weeks of filing and dispute resolution occurs within 5 months of filing. For matters which are not resolved at dispute resolution, the Court will aim to list the matter for a trial within 12 months.

2

funding

The Commonwealth Government has provided more than $100 million in new funding to allow the appointment of new Registrars and Family Consultants.

3

national contravention list

A new list to deal solely with Contravention Applications will come into effect from 1 September 2021. A contravention is where a party to a proceeding has breached an Order of the Court without a reasonable excuse. Importantly, the new list will provide for a first return date within 14 days as opposed to months.

4

harmonised rules

The Family Law Rules 2004 (Cth) and the Federal Circuit Court Rules 2001 (Cth) will be replaced by a harmonised set of Rules instead of there being 2 sets of rules for 2 Courts. Some changes include:

  • The Application of pre-action procedures across both Divisions of the Court which will require (except in urgent circumstances) parties, for both parenting and financial matters, to exhaust all pre-action procedure requirements prior to filing proceedings, including:
  • Notice of intention to start a proceeding. Prior to commencing proceedings, the proposed applicant must provide to the proposed respondent a written notice of intention to start a proceeding. The proposed respondent is then required to respond.  
  • Exchange disclosure. The parties, as soon as learning of the dispute, must exchange (for financial matters) relevant disclosure documents. This is different to what has previously occurred in the Federal Circuit Court, as you had to be in Court before the duty of disclosure would commence. This is a welcome change. 
  • Lawyers’ obligations. There will be an increased focus on lawyers’ obligations to comply with pre-action procedures and the Court may make an order for costs where a lawyer has failed to comply with pre-action procedures. 
  • Power to require attendance at dispute resolution event. The Court can now require parties to attend family counselling. 
  • Affidavits. Removal of requirement to file an Affidavit in the Federal Circuit Court (now Division 2) if seeking final orders only. Affidavits filed in support of or responding to an application for interlocutory orders must not exceed 25 pages and contain no more than 10 annexures. 
  • Requirement to file Parenting Questionnaire. There will be a requirement to file a parenting questionnaire, which includes a summary of the current and proposed future arrangements for the children, with the party’s Initiating Application or Response to Initiating Application in both Divisions when seeking parenting orders. This will assist the Registrar or Judge at the first court event to understand what the party is seeking and the needs of the children. 

5

Dispute resolution

The new case management pathway has a significant emphasis on dispute resolution and parties are expected to use every opportunity to participate in dispute resolution, whether that be a court-based family dispute resolution conference, conciliation conference, private mediation, arbitration or legal aid conferences. 

6

Changes to Child Dispute Services and Family Consultants

The new Court will introduce a new style of report called a Child Impact Report which is to be prepared, if necessary, at an early stage of the proceedings. The report is to replace the previous s 11F report 

7

Enhanced role of Senior Registrars and Judicial Registrars

In the new Court, Senior Judicial Registrars, Judicial Registrars and Deputy Registrars will all exercise aspects of judicial power. 

8

Specialist court lists

The new Court will introduce specialised court lists. The Lighthouse Project and the PPP500 Small Claims Property Pilot will continue to operate as pilots in the relevant registries.

9

New Practice Directions

The Court will issue a suite of 14 new practice directions which will be made available and take effect from 1 September 2021.

10

Appeals

All appeals will be heard by Division 1 of the Federal Circuit and Family Court of Australia. All Division 1 Judges will be able to hear appeals. There will no distinct division of the Division 1 Judges who will hear appeals.

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