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Important Family Court update – and what it means for local families

At ALG we are excited to embrace the new merged Federal Circuit and Family Court of Australia. We hope that it will live up to its promises and provide a quicker and more cost-effective option for our clients.

On 18 February 2021, the Federal Circuit and Family Court of Australia Act 2021 was passed in Parliament. This merged the two Federal Courts into what will now be called the Federal Circuit and Family Court of Australia. The merger of the two Courts came into effect on 1 September 2021.

The Federal Circuit Court was initially established in 1999 to relieve the growing pressure on the specialist Federal Courts by becoming the first point of access to proceedings and managed less-complex matters.

Over the past two-decades these courts have been functioning independently, resulting in significant delays to the court process and matters stretching out to an average of two years and in some cases up to five or six years. The delays and costs have been inhibitive to many parents who have needed the court’s assistance.

Historically, after Court Orders have been made, non-compliance has been an issue. Contravention applications have not been dealt with in a timely way leaving parents with little faith in the judicial system and lack of accountability for those who have not complied with orders.

The objects of the new merged court are to:

1. Ensure justice is delivered effectively and efficiently;

2. To provide for just outcomes, especially in family law or child support proceedings; and

3. To provide framework to facilitate cooperation between Divisions 1 and 2, with the aim of ensuring common rules of court and forms, common practices and procedures, and common approaches to case management.

The merger aims to achieve these objects by:

  1. Case Management 

· $100 million in new funding has been used to recruit Judges and Registrars. The new Court will have 111 Judges (including 90 Specialist Family Law Judges). The court’s aim is to ensure comprehensive case management. This includes Judicial Registrars conducting Duty Lists and Senior Judicial Registrars conducting Interim Hearings, alleviating the pressure on Judges to ensure they are able to hear and determine trials more efficiently and deliver judgements in quicker time frames.

· All applications will be filed in Division 2, providing a less-complex, single point of entry.

· The first court event will be held within 6-8 weeks of filing. At this first court event, Registrars will assess whether pre-filing obligations have been adhered to and triage the matters according to their urgency and complexity.

· Within six months of filing, parties will have engaged in mediation or other alternative dispute resolution practices, provided it is suitable and safe to do so.

· Those matters that are still unable to settle will proceed to trial within 12 months.

· Introduction of a National Contravention List: Breaches of Court Orders will be taken seriously and dealt with within 14 days of application to the Court, as opposed to the previous two to 18 month delay and waiting period.

· The court will consider costs orders for bringing of vexatious claims, not completing pre-filing procedures, and contravening parties.

· Child Impact Reports will be prepared earlier in the proceedings to assist the parties in reaching an agreement and providing expert guidance on the best interests of the child. Family Consultants will now be referred to as Court Child Experts.

· The first court event and interim hearing may occur on the same day where there is urgency, or risk involved. The court is focusing its attention on being flexible and accommodating for the needs of each individual case.

· There will be five new additional Indigenous Lists and more Liaison officers.

2. Harmonised Rules 

· All forms will be updated to one format and operate under the same legislation, names, and terms. Some forms will be substantially amended to improve functionality.

· There will be a 90-day grace period where old forms will be accepted.

· New website is fcfcoa.gov.au

3. Flexibility and Assistance

· 14 new practice directions will be available to lawyers and allied workers to assist with and set out guidelines for management of family law proceedings.

· The Court will aim to return to in-person Court attendances once the current lockdown period ends, however have confirmed they will be flexible with regards to allowing for video appearances if requested or necessary.

· The Court will consider the individual needs of parties on a case-by-case basis and provide specific support and assistance, for example, by providing time for parents to attend rehabilitation to demonstrate parenting ability and commitment.

Some people have raised concerns that the merger will diminish the specialisation of the Family Court to deal with complex cases. Former Family Court Judge Stephen O’Ryan QC claims the reform effectively abolishes the specialty of the Family Court. However, the Honourable Chief Justice William Alstergren, in a Live-Webcast held on 10 August 2021, affirmed cases requiring specialist knowledge including those involving domestic violence will be managed by Division 1 (Specialist Family Law Judges) at first instance and on appeal. The merged court will have the highest number of Specialised Family Law Judges (90) then there has ever been. The merger is effectively growing the specialisation of courts.

Any proceedings commenced from 1 September 2021 will be subject to the merged Court procedures. Where appropriate, some matters previously commenced will be transferred to the new system.

As with any substantial change, we expect that there may be some teething problems, but we are pleased that the Court appears to have addressed many of the inadequacies and concerns raised in the past. Quicker time frames and a focus on dispute resolution should help parents by reducing costs and the emotional stress that long winded court proceedings can have on the whole family unit, including the children involved. In circumstances where there are risk issues, the Court’s priority will be to identify risk and safety issues early in proceedings to ensure the protection of parents and children where needed.

Our experienced Family Law solicitors are ensuring that we are up to speed on all the changes that the court merger brings and can help you to navigate through the family law process.

Please contact us to arrange your free initial one-hour consultation with one of our experienced Family Law solicitors on 02 4220 7100 or email [email protected].

Article Author – Laura Hope, Access Law Group.


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