By Lauren Oswin

8 September 2021

On 23 February 2021, the Federal Parliament passed two Acts which merge the Family Court and the Federal Circuit Court into one Court. This new Court, the Federal Circuit Court and Family Court of Australia (FCFCOA), commenced on 1 September 2021.

The merger of the two Courts is intended to resolve the backlog of family law matters awaiting judicial determination and reduce waiting times for new matters by implementing one single entry point and one single set of rules for all family law matters. The merger and new Rules endeavour to achieve a greater emphasis on dispute resolution between parties to family law proceedings, an increased focus on assessing risk, and the efficient and timely determination of matters before the Court.

 

This will be achieved by:

  1. Improving earlier risk identification and safety of children and vulnerable parties;
  2. Encouraging smarter ways to separate with less acrimony, less costs, and more dispute resolution, where appropriate and safe to do so;
  3. Expecting and enforcing compliance with court orders already in place;
  4. Enhancing national access to justice for vulnerable parties and regional communities with the use of technology; and
  5. Aiming to resolve up to 90 per cent or cases within 12 months.

 

A Central Practice Direction has been released to outline the core principles applicable to family law proceedings before the new Court and to establish a consistent national case management system. In effect, the Central Practice Directions outlines the following changes because of the merge:

 

  1. Greater pre-action requirements

In addition to complying with the pre-action procedures in financial and parenting proceedings and taking genuine steps to attempt to resolve the issues prior to commencing proceedings, there is now a requirement that a Genuine Steps Certificate be filed with an Initiating Application or Response to Initiating Application.

 

A Genuine Steps Certificate will need to outline:

  1. The filing party’s compliance with the pre-action procedures; and
  2. The genuine steps taken to resolve the dispute; or
  3. The basis of any claim for an exemption from compliance with either or both of these requirements.

 

This will require parties to carefully consider if they have genuinely endeavoured to resolve their dispute prior to issuing proceedings before the Court.

 

  1. Strict approach to the resolution of matters

Disclosure as to costs:

 

In addition to ensuring that all documents relied upon by either party are filed and served in accordance with the current requirements, the lawyer for each represented party will also need to provide to the Court and to each other party a notice:

 

a) Confirming that their client has made a genuine attempt to resolve the issues in dispute, unless a relevant exception applies; and

b) If the party is not in receipt of legal aid funding, provide particulars of:

 

  1. the total costs and disbursements incurred by the party in the proceeding;
  2. an estimate of the anticipated costs expected to be incurred in each stage of the proceeding; and
  3. an estimate of the likely duration of the final hearing and the total anticipated costs and disbursements expected to be incurred for the remainder of the proceeding.

 

Interim Hearings:

With respect to Interim Hearings, the presiding judicial officer will require, not less than 2 business days prior to an Interim Hearing, a minute setting out the precise terms of orders sought at the upcoming hearing, and a Case Outline document setting out the party’s major contentions in relation to the issues to be determined at the Interim Hearing together with a list of documents to be relied upon at the Interim Hearing.

 

Compliance and Readiness Hearing

With respect to the Compliance and Readiness Hearing (to occur prior to Final Hearings), parties and their lawyers will be expected to have conferred and made a genuine effort to identify and agree on a trial plan, including the timing and duration of the evidence of each witness proposed to be called.

 

In addition to the prior requirements, that parties file an Amended Application or Response, as appropriate, and an undertaking as to disclosure, each party will be required to file and serve no later than 7 days prior to the Compliance and Readiness Hearing, a Certificate of Readiness.

 

A Certificate of Readiness will need to detail the following:

a) Confirm that the party has complied with all relevant orders and directions;

b) Confirm that all valuations, enquiries, and expert reports have been completed;

c) Confirm that the matter is ready to be listed for a Final Hearing, and if not, why not, and

d) Set out:

  1. The likely duration of the final hearing;
  2. Whether or not the party is in receipt of legal aid funding, and if not, providing particulars of the total costs and disbursements incurred by the party in the proceeding to date and an estimate of the likely duration of the Final Hearing and anticipated costs and disbursements expected to be incurred for the remainder of the proceeding.

 

  1. Limitations on interim and interlocutory applications

 

Interlocutory applications are made by parties prior to a final hearing in a case to seek a wide range of orders from the court.

 

Once proceedings have commenced, unless a relevant exemption applies, a party may not file an Application in a Proceeding seeking interim orders, without first making a reasonable and genuine attempt to settle the issue to which the application relates.

 

If an Application in a Proceeding is necessary then other than in urgent circumstances relating to issues of high risk, parties may each file a maximum of two interlocutory Applications without leave. Leave of the Court must be sought as part of any relevant interlocutory application.

 

Despite the merging of the Courts and the new changes being implemented, the merged Court and new Rules do not alter the TLFC Family Law Team’s approach to the resolution of family law matters, and we will continue to provide considered, strategic, and commercial family law advice, with an emphasis on resolution by negotiation, or if required, litigation, at a proportional cost.

 

If you have any questions or require further information regarding the changes to the Court and how this may affect you, please do not hesitate to contact a member of the TLFC Family Law Team on (03) 8600 9333.

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