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.


The above does not constitute legal advice, but is information which may be of general interest. Tisher Liner FC Law will not be held liable or responsible for any claim, which is made as a result of any person relying upon the information contained in this publication.

Related Articles

View All
Family Law / Family Law Advice

Child Impact Reports – what are they and what benefit do they provide?

When additional information is required, then the parties may agree to attend upon or an order may made by the Court...
Read More
Family Law / Family Law Advice

Grandparents and parenting – do I have any right to see my grandchild?

If you are a grandparent and your relationship with your children become fractured, this may impact on the time that...
Read More
Family Law / Family Law Advice

May is Family Violence Prevention Month: Who should you contact?

Unfortunately, the breakdown of a relationship and separation is a time of increased risk of family violence   If...
Read More
Family Law / Family Law Advice

Parenting arrangements for Mother’s Day or other special occasions

Blended families are now far more common and some children have more than one influential female in their lives There...
Read More
Family Law / Family Law Advice

VCAT rules on landmark test case on ‘reasonable costs’ claimable by Owners Corporations

On 1 December 2021, the Owners Corporations and Other Acts Amendment Act 2021 (“Amending Act”) came into force The...
Read More
Family Law / Family Law Advice

Do children have a right to spend time with extended family and other significant people? Can I only apply for parenting orders in relation to a child if I am a parent?

However, you don’t have to be a parent to bring parenting proceedings in the Federal Circuit and Family Court of...
Read More
Family Law / Family Law Advice

Superannuation information now more accessible in family law matters

Up until now, if one party was not forthcoming with disclosure about their superannuation entitlements, then the other...
Read More
Family Law / Family Law Advice

Married or de facto – is there a difference?

Marriage in Australia A marriage is defined as the union of two people to the exclusion of all others, voluntarily...
Read More
Family Law / Family Law Advice

COVID-19 Vaccinations for children aged 5 and over – I want my child vaccinated? My ex-partner does not agree? What do I do?

Children aged 5 and over are now eligible to receive a the COVID-19 vaccine Unsurprisingly, many parents are now asking...
Read More
Family Law / Family Law Advice

Tisher Liner FC Law (Family Law) and Justine Clark recognised in Doyle’s Guide

Tisher Liner FC Law has been recognised within the family law profession in the Doyle’s Guide as a recommended...
Read More
Family Law / Family Law Advice

Announcement of new Family Law Special Counsel – Brynne Allen

We are pleased to announce the appointment of Brynne Allen as Special Counsel in Family Law at Tisher Liner FC Law...
Read More