September 2, 2021

Whilst we have all been working for home due to the various lockdown restrictions, there has been significant changes to the family law system in Australia that came into effect on 1 September 2021.  All family law proceedings will now be determined by the newly formed Federal Circuit and Family Court of Australia (or FCFCOA).

With the introduction of the new court comes new practice directions and new rules which dictate how family law matters are to operate.

The two primary documents that parties and lawyers will need to consider and comply with are:

  1. Family Law Case Management – Central Practice Direction (“CP Direction”); and
  2. Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“Family Law Rules”).

CP Direction

The CP direction sets out 10 core principles that will underpin the exercise of the family law jurisdiction of the Court.  These core principles are:

  1. Risk: prioritising the safety of children, vulnerable parties and litigants;
  2. Overarching Purpose: to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible.
  3. Use of Resources: efficient allocation of resources within the court system including the use of judicial registrars and court child experts.
  4. Case Management: consistency, triaging matters early and prioritising alternate dispute resolution
  5. Dispute Resolution: encouraging dispute resolution before commencing proceedings and an expectation that reasonable offers of settlement will be made throughout proceedings.
  6. Non-compliance: non-compliance with orders, directions or rules will be taken seriously and may result in serious consequence including costs orders and matters proceeding on an undefended basis.
  7. Lawyers costs:  Parties and their lawyers are expected to take a sensible and pragmatic approach to litigation, and to incur only such costs as are fair, reasonable and proportionate to the issues that are genuinely in dispute.  Lawyers will be required to provide ongoing disclosure as to the costs incurred and the estimated future costs to be incurred.
  8. Identifying and narrowing issues in dispute: to be achieved by full and frank disclosure, matters being justified, using single experts, and parties negotiating to narrow issues in dispute.
  9. Preparation for hearings: Parties and their lawyers are to be familiar with the specific issues in the case and be fully prepared for court events and the final hearing in a timely manner.
  10. Efficient and timely disposition of cases: The Court will act effectively and efficiently in achieving the prompt and fair disposition of pending cases, with judgments being delivered as soon as reasonably practicable after the receipt of final submissions

All parties and practitioners will need to have read and complied with the CP Direction before commencing proceedings.

The full CP Direction can be accessed here: https://www.fcfcoa.gov.au/resources/practice-directions

Family Law Rules

The new Family Rules have unified and modified the previous Federal Circuit Court Rules and the previous Family Court Rules.  There are a number of changes and it is important that parties and partitioners are aware of the Family Law Rules and comply with them.

Two notable new aspects to the Family Law Rules relate to the pre-action procedures and to the disclosure obligations in relation to costs.

Pre-Action Procedures

Rule 4.01 provides that (subject to an exception), before starting a proceeding, each prospective party to the proceeding must comply with the pre‑action procedures.

The pre action procedures are set out in schedule 1 of the Family Law Rules.

The Court will expect the parties to have complied with the pre-action procedures and there may be significant consequences if they have not been complied with, included costs orders and the proceedings being stayed until the pre action procedures have been complied with.

Further, the Court will now require parties to file a Genuine Steps Certificate when proceedings are commenced to confirm that they have tried to resolve their matter though alternative dispute resolution or alike (subject to an exemption) and that they have exchanged all relevant documents in the matter. 

The objectives of the pre-action procedures are as follows:

(a)  to encourage early and full disclosure in appropriate proceedings by the exchange of information and documents about the prospective proceeding;

                     (b)  to provide parties with a process to avoid legal action by reaching a settlement of the dispute before starting a proceeding;

                     (c)  to provide parties with a procedure to resolve the proceeding quickly and limit costs;

                     (d)  to ensure the efficient management of proceedings in the court, if proceedings become necessary;

                     (e)  to encourage parties, if proceedings become necessary, to seek only those orders that are reasonably achievable on the evidence;

                      (f)  to give effect to the overarching purpose of the family law practice and procedure provisions as provided by section 67 of the Federal Circuit and Family Court of Australia Act 2021

Costs Notices

To address the Court’s core principle, the rules impose obligations on lawyers in relation to costs notices that are to be given the client, the other party and the court, throughout the proceedings. 

The Court will expect and will be managing costs to ensure that the legal costs incurred in a proceeding are fairly, reasonably and proportionately incurred are fair, reasonable and proportionate in amount in the circumstances of the proceeding.

The Family Rules can be accessed here: https://www.legislation.gov.au/Details/F2021L01197

If you have any questions or would like further information in regard to your specific circumstances, please contact our office to speak with an Accredited Specialist in Family Law or any of our experienced family law team.

02 6648 7600