What has changed with the new Federal Circuit and Family Court of Australia?
The Court has learnt a great deal during the pandemic, and as a result, has implemented many new innovations, including electronic hearings. These innovations will continue to be used as COVID-related restrictions are eased, to ensure improved safety and access to justice for vulnerable parties and people living in regional areas.
If it is safe to do so, parties will be encouraged to engage with dispute resolution opportunities before, and throughout, the Court process. For the cases that are not suitable to resolve by dispute resolution and need to proceed to a trial before a judge, the Court will provide a safe, fair and modern system of justice. The Court’s aim over time is to resolve more than 90 per cent of family law matters within 12 months to reduce the time, cost and stress associated with litigation.
Family law jurisdiction of the Court
The overarching purpose
The overarching purpose of the family law practice and procedure provisions in the Federal Circuit and Family Court of Australia Act 2021 (Cth) (the Act) is to facilitate the just resolution of disputes: (a) according to law; and (b) as quickly, inexpensively and efficiently as possible. This overarching purpose is reinforced in the Court’s new Central Practice Direction – Family Law Case Management. See also ss 67, 68, 190 and 191 of the Act.
Harmonised rules and practice directions
For the first time in more than 21 years there is now a single set of family law rules, known as the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. A Central Practice Direction sets out guidelines for the management of family law proceedings in the Court, and a suite of 14 new practice directions have been developed to accompany the harmonised family law rules.
The creation of harmonised Rules and accompanying Practice Directions, together with a single point of entry, additional resources and case management reform, go towards streamlining the family law system.
Forms
A comprehensive review of all existing court forms has been conducted and forms in the family law, migration and general federal law jurisdictions have been updated where required. All forms are available on the Court’s website. It is important to note that a 90 day grace period (commencing from 1 September) applies, meaning old forms can still be used, but after this period, they will no longer be accepted by the Court.
New case management pathway in family law
The way that family law matters will progress through the Court has changed. In the general course, matters filed in the new Court will follow a nationally consistent case management pathway, outlined in the following diagram.
Case management flow chart
Enhanced judicial registrar resources in family law
Senior judicial registrars, judicial registrars and deputy registrars will undertake enhanced duties and roles in the early stage of proceedings to triage and case manage all family law matters. As far as possible, duty lists will be conducted by judicial registrars and interim hearings will be conducted by senior judicial registrars. This will alleviate some of the burden on judges and enable them to direct more of their time to the consideration and determination of complex interim applications and final hearings.
Pre-action procedures
The pre-action procedures previously contained in Schedule 1 to the Family Law Rules have been retained and enhanced. Pre-action procedures must be complied with prior to filing a family law application in the Court. More information is available in the diagram which outlines the Pre-action procedures.
Dispute resolution in the new case management pathway
The Court’s new case management pathway places significant emphasis on providing dispute resolution opportunities to litigants to assist them in resolving, or better identifying, the issues in dispute. The Court’s expectation is that, where it is safe to do so, parties will avail themselves of every opportunity to participate in dispute resolution.
Appeals in family law
Division 1 of the Court retains jurisdiction to hear family law appeals. However, there is no longer a separate Appeal Division. See the Appeals section of the Court’s website for more information.
Court children’s service and court child experts
The Court’s specialist service formerly known as Child Dispute Services is now known as the Court Children’s Service, and Child Dispute Services staff are now known as Court Child Experts, who will continue to fulfil a very important role.
Migration and general federal law jurisdiction of Division 2 of the Court
Division 2 of the Court will continue to have jurisdiction over migration and general federal law matters.
Other than some minor changes to the rules of court and forms, there are no substantial changes to the previous case management pathway or appeal process for migration and general federal law matters.
