From today, the family law courts as we knew them ceased to exist, and the new Federal Circuit and Family Court of Australia, or FCFCOA, begins to operate. This comes after the announcement earlier this year that the Federal Circuit Court and the Family Court of Australia will merge together to form one entity.
What does the new structure look like?
The new court is comprised of two divisions, simply named Division 1 and Division 2. All initiating applications will be filed in Division 2 and matters will be triaged between the two divisions. Division 1 will deal with more serious matters that would formerly have been heard by the Family Court, and Division 2 will deal with the matters formerly heard by the Federal Circuit Court. All appeals will be filed in Division 1.
What happens to my existing family law proceedings?
Today’s commencement date is a guillotine date, meaning that anything filed before today will remain in the old system (unless the court directs otherwise). Anything filed on or after today will be a part of the new system, and subject to the new forms and rules.
What changes can we expect to see?
Our family lawyers attended a webinar earlier this month in which Family Court Chief Justice William Alstergren advised that one of the main focuses of the new system is to address current issues surrounding a lack of compliance by litigants with court rules and Orders. Previously, contravention applications (such as an application where one parent is not complying with the parenting orders already made) could take anywhere between 2 to 18 months to be heard. The new system aims to triage these matters within 14 days in the National Contravention List. Costs orders and other penalties for the non-complying party will also be more easily obtained than under the current system.
His Honour also advised that the FCFCOA has a new case management pathway (see below), aiming to get 90% of matters in and out of the court system within 12 months. This pathway envisions that the first court event would be somewhere between 6-8 weeks after filing. This first court event will take place before a Judicial Registrar rather than a Judge, who will check compliance with pre-actions procedures. Notably, there is an introduction of the new ‘Genuine Steps Certificate’ for property matters, similar to the existing section 60I certificate for parenting matters, that both parties must certify they have ‘made a genuine attempt to resolve the dispute’ before commencing proceedings.
There will also be a greater focus on internal dispute resolution for both parenting and property matters within the FCFCOA system, with the appropriate resolution conference being undertaken 5-6 months after filing.
It is envisaged that the final hearing will take place at around 12 months after filing, and that judgments should be delivered within 3 months of the hearing date. All of these targets are, of course, aspirational, and it remains to be seen whether these targets can be met, given the extensive backlogs existing in the previous system.