On 1 September 2021, the Federal Circuit and Family Court of Australia merged to form the Federal Circuit and Family Court of Australia (FCFCA). There is now one central set of rules that governs this Court, known as the Family Law Rules.
The merger has resulted in major structural changes to the family law system. There is now a single point of entry into the court system for all matters, a new case management pathway, synchronised family law rules and a heavier focus on compliance with pre-action procedures and dispute resolution (mediation).
The primary objective of the new system is to provide a more efficient system of justice aimed at assisting parties through the process as quickly, safely and fairly as possible without undue cost and delay.
Learn more about the amalgamated family law rules, the increased emphasis on compliance pre-action procedures and the new case management pathway below.
The New Case Management System
The following case management pathway will apply to all applications filed in the Federal Circuit and Family Court of Australia, other than applications allocated to special lists including the Covid-19 List, the Evatt List, child support, child maintenance and divorce proceedings.
The new case management pathway will attempt to have all matters that are unable to be resolved listed for a Final Hearing within 12 months from the date proceedings were commenced.
At the first court event, the Court will triage the matter, ensure there has been compliance with the pre-action procedures and develop a case management plan for the matter.
In parenting proceedings, the Court will make orders for the preparation of a Child Impact Report and where appropriate order the appointment of an Independent Children’s Lawyer. After receipt of the Child Impact Report the Court may list the matter for an Interim Hearing and thereafter a compliance check. Where appropriate, the court may then make orders for the attendance by the parties at dispute resolution. If the matter is not appropriate for/does not resolve at dispute resolution, the Court will conduct a compliance and readiness hearing and thereafter list the matter for Trial.
In financial proceedings, the Court may make orders for the exchange of full and frank disclosure, the preparation of valuations where the value of property is in dispute and make orders for attendance at Mediation. Where appropriate, the court will assess the appropriateness of the matter for Arbitration. If the matter does not resolve at dispute resolution, the Court will conduct a compliance and readiness hearing and thereafter will list the matter for Trial.
The New Court Forms
There are various new documents that are required to be filed under the new system, when an application for parenting orders or financial orders is filed, including as follows;
- A genuine Steps Certificate confirming the Applicant has complied with the pre-action procedures for parenting and/or financial proceedings prior to filing;
- A Parenting Questionnaire;
- A Financial Questionnaire;
- An undertaking as to disclosure for parenting and/or financial proceedings.
The above documents are in addition to the documents that are already required to be filed when an application for parenting/financial orders is made.
In Summary of the documents that are now required to be filed in parenting/financial proceedings:
Parenting Proceedings
- Initiating Application;
- Affidavit (where interim orders are sought);
- Notice of Risk;
- Section 60I certificate (evidencing attendance at mediation);
- Parenting Questionnaire;
- Genuine Steps Certificate.
Financial Proceedings
- Initiating Application;
- Affidavit (where interim orders are sought);
- Financial Statement;
- Financial Questionnaire;
- Genuine Steps Certificate.
Pre-action procedures under the Family Law Rules
The purpose of the pre-action procedures is to require parties to exhaust all possibilities for resolving the matter or at least narrowing the issues requiring a court determination, prior to commencing proceedings.
The pre-action procedures apply to any person commencing proceedings, any person responding to an application and to their lawyers.
Parties should not file proceedings unless they have exhausted all pre-action requirements, including as follows:
- Attendance at Dispute Resolution (section 60I certificate);
- Negotiation with the other party and exploring options for settlement via correspondence;
- Exchanging a notice of intention to commence proceedings which outlines:
- the issues in dispute;
- an offer of settlement;
- orders sought if proceedings are commenced;
- a request for a response in 14 days.
- Complying with the duty of disclosure;
- Genuine attempts to settle the dispute.
The usual exceptions apply to compliance with the pre-action procedures including genuine urgency or where it is not safe to undertake the above steps.
When an applicant files an application for parenting/financial orders, they must file a genuine steps certificate which certifies that they have complied with the pre-action procedures and that they have made a genuine effort to resolve the dispute.
If a party is found not to have complied with all the pre-action procedures, the Court may make costs orders against the non-complying party or, where appropriate, their lawyer.
The Court will also take compliance by each party with the pre-action procedures into account when making orders as to the case management pathway of a matter. For example, if a party has not complied with a pre-action procedure, the court may refuse to progress the application until each party has rectified their non-compliance.
Compliance with duty of disclosure
Parties have a duty to make full and frank disclosure of all information relevant to the issues in dispute.
The duty of full and frank disclosure must be complied with prior to court proceedings being commenced.
Documents that must be disclosed in financial matters including a list of assets, liabilities, superannuation and all documents in that party’s possession and control relating to the property pool, each party’s financial circumstances and any other document relevant to an issue in dispute.
Documents required to be disclosed in parenting matters include medical reports, school reports, letters, drawings and photographs and any other documents relevant to an issue in dispute.
There are serious consequences for failing to provide full and frank disclosure to the other party in a timely manner, including punishment for contempt of court.
Take away points regarding the new Family Law Rules
Under the new family law rules, you must make a genuine effort to resolve the dispute by doing the following prior to commencing proceedings:
- Attendance at mediation and dispute resolution (where a valid exception does not apply);
- Negotiation and exploration of settlement options;
- Comply with disclosure obligations;
- Exchange a notice of intention to commence proceedings including an offer of settlement.
If the above steps are not complied with prior to you commencing court proceedings, serious consequences may flow including the making of costs orders against you and your lawyer.
Contact Us
If you have recently separated and require advice in relation to financial/parenting/spousal maintenance/child support issues, contact us to book a reduced rate clean slate consultation with one of our experienced Brisbane Family Lawyers to have a confidential discussion about your individual circumstances.
