New Era in Family Law

The (Commonwealth) Family Court of Australia and the accompanying Family Law Act commenced in 1975. At that time, it was heralded as modernising family law with a no-fault system for divorce after couples had been separated for 12 months.

It has taken 46 years for there to be an overhaul of the processes, procedures, and principles, primarily due to a lack of resources. The lack of resources led to significant delays and increased litigation costs and meant the Court was not in a position of being able to meet the needs and requirements of separating families.

On 1 September 2021, the Federal Circuit Court and the Family Court of Australia merged to create the Federal Circuit and Family Court of Australia (FCSCOA), so there is now, after 21 years, a single point of entry for litigated matters and a streamlined approach to family law proceedings. The purpose is to provide a modern, and innovative court led change. There are, however, two divisions, with the Family Court of Australia forming Division 1 and the renamed Federal Circuit Court and Family Court of Australia becoming Division 2.

What has been achieved is to create a streamlined single point of entry for all cases together with harmonised rules, forms and case management. There is a significant focus on resolving actions through dispute resolution.

The overhaul allows for more specialised judges in both divisions. The Appeals Division of the Family Court of Australia has been abolished, and appeals are now heard by a new family law division in the newly created Federal Circuit Court and Family Court of Australia.

There are three professionally created videos on the Court’s web page that parties can access before issuing court proceedings, so they better understand the court process and what to expect when they come to court. Additionally, the videos encourage the use of dispute resolution.

Core principles

There are 10 core principles underpinning the exercise of the Court’s jurisdiction, which are designed to facilitate the resolution of family law proceedings. We summarise these core principles as follows:

  1. The first principle prioritises the safety of children, vulnerable parties, and litigants with the early and ongoing identification and appropriate handling of risk issues, including allegations of family violence.
  2. The second core principle is directed at separated couples and lawyers, which is to facilitate the just resolution of disputes both according to law and as quickly, inexpensively and efficiently as possible.
  3. The third core principle involves the efficient and effective use of resources which enables the Court’s judicial registrars and Court child experts to be allocated and used efficiently in the context of handling of risks whenever identified.
  4. The fourth core principle involves an approach to case management. It must be consistent and apply the early triaging of matters to an appropriate case path. This includes assessing risk, emphasising the prioritisation of internal and external dispute resolution, including private mediation, family dispute resolution, conciliation conferences, and arbitration in property disputes.
  5. The fifth principle adds to the last one by emphasising that before commencing any action, unless it is unsafe to do so, all parties are expected to make a genuine attempt to resolve the dispute by way of some form of dispute resolution. Even after an action has been commenced, litigants are expected to be proactive in identifying the appropriate time and way to proceed to dispute resolution and make and consider reasonable offers of settlement at any stage in the proceedings. Failure to do so can have costs consequences.
  6. Supplementing the above, the sixth core principle involves non-compliance with orders, practice directions and rules. If there is non-compliance with orders, etc., either by the parties and/or their lawyers, costs orders can be awarded.

If a Court considers that either a party or their lawyer has pursued or defended an application, a response or a reply without legal foundation or not in good faith or without making a reasonable and genuine attempt to resolve the issue, the Court can either:

    • dismiss or determine the application on an undefended basis;
    • set aside a step or an order or prohibit a party from taking further steps; or
    • adjourn and make orders that are appropriate, including orders for costs, which can include costs in relation to the parties lawyers.
  1. On this issue of lawyer’s obligations on costs, core principle seven emphasises that parties and their lawyers are expected to take a sensible and pragmatic approach to litigation and incur only such costs as are fair, reasonable and proportionate to the issues that are genuinely in dispute. In particular, lawyers are expected to act consistently with cost estimates provided to their clients and inform their clients and the Court of the actual costs they have incurred.
  2. The eighth core principle involves identifying narrowing issues in dispute. This can be done by making full and frank disclosure of documents and in negotiations and using single experts.
  3. The ninth core principle involves the preparation of hearings, which says that the parties and their lawyers have to be familiar with specific issues of the case and be fully prepared for Court events and the final hearing in a timely manner.
  4. The last core principle involves the efficient and timely disposition of cases by the Court. To act effectively and efficiently in achieving a prompt and fair disposition of cases with judgments being delivered as soon as reasonably practicable

In order to achieve many of these core principles, it is anticipated that the first Court hearing would take place within six to eight weeks after the filing of proceedings and then mediation or other dispute resolution within six months, so parties are not too entrenched in the system. If the matter does not settle, a trial will occur within 12 months.

Parenting matters

Concerning child related services and supporting principle three above, the child dispute services is now called the ‘Court Children’s Service’ with psychologists and social workers helping parents:

  • understand the needs of their children following separation;
  • identify risk factors that impact children;
  • Identify family strengths and protective factors;
  • provide expert evidence through assessment reports; and
  • with dispute resolution.

To support dispute resolution, there is also an early assessment event called a Child Impact Report aimed at focusing the parents on the impact the dispute is having on the child/ren and giving a voice to the child at an early stage in the proceedings.

Contravention matters

One of the tragedies of the Family Court has been that if a party contravenes an order – and this is almost solely in relation to children’s matters – the other parent could issue a contravention application to enable the Court to determine if there was any reasonable reason for the order to be contravened. If it was not reasonable, there could be significant consequences for the offending parent, including jail, monetary fines and/or providing extra time to the parent not contravening the order. The problem with these applications is that they usually took approximately six months to be heard by a judge, thereby diluting the effectiveness of the initial Court orders and for the court to provide a remedy.

There is now a new national contravention list to be assessed by a team of Court registrars who can settle disputes and then only refer the most serious cases to a judge. The aim is for the first hearing date to be within 14 days of issue, with penalties applying where a contravention has been proved.

Conclusion

As mentioned above, the new regime is designed to crack down on parents who breach parenting orders and separated couples who fail to settle. Lawyers can be subjected to personal costs orders if it is considered they have deliberately dragged out proceedings.

Only time will tell if these ambitious aims will be met. Much will depend on whether the court resources are sufficient to support the principles. It will need all participants to follow the core principles and for the court to be prepared to penalise all parties, including lawyers, if they are not fulfilled.

For more information, please contact:
Joanne Cliff

Joanne Cliff
Director
p.  +61 8 8124 1803
e.  Email me

This communication provides general information which is current as at the time of production. The information contained in this communication does not constitute advice and should not be relied upon as such. Professional advice should be sought prior to any action being taken in reliance on any of the information. Should you wish to discuss any matter raised in this article, or what it means for you, your business or your clients' businesses, please feel free to contact us.

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