The Federal Circuit and Family Court of Australia 2021

The Federal Circuit of Australia and Family Court of Australia have merged utilising one common set of Rules from 1 September 2021. The new Court has imaginatively been renamed as The Federal Circuit and Family Court of Australia (“the Court”) while the full title of the Rules is The Federal Circuit and Family Court Rules 2021 (“the Rules”).

As of 1 September 2021, practitioners and litigants coming before the Court are to be expected to follow the new Rules and procedures with a 6-month grace period during the transition. Further to the new Rules are a series of Practice Directions for guidance as to how the Rules will be implemented.

Central to these Practice Directions is the Central Practice Direction – Family Law Case Management (“CPD”) setting our principles and procedures when coming before the Court. The Central Practice Direction states that all other Practice Directions are to be read within its framework.

Purpose

The purpose is expressed to establish a consistent national framework to achieve:

1. Reduce unnecessary cost, delay and conflict.
2. Ensure the safety of families.
3. Facilitate the just resolution of disputes according to law, quickly, inexpensively and efficiently as possible.

A copy of the CPD must be provided to clients and self-represented litigants at the commencement of a proceeding and contains strong statements as to the necessity to comply in all matters. Further, there are prohibitions on making ambit claims, being unnecessarily aggressive and filing unnecessary voluminous material (regardless of complexity).

Penalties for noncompliance include an adverse costs order to both practitioners and non-complying litigants.

Application of the Practice Direction

The CPD applies to all family law applications except for appeals, divorce proceedings and consent orders however the core principles of the practice direction do apply across the board.

Core Principles of the new Family Law system

There are 10 “core principles” to be underpinning the new procedures. These are:

1. Risk – addressing risk that may be present for vulnerable parties such as children and litigants from allegations including family violence.
2. Parties, Lawyers and Court overarching purpose is to resolve disputes according to law and as quickly and in expensively as possible.
3. Efficient use of resources – identifying the issues and allocating resources accordingly.
4. Case management approach – will include a consistent approach, triaging of matters towards appropriate case pathway – again early issue identification, prioritising early mediation and Family Dispute Resolution (“FDR”).
5. Importance for dispute resolution – Subject to safety, before commencing proceedings parties will have been expected to explore mediation and FDR. This includes following the section 60I Family Law Act 1975 FDR requirement.
6. Noncompliance – There will be serious consequences of noncompliance including costs against parties and lawyers.
7. Lawyers’ obligations about costs – refers to ensuring that costs are necessarily incurred and proportional to the issues in the case. Lawyers must keep client updated as to the situation regarding the actual costs incurred.
8. Identify and narrow issues – By making disclosure, ensuring applications are justified, trying to negotiate certain issues, engaging a single expert to resolve an issue etc.
9. Preparation for hearings – Lawyers must be ready and fully prepared for Court events.
10. Efficient and timely disposal of cases – faster court dates and delivery of judgements.

Case Management

Case management procedures have been set up to facilitate the above principles being achieved.

Pre-action Family Law procedures

There are several requirements placed on a party prior to commencing proceedings. These are:

1. Comply with schedule 1 of the Rules 2021 which sets out pre action procedures for property and parenting matters (set out in a separate blog) and comply with section 60I.
2. Take genuine steps to resolve the matter prior to commencing proceedings (subject to risk considerations) and file a “Genuine Steps Certificate”.
3. Unless the matter is urgent – Notice is to be given to the potential respondent prior to filing setting out the claim.

Failure to comply may result in the application being adjourned or stayed.

Filing and Service of Court Applications

Initiating Application must be served as soon as is reasonably practicable after filing.

Urgent Family Law Applications

A litigant must apply for an urgent interim hearing which will be assessed by a Judicial Registrar. If accepted as urgent it will be granted the earlies available hearing date. If appropriate there will be a referral to FDR after the urgent hearing.

Triage and assessment

A case may be referred to the National Assessment Team at any time for consideration of:

1. Whether the matter needs to go to Division 1 of the court – such as for a specialist court list such as the Magellan list or complex property list.
2. The suitability for the matter to be included in a specialist list.
3. Whether pre action compliance has been made.
4. Whether section 60I FDR regime has been complied with.

Allocation between Divisions of the new Family Law Court.

The Court operates with two Divisions being what was the Federal Circuit Court and the Family Court. The appropriate Division will depend on:

1. As part of triage and assessment whether the case is a specialist matter for immediate transfer to Division 1.
2. Compliance and readiness hearing where the appropriate Division will be determined to conduct the final hearing.
3. At any appropriate time to consider transfer.

Determination of the appropriate Division for hearing will be at the Court’s discretion having regard to:

1. The Rules and Family Law Act 1975.
2. The National Assessment Team’s assessment.
3. Party’s submissions.

The factors to determine the appropriate Division are:

1. Complexity of factual, legal, or jurisdictional issues.
2. International issues.
3. Multiple parties.
4. Multiple expert witnesses being necessary.
5. Questions of importance to the development of family law jurisprudence.
6. Length of the case.
7. Division 1 and 2 workload – delay.
8. Impact of litigants.
9. Any allegations of criminal misconduct.
10. Complexity in financial matters.

Court Events

While the Court will retain a discretion to be flexible in terms of case management to assist parties in the most efficient and effective way, the following will be the typical pathway to be followed in Court matters:

First Family Law Court event

The first Court event will be before a Judicial Registrar for Directions and aim to be listed for 1 to 2 months after the date of filing.

Before the first Court event the following is expected to occur:

1. All documents to be served in accordance with the Rules.
2. Lawyers must provide to the Court and each party a Notice:
   1. Confirming the client has made a genuine effort to resolve the dispute or issues subject to an exemption applying.
   2. Advising whether there is Legal Aid funding and setting out total costs and disbursements to date – estimate of costs for each stage.
   3. Estimate of the likely duration and costs of the final hearing.
3. If a party has not filed a Financial Statement as part of the proceeding, they must advise whether they are in receipt of Legal Aid and if not set out their expenses and income regarding their ability to fund or contribute to the costs of an expert report. This does not apply where the parties have agreed to privately fund a report.

The purpose of the first Court date is:

1. Make any directions or orders by consent.
2. Determine whether the pre action procedures have been complied with.
3. Identify the issues in the case and how to resolve them.
4. Is an interim hearing required?
5. Determine whether Court based, or external FDR is required.
6. Is individual case management required?
7. Consider urgency or special circumstances that require the matter to be transferred to a judge.
8. Directions for the preparation of expert reports, issuing subpoenas and future progression.

For parenting cases it will also be considered:

1. Whether an independent children’s lawyer is required.
2. Whether a written or oral report from a family consultant, social scientist etc may promote resolution.

For financial cases it will also be considered:

1. Timetable for exchange of disclosure documents.
2. Any single expert reports that are necessary.
3. Suitability for Arbitration.

In typical matters orders ought to be made for FDR and preparation including identify issues in dispute and considering the evidence necessary with respect to those issues.

Interim Hearing

In non-urgent cases any Interim Application in the Initiating Application or Response will be listed for hearing before a Senior Judicial Registrar or Judge after the first Court event.

This would normally occur before FDR and after any subpoenas or expert evidence relevant has been obtained, provided this wouldn’t cause undue delay.

No less than 2 business days before the Interim Hearing the parties must forward to the Associate of the relevant Judge or Senior Judicial Registrar:

1. Minute of Order sought.
2. Case Outline – setting out the major contentions and issues.
3. List of the documents to be read at the interim hearing.

Lawyers will be expected to be ready to proceed on the day.

Subsequent Interlocutory Applications

After proceedings have commenced, a party should not file an Application in a Proceeding unless Rule 4.03 has been complied with – to make a genuine and reasonable attempt to resolve the dispute.

Each party can file a maximum of 2 Application in a proceeding without leave and Chapter 5 contains requirements for Affidavits.

Family Law Mediation

Unless there are exceptional circumstances, parties must attend FDR within 5 months of the commencement of proceedings. FDR may not be appropriate in circumstances of violence.

Having regard to the means of the parties FDR may be Private mediation, Legal Aid Conference, Conciliation Conference, Judicial Settlement Conference or section 13C(1)(b) Family Law Act 1975 FDR conference.

Private Mediation and external Family Dispute Resolution

If attending mediation, the parties must provide the following within 7 days of attending:

1. Copies of the relevant Court documents filed in the proceeding.
2. Expert reports.
3. Relevant disclosure documents to a particular issue.
4. Minute of Order sought.
5. Case Outline in the approved form.
6. In financial cases – particulars of a financial resource, valuations or appraisals, superannuation valuation, procedural fairness to any super fund trustee.
7. Any current or previous family violence orders.
8. Certificate of Dispute Resolution for completion by mediator.

In addition, lawyers must:

1. Ensure documents are disclosed in accordance with Chapter 6 of the Rules.
2. Comply with reasonable requests of the mediator.
3. Attend FDR and make a genuine attempt to settle.

Before FDR lawyers must also provide notice of costs incurred to date and estimate of future costs to be incurred, estimate of duration of the final hearing and costs.

Costs penalties can be imposed if any unmeritorious claim is pressed at mediation.

Court based dispute resolution

For any Conciliation Conference or Court based FDR etc, at least 14 days prior the parties must:

1. Disclosure in accordance with Chapter 6 has been made.
2. Any expert reports have been filed.
3. Provide to the Court and each party a bundle of the following documents:
   1. Case outline in the approved form.
   2. Minute of Order sought.
   3. Disclosure documents relevant to a particular issue.
   4. In financial cases – particulars of a financial resource, valuations or appraisals, superannuation valuation, procedural fairness to any super fund trustee
4. Costs advice as for private FDR above.

The Judicial Registrar at the FDR may assess compliance and make costs orders and may further:

1. List the matter in an appropriate list including before a Judge for directions or consideration of dismissal.
2. Direct the parties to explain the lack of compliance.

If the FDR proceeds but can be resolved by negotiation the Judicial Registrar shall prepare for the parties and Court file a Certificate of Dispute Resolution stating:

1. Whether the parties attended.
2. Any significant issues in dispute.
3. Compliance with costs notification.
4. Compliance with the Rules.

Further directions can be made including listing the matter for a Compliance and Readiness Hearing.

Fast Track Hearing List

After FDR the Court may list the matter for a fast-track hearing where:

1. The parties made a genuine effort but couldn’t resolve the issues.
2. Issues are clearly identified and limited in scope.
3. Expert reports have been obtained.
4. The parties agree that the matter can be resolved on affidavit without cross examination and on the basis of written submission of no more than 10 pages.
5. The parties are in a position to present their case with 28 days’ notice of the hearing date.
6. The party’s consent to a short form judgement.

The Court may in the interests of achieving the purposes and principles can determine the proceeding or a discrete issue by way of fact track hearing.

Compliance and Readiness Hearing

For cases not “fast tracked” they will be given a date as close as possible to 6 months from the filing date for a Compliance and Readiness Hearing (CRH) before a Senior Judicial Registrar or Judge.

Prior to the CRH lawyers and parties will be expected to confer on producing a trial plan – witnesses and how long they will take to give evidence.

No later than 7 days prior to the CRH each party must file:

1. Amended Application or Response setting out precise order sought.
2. Undertaking as to disclosure in accordance with Rule 6.02.
3. Certificate of Readiness certifying – compliance with orders and directions, valuations completed, confirm the matter is ready and if it is not then why not.
4. Set out the duration of the hearing and costs information.

At the CRH the lawyers or parties must also be able to advise the Court of:

1. The factual issues requiring determination.
2. Legal and factual contentions in relation to each issue.
3. Proposed witnesses and availability.
4. Whether interpreters, video facilities etc are required.
5. Length of hearing.
6. Any other steps that are required.

Trial Management Hearing

The matter can be listed for a further management hearing before final hearing if necessary. This can be to consider costs of any non-compliance and make necessary directions.

Final Hearing, Unreached Matters and Judgment

The goal will be to achieve a final hearing within 12 months of the filing date.

If the matter cannot proceed on the listed trial date the parties can elect to attend FDR or it will be allocated to another Judge.

Judgement will be delivered as soon as is reasonably practicable or within 3 months of the final hearing.

If your matter is going to court and you need assistance, contact Hooper Mill Family Lawyers at Victoria Point on (07) 3207 7663.