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3 IMPORTANT THINGS YOU NEED TO KNOW ABOUT THE NEW FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

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By Denise Foster,  Special Counsel

On 1 September 2021, the Federal Circuit Court of Australia and the Family Court of Australia merged to become the new Federal Circuit and Family Court of Australia (FCFCOA). The FCFCOA has been designed to achieve the quick, inexpensive and fair resolution of Family Law disputes, as well as ensuring the safety of families and children.

1 What do I need to do before I commence Court proceedings?

Prior to commencing proceedings, parties are required to comply with pre-action requirements, which now place greater emphasis on attempts to resolve disputes outside of the Court system.

If there is a dispute concerning financial matters, each party must provide the other with full and frank disclosure of their financial position. It is also recommended that parties attend Dispute Resolution before commencing Court proceedings, although this is not mandatory in financial matters, and exemptions may apply.

If there is a dispute concerning child arrangements, parties must provide the other with full and frank disclosure of certain documents, which may include Intervention Orders, criminal records, school reports and medical documentation. Parties must also attend Family Dispute Resolution.  Again, exemptions may apply, for example where it is unsafe to attend on account of domestic violence, or the matter is urgent.

If Court proceedings are commenced for financial and/or child arrangements, each party must file a Genuine Steps Certificate.  This Certificate confirms compliance with the pre-action requirements or alternatively, substantiates reasons for non-compliance. If a party files a Genuine Steps Certificate without being truthful, significant consequences may follow including cost orders or other penalties. 

2 How will my case progress once I have commenced Court proceedings?

The FCFCOA has introduced a new case management pathway, which is outlined in the below diagram and as detailed in the new Court Practice Directions:-

First Court Event

The First Court Event will provide the Court with an opportunity to assess the matter and make appropriate orders at an early stage. This hearing will be listed within 8 weeks of Court proceedings having been issued.

Interim Hearing

If there is an application for Interim Orders, the matter may be listed for an Interim Hearing. The urgency of an Interim Hearing is assessed on a case-by-case basis.

Dispute Resolution

Parties are expected to participate in Dispute Resolution within 5 months of Court proceedings having been issued.  The Court places significant emphasis on this step. If Dispute Resolution does not proceed because of a party’s non-attendance or non-compliance with Court Orders, directions or rules, costs consequences may follow.

Compliance & Readiness Hearing

If parties do not settle at Dispute Resolution, a Compliance and Readiness Hearing (CRH) will take place. At the CRH, the Court will assess each party’s compliance with Court Orders, directions, and the new Court Rules. A Trial date will be allocated during a CRH as necessary. Each party must file no later than 7 days before a CRH:

  1. An Undertaking to the Court stating they have complied with the Duty of Disclosure; and
  2. A Certificate of Readiness stating they have complied with all Court Orders, directions and taken all other steps to prepare for a Final Hearing.

If a CRH does not proceed or the matter is unable to be listed for Final Hearing because of a party’s non-compliance, the Court may allow the complying party to proceed on an undefended basis and order costs against the non-compliant party. The same may occur if a Certificate of Readiness is found to be inaccurate.

Trial Management Hearing

A Trial Management Hearing may then occur if further orders and directions are necessary before the Final Hearing.

Final Hearing

The matter will only then proceed to a Final Hearing, which the FCFCOA aims to list within 12 months of Court proceedings having been issued.

3 What may happen if there is a breach of a Court Order?

The FCFCOA has introduced a National Contravention List to tackle issues of breach and/or non-compliance with Court Orders in a more timely and cost-effective manner.

The List will provide a first return date before a Contravention Registrar within 14 days of filing.

Parties who fail to comply with Court Orders without a reasonable excuse will be subject to costs consequences and other penalties. Lawyers may also be subject to personal costs orders if a Contravention Application (or Response thereto) is made without merit and/or without compliance with the Rules of the Court.

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If you have an existing matter before the Family Court or Federal Circuit Court, the recent Court merger will not have an immediate effect on the conduct of your matter. However, decisions will be made by the Court on a case-by-case basis.

If you require legal advice or representation with respect to your Family Law matters, please contact our highly experienced Family Law Team at MST Lawyers on (03) 8540-0200 or at familylaw@mst.com.au.