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Snapshot

  • The new Federal Circuit and Family Court of Australia commenced operation on 1 September 2021.
  • The merger has created a single point of entry to the family courts, with the intention of creating a more streamlined approach to litigation and significantly reducing wait times for litigants.

The new Federal Circuit and Family Court of Australia (‘FCFCoA’) commenced operation on 1 September 2021. The merger has created a single point of entry with the intention of creating a more streamlined approach to litigation and significantly reducing wait times for litigants. The new legislation and practice directions can be found at the new court website (see https://www.fcfcoa.gov.au/).

The new court system places a greater emphasis on:

  • educating and encouraging parties to resolve disputes before commencing proceedings (provided it is safe to do so); and
  • ensuring the parties understand what needs to be done by both parties, in the event proceedings are commenced.
  • There are mandatory ‘pre action procedures’ that must be completed prior to commencing proceedings and parties will be required to provide an undertaking to the Court that they have complied as far as is possible.

The Court aims to:

  • follow a nationally consistent pathway for all proceedings;
  • appropriately triage matters early in proceedings with tailored courses of action for vulnerable parties and children at high risk;
  • place significant focus on compliance with court orders and rules;
  • provide ongoing opportunities for dispute resolution; and
  • list a matter for final hearing before a Judge within 12 months, if the dispute cannot be resolved.

The role and titles of Registrars have been changed as follows:

  • Senior Registrars are now Senior Judicial Registrars;
  • Registrars are now Judicial Registrars; and
  • Assistant Registrars are now Deputy Registrars.
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Registrars now play a much greater role in case management, enabling Judges to conduct trials and deliver judgments sooner. Registrars and Family Consultants are now involved in triage tasks and case management of all matters filed. Registrars are also conducting Duty Lists and Interim Hearings.

Child Dispute Conferences (‘CDC’) and Child Inclusive Conferences (‘CIC’)

Child Dispute Services has been renamed ‘The Court Children’s Service and Family Consultants’. These consultants have been allocated different roles and are now known as Court Child Experts.

The CDC and CIC reports have been replaced with a Child Impact Report. The aim is for the report to be more comprehensive and to provide expert assistance to the Court, particularly in determining issues at Interim Hearing.

The timing of when a Child Impact Report is ordered will vary between Judges, and Judicial and Senior Registrars. However, the general guidelines for when to request a Child Impact Report are as follows:

  • at a first return date, but only if there are significant risk issues;
  • before an interim hearing if there are significant risk issues;
  • after dispute resolution has been attempted and the issues have been clearly identified and (hopefully) narrowed.

A Child Impact Report should ideally be ordered later in the Court process, so there has been ample opportunity to gather all relevant information and the expert can provide a comprehensive opinion for the Court and parties to consider. However, for matters that were in the Court system prior to 1 September 2021, Judges may order a Child Impact Report earlier in the proceedings given the different practices prior to the merging of the Courts.

The guidance from the Court Children’s Services is for the parties and their legal representatives to consider what information already exists to assist the parties to resolve or narrow the issues, rather than relying on Court resources and experts.

Trial/final hearing

If a matter proceeds to the stage of preparation for trial, parties can still have a Family Report prepared. There will be additional options including Specific Issues Reports and an opportunity to obtain a Child Impact Report Addendum if there was a Child Impact Report prepared earlier in the proceedings.

Appeals

Appeals will be heard by a single Judge unless the matter is assessed by the Chief Justice and a Full Court is considered appropriate. There is a single appeal filing registry for a streamlined and nationally consistent method of appeal.

National Contravention List – renewed focus on compliance

The National Contravention List has been introduced to bring a renewed focus on compliance with court orders. Breaches of court orders will be dealt with quickly and taken seriously. The National Contravention List has been created to:

  • efficiently deal with all Contravention Applications in a quick, cost effective and safe basis;
  • give Contravention Applications a first return date within 14 days;
  • ensure all parties comply with orders;
  • impose appropriate penalties where a contravention has been proved;
  • proactively facilitate the resolution of underlying issues in disputes that lead to the filing of Contravention Applications;
  • triage appropriate matters to dispute resolution; and try to resolve matters without further litigation.

Cassandra Banks is Junior Vice President and Co-Chair of the Family Law Committee of the Law Society of NSW.