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The Federal Circuit and Family Court will work with the federal government to correct a jurisdictional issue affecting legacy cases. Since merging the two courts in September 2021, pending cases were transferred from the former Family Court into the equivalent section of the merged court, now known as, Division 1.

Under the new laws, all cases must begin in Division 2 unless it is a more complex matter. The Court released a statement assuring the public that orders of the Federal Circuit and Family Court of Australia (Division 1) are valid and enforceable unless set aside on appeal.

“The Court will work with the government to ensure a legislative clarification can be progressed at the earliest opportunity,” the statement said.

Maurice Edwards, Special Counsel at Rafton Family Lawyers, said the jurisdictional error is a short-term problem and any challenge to the court’s jurisdiction “would not have many legs.”

Edwards argued the benefits of merging the two courts greatly outweighs any administrative issues that have arisen during this transition period. He emphasised three positive consequences to the merger – the focus on dispute resolution, setting up special lists to deal with specific matters and putting registrars and judges in a position where they can understand the case at an earlier stage.

“The fact that you only file in one court rather than two courts, and the attempts to merge the rules and have a single system has got to be a far better option in the long run,” said Edwards.

A key criticism of the merger is that lawyers fear specialised knowledge of family law may be watered down. “Whether that happens, remains to be seen,” he said.

The new system is focused on speeding things up and ensuring earlier resolution of family law problems. Edwards noted, “one of the downsides to this, is more documents need to be filed earlier which tends to increase costs initially”.

However, these documents put registrars and judges in a better position to move the matter forward appropriately and efficiently, ultimately leading to a quicker resolution and reduced costs.

“In property matters, if there are years of delays, you’ve got to update valuations and update affidavits, all of which involve enormous substantial costs,” said Edwards.

In navigating the changes, Edwards warns lawyers they need to be across the amended rules and practice directions which put the onus on parties and their lawyers to try and resolve matters at an earlier stage.

“There are cost implications if you do not make genuine attempts to resolve the issues, either before you come to court or during court proceedings,” said Edwards.

“These cost implications are not limited to the clients; they are also applicable to the lawyers themselves.”