As of today (1 September 2021) the Family Court of Australia and the Federal Circuit Court of Australia will merge to become the Federal Circuit and Family Court of Australia (FCFCOA). The creation of the FCFCOA is the answer to calls for change to a system that has been plagued by extreme delays, due to the chronic backlog of matters that were slowly suffocating the Courts. The FCFCOA promises a new and improved system that will focus on streamlining case management, adhering to a prescribed timeline, resolving matters through dispute resolution as often as possible and enforcing penalties upon those who contravene Court orders.
The FCFCOA hopes to create this more efficient system by introducing the following measures:
- A single point of entry. All cases will enter the system through Division 2, with only appeals and cases deemed sufficiently complex after being assessed by the Chief Justice, to be heard in Division 1. As well as streamlining the process, it is hoped that a single point of entry will allow safety and risk to be assessed from the outset of a matter.
- A prescribed timeline. The Family Law Case Management Central Practice Direction has introduced timeframes for each step of case management, from pre-action requirements to Final Hearing. This timeline aims for matters that require a Final Hearing to be, wherever possible, listed for Final Hearing within 12 months of proceedings being commenced
- Genuine Steps Certificate. In addition to the already required s60I certificate (to show that parties have made an effort mediation or are otherwise exempt or the matter is not appropriate for mediation) the FCFCOA now requires that a Genuine Steps Certificate be filed alongside the Initiating Application to demonstrate that the party has complied with pre-action procedures and has taken genuine steps to resolve the dispute, or is exempt from the requirement. An exemption would be if the parties or their children are at risk or to compromise or attempt dispute resolution would be unsafe to do so or where there are concerns of abuse or family violence. The approved form is yet to be released, however there is some concern that what one might view as genuine steps may be very different to another therefore the certificate may simply be surplus paperwork.
- Potential for cost consequences. A failure to fulfil the requirements of the Family Law Case Management Central Practice Direction now has the potential to attract cost consequences for a practitioner as well as their client. While a costs order has always been a possibility for a client, the specific inclusion of practitioners is hoped to create a greater incentive for practitioners to conduct their matters in a way that is consistent with the overarching purpose of the FCFCOA, to resolve disputes as quickly, inexpensively and efficiently as possible.
- A national contravention list. The contravention list is yet to be introduced however its introduction is an effort to support more efficient case management by reinforcing that breaching a Court order is a serious offence and will be dealt with quickly. It is hoped that the contravention list will provide a further deterrent to parties who might consider breaching Court orders.
In a statement released on 23 February 2021, the Honourable Chief Justice William Alstergren stated “with change comes opportunity“. The merging of the two Courts is without a doubt the largest change experienced by the Family Court of Australia since its establishment in 1975 and the Federal Circuit Court of Australia since it was established in 1999. The legal profession waits with bated breath, hoping that the FCFCOA does indeed bring the opportunities it promises and that ultimately the system can resolve disputes efficiently.
We will provide a further update as more information becomes available as the FCFCOA begins its operation and the new forms are released.
