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A new beginning for the Family Law system

On 1 September 2021, the Family Court of Australia and the Federal Circuit Court of Australia will be amalgamated into the Federal Circuit and Family Court of Australia (‘FCFCOA’). This new Court will consist of two divisions – Division 1 will deal with family law matters, while Division 2 will deal with both family law and general federal law matters.

The Court claims that the amalgamated structure will be modern, fair, and focused on risk, responsiveness, and earlier resolution.

But how will the new rules of the FCFCOA change the conduct of family law decisions moving forward?

A unified set of Rules and forms

The Judges of the FCFCOA have voted on and approved the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, which creates a unified set of Rules and forms across the two Courts. By creating a single set of harmonized Rules, together with a single-entry point and case management pathway, the Courts have addressed criticisms that the family law system is confusing, inefficient, and causes unacceptable delays.

Simply put, the FCFCOA aims to create a system that is fairer, quicker, and resolves disputes in a less costly manner. This has been a key objective of the Honorable Chief Justice Alstergren since his appointment to the Court in 2017.

A new case management system

A Central Practice Direction for the family law jurisdiction of the FCFCOA has been created to guide parties and their lawyers towards a consistent and more effective case management system. This system is designed to reduce unnecessary costs and delay, ensure the safety of families and children, and achieve the just resolution of disputes as quickly, inexpensively, and efficiently as possible.

Within this system, parties and their lawyers are asked to consider the best way to conduct their cases to achieve the just resolution of disputes. The Court expects lawyers to avoid unnecessary process-driven costs and filing unnecessarily lengthy or limited evidence in court. Any failure to comply with these expectations may attract costs orders and the drawing of adverse inferences.

Case management pathway

As set out in the Central Practice Direction, once proceedings are commenced, they will generally follow a nationally consistent case management pathway. This pathway is set out in general terms in the following diagram:

Changes to Child Dispute Services and Family Consultants

In addition to streamlining the case management pathway, the Court has modified Child Dispute Services and Family Consultants. From 1 September, Child Dispute Services will become known as the Court Children’s Service (CCS), and the Courts’ on-staff psychologists and social workers will be renamed Court Child Experts. The duties of Court Child Experts will include both family consultant and family counsellor as defined in the Family Law Act.

If input from a Court Child Expert is necessary at an early stage in the proceeding, a Child Impact Report will be prepared. This report will seek to give a voice to the child and focus the parties on the impact the dispute is having on the children. This Report will inform the dispute resolution event and assist the Court in identifying what evidence is required at trial.

At a later stage, if dispute resolution was unsuccessful, a further report may be ordered and prepared. This can include a Family Report that provides an independent assessment of the issues in the case, a Specific Issues Report if only limited issues are outstanding, and a Child Impact Addendum Report to supplement the Child Impact Report. These later stage reports will only be issued in preparation for trial and will not be prepared if deemed unnecessary.

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