24 August 2021

Countdown to the commencement of the new Federal Circuit and Family Court of Australia – what will the merger mean for you?

Following the passing of legislation last year to amalgamate the Federal Circuit Court of Australia and the Family Court of Australia, the new Federal Circuit and Family Court of Australia (FCFCoA) will commence operations on 1 September 2021. The merger makes a litany of promises to be a single point of entry and providing a more streamlined approach to litigation whilst slashing the wait times faced by families in the current set-up. With the commencement date just around the corner, we have taken the opportunity to outline what we know so far about the merger and answer some common questions that we have been asked about what this may mean for you and your family.

The merger promises to:

  • Place a greater emphasis on educating and encouraging you to settle your disputes before proceedings are commenced (provided it is safe to do so) and ensuring you know of the ramifications upon you and your family in the event proceedings do follow.

  • Appropriately triage matters early on where there are vulnerable parties and children at high risk.

  • Place significant focus on compliance with court orders.

  • Provide you with an ongoing opportunity for dispute resolution and if your dispute cannot be resolved, it will be listed for determination before a Judge much earlier than the current wait times.

So, what will this all look like in practice?

Generally, matters filed in the new FCFCoA will follow this nationally consistent pathway:

Integral to this model is the elimination of the front-end case management burden on Judges so that their focus is on conducting Trials and delivering judgments in a timely manner. This will be achieved by:

  1. The increased involvement of Registrars and Family Consultants to undertake triage and case management of all matters filed; and

  2. Having Registrars conduct Duty Lists and Interim Hearings.

Senior Registrars will now be known as Senior Judicial Registrars, Registrars will be Judicial Registrars and Assistant Registrars will be Deputy Registrars.

Family Consultants will now be known as Court Child Experts and Child Dispute Services will become known as the Court Children’s Service.

Additionally:

  1. Child Dispute and Child Inclusive Conference Memorandums will be replaced with a more comprehensive and fulsome report called a Child Impact Report which will be designed to provide expert assistance to the Court in determining the outcome of Interim Hearings.

  2. For matters that proceed to the trial preparation stage, the current family report model will remain available with additional options available including reports addressing specific issues, and addendum reports building on the original Child Impact Report.

Finally, there will be new harmonised family law rules and a suite of fourteen new practice directions to be released on commencement of the merger. The current court forms are being updated to reflect the new legislation and terms and also to improve functionality and useability. A new single website will also be launched on 1 September 2021.

What about Appeals?

Unlike the current model where appeals are heard by the Full Court of the Family Court of Australia, there will be no separate Appeals Division. Instead, appeals will be heard by a single Judge unless the Chief Justice considers it appropriate for the appeal to be heard by a Full Court.

A single appeals filing registry will be introduced to provide a streamlined and nationally consistent method of commencing an appeal.

National Contravention List

Quite possibly the most radical change to the current model will be the introduction of the National Contravention List to address the expectation that you must comply with orders of the Court. Breaches of court orders will be dealt with expeditiously and taken seriously. The key objectives of the National Contravention List are:

  • To efficiently deal with all Contravention Applications on a timely, cost effective and safe basis;

  • Contravention Applications will now be given a first return date within fourteen days;

  • To ensure compliance with orders by all parties;

  • To impose appropriate penalties where a contravention has been proved;

  • To proactively facilitate the resolution of underlying issues in disputes that lead to the filing of Contravention Applications;

  • To triage appropriate matters to dispute resolution, and

  • To be responsive to your wishes to resolve matters without additional litigation.

It remains to be seen whether the merger will live up to its expectations or whether it will deliver on its promises. It is even difficult to predict a timeframe for when we will be able to measure the success or otherwise of the new regime. Practitioners and families alike will all have to navigate the new system and that is the only certainty there is at the moment. Whilst we are approaching the new regime with some trepidation and caution we are optimistic that for the first time in fifty years, perhaps this will be a system we can all be proud of.

For a confidential discussion about how the merger may impact you and your family, please contact Alicia Toberty on (02) 9259 9615 or atoberty@bartier.com.au

Author: Alicia Toberty