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New FCFCOA rules of court finalised

The new rules of court for the Federal Circuit and Family Court of Australia (FCFCOA) have been finalised, signed by the Chief Justice, and sent for registration on the Federal Register of Legislation.

All of the rules of court commence on 1 September 2021and all of the instruments and documents referred to below can be downloaded. Below is a summary of the new rule instruments.

1. Federal Circuit and Family Court of Australia (Family Law) Rules 2021

These rules are the harmonised family law rules. They are made under the Division 1 power to make rules of court in section 76 of the FCFCOA Act, and in the first instance, only apply to the FCFCOA Division 1. They are adopted to apply in the FCFCOA Division 2 by the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021, and in other courts exercising jurisdiction under the Family Law Act, such as state and territory courts, by the Family Law (State and Territory Courts) Rules 2021. They are referred to and defined as the ‘Family Law Rules 2021’ in the practice directions, forms and on the website.

2. Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021

These rules adopt the harmonised family law rules for the FCFCOA Division 2. They are made under the Division 2 power to make rules of court in section 217 of the FCFCOA Act. Aside from adopting the Family Law Rules 2021, there are a small number of additional rules contained in these rules dealing with:

  • transfers from Division 2 to Division 1
  • the retention of the existing FCC scale of costs for family law or child support proceedings (with updated amounts), which may be applied instead of the scale of costs in Schedule 3 to the Family Law Rules 2021
  • the delegation of Division 2 specific powers to registrars.

3. Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021

These rules are the relevant provisions of the Federal Circuit Court Rules 2001 that applied to general federal law proceedings renumbered and updated where necessary. The Federal Circuit Court Rules 2001 are automatically repealed by the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 on 1 September 2021.

4. Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021

These rules are the provisions of the Federal Circuit Court(Bankruptcy) Rules 2016 that applied to bankruptcy proceedings renumbered and updated where necessary. The Federal Circuit Court (Bankruptcy) Rules 2016 are automatically repealed by the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 on 1 September 2021.

5. Family Law Repeal Rules 2021

These rules repeal the Family Law Rules 2004.

6. Family Law (State and Territory Courts) Rules 2021

These rules are the standard rules of court made under section 123 of the Family Law Act for all other courts exercising jurisdiction under the Family Law Act aside from the FCFCOA. This instrument also incorporates the recently made Family Court Rules 2021 (WA) as the rules of court that apply in the Family Court of Western Australia and the Magistrates Court of Western Australia, and clarifies that those rules prevail in proceedings in the WA courts to the extent of any inconsistency with these rules.

Cross-reference tables

Cross reference tables have been drafted that indicate where provisions of the FLRs or FCCRs can be found in the new rules, or if they have been omitted. These are:

  • cross-reference table between the Family Law Rules 2004 and Family Law Rules 2021
  • cross-reference table between the Federal Circuit Court Rules 2001 and the Family Law Rules 2021
  • cross-reference table between the Federal Circuit Court Rules 2001 and the FCFC Div 2 General Federal Law Rules 2021.

Transitional arrangements

A practice direction has also been drafted to deal with transitional arrangements, and how the rules should apply to proceedings commenced before 1 September 2021 and not yet determined.

Generally speaking, the new rules apply to all new proceedings from 1 September 2021, and all existing proceedings not finally determined before 1 September. However, the court retains the discretion to dispense with compliance with any provision of the new rules at all times, including where application of the new rules would operate unfairly or cause injustice.

The new forms are in the process of being finalised and will be made available as soon as possible.

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