This update to the profession is the final weekly update to be released prior to the commencement of the Federal Circuit and Family Court of Australia (FCFCOA) on Wednesday 1 September 2021.
Over the past several weeks, the courts have published weekly updates to the legal profession, and the public, to advise them of changes to court operations.
This fifth update provides information that primarily relates to the family law jurisdiction of the court, including a summary of key changes, a new website, details of new judicial registrar resources and an outline of the different registrar roles.
Importantly, this update also provides details of, and links to, all of the new rules of court for the FCFCOA.
What to expect on 1 September
The commencement of the court on 1 September is a significant event in the history of Australia’s federal court system. Not only is having a well-functioning, well-resourced and well-respected court system that the community can rely upon imperative to a civil society, the new court will provide an important service to many in our community who are experiencing the emotional and financial hardship of separation.
There will be many changes to court operations from 1 September, all of which have been detailed in the various updates, but in summary they involve changes to rules, forms, case management processes, appeals management and resources, and from 1 September, the creation of a new website, www.fcfcoa.gov.au.
For the first time in 21 years, there will be a single point of entry and a streamlined approach to family law proceedings. It will simplify procedures and enable cases to be moved through the family law system quickly and fairly and with as little detrimental impact on families and children as possible.
These changes reflect the numerous calls for change that have been voiced by the legal profession, and the wider community, over many years. The recent legislative changes have enabled major structural changes to the operation of the court system, which will feature:
- a single point of entry into the court system for all family law matters
- a new family law case management pathway
- new obligations on parties and practitioners to act consistently with the legislated overarching purpose of the Federal Circuit and Family Court of Australia Act 2021 that disputes be resolved according to law and as quickly, inexpensively and efficiently as possible
- harmonised family law rules
- new family law practice directions
- enhanced focus on resolution through dispute resolution, and an increase in internal dispute resolution in parenting and financial matters
- an enhanced and effective child expert reporting process
- specialist court lists
- an informative and modernised website.
Update on the new rules of court for family law, general federal law and bankruptcy proceedings
The Chief Justice/Chief Judge has issued new rules of court for all areas of the court’s jurisdiction, including family law, general federal law and bankruptcy.
Significantly, this includes the harmonised family law rules (made as the Federal Circuit and Family Court of Australia (Family Law) Rules 2021) which have been through an extensive development and consultation process over the past two years.
All of the rules of court commence on 1 September 2021. They are available from the FCFCOA website.
Below is a brief 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 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.
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.
All of the rule instruments and the above documents can be accessed and downloaded from FCFCOA Rules of Court.
New fcfcoa.gov.au website and family law informational videos
The new website, fcfcoa.gov.au, will go live on 1 September and has been designed to provide users with simplified access to, and navigation of, the court’s information. Instead of having two separate websites, the single website will make it easier for the profession, litigants and the public to source specific information about family law, migration and general federal law.
There will also be three professionally created videos published on the homepage of the new website. One is aimed at assisting parties, before they commence litigation, to consider better ways to separate and encourage the use of dispute resolution. The other two videos provide details about the new FCFCOA, and a step-by-step guide on what parties can expect when they come to court.
Appointment of judicial registrar resources across Australia (family law)
Last week, the courts announced the appointment of 42 experienced family law practitioners who will provide significant support to family law judges across Australia.
These appointments form part of a widespread recruitment campaign which commenced last year, and is ongoing. The family law registrar resources will play an enhanced role in the new case management pathway in the family law jurisdiction of the FCFCOA. A list of the new appointments is available from the Family Court’s website.
In the announcement, the Chief Justice of the Family Court of Australia and Chief Judge of the Federal Circuit Court of Australia, Justice Will Alstergren, said the appointments would assist in delivering some of the courts’ major goals of reducing delays nationally, identifying risk early, and improving access to justice to people living in regional locations.
Importantly, the additional resources will provide much-needed support for Australian families in regional areas. There will be an additional registrar resource provided to four key locations in North Queensland and the New South Wales Far North Coast; with an additional registrar resource placed in each of Townsville, Cairns, Rockhampton and Lismore.
Two new judicial registrars and a deputy registrar have also been appointed to provide additional support to the Newcastle registry which, together with existing resources, sees an increase from two registrars to seven registrars. Two further registrars will be based in Hobart to assist in supporting Tasmania, and further registrar support for each of Wollongong and Canberra. Details are listed below.
The new Registrars all hold significant expertise in family law, and include senior and highly respected members of the profession including barristers, special counsel, senior solicitors, and a magistrate, and many who are also accredited mediators.
The appointments were made possible through the provision of over $100 million in recent Commonwealth Government funding. The courts are confident of ongoing funding and the appointment of judges to fill current vacancies, and newly created judicial positions. The courts will continue to discuss with Government the importance of further resources to support family violence-related and other key initiatives to further improve the court system.
The enhanced role of senior registrars and judicial registrars (family law)
Senior judicial registrars, judicial registrars and deputy registrars will each undertake key roles in the operation of the family law jurisdiction of the FCFCOA and feature heavily in the new case management pathway.
All three categories of registrar exercise aspects of delegated judicial power in both divisions of the FCFCOA. All three cohorts can also make orders with the consent of the parties and hold a range of additional powers. A table outlining each of the powers that has been delegated to senior judicial registrars and judicial registrars will be available in Schedule 4 to the new Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
In the new court, most duty lists and case management events will be presided over by judicial registrars and as many interim applications as possible will be determined by senior judicial registrars.
Changes to child-related services
The launch of the FCFCOA will see Child Dispute Services take on the title of Court Children’s Service (CCS). This new title is representative of some significant changes that are being introduced to the work done by the court’s social workers and psychologists.
The role of CCS staff will be broadened such that they will not only be undertaking duties under their appointment as a family consultant, but they will also be undertaking duties under their authorisation as a family counsellor. These family counsellor duties will include assisting registrars with the delivery of confidential dispute resolution events and conducting confidential risk assessment interviews in the context of the court’s Lighthouse Project. To reflect this expansion of responsibilities, their position title is being changed to Court Child Expert (CCE).
The CCS will also continue to use the services of social workers and psychologists appointed to the role of family consultant under the regulations. These practitioners will remain known as Regulation 7 Family Consultants, as they will not be conducting any family counsellor duties, and will continue to provide family reports for CCS.
The overarching purpose of the CCS will be to assist families and the court by:
- helping parents understand the needs of their children after separation
- identifying risk factors that impact children
- identifying family strengths and protective factors
- providing expert evidence through the provision of assessment reports
- providing information about resources and support services
- assisting in the resolution of disputes.
In addition to supporting the introduction of dispute resolution into the case pathway, CCEs will be delivering a new type of early assessment event; a Child Impact Report (CIR). The purpose of this report will be to:
- focus the parties on the impact the dispute is having on the child/ren
- give a voice to the child at the early stage of proceedings
- inform the dispute resolution event
- provide evidence for an interim hearing where necessary
- assist the court in identifying what evidence may be required for trial.
Key to the importance of this new event will be the CCEs’ access to critical case information through recent initiatives such as the court’s Notice of Child Abuse, Family Violence and Risk and the colocation of police and child protection services.
New email addresses
Practitioners and parties, unless otherwise advised, can expect that current court email addresses with @familycourt.gov.au @federalcircuitcourt.gov.au or @familylawcourts.gov.au domains, will be converted to @fcfcoa.gov.au email addresses with the same formatting before the @. In the short term, existing email addresses will automatically redirect to the new @fcfcoa.gov.au address.