It is hard to fathom that, about 18 months since COVID-19 hit our shores, we are continuing to be impacted by the severe effects of the pandemic on individuals and the Australian community in general.
As I write this report, many parts of the country are experiencing government-imposed restrictions of varying levels.
As you would all attest to, the impact on families and individuals has been very stressful and no doubt, as legal practitioners, you would have seen the consequences of that stress in your own workplace and perhaps through your clients, especially in the area of family law.
In respect of family law, now, more than ever, we must do all that we can to continue to identify risk to vulnerable parties and children at the earliest opportunity, and ensure that our processes respond to that risk.
The new court and modern technology can assist us to conduct safer, and earlier, hearings in high-risk cases. We must and will continue to do all that we can as a court to assist those at risk, and diminish the horrifying level of family violence in our community.
I continue to be in awe of the amazing work lawyers do in this area, especially those working in women’s legal and support services, men’s legal and support services, community legal centres, legal aid and those working in refuge shelters. They remain an outstanding example to the community for their hard work and dedication.
At the same time, we must also remind separated or separating couples to focus on what is important, what is in the best interests of the child, and encourage them to engage in dispute resolution opportunities as a preferred way of resolving their disputes, if it is safe and appropriate to do so.
An example of what can be achieved was the establishment and operation of the COVID-19 List (which was originally the idea of Angela Lynch AM and supported by other experts in my advisory group. If disputes have arisen due to circumstances related to the pandemic, the court’s national COVID-19 List continues to operate to provide litigants access to urgent family law assistance from anywhere around the country within 72 business hours.
The new court provides an opportunity to change the conversation about family law litigation in particular. The architecture of that conversation includes asking litigants if there is a smarter, better way for them to separate without the impact, stress and expense of protracted family law litigation.
It means, however, that we need to do things differently. We now have a system where identifying risk and safety at the very beginning of every case is a priority, where parties will be given ongoing opportunities for dispute resolution where it is safe to so, and if cases cannot be resolved, they will be listed for a trial before a judge much earlier than previously experienced.
For those cases that do need to proceed to litigation, the new court provides a modern, transparent and more efficient system of justice which is aimed at getting these parties through the process as safely, quickly and fairly as possible without undue delay.
It has been an extraordinarily busy year for the court. As well as adapting to deal with much of the workload electronically and adjusting to those challenges, we have been working diligently to establish the new Federal Circuit and Family Court of Australia (FCFCOA) by 1 September 2021. This has included a rejuvenation of all areas of the court, including areas set out below such as rules, forms, case management, appeals management and resources.
The FCFCOA comprises two divisions, Division 1 (formerly the Family Court of Australia) and Division 2 (formerly the Federal Circuit Court of Australia). Division 1 deals only with family law matters (including family law appeals), while Division 2 deals with family law, migration and general federal law matters.
The profession and the litigants can have faith that there is no diminution of specialist family law experience and skill in the new court. Both divisions of the court will continue to have judges with specialist knowledge, skill and experience in family law.
Division 1 has 35 specialist family law judges hearing both trials and appeals (the highest number of judges since 2009) and Division 2 now has a total of 76 judges, 55 of whom are specialists in family law.
Importantly, specialist judges with expertise in family law will continue to be appointed, with the FCFCOA Act requiring that, by reason of knowledge, skills, experience and aptitude, all judges exercising family law jurisdiction must be suitable to deal with family law matters, including matters involving family violence.
Members of the profession are encouraged to familiarise themselves with the many changes to court operations, details of which are accessible from the new court website, fcfcoa.gov.au.
The court’s new website 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 are also three professionally created videos published on 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.
What to expect with the commencement of the new Federal Circuit and Family Court of Australia
The Federal Circuit and Family Court of Australia provides a new structure that is innovative, fair and efficient and focuses on risk, responsiveness and resolution, by:
- improving early risk identification and safety of children and vulnerable parties
- encouraging smarter ways to separate with less acrimony, less cost and more dispute resolution, where it is safe to do so
- expecting compliance with court orders
- enhancing national access to justice for vulnerable parties and regional communities through the use of technology, and
- aiming to resolving up to 90% of cases within 12 months.
The legislative changes have enabled the court to undertake major structural changes which feature:
- a single point of entry for all family law matters
- a new case management pathway
- specialist lists
- harmonised family law rules
- new family law practice directions
- focus on dispute resolution and an increase in internal dispute resolution in parenting and financial matters
- enhanced and effective child expert reporting process
- an informative and modernised website
- appellate jurisdiction exercised in Division 1 through a Full Court model rather than an Appeal Division.
Please note, there will always be cases which, because of their complexity, cannot resolve in 12 months. Some of those cases will take time and the court will continue to utilise its supervisory functions to assist parties through these challenging times.
Family law jurisdiction of the FCFCOA
The overarching purpose (ss67, 68 190 and 191)
The FCFCOA has a legislative overarching purpose that is resolution focused, and can carry costs consequences if not complied with. The overarching purpose of the family law practice and procedure provisions is to facilitate the just resolution of disputes (a) according to law, and (b) as quickly, inexpensively and efficiently as possible.
All practice and procedure, and any powers or duties imposed, are to be carried out in the way that best promotes the overarching purpose. Parties have a duty to conduct proceedings in a way consistent with the overarching purpose, and lawyers must assist their clients to comply with that duty.
Harmonised rules and practice directions
Following extensive consultation with the legal profession and other stakeholders, the harmonised family law rules commenced 1 September 2021. A central practice direction, which sets out guidelines for the management of family law proceedings in the FCFCOA, also commenced from 1 September. To accompany the harmonised family law rules, a suite of 14 new practice directions has been developed and is available on the new court website.
A comprehensive review of all existing forms has been conducted to align with the new FCFCOA. Most form changes involved updating references to legislation, names and terms where required. In addition, where possible, some forms have undergone more substantive changes to improve functionality and usability. It is important for practitioners to note, however, that a 90-day grace period allowing the use of old forms commences from 1 September 2021, but after this period the old forms will not be accepted.
New case management pathway in family law
In the general course, matters filed in the new court will follow a nationally consistent case pathway, which is set out in general terms in this diagram:
The first court event takes place within six to eight weeks of filing. Parties should undertake mediation or other dispute resolution within six months of filing, before they have spent too much money and have become too entrenched in the system. If they are still unable to settle, they will be sent to trial, which is to commence where possible within 12 months.
A diagram and further information on the new case management pathway is available from the new website.
Enhanced Judicial Registrar resources
Integral to the new case management model is the increased involvement of Senior Judicial Registrars, Judicial Registrars and Court Child Experts early in the process to undertake the triage and case management of all matters filed.
As far as possible, duty lists will be conducted by Judicial Registrars and interim hearings will be conducted by Senior Judicial Registrars. This will alleviate the front-end case management burden on judges and ensure that they are able to hear and determine trials and deliver judgments in the matters that require judicial attention as quickly and efficiently as possible.
Note that registrars have different titles. Senior Registrars are now known as Senior Judicial Registrars, registrars are Judicial Registrars, and assistant registrars are Deputy Registrars. It should be emphasised that these titles do not change the powers or role of registrars, noting also that the previous Judicial Registrar position, being a statutory appointment, ceased to exist when the new legislation came into effect on 1 September.
Significant government funding, of more than $100 million, has enabled the court to undertake an extensive recruitment drive to secure the services of experienced family law practitioners to add to the already expansive and highly-skilled team of Judicial Registrars.
The pre-action procedures previously contained in Schedule 1 to the Family Law Rules have been retained and enhanced. They apply across both divisions of the FCFCOA and will be enforced. Parties should not file proceedings until they have exhausted the pre-action requirements, including engaging in dispute resolution, exchanging documents and correspondence, and making a genuine attempt to settle the dispute, with the usual exceptions for genuine urgency or where it is not safe to undertake these steps.
In addition to the requirement to comply with section 60I of the Family Law Act and file a certificate or seek an exemption when parenting orders are sought, both the applicant and respondent to an application for final orders are now required to file a Genuine Steps Certificate, certifying that they have complied with the pre-action procedures and made a genuine attempt to resolve the dispute.
Dispute resolution in the new case management pathway
The FCFCOA’s new case management pathway places significant emphasis on providing dispute resolution opportunities to litigants to assist them in resolving, or better identifying, the issues in dispute.
The court’s expectation is that, where it is safe to do so, parties will avail themselves of every opportunity to participate in dispute resolution – whether that be a court-based family dispute resolution conference or conciliation conference, privately funded dispute resolution, mediation or arbitration (in property cases only), or conferences through the legal aid commissions.
Appeals in family law
The FCFCOA Division 1 retains jurisdiction to hear family law appeals. However, there is no separate Appeal Division. All Division 1 judges can hear appeals either as a single Judge or as part of a Full Court. All appeals of FCFCOA (Division 2) and Family Law Magistrates of Western Australia decisions will now be heard by a single judge, unless the Chief Justice considers it appropriate for the appeal to be heard by a Full Court.
There are no changes to the rights to appeal as provided for under the Family Law Act 1975. A single national appeals filing registry has been introduced to provide a centralised and nationally consistent method of filing an appeal.
Child Dispute Services and Court Child Experts
The Court’s specialist service formerly known as Child Dispute Services is now known as the Court Children’s Service (CCS), and Child Dispute Services staff are now known as Court Child Experts. This reflects the additional responsibilities that CCS staff conduct in addition to their roles as Family Consultants, including undertaking confidential dispute resolution events with Judicial Registrars and confidential risk screening as part of the Lighthouse Project.
There are also changes to assessments and reports provided by the CCS. The section 11F assessment has been replaced by a more fulsome report known as a Child Impact Report which will be designed to assist the parties in parenting matters to reach agreement wherever possible, and to provide expert guidance to the court for interim hearings.
For matters that proceed to the trial preparation phase, the family report model will remain available, with additional options available, including reports in relation to specific issues, and addendum reports building on the original Child Impact Report. Further details on the CCS are available from the new website.
Migration and general federal law jurisdiction of Division 2 of the FCFCOA
The migration and general federal law jurisdiction continues to be conducted by Division 2 of the FCFCOA.
Other than some minor changes to court rules and forms, there are no substantial changes to the previous (FCC) pathway or appeal process involving migration and other general federal law matters.
General federal law rules and practice directions for Division 2
The Federal Circuit Court Rules 2001 (FCC Rules) were made pursuant to the Federal Circuit Court of Australia Act 1999 (Cth). As the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 repealed the Federal Circuit Court of Australia Act 1999 (Cth) in its entirety, all rules of court made under that Act lapsed on 1 September 2021.
Consequently, the FCC Rules that relate to general federal law proceedings as well as the FCC Bankruptcy Rules have been updated and remade. It should be noted that there will not be a great deal of difference in the new rules at this stage for general federal law cases.
Two central practice directions have been developed for migration proceedings and general federal law proceedings in the FCFCOA. These, as well as other details, including a cross-reference table comparing the previous Federal Circuit Court rules with the new GFL and Bankruptcy rules, are available on the new FCFCOA website.
The information above relates to the new court and its case management systems. However, there is a legacy of cases that have been in our family law system for some time, often too long and at too much expense and stress to the parties involved.
To help reduce the backlog of this legacy of cases, prior to the commencement of the FCFCOA, the Family Court and Federal Circuit Court conducted a Winter Callover in Adelaide, Brisbane, Melbourne, Parramatta, Lismore and Sydney. About 7000 cases were bought before the courts across all locations (by electronic means) to assist parties to identify, narrow and resolve matters in dispute with appropriate cases being referred to mediation and family dispute resolution.
Many of these have been provided by the court’s in-house experts, and some by retired judges who volunteered to conduct private settlement conferences on a pro bono or limited cost basis. I thank those former judges, and also the many barristers and solicitors who made themselves available to parties to provide private mediations.
I appreciate that this initiative may have presented some challenges but I wish to re-iterate the court’s focus on the benefits to the parties who can resolve their issues without protracted and acrimonious litigation. Whilst the process is continuing, the winter callover has already seen many long standing cases settle, others continuing to negotiate towards settlement, and in others, the issues in dispute are being narrowed.
I am, on behalf of the court, extremely grateful for the support that has been provided by the local Bar associations and law societies, as well as legal aid and other community legal assistance services.
I invite the profession to join me, and the court, in our endeavour to make the most of this opportunity and to improve access to justice for the Australian community.
We can achieve this by streamlining the family law system and making it far easier for the public to navigate and engage with.
Importantly, we need to focus on safety and minimising acrimonious and expensive litigation by encouraging and providing dispute resolution opportunities. Critically, in family law, we need to change the culture and conversation and work towards providing a world-leading family law system that places children, litigants and their safety at the heart of the process.