Earlier this year the 2 levels of the Court dealing with Family law matters (which had been established separately) were by legislation incorporated into one unified Court but compromising 2 levels being a level for less complex cases and a further level for more complex and longer property and parenting family law disputes.
Why was this done and how will it work?
HOW IT USED TO BE – In 1975, the Government established a new user friendly Family Court which was a lot more accessible for families who needed a resolution following the breakdown of the relationship. The legislation was far less complex than the rules that applied before it was introduced.
In 2000 a further Court system, The Federal Circuit Court, was added to the existing Family Court to allow families with less complex disputes, some access to a Court system with a process that was intended to be simpler and hopefully achieved a resolution more quickly.
Unfortunately for separating families as time has progressed whilst the two levels of the Court system – the Family Court and the Federal Circuit Court, have remained, the system became more complex and the delays for all families in the Court system significantly increased.
Whilst the Court had some very effective mediation processes in place which did assist many families with a resolution early in their dispute, there still remained an increasingly large number of cases where the families were without an outcome or resolution awaiting their turn in the Court lists.
By August 2021 the Court had identified that there were more than 7000 cases in the list – that is families whose dispute was in a queue not yet determined.
The Government was looking at options to try and address these delays which were leaving families already in distress under greater pressure.
HOW IT WILL WORK NOW – Earlier this year the 2 levels of the Court which had been established separately were by legislation incorporated into one unified Court but compromising 2 levels being a level for less complex cases and a further level for more complex and longer property and parenting family law disputes. There were no longer 2 levels of infrastructure with added costs- supporting both courts
Importantly in addition to consolidating the 2 Courts into one structure there has also been the introduction of new court rules.
The new rules the FCFCOA Rules 2021 for all Court’s was introduced on the 1st September 2021. These new rules are a significant shift from the prior two sets of rules that applied across 2 levels of Courts and was a fresh start to rules that have been previously put in place in 2004 and 2011 for each of the Courts.
The new rules not only provide one consolidated set of rules for all families whose dispute is being considered by the Court but the new rules have a focus on what steps can be taken to ensure that the family dispute can be concluded as soon as possible and in a cost effective and efficient manner.
The rules are comprehensive covering more than 250 pages. The legal profession is still working through these rules and there will be rules where we will need to await the Court’s interpretation as to what obligation they impose and how they will be applied.
Some of the new rules which focus on endeavouring to create a more efficient cost effective system include:
- There is a limit on the number of interim disputes that parties can commence in the Court. Part of the difficulties creating time delays with the previous system has been that in some cases there were multiple applications that were made by a party to the proceedings, taking up judicial time and increasing the cost to the parties.
- Now without leave of the Court neither party now can commence more than 2 interim applications. These are applications where the parties are perhaps awaiting the Court to determine the parenting matter but one or both of the parties is dissatisfied with the interim arrangements have applied for different orders to be in force until the final hearing. The multiple applications that some parents are bringing that significantly increased the costs are now at an end.
- There is a greater focus on compliance with the Rules and Directions made by the Court. Parties preparing their case must ensure that they file their documents in the time frame that the Court has ordered if at all possible. There are consequences for parties who do not comply with the guidelines that a Judge may set as to how a case may be prepared.
- One of the very important and welcomed changes is the manner in which the Court will now deal with Applications if a party has breached a Court Order. In the past it has been very frustrating for parties who have obtained an Order from the Court which they comply with but where the other party refused to. . The legislative provisions that apply to a contravening party for not obeying an order are complex and that still remains a challenge for a party who has otherwise themselves complied with the Orders and the other party has not.
- What has improved in this area of the law is that the parties will no longer be waiting 3, 5 or sometimes 9 months for their contravention to be heard. The Court has promised that such applications be fast tracked and will be determined within 14 days.
- The other very important step that the Court has introduced by the new Rules is an obligation on the parties that they must attempt to resolve their property dispute before commencing proceedings. Prior to the commencement of the new rules, this was the applicable rules of Court in relation to parenting matters only. That is parents were obliged to participate in alternate dispute resolution before they could ask the Court to determine their parenting dispute. Those provisions now apply to property matters as well.
- The Court has always had a focus on ensuring that clients are properly informed in relation to their legal costs. The amount of money that a party will spend on a Court case is a very important consideration for a party in litigation when they are deciding whether or not they should settle a case or compromise some aspect of the case. Often the parties need to be able to consider the cost benefit and without valuable information about their legal costs, they cannot undertake this exercise. The new provisions reinforce the obligation of notice to clients as to their legal costs and provide even more guidance than the prior rules as to when a client is entitled to information about their legal costs and how this sort of information also needs to be communicated to the other party.
These are just a few of the changes which are hoped to help separating families navigate their way through the Court’s processes to a resolution either by consent or by court determination.
If you would like further information on any issue relating to a family law matter, please contact one of the family law lawyers at Matthews Folbigg on 9635 7966 or by emailing famlaw@matthewsfolbigg.com.au
