Litigation as a last resort has been an ethic which has permeated the practice of Best Wilson Buckley Family Law from its inception in 2009.
The ability to achieve an outcome where Court is avoided relies upon Practitioners and Litigants having some certainty in relation to the efficiency and outcome that a Court process would deliver if required. The Court, and its good people, have been a victim of political imperatives for as long as many of our Practitioners have been involved in the system, if not longer. The emergence of two different Courts with a myriad of case management strategies, with different forms, with significant delays, have culminated in an inability to provide a Litigant with any certainty in relation to the Court process or outcome. This has been disabling for many Practitioners and, more importantly, for Litigants who are so vulnerable at point of entry into our system. This is why the change that is about to occur to our system is of such significance and such a cause of excitement and hope.
The newly merged Federal Circuit and Family Court of Australia (FCFCoA) will commence to operate under updated rules and case management strategies from 1 September 2021. Its expressed aim is to deliver cost-effective and efficient Judgments within 12 months of an Application being filed. There will be a single point of entry, consistent forms, and updated efficiency-focused processes.
Very recently, the Chief Justice Will Alstergren has heralded the changes as finally providing a system “that Australian families finally deserve”. The new Court will adopt a nationally consistent case pathway, commencing with the first Court event which will take place within six to eight weeks of filing, offering Litigants an Interim Hearing at the first Court event or very shortly thereafter, facilitating mediation or dispute resolution before the six month mark, and a progression to Trial thereafter (if required) within a 12 month period.
It is imperative to remember in this context that it is a rare matter that should require a Final Hearing or Trial process; the Court’s new case management strategy having an enhanced focus upon refining and limiting the issues in dispute and forcing parties to the table with significant consequences should there be, for example, a failure to provide appropriate disclosure or abide the Court’s direction as to the filing of material.
With the implementation of a number of specific processes which are devoted to high risk matters, the existence of allegations of child abuse and family violence, and expedient systems intended to capture those with more minimal property pools, the intention is to make sure that a matter is afforded a nuanced and focused approached with a drive to resolution.
Whilst this efficiency ethic has permeated the introduction of various initiatives over the almost 20 years of my career, we are finally seeing the funding to facilitate recruitment and initiatives which has been sadly lacking for a long period of time. While significant funding has, in the last 15 years, been devoted to pre-action initiatives such as Family Dispute Resolution, this focus has perhaps failed to appreciate that there will remain a significant number of couples whom require the intervention of the Court in order to move forward with their lives.
So what does all of this mean for Practitioners and their clients?
Number one, is a need to move very quickly to ensure a thorough understanding of case management guidelines, new forms, new rules and new initiatives. There will be a steep learning curve but one which allows thereafter for a consistent and predictable approach to litigation for Practitioners particularly. This means greater consequences for Practitioners and Litigants who fail to follow the rules or who unnecessarily delay a matter. Without doubt, compliance with direction has been a significant problem with our system for a prolonged period. This lack of compliance, and consequence for a lack of compliance, has led to a significant lack of confidence and effectiveness within the system in recent years. Parties will be required to undertake that they have provided full and frank disclosure and there will be consequences in the event that that undertaking proves to have been breached.
Judges will be divided effectively into two divisions within the new FCFCoA. Division 1 will be the existing Family Court Judges and they will retain jurisdiction to hear family law appeals and, it would appear, the more complex matters which have been the domain of the Family Court in recent years. Division 2 will be the existing Federal Circuit Court Judges whom it is hoped will be in a position to focus, not on interim issues or case management, but on the final determination of family law disputes where required. This system relies upon the introduction of a skilled group of Registrars, formally now divided into Senior Judicial Registrars whom will have power to determine interim matters of a specific nature, and Judicial Registrars whom will continue to provide an exceptional level of case management support to each and every Judge.
There is a renewed focus on and significant funding for the emergence of a greater core group of Court Child Experts, previously known as Family Consultants; expert Child Psychologists whom are employed by the Court to provide insight in relation to a family’s dynamic to inform the judicial process, giving a voice to children at the earliest possible stage.
It is hoped that 2021 will serve as a monumental year in the emergence of the family law system from a fog of struggle and inefficiency. It has never been more important than now that family lawyers develop a specialist undertaking of this area, with a refined and high level understanding of the Court’s process and rules and the most optimal means by which parties can be assisted to both avoid that process but also work within that process to achieve a resolution at the first opportunity.
The team at toowomba family lawyers is exceptionally excited about what this will mean for each other and, equally, for the clients whom mean so much to each of us.
If you have any questions in relation to how the new changes will impact on your matter then please reach out to your Lawyer. If you are at the beginning of this process and you genuinely need someone to walk with you then know that each and every member of our team has a willingness to be that person.