The new Court rules are live and the focus no doubt of much review and concentration ahead of when they take effect tomorrow, 1 September 2021. The new rules are termed the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, but for ease, I’ll refer to them herein as the new Family Law Rules. You can review them here.
The new Family Law Rules run to 324 pages, but in a world where practitioners previously endeavoured to reconcile Family Court of Australia rules that ran to 466 pages and Federal Circuit Court Rules that ran to 258 pages, it does represent a significant simplification of the Court process.
The optimism attracting to 1 September is a response which goes beyond the breadth of the applicable Court Rules thou. The simplicity of one point of filing entry, the use of the same Court forms, and a standard case management pathway (for use in the majority of cases) has the potential to offer a much more positive experience for lawyers and litigants.
Whilst a detailed exposition of the Rules is beyond this forum, as anticipated the Rules effect some significant wins for a weary profession and community, they include:
- A very clear, overarching purpose, namely “to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible” (Rule 1.04).
- An active obligation upon both parties and lawyers to act consistently with the overarching purpose.
- A discretion, within the Court, to dispense with compliance of the rules at any time if required by the interests of justice (Rule 1.31).
- Clear direction in relation to the commencement of proceedings (Chapter 2).
- Very clear requirements before applying for Orders, including the need to engage in pre-action procedures other than in certain exceptional circumstances (Chapter 4). This requirement now applies to parenting (by way of FDR and 60I certificates), financial matters and any application seeking interim orders with express requirements as to what needs to be filed to verify efforts to resolve any dispute before filing. The nature of the pre-action procedure is explored in detail in Schedule 1 to the Rules.
- Clear rules about the conduct of interlocutory or interim litigation (Chapter 5).
- Disclosure obligations now require every party to file an undertaking as to disclosure prior to the first return date, which states clearly that the party is aware of their obligation to provide full and frank disclosure and has complied with that obligation and will continue to do so (Rule 6.02). This obligation is also assisted by specific lists of the type of document disclosable in parenting and financial proceedings at rules 6.05 and 6.06 respectively.
- The retention of single expert rules focussed on limiting the dispute around expert evidence.
- Each party to parenting proceedings must file a completed Parenting Questionnaire with their application or response (rule 8.09).
- When considering the movement between Division 1 and Division 2 Judges, there are a series of factors set out in rule 9.02 in addition to the factors set out in subsection 52(3) of the Federal Circuit and Family Court Act.
- Very detailed obligations are imposed upon lawyers to provide clear disclosure about costs to date and anticipated future costs where an offer to settle is made in property proceedings to the party receiving the notice, and even more significantly, at least 24 hours before a court event provide to a client a written notice of all costs, paid and owing, including the event; future anticipated costs, and expenses paid to expert witnesses. Further, at least 24 hours prior to the court event, the above notice has to be filed with the Court and provided to the other party.
The above is only a very brief summary in relation to the reach of the new Rules, and new brochures and forms to be released on 1 September will no doubt lay the foundation for parties and their lawyers to negotiate new obligations.
As became evident in the context of the best practice style Family Law Rules, when introduced in 2004, the Rules are only effective if non-compliance is actioned by the Court and whilst it is appropriate to extend a fair period to allow lawyers and particularly self-represented litigants to understand the new obligations imposed, it is anticipated that the patience of the Court will be finite, and enforcement of the rules is necessarily a significant key to achieving the overarching purpose.