Nine days to go until the amalgamation of the Courts and an opportune time to talk about the ten core principles which are now intended to underpin the exercise of the family law jurisdiction by the new Federal Circuit and Family Court of Australia (FCFCOA).
Set out in detail in the Central Practice Direction, the core principles have clearly shaped the new case management pathway and the rules that will apply to litigants and their lawyers along that pathway.
1 – Thou shalt have one eye on risk at all times
Unsurprisingly, the first Court Principle requires all concerned to put the safety of children, vulnerable parties and litigants first. This further manifests in the early and ongoing identification and appropriate handling of issues of risk, including allegations of violence.
2 – Thou shalt have purpose
The overarching purpose of the Court’s intervention is to facilitate the just resolution of disputes accordingly to law, and as quickly, inexpensively and efficiently as possible, and to prioritise the best interests of children. Accordingly, Core Principle 2 requires parties, their lawyers and the Court to ensure that they interpret the Central Practice Direction and Family Law Rules in a way that “best promotes” the Court’s overarching purpose.
3 – Thou shalt be effective and efficient
Core Principle 3 requires the effective and efficient allocation and use of judicial, registrar and court child expert resources – all with a focus on the overarching purpose (see commandment 2).
4 – Thou shalt be consistent in case management
The effective case management of all cases is said to rely upon a consistent approach to managing like cases, early triaging of matters to ensure they are managed optimally and risk is prioritised, and prioritising every opportunity for resolution by mediation, conciliation or arbitration both within the Court and external to it.
5 – Thou shalt negotiate, negotiate and negotiate again
Core Principle 5 discusses the clear expectation that other than in exceptional circumstances, parties must make a genuine effort to reach agreement prior to initiating proceedings, and even after commencing an application, parties are expected to be proactive in identifying the appropriate time for further dispute resolution (mediation, conciliation or arbitration) and be prepared to make and consider all reasonable offers of settlement at any stage of proceeding. A failure to do the latter may have costs consequences accordingly to this principle.
6 – Thou shalt comply, or risk the wrath of the Court
A favourite of this writer, Core Principle 6 is devoted to the Court’s intention to take “seriously” non-compliance with orders, practice directions, the Family Law Rules or obligations imposed consistent with the overarching purpose And the consequences for non-compliance? Liberty being granted to compliant party to proceed on an undefended basis (in other words you get ignored if you didn’t comply) and/or costs orders being made against parties “and/or their lawyers”. Serious times. The great thing about this principle is that serious consequences for non-compliance create a climate of compliance and much tighter, less expensive and a better litigation experience for all.
7 – Thou shall bill your client only what is reasonable, pragmatic and fair
There are an abundance of decent, pragmatic and focussed family lawyers in this jurisdiction. They deserve credit for managing the struggles of the Court in recent years and keeping costs as low as they possibly could. Equally, there are many lawyers that do not take a sensible and pragmatic approach to litigation and incur costs which are disproportionate to the issues in dispute. Core principle 7 requires every lawyer to incur only fees which are fair, reasonable and proportionate. Cost estimates are to be provided and adhered too, and regular cost updates and notices are to be provided at every court event. The clear message to the profession is that every lawyer is on notice to ensure they do the right thing by every litigant.
9 – Thou shalt identify and narrow the issues in dispute
This should be an obvious one and is fundamental to the skill that a good family lawyer brings to a dispute. How do we do this under Core Principle 8:
- Make full and frank disclosure of all relevant documentation and evidence early in the proceedings;
- Only bring an application to the Court if that application is “reasonably justified” on the material available;
- Negotiate prior to, and at Court in order to reach an agreement about as many of the issues in dispute as possible and settle procedural directions (like valuations, specific disclosure, expert evidence etc) which will allow for a foundation for that resolution without having recourse to the court;
- Get an agreed single expert or assessor involved to try and resolve an issue in dispute; and
- Don’t reopen issues already resolved or unreasonably agitate issues – there will be cost consequences.
10 – The Court shall honour your commitment by being efficient and timely in the disposition of every case
Core Principle 10 is one that imposes an obligation upon the Judges of both divisions. Specifically, it states that Judgments will be delivered as soon as reasonably practicable after the receipt of final submissions. Further, short form reasons may be utilised under this core principle in appropriate cases to facilitate the expeditious delivery of judgments.
A version of each of the Core Principles above that impact on how lawyers should behave has been central to the best practice that our team have adopted from the outset of this practice in 2009. The same can’t be said for many other practitioners in this area, and the application of this ethic more broadly is encouraging for those who have persevered for many years with poor behaviours.