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The Final Countdown: Day 10 – One Court Not Two

The Final Countdown: Day 10 - One Court Not Two

There are 10 days to 1 September 2021 and the most significant shift in family law for decades.

Over the next 10 days, we will bring you the 10 things you need to know if you are presently involved in family law proceedings, practice in this area, or work with families impacted by the Court system.

As many of you are aware, family law in Australia is a federal issue meaning that with a quirky exception in Western Australia, the same law applies throughout Australia.   In the hope of simplifying the jurisdiction and making it more accessible, in December 1999 the Howard government introduced the Federal Magistrates Court of Australia (now known as the Federal Circuit Court).  Heralded as the `less adversarial’ Court, and capable of cheaper, more efficient justice.  The Family Court of Australia continued to operate for matters of greater complexity but found itself slowly starved of judicial numbers and resourcing as time went on.  Ironically the new amalgamated Court, under the new Central Practice Direction, looks vintage Family Court of Australia 1998 before the introduction of the new Federal Circuit Court (FCC) and at a time when filings were significantly lower.

Whilst the aspiration was honourable, what has eventuated in the ensuing 20 years, despite many good people working hard within that Court, is a difficult jurisdiction to negotiate, with different forms to the FCOA, different rules and inconsistent application of those rules and the absence of any consistent case management practice given the flexibility afforded to the Court at its inception. Great idea in theory, but in reality, it’s been incredibly difficult for practitioners to provide any accurate advice in relation to how a matter would be case managed, the priority that would be afforded to interim and final disputes or the timeline for determination. Where the hope was that greater flexibility would lead to more efficiencies, some would argue that the reverse has occurred. It is in that context, that we find ourselves facing the amalgamation of both Courts, and the introduction of consistent and uniform case management guidelines, forms and pathways to determination with recommended timelines.  The new name of this Court,  The Federal Circuit and Family Court of Australia – or the FCFCOA for those that like an acronym, represents a positive development and the culmination of the hard work of so many in recent years.

Our existing Federal Circuit Court Judges move to Division 2, and existing Family Court of Australia Judges to Division 1.   In theory, rather than docket managing matters from the first return date, Judges will be reserved for complex interim and final determinations, and in the case of Division 1, Appeals and matters solely within the jurisdiction of the Family Court of Australia (such as Hague Convention Child Abduction matters).

Registrars and Senior Registrars, now known as Judicial Registrars and Senior Judicial Registrars, will increase in number and do the great majority of case management, and interim determinations.  Importantly the contingent of in-house child consultants (or experienced child psychologists and therapeutic professionals), will be known as Court Child Experts and will be focussed upon ensuring that parties and those making decisions on an interim and final basis are afforded insight and recommendations in relation to how best to manage the needs of each child impacted by the proceedings.

Specialist lists and processes which have been developed to manage the complexity of domestic violence, and allegations of abuse will continue to operate and represent best practices in the management of these difficult areas. Similarly, a focus on ensuring smaller property pools and simple disputes are expedited and costs limited remains clear.

In the days to come, the team at Best Wilson Buckley will be providing more detail in relation to the specific aspects of the new case management pathway, protocols and court practice.  In the interim, you can read more about the features of the new amalgamated Court here.

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