October 24, 2021

How will the Family Court merger impact me? The new court pathway in the Federal Circuit and Family Court of Australia


By Ashlea Swan, Lawyer

On 1 September 2021, the previously known Federal Circuit Court of Australia and Family Court of Australia, merged to become the Federal Circuit and Family Court of Australia. (“the Court”).  With the introduction of one single Court, came a new, uniform set of rules, the Federal Circuit Court and Family Court of Australia (Family Law) Rules 2021 (“the Family Law Rules”) and new Central Practice Direction, both designed with the overarching purpose of providing more efficient and just resolutions to litigants.

The Family Law Rules boast a renewed emphasis on dispute resolution both at the pre-action stage which is detailed here and throughout the court process. The Central Practice Direction maps out the new pathway with a view to providing matters a final hearing earlier than 12 months from the commencement of proceedings.

Single point of entry

Despite the merger, the Court continues to operate as two distinct divisions. Division 1 is a continuation of the Family Court of Australia and Division 2 is a continuation of the Federal Circuit Court of Australia (as they were then known).

One of the most significant structural changes to come from the merger is the creation of a single point of entry for all litigants. The Family Law Rules mandate that all applications are to be filed in Division 2 of the Court, thus eliminating the requirement of practitioners and litigants to navigate which Court provides the more appropriate forum for an application. Division 2 is governed by a near identical set of Rules with some minor differences being applicable to matters only in that court.

Section 4.9 of the Central Practice Direction details how matters will be allocated between the two divisions of the Court. As a matter of course, matters will remain in Division 2 of the Court unless an application involves:

  1. an exercise of jurisdiction pursuant to section 1337C of the Corporations Act 2001 (Cth); or
  2. an application pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth).

As part of the initial triage and assessment process, the Court will identify and transfer matters to Division 1, without an application where it is deemed necessary. Additionally, litigants may make an application for transfer supported by an affidavit or a Division 2 judicial officer can, at their discretion, transfer a matter to Division 1 at any stage during the proceedings. In deciding whether to transfer a matter to Division 1, various factors will be considered including for example:

  1. the complexity of the legal, factual or jurisdictional issues involved and the likely length of the case;
  2. whether the case is likely to involve questions of general importance to the development of family law jurisprudence; and
  3. any circumstances that require the matter to be referred to a specialist list.

The purpose of the single point of entry is to streamline the management of cases and provide clear guidelines for the allocation of matters depending on the complexity of the subject matter and expertise of the relevant Court.

Court events pathway

The overarching purpose of the Family Law Rules is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. In accordance with the overarching purpose, the Court has devised a new pathway to promote efficiency and effectiveness.

The pathway (pictured below) promotes an emphasis on limiting the issues in dispute, attending alternative dispute resolution and providing a final outcome within 12 months of an application being filed.

One major difference that will aid the Court in delivering this pathway is the enhanced delegation of powers provided to judicial registrars of the Court pursuant to rule 14.03 of the Family Law Rules. The enhanced powers will allow for the use of judicial registrars at almost every stage of the court process save for final hearings and other exceptional circumstances. In practical terms this means that judicial dockets are available to hear and determine final hearings at a faster pace to keep up with the Court’s workload. In reality, only a small percentage of matters require a final hearing and the new pathway will mean that fewer matters ever require the time of a Judge.

Another initiative of the new court event pathway is to reduce the number of “unreached” final hearings. Previously, multiple matters may be listed against each other on the same day and any unreached matters would have to be adjourned to the next available date in the Judge’s diary, sometimes months away. Under the new pathway, if a matter is ready to proceed and cannot be heard by the docketed Judge on the date it is listed, the Court can:

  1. direct the parties to engage in dispute resolution on the day upon which the final hearing was listed; or
  2. subject to availability and the suitability of the matter for electronic hearing, refer the matter to be heard by another Judge, including the Judge sitting in another registry and/or a Judge sitting in the other Division of the Court; or
  3. refer the matter to the National Assessment Team for relisting before the first available Judge after that time which may, subject to the suitability of the matter for electronic hearing, be a Judge sitting in another registry and/or a Judge sitting in the other Division of the Court.

Dispute Resolution

The Family Law Rules have a renewed emphasis on dispute resolution. The following are some initiatives by the Court to increase efficient resolutions:

  1. All parties must attend private or court funded mediation within five months of an application being filed; and
  2. Where appropriate the court may order parties to attend a Family Dispute Resolution Conference. This type of conference is being introduced in all registries and involves the parties attending upon a judicial registrar and a court child expert to assist in guiding parties to achieve a practical resolution.

All forms of dispute resolution will remain confidential, however judicial officers and family dispute resolution practitioners will be required to provide a certificate of dispute resolution which details whether one or more of the parties failed to attend and whether a genuine effort was made to resolve the dispute. Furthermore, if a dispute resolution event cannot proceed as a result of any of the following factors, the Court may order that party to pay costs:

  1. Non -attendance at a dispute resolution event;
  2. Not providing sufficient disclosure prior to the dispute resolution event;
  3. Non-compliance with orders, directions or the Family Law Rules.

Overall, the changes stemming from the court merger intend to promote efficiency and as a result reduce the emotional burden of litigants being in the court system for lengthy periods of time. The team at Kennedy Partners are able to discuss your situation and advise the best approach for you.