Family Court Merger

Published by Fiona Kirkman on 12th Aug 2021.

Here are my takeaways from the Family Court Merger Webinar with Juliana Warner (President of the Law Society of NSW) and The Honorable Chief Justice William Alstergren:

• Introduction by President noting the importance for the profession to understand and prepare for the changes and the core principle of family law being the prioritisation of the safety of children and appropriate handling of risks

The Honorable Chief Justice William Alstergren

• Fundamental role family law professionals and Courts play

• Thanked profession for their support, particularly over COVID

• Opportunities over the last year, including the utilisation of technology - testament to hard work of Courts and professionals

• Turned Court into electronic Court within 3 weeks - stunning and startling process they had to go through and thanked cooperation and support of the profession. This provided access to justice for the general public in family law issues. Discussed initiatives such as the COVID List.

• Discussed the Winter Call-Over List - noted call-over aimed to discuss issues in dispute and best dispute resolution options available. Over 90% of matters have gone to FDR - many matters settled (even those that were unlikely to settle). Flexible re: multiple matters in list and able to stand matters down if necessary.

Merger:

• Exciting times

• Single point of entry into the family law system

• Most significant changes since the commencement of the FLA almost 50 years ago

• New legislation - Federal Circuit and Family Court of Australia Act

• First objective of new Act (s.5): features and aims of the merged Court

  • Justice delivered efficiently and effectively

  • Just outcomes

  • Cooperation between different divisions - common set of Rules, Forms and practices and procedures and common approaches to case management

• Noted extensive recruitment process:

  • 10 additional Judges

  • 8 additional Div 2 Judges

Harmonised family law rules and practice directions:

• Federal Circuit and Family Court of Australia (Family Law) Rules 2021.

  • Adopted by Division 2

  • 15 Chapters and 4 Schedules

  • Commencing 1 September 2021

• Single overarching central case management practice direction

• 14 specific practice directions - each with a discrete area or application type - examples:

  • Practice direction - divorce

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  • Practice direction - parenting proceedings

  • Practice direction - financial proceedings

  • Practice direction - child support and child maintenance

• Rules have been finalised and will be provided to lawyers before 1st September etc once Judges vote on them later this month

A merged court: the framework

Overarching purpose of family law practice and procedure - ss. 67, 68 and 190, 191

To facilitate the just resolution of disputes: (a) according to law (b) as quickly, inexpensively and efficiently as possible

This includes the following objectives:

• The just determination of all proceedings before the FCFCOA

• The efficient use of the judicial and administrative resources available for the purposes of the Court

• The efficient disposal of the Court’s overall caseload

• The disposal of all proceedings in a timely manner

• The resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute

Focus on compliance in family law - cost consequences - lack of compliance interferes with the effective administration of the Courts

Single point of entry is very important

A merged court: what we want to achieve

• A world leading, best practice family law system

• A court that is national, modernised, smarter, responsive

• A system that responds to the increasing prevalence and complexity of risks to children and vulnerable parties

• Sage, early and effective dispute resolution in both parenting and financial matters

• Access to justice for litigants in regional and rural locations

• Compliance with court orders

• Effective use of technology to maximise efficiency

The new case management pathway

• Pre-action procedures will be enforced

  • Section 60I Certificate for parenting matters

  • File Genuine Steps Certificate - genuine effort to resolve dispute (over 70% cases not complied with pre-action procedures)

• First Court Event - Judicial Registrars hear and triage matter - what needed in matter

• Interim Hearing - Senior Judicial Registrars or Judges - limit to two interim applications per party without leave. Affidavits 10 pages Div 1 and 25 pages Div 2 (limit on annexures as well).

• Court Child Experts - expertise in family law and prepare Child Impact Report (slightly more expanded s.11F Report - issues, impact of conflict, views of children, evidence for interim hearing and potential evidence for trial). Family Report / Specific Issues Report or Child Impact Report only where necessary. Parties shouldn’t expect to receive reports where not necessary. Maybe report for FDR purposes

• DR for parenting & financial - early as possible and no later than 6 months after commencement of Court action. DR via video conference - internal FDRP and Court Child Experts may assist.

• Compliance Checks - matters unresolved following close of FDR after commencement of proceedings - likely to be conducted by Judge (not trial Judge) and must include readiness of matter for trial eg valuations etc, trial plan

• Trial - listed at trial date with judgement being listed within 3 months of trial. Aim for trial to take place within 12 months.

Live Q & A

• Will parties be required to attend FDR-Mediation for Property Matters prior to engaging court as is the case for parenting matters? YES - want them to - 70% not compiling with pre-action procedures. Section 60I Certificate for Property Mediation - NO - Genuine Steps Certificate instead. This will be completed by the parties and is a broad statement only, not that they have attended FDR.

• Changes to Application for Consent Orders form and other forms - small changes to harmonise them to FCFCOA only. Initiating Application will need a Financial Statement but only Affidavits if seeking an Interim Order. New Court Forms be released - IT to be put on the system - hoping in the next week or two.

• Unfounded claims of diminishment of specialist knowledge in family law Courts. Judges must have a high level of expertise in family law and family violence. 111 Judges (90 Judges doing family law) - depth of knowledge, skill and aptitude - level of expertise growing not decreasing.

• Lack of compliance: National Compliance List - matters triaged within 14 days. Lack of excuse then dealt with very quickly. A lot more focus and quicker response to ensure orders are complied with. May be costs orders, orders may be re-visited and other ramifications that will make a significant difference.

• Family Reports - acknowledge delays in Family Reports at present - they are readjusting resources they have - looked at UK model and their 26 week disposal of cases. Instead of Family Reports they are delivering a new type of report - like s.11F report but more extensive and only Family Report if needed. Shorter report earlier.

• Newcastle Family Court getting 1+ Judges in the coming weeks. Registrar Campbell in Wollongong Registry 3 of 4 weeks per month

• Summary of the new process will be made available to practitioners within the next week or two - more information on Court website. Updates weekly (every Friday). Practice Directions and subscription list that you can subscribe too. http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/court-lists-and-circuits/subscribe/

• Existing matters awaiting trial - 7,500 matters in the Winter Call-Over - current matters listed for trial will proceeded to trial. Will bring cases forward if possible.

• Video conferences post-COVID - continue to have electronic hearings where it will assist parties. Most trials will go back to face-to-face. Video conferences helpful for vulnerable parties and those terrified about coming to Court.

• Indigenous List will continue.

• Custodian of some cases ie to continue beyond 12 month period - they will accommodate cases re: safe pathway eg drug rehabilitation, sobriety, re-establishment of relationship.

• Over-listing of trials may continue. Wherever possible cases will be dealt with on the date listed.

• Ramifications for lack of compliance with disclosure requirements - practitioner to confirm appropriate advice provided and if yes then client will be dealt with accordingly. Filing document re: compliance re: financial disclosure

• Guidance re: new triage process will be provided.

• 1st September - everything in the new system where possible.

• Appeal process - right of review from a Registrar / Senior Registrar to Judge.

• Greater presence of Registrars on Circuit - electronically and on the first day

• Microsoft Teams - fair and efficient process - anticipated 25% cases continue electronically for some time - trials will generally be face-to-face if safe to do so eg COVID

• Supervision of parenting orders - case by case basis and what is needed - appropriate assistance to Court where possible.

• Noted many questions and that the Court will take on board questions when making further announcements/releases.

• Without additional funding to Legal Aids and FRCs - can the family law system truly deliver for vulnerable families? National legal assistance - some increase in funding - further funding needed. Need proper resources outside Court. Good dialogue with Legal Aid and Women’s Legal Services and Men’s Groups. More funding needed and quickly and circumstances that Government is aware of the needs and properly informed.

• The President thanked His Honour. Noted many members in lockdown - very stressful and changes to way we work stressful. Noted services of the SOS - https://www.lawsociety.com.au/sos - for those needing mental health services. Noted interesting year and interesting months to come.

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Following this webinar, we were approached by Wolters Kluwer to write an article about the webinar with Chief Justice William Alstergren. Read the article here.

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