The Family and Federal Court Merger: What does it mean for litigants?
On September 1st 2021, the Federal Circuit Court and the Family Court merged to become the Federal Circuit and Family Court of Australia (“FCFCOA”). All existing matters before the Court will be subject to the new rules. The overarching purpose of this merge is to facilitate the just resolution of disputes in accordance with the law, as quickly, inexpensively, and efficiently as possible. The FCFCOA will aim to resolve up to 90% of cases within 12 months – this will be a significant reduction on the average time of 18.6 months which matters spent in the Family Court prior to the merge. Chief Justice Alstergren has been determined to develop a system which addressed the unacceptable delays afflicting the former Family Law system. It is expected that this new system will help to reduce the number of cases not finalised within a year from 40% to 10%.
The legislative basis which enabled this merger is the Federal Circuit and Family Court of Australia Act 2021 (Cth). Former Attorney-General, Christian Porter, described the passing of these reforms as focussing the work of the courts on the users, so they can finalise their matters and move on with their lives. In conjunction with this legislation, the Commonwealth Government also introduced the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. Together, these changes have facilitated the creation of new practice directions and case management processes which are designed to improve upon the old system. Some of the key benefits for litigants are as follows:
Single point of entry
The reforms have enabled the creation of a single point of entry into the court system for all family law matters. This change is designed to support a reliable assessment of the expected complexity of matters, and enable the courts to better identify unusual, unique, or high priority issues which may be relevant in subsequent management or allocation of a matter. It is estimated that a single point of entry for filing, assessing, and allocating mattes will help to finalise an additional 670 matters per year. The FCFC comprises 2 divisions:
- The FCFC (Division 1) is a continuation of the Family Court of Australia and comprises the existing judges of the Family Court.
- The FCFC (Division 2) is a continuation of the Federal Circuit Court of Australia.
New case management pathway
The new case management pathway is targeted toward more efficient organisation, supervision, and management of matters before the Court. Under the new pathway, there are timeframes by which different court events are to fall within. For example, the First Court Event is to occur within 6-8 weeks of the filing the matter. It is hoped that where cases need to go to trial, that this will occur within 12 months. This is designed to save costs for litigants, whilst also creating a more efficient court process for all. It is estimated that this change will help to finalise an additional 1760 matters per year.
Harmonised family law rules
The former Family Law system was filled with vast inconsistencies, as a consequence of different rules for the 2 courts and processes. This resulted in inconsistent outcomes, dependent on which court heard the matter. For the first time in over 21 years, the rules and practice directions for Family Law have been harmonised. This will provide greater certainty in Family Law matters and may also make any transfer between courts more efficient.
Enhanced focus on dispute resolution
The merged Court recognises that family dispute resolution resources must be utilised in a way which maximises the benefits for people affected by family breakdown. The change acknowledges that litigation should be an option of last resort for Family Law proceedings, and that the focus should be on preserving relationships. As such, family dispute resolution is a pre-action procedure which must be attempted prior to filing a matter in the Court. The use of family consultants will also be critical for developing a consistent approach to assessing cases for family dispute resolution suitability.
Under the merged Court, parties and/or their lawyers who do not conduct matters in a manner which is consistent with the Court’s overarching purpose may be subject to additional costs orders. This is to ensure that parties can experience an efficient court process, whilst also not being subjected to any unnecessary legal fees.
Fast track hearings
Some matters may be allocated to a fast track hearing. This will be a short form judgement determined on written submissions (no more than 10 pages), filed affidavit evidence, and expert reports and materials provided to the Court. This process will significantly reduce the time and expense of litigation for parties to a proceeding.
Notably, whist there has been some concern from members of the legal community about the reforms, it has long been acknowledged that the system was inadequate. When combining significant complexities, duplications, and costs with levels of family violence, the old system appeared completely unacceptable and unsustainable. Chief Justice Alstergren has asserted that in order to address these issues that they need to do things differently. Ultimately, the merger with the input of the Family Section of the Law Council of Australia and other stakeholders resulted in a bill which preserved Division 1 as a Superior Court of Record, and appears to provide significant benefit for litigants. It is a matter of time to see how the new system performs.