On 1 October 2021, the Federal Circuit and Family Court of Australia (“FCFCOA”) launched the Major Complex Financial Proceedings (“MCFP”) List. The List will operate as a pilot program in the Melbourne, Sydney, and Brisbane registries of the Court, or if appropriate to be managed electronically, a MCFP List Case in any other registry of the Court. The List falls under the ‘Family Law Practice Direction – Major Complex Financial Proceedings List’ (“FAM-MCFP”).
Purpose of the List
The purpose of the MCFP List is to ensure the timely and efficient resolution of MCFP List Cases, at a reasonable and proportionate cost to the parties in all the circumstances. Chief Justice Alstergren has stated that:
“The Court acknowledges that matters that involve high net property pools and include complex financial or commercial issues have often required numerous court events and generated significant costs to the parties”
The MCFP List is therefore one of the of many new initiatives aimed at improving case management in the family law system. Furthermore, the List also aims to ensure that the Court’s resources are used efficiently. This will also help to ensure other urgent and priority cases can be heard in a timely manner. To achieve these purposes, the FAM-MCFP outlines that the following actions will be taken for MCFP List Cases:
- Identifying and narrowing the issues in dispute, including through the requirement, where appropriate, for pleadings, strict timetabling for the finalisation of disclosure, valuations and any other expert evidence; and
- Ordering Dispute Resolution to occur at the earliest appropriate opportunity; and
- Where Dispute Resolution is unsuccessful, intensive case management to ensure proceedings are ready for final hearing as soon as practicable.
Determining the eligibility of cases
Matters which qualify for this List will have it applied to any Initiating Application (Family Law) which is seeking financial orders pursuant to the Family Law Act 1975 (Cth). In order to qualify as a MCFP List Case, an application must fulfil the following criteria:
- Involve a contested net asset pool of $20 million or more; and
- Involve a complex disputed issue such as:
- serious allegations of non-disclosure;
- serious disputes in relation to valuations or other expert reports;
- substantial assets held through a trust/corporate entity or offshore;
- substantial third-party claims to the asset pool;
- serious allegations of fraud; or
- other complex questions of law or novel points of law; and
- Not involve a parenting dispute, or if it does, the parenting dispute can be considered and determined separately at a discrete hearing, or referred to Dispute Resolution, such as a Parenting Dispute Resolution Conference
Application of the List
A party or parties may apply to be included in the MCFP List at any time after the First Court Event, by emailing the National Assessment Team via NAT@fcfcoa.gov.au. If the matter is assessed to be eligible for the MCFP List, it will be transferred to Division 1 of the FCFCOA. The Court may also include matters in the MCFP List at any time on their own initiative. Prior to the MCFP List First Return Date, parties will be expected to have agreed upon a suitable form of Dispute Resolution and have made a reasonable and genuine attempt to resolve interim issues by negotiation or private mediation. At MCFP List First Return Date, parties shall bring:
- a jointly prepared timetable for the progression of the matter; and
- proposed orders for the finalisation of any outstanding disclosure issues and the preparation of any necessary valuations or expert reports
Proceedings in the MCFP List will be strictly managed in accordance with a timetable set by the Court and the ‘Central Practice Direction – Family Law Case Management’, modified as necessary to address the particular needs of each case.
Through strict timetabling, early dispute resolution, and intensive case management, it is hoped that this initiative will save resources for litigants and the Court. For more information, parties should visit www.fcfcoa.gov.au.