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  • Writer's pictureKatrina Favre

The Family Court and Federal Circuit Court of Australia Merger

On 23 February 2021, the Federal Parliament passed the Federal Circuit and Family Court of Australia Act 2020 (Cth) (“the Act”) which merges the Family Court and Federal Circuit Court into one Court.

This new Court, named the Federal Circuit Court and Family Court of Australia (FCFCA), will commence on 1 September 2021.

The FCFCA will comprise of two divisions:

  • Division 1 – Traditionally known as the Family Court of Australia, this Division will only deal with complex family law matters and appeals.

  • Division 2 – This was previously known as the Federal Circuit Court of Australia. Division 2 will be the single-entry point for all family law matters except for appeals. Complex matters may be sent to Division 1 upon the direction of the Chief Justice. Judges will preside over a combination of family law and federal law matters, such as employment matters, immigration, etc.

What happens to my existing family law matter in the Family Court or Federal Circuit Court?

Existing cases in the Federal Circuit Court will remain in Division 2 of the FCFCA and cases in the Family Court will remain in Division 1.

How do I commence proceedings in the FCFCA?

All new matters will need to file Initiating Applications in Division 2 and appeals in Division 1.

Case Management in the FCFCA

The Court will continue to focus on implementing key case management improvements and family violence-related reforms such as rules harmonisation, the Lighthouse Project and the national COVID-19 List. The objective is enforce better case management to efficiently deal with family law matters progressing through the system.

Previously, in the two court system, the Federal Circuit Court was the main entry point for family law matters. It was only in complex matters that an Initiating Application would be filed in the Family Court (for instance, in cases involving serious sexual abuse or mental health issues, international child abduction, complex corporate structures etc).

Parliament says the newly passed legislation will resolve the backlog of unheard matters and reduce waiting times for new matters by implementing one entry point and a single set of rules for all family law matters.

The Attorney-General’s Department acknowledged ‘widespread agreement’ amongst those accessing the family law courts, practitioners, the wider family law sector and the community, that the court structure (as it then was) “does not serve families as it should”. However, it notes that there has “over a long period of time continued to be disagreement as to how to address the structural issues of a split court system”: AGD, Submission, op. cit., p. 4.

Will the new merged court be better than the current family law court structure?

There differing views about this. The Government concluded the new measures will be better notwithstanding considerable concerns having been expressed by community groups (including those dealing with family violence), the Law Council of Australia and lawyers. Most stakeholders agree that the new court won’t be better unless the Government directs more resources to it. The Hon William Alstergren J — who will be Chief Justice of Division 1 and Chief Judge of Division 2 — said in a media release on 23 February 2021: “The Courts will also continue to seek further resources from Government to carry out these important reforms and other measures to reduce delays and chronic backlogs.”

It will be interesting to see how the new overarching purpose governing the Family Court and Federal Circuit Court improves the efficient operation and management of family law moving forward.

What Is The Overarching Purpose?

Pursuant to section 67(1) of the Act, the overarching purpose of the family law practice and procedure provisions is to facilitate the just resolution of disputes:

(a) according to law; and

(b) as quickly, inexpensively and efficiently as possible.

Section 67(2) provides that the overarching purpose includes, but is not limited to, the following objectives:

(a) the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 1);

(b) the efficient use of the judicial and administrative resources available for the purposes of the Court;

(c) the efficient disposal of the Court's overall caseload;

(d) the disposal of all proceedings in a timely manner;

(e) the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.

Heavy sanctions will apply to both litigants and their legal practitioners if they fail to comply with the overarching purpose. Section 68 of the Act provides that Parties are to act consistently with the overarching purpose.

Section 68(4) now mandates the Court to consider whether a party has failed to conduct their case consistent with the overarching purpose when making a costs order at the end of proceedings.

Section 68(5) also enables the court to make a costs order against a lawyer (in their personal capacity) for failing to comply with their obligations under section 68. The lawyer cannot pass on this costs order to their clients and must wear it personally.

The above obligations impose serious responsibilities on parties and their respective lawyers to work in a collaborative manner with a view to narrowing issues in dispute and preferably the case on a final basis by agreement.

For legal advice about how the Family Court and Federal Circuit Court merger affects your existing family law matter or an upcoming matter, please get in contact with us for a free consultation.

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