The new Federal Circuit and Family Court of Australia has published its Family Law Case Management bible, the Central Practice Direction, which outlines the core principles applicable to family law proceedings and establishes a consistent national case management system.
The merger of the Federal Circuit Court of Australia and the Family Court of Australia took effect from 1 September 2021. From this date, a new family court system was established. While the Family Law Act 1975 (Cth) remains the applicable legislation, it is now impacted by and interacts with the Federal Circuit and Family Court of Australia Act 2021 (Cth).
Although the merger of the Federal Circuit Court of Australia and the specialist and superior Family Court of Australia was largely opposed by the legal profession, there is an inherent benefit for family lawyers and litigants to having one court with one unified set of Family Law Rules and Practice Directions. The new Court is intended to be modern, fair and focused on risk, responsiveness and earlier resolution, by:
- Improving early risk identification and safety of children and vulnerable parties;
- Encouraging smarter ways to separate with less acrimony, less cost and more dispute resolution, where it is safe to do so;
- Expecting compliance with court orders;
- Enhancing national access to justice for vulnerable parties and regional communities through the use of technology, and
- Aiming to resolve up to 90 per cent of cases within 12 months.
Central Practice Direction
The Central Practice Direction has been released. It is 33 pages long and will probably take you about half an hour of careful reading, or if you intend to skim through it, I estimate about ten minutes would suffice. Interestingly, at Paragraph 1.8, the direction mandates that, “Lawyers representing parties in family law proceedings must provide a copy of this Central Practice Direction to their clients prior to filing an Initiating Application or Response to Initiating Application.” I would hope that in the near future, a succinct brochure, summarising the more pertinent points of the Central Practise Direction will be made available for this purpose, as currently the document reads primarily as a guide for practitioners.
Ten Core Principles
There are ten core principles underpinning the exercise of the family law jurisdiction of the Court which are titled:
- Parties’, lawyers’ and the Court’s obligations and overarching purpose
- Efficient and effective use of resources
- Approach to case management
- Importance of Dispute Resolution
- Lawyer’s obligations about costs
- Identifying and narrowing issues in dispute
- Preparation for hearings
- Efficient and timely disposition of cases
Core Principle 1: Risk
The aim of this principle is to prioritise the safety of children, vulnerable parties and litigants. The aim is also to identify issues of risk early and to handle these, appropriately, including allegations of family violence. All good things there, no one can criticise this being selected as the first core principle.
Core Principle 2: Parties’, lawyers’ and the Court’s obligations and overarching purpose
This principle reminds us all that the purpose of the Court system is to achieve the just resolution of disputes according to the law and as quickly and cost efficiently as possible. Disputes should be resolved at a cost and by a process proportionate to the importance and complexity of the issues in dispute. The Court’s overarching purpose of dispute resolution must prioritise the best interests of the children. Again, these are good solid principles to be guided by.
Core Principle 3: Efficient and effective use of resources
The Court’s resources are to be allocated and used efficiently in the context of ensuring the appropriate handling of risks wherever they are identified as issues in proceedings.
Core Principle 4: Approach to case management
This promises a consistent approach to case management, early triaging of matters to an appropriate case pathway, including assessment of risk and the prioritisation of both internal and external Dispute Resolution, including private mediation, Family Dispute Resolution (FDR), Conciliation Conferences and arbitration in property disputes for as many appropriate cases as possible.
Core Principle 5 – Importance of Dispute Resolution
The Court encourages the use of Dispute Resolution procedures. Before commencing an action, unless it is unsafe to do so, parties are expected to make a genuine attempt to resolve their dispute, including by complying with the requirements and obligations of section 60I of the Family Law Act 1975 and the
pre-action procedures as set out in Schedule 1 to the Family Law Rules. After the commencement of an action, parties are expected to be proactive in identifying the appropriate time, and the appropriate way, in which they can participate in Dispute Resolution, either by agreement or by court order; and be prepared to make and consider reasonable offers of settlement at any stage of the proceedings. Failure to do so may have costs consequences.
Core Principle 6 – Non-compliance
This is a very important principle and an area in which there is definitely much room for improvement, non-compliance with family court orders has long been a live issue. It is stated in the Practice Direction that non-compliance with orders, Practice Directions, the Family Law Rules or the obligations imposed on parties and their lawyers to conduct proceedings in a manner consistent with the overarching purpose will be taken seriously by the Court.
Core Principle 7 – Lawyers’ obligations about costs
Parties and their lawyers are expected to take a sensible and pragmatic approach to litigation, and to incur only such costs as are fair, reasonable and proportionate to the issues that are genuinely in dispute. Lawyers are expected to act consistently with costs estimates provided to their clients, and regularly inform their clients and the Court of the actual costs they have incurred and are likely to incur. This principle will not be a problem for fair fee and fixed fee lawyers, such as Jano Family Law, as it simple encapsulates our existing business practices.
Core Principle 8 – Identifying and narrowing issues in dispute
Issues in the case are to be narrowed to those issues genuinely in dispute. In particular:
- all parties are required to make full and frank disclosure to assist the Court in the determination of the dispute or the parties in the resolution of the dispute;
- applications should only be brought before the Court if they are reasonably justified on the material available;
- it is expected that parties will negotiate both prior to, and at Court, in order to reach agreement about as many of the issues in dispute as possible and procedural directions required before having the matter heard;
- when appropriate, a single expert or an assessor should be engaged to assist the parties and the Court to resolve disputes; and
- costs consequences may flow if parties unreasonably seek to reopen issues already resolved or unreasonably agitate issues.
Core Principle 9 – Preparation for hearings
Parties and their lawyers are to be familiar with the specific issues in the case and be fully prepared for court events and the final hearing in a timely manner. Parties must provide the Court with a considered and informed estimate of the expected hearing time, the number of witnesses and the specific issues to be decided.
Core Principle 10 – Efficient and timely disposition of cases
The Court will act effectively and efficiently in achieving the prompt and fair disposition of pending cases, with judgments being delivered as soon as reasonably practicable after the receipt of final submissions. Where permitted by legislation, short form reasons may be utilised in appropriate cases to facilitate the expeditious delivery of judgments.
Impact of the Central Practice Direction on Family Law Litigation
As legal practitioners, having read and digested the entirety of the Central Practice Direction, but without the benefit of foreknowledge as to how this will all play out in practice, the immediate impression we have is that there is now more compliance to be undertaken and more procedural tasks to be dealt with when contemplating or managing family law litigation. Whether this will lead to higher or lower costs only time will tell. It is certainly going to require more care to be taken and more work to be done, in an effort to attempt settlement prior to and during the conduct of proceedings. Greater care and effort will also be required to ensure ongoing compliance with the Central Practice Direction and the Family Law Rules, both prior to issuing proceedings and during the conduct of proceedings. It appears that there will be real consequences flowing from any failures to comply with the directions and rules. How this will apply to self-represented litigants, will be interesting as the Court will need to balance the rights of unrepresented litigants against the legitimate expectation of practitioners and parties that the rules and directions will be applied fairly and consistently across the board.
We think that fewer proceedings numerically will be brought before the Court and this is clearly one intended outcome of the reforms. Concurrently, the time taken and work required to get a matter ready for filing is now greater. Likewise, during the conduct of proceedings there is more compliance management required. This may result in increased formalism in the system and greater costs at each stage of the case management pathway. On the other hand, there may be overall cost savings resulting from fewer court events taking place and fewer interlocutory applications being made by the parties. There should be an increase in settlements taking place outside of the Court, both prior to issuing proceedings and during the conduct of proceedings.
In summary, there is now an opportunity for family lawyers, litigants and the judiciary to embrace the new system with an open minded and constructive approach to bring about the efficient and just resolution of family law disputes.
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