On 1 September 2021, we saw a radical change to family law, with the merger of the previous courts, the introduction of new rules, and the commencement of the Federal Circuit and Family Court of Australia.
A summary of the key changes are:
- There is now one court instead of two. The new court has two divisions (Division 1 for more complex matters and Division 2 for all other matters). This means that all court proceedings are now commenced in one court.
- A key benefit of having one court is that there is now only one set of court rules that apply to all matters and one set of court forms for all matters.
- Traditionally when commencing court proceedings, parties would need to file an affidavit of up to 10 pages setting out the basis for the orders that they were seeking. These affidavits would usually be costly to prepare. There is no longer a requirement to file an Affidavit when starting proceedings, the court has instead introduced a questionnaire to be completed. It is hoped that the new questionnaire will reduce costs and barriers to court.
- There is now a greater focus on alternative dispute resolution. Now, unless in the case of an urgent matter or other limited exceptions, there is an expectation on parties to have attempted alternate dispute resolution (such as mediation) for both property and parenting matters before commencing court proceedings. There is also an expectation that parties will make a genuine offer to settle their dispute before going to court.
- The court has published two documents that set out the expectation on parties in attempting to resolve their dispute before going to court, these documents are:
- Parties are now required to file a Genuine Steps Certificate when commencing court proceedings to confirm what steps they have taken to resolve their matter before going to court. It is anticipated that the Court will take a sterner approach to those who have not complied with their duty of disclosure or the above pre-action procedures and that there may be cost consequences for not complying.
- We can expect that the court’s focus on alternate dispute resolution will continue once court proceedings have been initiated. The new concept is that new proceedings will be managed by a Registrar of the Court and that the Registrar will attempt to assist the parties to resolve their matter through negotiation before the matter is listed for a hearing before a Judge.
- As Judges will be spending less time managing files, it is expected that the Judges will be able to conduct more trials and hearings. This should result in the wait time for hearings being significantly reduced.
- In parenting matters, we expect to see the court appoint a child expert early in the proceedings and for the child expert to prepare a more detailed report with recommendations for the family and having greater involvement in the proceedings.
Whilst it is too early to comment fully on the new changes to the family law system, we can certainly see many benefits to the changes, including a greater focus on alternative dispute resolution.