Upcoming changes in the Family Courts
Anyone who has had a matter in family law will usually say that the Family Law System needs to be changed. It is, and will be the biggest change in the Australian Family Law system since 1975.
From 1 September 2021, the Family Court and Federal Circuit Courts will be merging and will now be one court called the Federal Circuit and Family Court of Australia. There will be a new case management system for Family Law matters. The main goals of this merger are to increase the efficiency of our clogged-up Family Courts, and to redirect parents and separated couples away from litigation and into alternative dispute resolution wherever possible.
If you are involved in a family law dispute, or are considering commencing family law proceedings, here are the changes that may affect you:
Requirement for genuine attempt to resolve the dispute
It has been a requirement for a long time that parties wanting to commence parenting proceedings must first attend Family Dispute Resolution (“FDR”), which is a more informal process along the lines of mediation. Exemptions only apply in situations where FDR would not be useful or appropriate, such as where there are domestic violence concerns or where one party is refusing to engage in discussions. The aim of this process, as with many other Family Court procedures, is to encourage parties to resolve their disagreements out of Court wherever possible.
Those who are only seeking orders in relation to property currently don’t need to attend FDR before commencing Court proceedings.
As a result, it is not uncommon for a party to a property dispute to file for Court orders as a precursor to negotiations. Often these disputes are settled shortly after; the prospect of engaging lawyers and going to Court often encourages people to come to the table and sort out their differences.
Under the new rules, parties in both parenting and property proceedings will be required to make a genuine attempt to resolve their dispute before filing Court proceedings. This is likely to be engaging in private mediation and demonstrating a number of genuine steps to resolve the situation before being allowed to file. The matter will then be allocated to a Registrar within 8 weeks of filing, who will assess whether the parties have complied with this requirement and will most likely direct the parties to attend further dispute resolution, ideally within five months.
The best interests of the children have been the main focus in parenting proceedings for a long time. With the upcoming changes, this will be given increased support.
Matters will go through increased screening to identify any potential risks to the child. Where appropriate, these matters will be directed to specialised ‘lists’ like the Magellan List, an expedited pathway for family law matters involving the sexual abuse of children.
Early on in parenting proceedings, parties will be directed to attend a conference with a Court Child Expert (formerly known as a Family Consultant) who will prepare a Child Impact Report. The report aims to give a voice to the child, and to educate parents about how to manage the dispute to reduce the impact on their children.
Limit on applications without leave
Proceedings in Family Law are commenced by one party filing an Application for Interim/Final Orders. The other person then files a Response.
If either party then decides to change what they are seeking, they can file an Amended Initiating Application or Amended Response. They can also file an Application in a Case, if they are seeking interlocutory orders (e.g. permission to sell a property, permission to relocate with children to another city) or procedural orders (e.g. that the matter be fast-tracked due to some urgency).
Under the new rules, each person will be limited to two applications during the proceedings, unless the Court grants permission. It will also limit the amount of evidence that can be filed in support of these applications, including the length of affidavits. This is again designed to streamline Court proceedings and encourage parties to reach agreement on issues that arise while the case is ongoing, rather than applying to the Court for determination. All of this is designed to reduce extended and costly family law matters escalating.
Often, obtaining Court orders is only half the battle – especially when it comes to parenting matters.
Parties often find that in practice it is very difficult to get the other party to comply with these Orders. Parties might refuse to facilitate changeover or contact with children, or speak badly of the other parent to the children when they have been ordered not to. Currently these issues are dealt with by the party who is seeking to enforce the orders filing a Contravention Application, which might seek a change in the orders, a fine on the noncompliant party, or in extreme circumstances, imprisonment of the noncompliant party.
On 1 September 2021, the Federal Circuit and Family Court of Australia will launch the National Contravention List. The list is intended to increase compliance by streamlining the process of enforcement. It will shorten the delay between filing a Contravention Application and having your complaint heard by a Judge or Registrar.
If you are involved in parenting proceedings where the other parent is ignoring Court orders, this will be welcome news. On the other hand, if you feel that you have a reasonable excuse for ignoring Court orders you will need to be prepared to defend your decision on fairly short notice, and to potentially face the consequences.
If you are embarking on family law separation or are already involved in a dispute and need assistance, Voice Lawyers can assist you with family law matters and mediation.
Principal Lawyer Kayte Lewis is a NMAS accredited mediator, sits on the Legal Aid family law and domestic violence panels and is a panel mediator on the Family Law Settlement Service.
For an initial consultation, please contact us at firstname.lastname@example.org, book a time on our portal at Voice Lawyers - Book an appointment or call us on 02 9261 1954.