Commencing on 1 September 2021 the newly established Federal Circuit and Family Court of Australia is now a single point of entry for all family law matters no matter the complexity. The FCFCOA aims to provide a more efficient system of justice and to resolve matters quickly and cost-efficiently without unnecessary delays.
The Court’s objective is to have 90% of the matters finalised within 12 months from commencing proceedings to final hearing and this is certainly a welcome change from the old system, where even relatively simple family law matters could drag on for many years. The reality is that for complex matters 12 months objective is quite unrealistic and forcing this timeframe on the parties and legal representatives to achieve the above objective may lead to unfair and unjust outcomes, particularly when complex reports and valuations may need to be obtained.
When you first commence legal proceedings for your parenting and/or property family law matter in the Federal Circuit Court of Australia your case will be initially allocated into Division 2 of the Court. There are 76 judges in Division 2, including 55 specialist family law judges and 21 judges specialising in general federal law and migration. This is because Division 2 of the FCFCOA also deals with migration and general law matters.
If the case is later deemed complex enough by the Registrar, the proceedings may then be moved to Division 1, which is a family law specialist division dealing with complex family law matters. There are 35 Judges in Division 1 specialising in Family Law. Division 1 of FCFCOA only deals with family law matters, including appeals. Essentially, Division 1 of FCFCOA simply replaces the Family Court of Australia, which used to deal with complex family law matters only.
The Court may on its own initiative or by an application of a party transfer the proceedings from Division 2 to Division 1 of the Court, pursuant to section 149 of the Federal Circuit and Family Court of Australia Act 2021.
In particular section 149(3) of the FCFCOA ACT 2021 states that in deciding whether to transfer a proceeding, the Federal Circuit and Family Court of Australia (Division 2) must have regard to:
· any Rules of Court made for the purposes of subsection 151(2); and
· whether proceedings in respect of an associated matter are pending in the Federal Circuit and Family Court of Australia (Division 1); and
· whether the resources of the Federal Circuit and Family Court of Australia (Division 1) are sufficient to hear and determine the proceeding; and
· the interests of the administration of justice.
Furthermore, Rule 3.01 of the Federal Circuit and Family Court of Australia (Division 2) Rules 2021 states that in addition to the factors to which the Federal Circuit and Family Court (Division 2) must have regard under subsection 149(3) of the Federal Circuit and Family Court Act, the Court must also have regard to the following matters:
· whether the proceeding is likely to involve questions of general importance, such that it would be desirable for there to be a decision of the Federal Circuit and Family Court (Division 1) on one or more of the points in issue;
· the financial value of the claim;
· the complexity of the facts, legal issues, remedies and procedures involved;
· whether the proceeding, if transferred, is likely to be dealt with:
at less cost to the parties; or at more convenience to the parties; or earlier;
· the availability of a judicial officer specialising in the type of proceeding to which the application relates;
· the availability of particular procedures appropriate for the class of proceeding;
· the adequacy of the available facilities, having regard to any disability of a party or witness, and any safety concerns;
· the wishes of the parties.
Accordingly, there are ways to transfer the proceedings to the specialist family law Division 1 of the Court, if there are factors warranting such transfer.
If the Court does not transfer the proceedings to a more specialist Division on its own motion, it may be necessary that an application is made by your legal representative for such transfer at the very early stages of your matter. Our experienced family law team at Surge Legal will quickly recognize if certain issues in your matter require an application for the transfer of proceedings to Division 1 of the Court to be made.