On 1 September 2021 the Family Court of Australia and the Federal Circuit Court of Australia ceased operation and officially became known as the Federal Circuit and Family Court of Australia (the FCFCOA).
The changes introduced to the Family Law processes as part of this Court merger are designed to significantly improve the efficacy of family law procedures, reduce legal costs and to streamline litigation to no more than 12 months from the commencement of the proceedings until the Final Hearing.
The FCFCOA published its Central Practice Direction (CPD) on 1 September 2021 in order to "outline the core principles applicable to family law proceedings and to establish a consistent national case management system in the Federal Circuit and Family Court of Australia".
You might ask, "Why should I be spending my precious time reading some boring practice direction?". If you are a party to a family law proceeding, you just have to take our word for it! If this does not quite convince you, then you should be aware that your failure to comply with these directions may attract costs orders against you, including, in appropriate cases, the drawing of adverse inferences, the making of a summary decree pursuant to section 45A of the Family Law Act 1975 (Cth) (Family Law Act), or even orders providing that a matter be heard on an undefended basis. (See paragraph 3.10 and paragraph 1.5 of CPD)
Now that is some incentive to carefully peruse and comply with the Central Practice Direction, particularly if you do not have legal representation for one reason or another.
More importantly, the CPD goes into significant detail of what is expected of the parties to a family law litigation, including but not limited to detailed Case Management information and comprehensive overview of the Court Events. This information would be particularly invaluable to first time unrepresented litigants in easing anxiety regarding any upcoming Court Events and allowing better preparation for same.
Whilst being essential to the parties, the CPD is also designed with the legal representatives in mind to make sure the core principles of the CPD are adhered to and consistently applied across the multitude of family law cases nationwide.
For starters, your legal representatives must provide you with a copy of the Central Practice Direction prior to commencing legal proceedings or filing a Response in the FCFCOA and they are expected to provide a copy to any unrepresented parties to the proceedings at the earliest possible opportunity.
The "overarching purpose" of the CPD is to "facilitate the just resolution of dispute according to law and as quickly, inexpensively and efficiently as possible".
This includes a just determination of all proceedings before the Court, the efficient use of the judicial and administrative resources available for the purposes of the Court, the efficient disposal of the Court's overall caseload, the disposal of all proceedings in a timely manner and the resolution of disputes at a cost and by a process that is proportionate to the importance and complexity of the issues in dispute.
The CPD must be interpreted and applied in the way that best promotes the above-mentioned overarching purpose and prioritises the best interests of children.
To facilitate the overarching purpose of CPD, one of the essential introductions to the Family Law procedures has been the requirement to file a Genuine Steps Certificate alongside the Initiating Application or Response. Paragraph 4.2 of the CPD states that a Genuine Steps Certificate in the approved form must be filed with an Initiating Application or Response to Initiating Application, outlining the filing party's compliance with the pre-action procedures; and the genuine steps taken to resolve the dispute; or the basis of any claim for an exemption from compliance with either or both of these requirements.
Further, we are extremely pleased that the CPD provides some concrete guidelines for the case management as can be seen in paragraph 5.3(f), which states that "subject to the parties complying with relevant orders and directions, a Final Hearing will be listed on a date earlier than 12 months from the date of filing". If this can be achieved in practice, it would be a massive leap forward for the FCFCOA, effectively reducing the wait for a Final Hearing by 1-2 years compared to proceedings in the Family Court of Australia or the Federal Circuit Court of Australia. Time will only tell if these lofty objectives can be achieved given the limited resources of the Court.
We highly recommend that all our readers carefully peruse the Central Practice Direction and keep it in mind at all times during their Family Law proceedings. The practice direction can be accessed in full via the following link - https://www.fcfcoa.gov.au/fl/pd/fam-cpd