The family court system in Australia has been the subject of law reform review and parliamentary review – both of which flagged delays in resolving cases.
Kathryn Kearley, a solicitor in practice for over 30 years and adjunct lecturer at The College of Law, explains further.
“Some families end up waiting for years before their cases are heard and resolved. From filing the application to the actual hearing and judgment, the process could take up to two to three years."
Part of this was due to the fact that courts were under-resourced and under-staffed.
A reformed and streamlined system
From 1 September 2021, the family court system underwent a huge change – the most significant since 1975.
The Family Court of Australia and the Federal Circuit Court have merged to create a new court, known as the Federal Circuit and Family Court of Australia (FCFCA). The overarching purpose for this new court is to facilitate the just resolution of disputes – according to the law – as quickly, inexpensively and efficiently as possible.
The FCFCA is committed to resolve up to 90% of cases within 12 months of filing if possible. All cases will also now enter the family law system at the same entry point and applications are filed with the Commonwealth Courts Portal online.
Another welcome change is the appointment of additional judges and more than 60 new registrars to facilitate case management and determination.
There is also:
In addition, the FCFCA has a new website that is written in plain English that’s informative and easy to understand. Video resources are available to guide lawyers and litigants through what they need to know about engaging the Court – making processes more accessible.
An emphasis on priority and efficiency
One key change that excites Kathryn is the introduction of a new case management pathway.
“With this new system, the Court will be triaging each case. They will actually assess and look at the urgency of each case, which is key to address the consistency and prioritisation of dispute resolution,” Kathryn says.
The new pathway will enable the FCFCA to act more effectively and efficiently – and to achieve prompt and fair disposition of cases.
The new system is also designed to identify risk and safety at the beginning of each case, including presence or risk of family violence.
This allows the FCFCA to prioritise the safety of children and vulnerable parties, and to provide opportunities for alternative dispute resolutions where possible.
Returning responsibility to where it belongs
The new court system places significant emphasis on providing dispute resolution opportunities. And it requires people to make a genuine attempt to resolve issues in dispute before going to court.
In other words, before a party files a case, they must engage in some form of dispute resolution, where it’s safe to do so.
Subject to some limited exceptions, the parties involved will have to avail themselves to attend mediation, or family dispute resolution in a parenting case, before they can file any proceedings.
The court also mandates parties to give full and frank disclosure and only bring justified applications to the system. And all parties are required to fully prepare for hearings.
Kathryn believes this is a sensible move, as it encourages people to take more responsibility over their own proceedings.
“Parties need to be more engaged. They need to take charge of their dispute, with the help of the court and their lawyers. The FCFCA wants everyone to genuinely focus on resolving issues and moving forward, instead of always looking back,” she says.
It’s time to sit down and read up
So what do all these changes mean for Australian legal practitioners who do family law work?
According to Kathryn, there is a great deal to absorb and apply.
“There’s a whole range of new practice directions. The series of court events is quite different from before, and lawyers need to be across the new court rules,” she says.
She warns that there are serious consequences for parties and lawyers for not complying with obligations and orders in a timely manner.
“The party who doesn’t comply may have a cost order made against them. But more than that, the Court may also make personal cost orders against lawyers if their client hasn’t complied with the order or directions from the Court by a particular date.”
That is why it’s essential that lawyers are aware of their obligations under the Family Law Act, the 2021 Family Law Rules, the practice directions, as well as the solicitors' conduct rules.
And the best way to do this? Enrol in professional development units to learn about the key practice directions and the new rules.
“There’s no way around this,” Kathryn says. “Lawyers must take the time to read up and understand the new family court system. You need to be aware of all the changes as you have an obligation to advise and represent your client accordingly.”
Kathryn Kearley is Practice Area Leader (Family Law Practice) and Adjunct Lecturer with the College of Law and an Accredited Specialist in Family Law. She has over 25 years in legal practice and significant experience in family law, civil litigation, property as well as mediation.
Kathryn practised at a number of leading national law firms working in family law, litigation and property before commencing her own firm in 2001. She is an accredited family law specialist with the Law Society of NSW. Kathryn holds degrees of Bachelor of Arts, Bachelor of Laws (UNSW), Master of Laws (Hons) (UNE) and Master of Higher Education (Macquarie University).
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