As of mid-2018, the Family Court of Australia and the Federal Circuit Court of Australia have undergone significant reform in an effort to reduce court waiting times and costs to parties as a result of protracted litigation. The Turnbull Government has rolled out a new system of case management with a view to ensuring the expeditious solution of family law matters.
Over the past few years, the number of family law matters awaiting resolution has grown from 17,200 to 21,000. For example, in or about late 2016, our office commenced proceedings on a property settlement matter in the Federal Circuit Court of Australia at Brisbane. By May 2017, the matter was adjourned to the 2019 trial call over effectively rendering this matter dormant for a period of two years. Come June 2018, with the new reforms looming, the matter has been expedited and allocated a trial date in late 2018.
One would safely use the expression “the proof is in the pudding” with respect to the abovementioned example. However, with these changes comes a common theme of uncertainty as practitioners and self-represented litigants alike navigate through the implemented changes and succumb to the consequences. That is, less time to prepare for significant court events, greater costs to parties as a result of having to urgently draft documents and uncertainty as to which Judge will ultimately be making the final decision.
To remove any doubt, a broad review of the reforms implemented thus far and those to come to comprise the contents of this article. Whilst the practical consequences of the reforms are, to a large extent, unknown, the overarching goal is to reduce court waiting times and costs of litigation in the Federal Law systems.
The Federal Circuit Court and Family Court of Australia (“FCFCA”)
Traditionally, the Family Court of Australia dealt with complex property and parenting matters involving severe allegations of abuse or international assets. The Federal Circuit Court of Australia was the forum for parenting and property settlement matters with less significant issues in dispute.
As of 1 January 2019, The Family Court of Australia and the Federal Circuit Court of Australia will be collectively referred to as the Federal Circuit and Family Court of Australia (“FCFCA”). This will result in a single entry point for all family law matters. With the consolidation of the two courts, there will be two separate and distinct divisions known as:
- Division 1: consisting of the existing Judges currently sitting in the Family Court of Australia. This division will deal only with family law matters; and
- Division 2: consisting of the existing judges in the Federal Circuit Court of Australia. This division will deal with both family law and general federal law matters including but not limited to administrative law, human rights and consumer law.
The FCFCA will have a new set of rules implemented across the board with respect to case management, policies, and procedures for litigants. Attorney General, Christine Porter, asserts that the new rules are “designed to ensure that… disputes will be dealt with by the FCFCA in the most timely, informed and cost-effective manner possible.”
The appointment of a single Chief Justice with the support of a Deputy Chief Justice will ensure the consistent and efficient implementation and operation of the new rules in both divisions.
The drafting and consolidation of the new rules will involve the judiciary, the legal profession, and other stakeholders. Until the release of the new rules, the existing policies and procedures will continue to apply to all family law matters.
Urgent and high-risk matters will continue to be allocated priority with all other matters being allocated the earliest available date and appointed to the most appropriate Judge to ensure all matters are within the expertise of the appointed Judge.
Lastly, and of particular emphasis, is the Family Court of Australia’s appeal division will be handed to the Federal Courts where appeals were formally heard by the Full Court. The new appeal division will determine all appeals from the FCFCA and may hear appeals from the Family Court of Western Australia.
The merging of the two courts will be the first major upheaval of the Family Court of Australia since its inception in 1976. The reforms are designed to help litigants whether or not they are legally represented.
The changes so far
Of the most recent changes, two have had a distinct impact on existing family law matters in the Federal Courts. These are:
The 10-page affidavit
From 1 January 2018, practice direction 2 of 2017 for interim family law proceedings, required the use of affidavits not exceeding 10 pages. Specifically, practice direction 2 reads:
Pursuant to section 51 of the Federal Circuit Court of Australia Act 1999 the Court directs that, unless express leave is granted by the Judge whose docket the matter has been allocated, affidavit material in support of an interim application must not:
- Exceed 10 pages in length for each affidavit;
- Contain more than 5 annexures
What does this mean?
Effectively, any Initiating Application filed in the Federal Circuit Court of Australia (soon to be the FCFCA) in which the Applicant seeks interim orders can only be 10 pages in length with only 5 attachments. The exception is where the Court gives permission for the applicant to file their affidavit which exceeds more than 10 pages or has more than 5 annexures.
The benefit of this direction is consolidating the length of material needed to be considered at an interim determination. Thereby fast-tracking the decision-making process. The consequence of vastly limiting the length of an interim affidavit is limiting the scope and detail able to be articulated with respect to the issues in dispute.
Whilst it is achievable to limit affidavit material to 10 pages, it will inevitably disadvantage litigants who have complex issues in dispute requiring the attention of the Family Court of Australia (soon to be Division 1 of the FCFCA). It is then at the discretion of the court whether or not to allow a party to the proceedings to file an affidavit which is longer than 10 pages, this is not always a guarantee.
No more single Judge dockets
It was the case, before the reforms, that one single Judge was appointed to your matter from start to finish (with the exception of transferring proceedings between the Family Court and Federal Circuit Court).
It is now the case, that three ‘duty judges’ will hear all Applications in the first instance and deal with all interim issues in dispute. That same Judge will allocate trial dates giving priority to urgent and high-risk matters.
On the morning of trial, a duty Judge will conduct a compliance mention to ensure the parties have complied will all directions for the filing of material and are ready to proceed to trial. At that point, the compliance Judge will allocate a trial Judge depending on the availability of trial Judges at that point in time.
Therefore, parties will not know which Judge will be making the final decision in their matter until the day of trial, something which is unnerving for practitioners and their clients and compounded for self-represented litigants.
Where to from here?
As the new reforms are been slowly implemented in the Federal Court system, the question of whether the new systems, policies, and procedures will achieve what is intended remains unknown.
Since mid-2018, we have seen matters fast-tracked to trial which on one hand results in the expeditious resolution of a matter. On the other hand, clients are having to invest significantly in their legal fees in a short amount of time to meet deadlines for the filing of material and preparation for trial.
As practitioners, it is our obligation to give sensible legal advice and achieve as best an outcome for our clients in light of their individual circumstances. With the new reforms, our role does not change although our workloads will inevitably increase with at times, less than weeks to prepare for the final hearing of a matter.
At Forge Legal, we prioritize our clients and protecting their interests irrespective of the world around us. While the system is changing we will continue to give our clients the care and attention they deserve and minimize the impact of legislative changes on their matters.
Our motto is and always will be “your future”.