The merged courts are now named ‘The Federal Circuit & Family Court of Australia.’ The merged court system has established new rules harmonising the pre-existing rules of the previously separate courts but these new rules also introduce some changes to practice, which may achieve reduced costs for the parties.
PROCEDURES
As always there is paperwork required but it is intended for a beneficial purpose.
For several years there has been a requirement for parties in family law matters to take ‘pre-action’ steps to try to limit or resolve differences before starting court action.
Unfortunately, with the volume of matters going through the courts even when formal action was commenced there was always likely to be a delay and considerable cost getting to an end result unless parties co-operated.
Under the rules of the newly merged court system any party filing an initiating application seeking final or interim orders must now file a Statement of Genuine Steps.
The applicant must tick boxes to prove they have complied with pre action, provided disclosure to the other side where relevant and have made an attempt at dispute resolution prior to filing the application. The person responding to the application, known as ‘the Respondent’ must also file a Statement of Genuine Steps.
However, at this stage if filing an application for final orders only (and not seeking interim orders) an affidavit of evidence is not required. It would be required if the dispute cannot be resolved prior to any final hearing. This will save costs at the commencement of proceedings and if pre action procedures were following the other party hopefully should have some understanding of the applicant’s reasons for and evidence to support making specific claims.
In State Courts parties for the most part commence proceedings by a Statement of Claim seeking various orders and only file their witness statements or affidavits when directed to do so if the proceedings are not speedily settled.
OVERARCHING PURPOSE & INTERESTS OF CHILDREN
The practice direction of the newly merged court makes it clear that the Family Law Rules must be interpreted and applied in the way that best promotes the Court’s overarching purpose and prioritises the best interests of children. The overarching purpose is intended to facilitate the just resolution of disputes:
- according to law; and
- as quickly, inexpensively and efficiently as possible.
The following objectives are relevant to promote the Court’s overarching purpose
- the 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;
- the resolution of disputes at a cost and by a process that is proportionate to the importance and complexity of the issues in dispute.
COURT DIRECTIVE
The court has issued a practice direction mandating that in everything they do, parties and lawyers are expected to approach proceedings in a manner directed towards identifying the issues in dispute and ascertaining the most efficient, including cost efficient, method of resolution or determination. This includes giving proper consideration to identifying the issues in dispute, complying with their obligation to provide full and frank disclosure in a timely manner (pursuant to Part 6.1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (the Family Law Rules), engaging in productive and resolution-focused communication with other parties, making appropriate admissions and pressing only issues of genuine significance. Ambit claims should be avoided and aggressive and unnecessarily adversarial conduct will not be tolerated. At all stages in the proceedings, parties must avoid filing evidence that is unnecessarily lengthy or only of limited relevance to the issues genuinely in dispute. Parties should limit the number of witnesses they rely on to those necessary to prove or disprove those issues truly requiring determination.
GENUINE STEPS
Each party must confirm they have complied with the pre-action procedures in Schedule 1 of the Rules. The applicant must file the Genuine Steps Certificate at the same time as the Initiating Application. The respondent must file the Genuine Steps Certificate at the same time as the Response to Initiating Application. Genuine steps include
- Giving a copy of the pre-action procedures to all other parties to the proceeding
- Making and pursuing inquiries about available dispute resolution services
- Inviting the other party/ies to participate in dispute resolution
- Participating in dispute resolution with the other party/ies
- Giving the other party/ies written notice of an intention to start proceedings
- Cooperating with the other party/ies to agree on an appropriate dispute resolution service
- Exchanging copies of relevant documents with the other party/ies
PARENTING
There are some different rules relating to property and parenting pre action proceedings.
Section 60 I Certificates
For parenting matters it is important parents understand that unless there are exceptional circumstances, they must make an attempt at dispute resolution to achieve a consensus on parenting arrangements. If the parties fail to reach agreement they must before filing an application for parenting orders obtain a certificate issued by a family dispute resolution practitioner after they have requested and/or attended and/or been invited to attend family dispute resolution. This is known as a Section 60 I (8) certificate [ that is the number sixty & the letter I] This is not new but is a continuing requirement. There are exceptions and if the party can claim an exemption under section 60I (9) of the Family Law Act, the party filing must file an affidavit or an Affidavit – Non-Filing of Family Dispute Resolution Certificate setting out the factual basis of the exception claimed: see rule 4.02 of the Family Law Rules.
PERSONAL SAFETY PARTIES & CHILDREN
The court direction emphasises that the safety of parties and children and protection from the consequences of abuse and violence remains a priority for the Court. No obligation or requirement is intended to require parties to put themselves or their children at risk or to compromise or attempt to do so in circumstances that are unsafe or where concerns about abuse or violence compromise their ability to negotiate fair or reasonable outcomes.
If you or someone you know wants more information or needs help or advice, please contact us on 02 9699 9877 or email [email protected].