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The Brand New Family Court Experience… What’s Changed?

Of the many complaints levelled at the family law system in Australia over the last little while, there are a few dominant themes: it takes too long, people “game” the system, and processes involving children are manifestly inadequate.

In an effort to dramatically overhaul the family law system and address many of these issues, earlier this year the Federal Government announced a range of changes that were to come into effect about the way the Family Court functioned.

Those changes came into effect on 1 September, so let’s take a look at the shiny new Family Court system.

A Merged Court – The Federal Circuit and Family Court of Australia

The first significant change is that the Family Court has been merged with the Federal Circuit Court and is now called the “Federal Circuit and Family Court of Australia”.

The government release says the “new Court provides a modern, transparent and more efficient system of justice aimed at assisting parties through the process as safely quickly and fairly as possible without undue cost and delay.”

To support the merger and the new Court functions, the Federal Government is injecting more than $100million to fund the new Court procedures and mechanisms.

So what approaches are we talking about?

Case Management – Making Things Goes Faster

Probably the major initiative that will impact how family law matters are run through the Courts is around case management. This rests on the involvement of Judicial Registrars (a judicial officer who is not a judge but can exercise some Court powers).

If Registrars can deal with largely procedural aspects, matters can be more closely and more quickly managed by the Courts to ensure the parties keep things moving.

At first, it might seem that the parties are getting second best here – why Registrars and not judges?

Well, truth be told, Registrars in the Federal system have been effectively dealing with high volumes of cases in different areas (bankruptcy, for example) for many years. Generally, those systems run pretty smoothly (so far as any Court matter can, at least) so having Registrar-driven case management isn’t necessarily a bad idea.

Here we have the added bonus that Senior Registrars, Judicial Registrars and Deputy Registrars won’t have any limits on what they can do – they can essentially exercise any power that a Judge could otherwise exercise.

With this change comes speed. So, with appropriate triage, most matters will find that their first court date will be within 8 weeks of filing the first documents, and dispute resolution will occur within 5 months.

For matters that are not resolved, the aim is that they will be listed for trial within 12 months.

In most well managed family law matters, that will be more than enough for the vast majority of matters to be ready for resolution or trial. This will also hopefully avoid parties dragging things drag on unnecessarily.

Ultimately this change should help address the problem of long delays – one of the major issues with the Family Court system.

Helping Children Better

Separations involving children tend to have more opportunity for complication.

The standard style of dealing with disputes around child access has been through the previously titled “section 11F assessment process”.

Now, instead of this, the new system introduces another report called the Child Impact Report.

This is designed to be a far more comprehensive report. It offers the Court and the parties more details about how a child’s welfare can be addressed, and generally identifies issues the Court might wish to deal with as part of the process. To underpin the new reporting process and the expanded role, “Family Consultants” will now be called “Court Child Experts”.

Hopefully with a more informative and detailed report, the Court should be well placed to understand the critical issues in each family situation, and address them in a meaningful and timely fashion.

Dealing with Non-Compliance

One of the problems with litigation generally, and in particular family law matters, is that some parties habitually fail to comply with every direction, every order, and every requirement of the relevant Court Rules.

This causes delay, annoys everyone, costs money, and rarely results in any kind of sanction against that party.

To help address this, a National Contravention List has been introduced.

A “list” in Court terms means a specific allocation of resources designed to help you deal with a particular thing. So for example there is a “bankruptcy” list, a “corporations” list, and now a “National Contravention” list.

If another party has failed to comply with a Court order, you apply to have the matter listed on the “Contraventions List”.

The main benefit of this dedicated resource for non-compliance is that you can get your contravention matter heard within 14 days, rather than waiting months which is more normal at the moment.

With the ability to get a contravention before the Court faster, and the non-compliant party having to explain their failure to comply, we hope to see an increased culture of compliance with orders and deadlines.

And the Rest…

As well as the headliners, some other things have changed.

To help bring all the Courts under one banner, a new set of Court Rules and Practice Directions have been introduced to govern the process.

Parties are now encouraged to consider dispute resolution at all stages of a matter – which most well advised parties would generally do anyway. There is a strong emphasis on pre-court action procedures, including dispute resolution and dislcsoure, being complied with before the parties commence proceedings.

There is no longer a separate place to go for appeals, so all “division 1” judges will be able to hear appeals. This should speed things up if you have to appeal a decision.

And last but not least, Child Dispute Services is getting a rename to Court Children’s Service.

Will it Work?

The underlying philosophy here is to reduce cost, increase speed, and see more matters actually being dealt with by the Court.

The use of Judicial Registrars, who are more readily available than Judges, is a good idea and could result in matters progressing a lot faster. Similarly anything which discourages or limits people breaching Court orders is a good move.

Ultimately these changes are a step in the right direction. They seek to address many of the main complaints about the system. Will they work? Only time will tell.