On 8 September 2021, Martin Bartfeld AM QC, Victorian Bar, and Jacky Campbell, Partner Forte Family Lawyers, presented a webinar, Q&A Discussion on the Australian Family Court Merger.
Many excellent questions were submitted by attendees and not all could be answered in the session due to time limits.
It is clear that while the new system is complicated in its foundation and structure, legal practitioners will get used to the process and with time it will become second nature.
In the meantime, below is a table prepared by Martin Bartfeld AM QC and Jacky Campbell summarising the questions and answers which may assist in navigating the Federal Circuit and Family Court of Australia (FCFCOA).
QUESTIONS & ANSWERS
Q1. Regarding the financial questionnaire and this being put to the court at trial, I wonder if it is the intention that there will be some flexibility about making changes to the percentages sought etc if circumstances have changed or further information has come to light? Can we update and refile the financial and parenting questionnaires throughout the proceedings if/ when circumstances change?
- Each party to a parenting proceeding must file a completed Parenting Questionnaire with the Initiating Application or Response (r 8.09)
- The applicant to a financial proceeding must file a completed Financial Questionnaire and Financial Statement with an Application or Response (r 6.06)(5)(b)
The Financial Questionnaire is a joint document but each party is required to file a Parenting Questionnaire.
The Rules do not provide for or require the Questionnaires to be updated.
The Rules do, however, provide for the updating of Financial Statements (r 6.06)(7)) if a party’s financial circumstances have changed significantly.
The cover page of the Financial Questionnaire (which must be removed before filing) states to the person completing the Questionnaire that if their case goes to trial when they first give evidence before the judge they will be asked to adopt the facts contained in the Questionnaire as part of their evidence before the court. This is only for the Financial Questionnaire. The Parenting Questionnaire does not have the same requirement.
It is early days and we expect that it will become clearer as to how the Financial Questionnaire will be updated and whether the information in the Parenting Questionnaire is also adopted at trial.
Q2. Will Conciliation Conferences continue to be offered to parties or will parties be ordered to go to private mediation?
A. “Dispute resolution” is defined in the Rules to include a mediation and a conference (including a Conciliation Conference) (r 1.05).
The Rules themselves do not give more information about Conciliation Conferences.
The Central Practice Direction – Family Law Case Management (CPD) requires parties to participate in dispute resolution within 5 months of the date of commencement of a proceeding unless exceptional circumstances exist (Item 5.26). The CPD requires the court to have regard to the means and resources of the parties to determine whether it is appropriate for the parties to participate in a privately funded Dispute Resolution event or court based Dispute Resolution.
Our expectation is that parties will be encouraged where possible to use external services rather than have Conciliation Conferences with court staff if they appear to have the means to do so.
A. The pre-action procedures in the Rules are very similar to those in the former Family Law Rules 2004 (2004 Rules). Prior to issuing proceedings parties are required, if it is safe to do so, to give a copy of the pre-action procedures to the other prospective parties to the proceeding, make enquiries about dispute resolution services available and invite the other parties to participate in dispute resolution with an identified person or organisation or other person or organisation to be agreed (Sch 1 Part 1) cl 3(1) and Sch 1 Part 2 cl (1)).
Prospective parties are required to make a genuine effort to resolve the dispute by participating in dispute resolution.
The pre-action procedures do not make it mandatory to attend an external dispute resolution service. If a dispute is not resolved after a reasonable attempt to settle by correspondence following a Notice of Intention to start a proceeding, then proceedings can be commenced (Sch 1, Part 2, cl 3(7) and Sch 1, Pt 2, cl (7)).
In practice under the 2004 Rules, the court accepted that if there had been negotiations between the parties’ lawyers by correspondence or a roundtable conference then there was compliance with the dispute resolution requirement of the pre-action procedures for a financial proceeding. This will still be the case but we expect that there will be a greater expectation on parties to attend an external mediation or Family Dispute Resolution such as with a mediator or Family Dispute Resolution Practitioner, but it is not mandatory.
Q4. Jacky said that interim affidavits are now up to 25 pages and 10 annexures for all interlocutory applications. Aren’t affidavits in division 1 matters for interlocutory orders limited to 10 pages and a maximum of 5 annexures?
An affidavit filed in Division 1 must, in accordance with r 5.08(2) and (3), be no more than 25 pages and 5 annexures for an affidavit in support of interlocutory orders.
The Div 2 Rules provide at Item 7 & 8 of Table 2.1 that an affidavit in support of interlocutory orders is limited to 10 pages and a maximum of 10 annexures.
The Div 2 Rules also include a lump sum costs scale in Sch 1, some additional delegations in Sch 2 and rr 3.01 and 3.02 provide for the transfer of a proceedings from the FCFCOA (Div 2) to the FCFCOA (Div 1).
A. The pre-action procedures provide that before filing an application a proposed applicant must give to the other party written notice of an intention to start a proceeding. If there is no appropriate dispute resolution available, a party fails or refuses to participate in dispute resolution or the parties are unable to reach agreement by dispute resolution (Sch 1 Part 1 cl 3(4) and Sch 1 Part 2 cl 3(4)).
The Notice of Intention to start a proceeding must give a nominated time for a reply which is at least 14 days after the date of the Notice within which time the proposed respondent must reply. If the proposed respondent does not reply or agreement is unable to be reached after a reasonable attempt to settle by correspondence then a proceeding can then commence (Sch 1 Part 1 cl(7)) and (Sch 1 Part 2 cl(7)).
Parties are not expected to continue to follow the pre-action procedures if reasonable attempts to follow the pre-action procedures have not achieved a satisfactory resolution. Sch 1 Part 1 cl 1(8) and Sch 2 Part 2 cl 1(8).
A. Rule 4.01(1) requires that before starting a proceeding each prospective party to the proceeding must comply with the pre-action procedures.
It appears that at least the initial stages of the new system will be more expensive for many clients than before 1 September 2021. This is because, for example, compliance with the pre-action procedures will be enforced and the cost of issuing proceedings will be greater as there are more forms. Parties will be more likely to have a formal mediation before issuing proceedings as well as one or more mediations after proceeding have commenced, assuming the proceeding has not settled.
The court will require compliance with the pre-action procedures unless an exception applies. The requirement to file a Genuine Steps Certificate with the Application or Response confirming that a person has complied with the pre-action procedures or the factual basis on which the court should be satisfied that it was not appropriate for the person to comply with the required pre-action procedures (r 4.01(4)) means that the court will have more information about compliance with the pre-action procedures.
Rule 4.04 states that the consequences of failing to comply with rr 4.01 to 4.03 are that the court may stay the application on its own initiative or on the application of the respondent until the applicant complies with the pre-action procedures (r 4.04(1)).
The court may take into account a party’s failure to comply with r 4.01, 4.02 or 4.03 when considering whether to make an order as to costs (r 4.04(2)) and the court may take into account the involvement of a legal practitioner in a party’s failure to comply with those rules when considering whether to make an order as to costs against the legal practitioner (r 4.04(3)).
As costs orders may be more frequently made against legal practitioners than in the past there is extra incentive for legal practitioners to ensure that parties comply with the pre-action procedures and comply with the overarching purpose of the FCFCOA Act which is also in r 1.04 of the Rules. There is a specific obligation on lawyers in r 1.04(3).
Q7. So the Senior Registrars (from last month) are called Senior Judicial Registrars this month?
A. Yes, the former Senior Registrars are now called Senior Judicial Registrars and the former Registrars are called Judicial Registrars.
We agree that it would be helpful if the court website included this. An inspection of the daily court lists published by the court gives a clear explanation of the rank of each judicial officer.
Please could you comment on how the new court system will help self-represented litigant
However, as the underlying legislation is more complex with 2 Acts, 2 sets of Rules and over 20 Practice Directions, it will be more difficult for self-represented litigants to access source documents.
A. The Rules are not expressed to be limited to only party/party costs but also seem to extend to client/lawyer costs.
This is surprising given that the courts had vacated the space and left it to the state courts to deal with client/ lawyer costs.
The process for seeking an abridged hearing has changed. Even the name has changed. There is now a Fast Track Hearing list. This is not provided for in the Rules but in the CPD at items 5.48 to 5.50.
(a) The court has a discretion to refer a matter to the Fast Track Hearing list at any point prior to the allocation of a final hearing date and any referral will ordinarily occur following the parties’ participation in dispute resolution. Factors the court will consider include:
(b) the parties have been unable to resolve the matter despite making a genuine effort to do so;
the parties have clearly identified the issues in dispute between them;
(c) the issue or issues to be determined are discrete or are of limited scope;
(d) reports from experts have been obtained and any relevant requisitions and conferences have been held with those experts;
(e) the parties agree that the matter may be determined:
(i) on the basis of affidavit evidence without the need for cross examination, and
(ii) on the basis of written submissions of no more than 10 pages setting out the relevant contentions as to law and fact or oral submissions not exceeding one hour in respect to each party;
(f) the parties will be in a position to present their case on the provision of 28 days’ notice of the hearing date; and
(g) the parties consent to the use of short form reasons for judgment.
We consider that a major deterrent may be the use of short form reasons for judgment. There is no definition in the Rules of “short form”. Parties may be concerned that the “short form” reasons are sufficient for a party to be able to appeal. The court will hopefully provide some guidance on this.
However, Senior Judicial Registrar Anna Parker said at the Presentation by the FCFCOA to the National Family Law Pathways Network that the formal way is to use their full titles but that individual Judicial Registrars and Senior Judicial Registrars may indicate that they are happy to be addressed in a shorter way.
A. They are only required to be filed if there are proceedings on foot.
A Dispute Resolution Certificate must be completed by the mediator or Family Dispute Resolution Practitioner after any external dispute resolution Event. The form must be given by the parties to the external mediator or FDRP for completion by them.
For court based dispute resolution events the Certificate will be provided to the parties and placed on the court file (Item 5.30 of CPD).
The FCFCOA has issued a Fact Sheet which states that the completed Certificate of Dispute Resolution must be filed and served.
Q13.May I ask for clarification of where to find the schedule setting out the Registrars' powers that was just discussed?
A. The schedule of the registrars’ powers is Schedule 4 to the Rules but you also need to check Schedule 2 of the Division 2 Rules.
A. FCFCOA Practice Direction – Transitional Arrangements requires that any proceeding commenced in accordance with the 2004 Rules or the Federal Circuit Court Rules 2001 and not finally determined before the repeal of those Rules must be continued in accordance with the new Rules. New Practice Directions apply to all proceedings commenced prior to 1 September 2021 but not finally determined before that date unless it is unfair or impractical to do so (Item 4.2) of the CPD.
There does not appear to be any specific requirement that parties who applied prior to 1 September 2021 or responded prior to that date to complete the extra documents such as Questionnaires and Genuine Steps Certificates.
However, if an application was on foot prior to 1 September 2021 and the respondent had not yet filed responding material then they will be caught by the new Rules and will be required to file in addition to the documents they would have been required to file prior to that date:
- Parenting Questionnaire if appropriate;
- Financial Questionnaire if appropriate;
- Genuine Steps Certificate;
- Undertaking as to Disclosure.
Q15. What approach do you recommend be taken in a situation where the other party refuses to make disclosure of relevant documents and/or information as part of the
pre-action procedures in a financial case and as a result you are unable to formulate an offer to be put to the other party as required as part of the pre action procedure? Will a very general offer be sufficient?
If you can make an offer in general terms then you should do so.
Q16. Will subsequent mediations be referred back to a private mediator or undertaken by the court?
A. It will depend upon the financial circumstances of the parties. If the parties can afford to pay for a private mediation we believe the court will expect them to do that.
Q17. Is there anything a Senior Judicial Registrar can’t do on an interim basis which a Judge could?
A. It appears to us that some of the matters are:
- Medical procedures
- Maximum costs orders
- Hague Convention matters
- Interim matters if under item 31.2 of Sch 2
Q18. Is there an easy way to find forms etc on the court website
A. It is getting easier. The court website now has a list of forms and the search mechanism is working better
Q19. Family violence is a feature in many family law proceedings. Are cases involving family violence suitable for mediation etc (in light of Central Practice Direction 1.7)
A. The assessment of the suitability of parties to attend dispute resolution has not changed. Not only does item 1.7 CPD state that the safety of parties and children and protection from the consequences of abuse and violence remains a priority to the court, but the pre-action procedures still need to be followed and if it is not safe to do so (Sch 1 Part 1 cl 1(8) and Sch 2 Part 1 cl 1(8)).
Item 5.27 CPD requires that consideration be given as to whether dispute resolution is appropriate and whether measures can be implemented which will facilitate dispute resolution occurring as safely as possible. Examples are given of dispute resolution being given electronically or in separate rooms.
Q20. Do you think the new rules and CPD’s will see an increase in parties participating in mediation and arbitration instead of rushing off to court?
A. Yes. Both methods will be actively encouraged. Mediation will be ordered and parties may be ordered to attend more than once. Arbitration will be offered and ordered more frequently where the parties consent.
The FCFCOA have also posted their FAQs on their website here: https://www.fcfcoa.gov.au/nec-faq
A. It will depend upon whether the matter is a fresh application or is already before the court. If it is a fresh application then the first court event may be before a Judicial Registrar or a Senior Judicial Registrar. In some instances the interim issues will not be able to be dealt with on a contested basis on that day as a Judicial Registrar has fewer powers than a Senior Judicial Registrar. It will depend upon the nature of the applications and before whom it is listed.
If the proceeding is already before the court then one would expect that the matter would be listed before a registrar or judge who has the power to make the interim orders sought.
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