Will the New Family Law Court of Australia Become a Separate Court?
Yes, the merged Family Court of Australia and Federal Circuit of Australia will officially commence operations on 1 September 2021 and be called the “Federal Circuit and Family Court of Australia” (FCFCA).
Visit their new website here.
What are the changes to the law?
Matters are filed in the new FCFCA system in a national consistent case pathway, which is set out in general terms in the following diagram:
The new changes will focus on trying to achieve a settlement at an early stage. Their aim is to try and resolve matters quickly as it’s likely to save both money and time for anyone attending court. These steps are aimed to resolve 90% of cases within 12 months.
This will make a huge difference to the lives of hundreds of thousands of people who have been suffering unnecessarily for cases that have lasted many years.
What will it look like?
The first court event is to take place within 6–8 weeks of filing. Parties should be at mediation or dispute resolution within 5–6 months of filing before they have spent too much money on costs and have become too entrenched in the system. I
If they cannot settle, they will be sent to trial, which is to commence where possible within 12 months. These steps aim to resolve up to 90% of cases within 12 months, which will substantially improve.
There will also be a significant focus on compliance with court orders, as demonstrated by the establishment of a new National Compliance List, which will commence on 1 September 2021.
A Media Release of the Family Court of Australia released on 30 July 2021 said that:
“There will be a greater emphasis on encouraging parties to settle their disputes, where it is safe to do so, before proceedings are issued and ensuring that, if they do issue, they are aware of the ramifications for them and their families.
For cases that need to proceed to litigation, the new Court will provide a modern, transparent and more efficient system of justice aimed at getting these parties through the process as safely, quickly and fairly as possible without undue delay.
It is also aimed at dealing with the increasing rate of family violence in our community by ensuring risks to vulnerable parties and children at high risk are identified at the very earliest stage in the litigation and treated appropriately.
For the first time in 21 years, the new Court will have a single point of entry and harmonised rules, forms and case management processes to provide a streamlined approach to family law proceedings. It will simplify procedures and enable cases to be moved through the family law system quickly, fairly, and with as little detrimental impact on families and children as possible.
Chief Justice of the Family Court of Australia and the Federal Circuit Court of Australia, the Hon. Will Alstergren, said that for decades, people in the legal profession and the wider community have been calling for change and commenting that the ‘system’ wasn’t working.”
Source: Family Court of Australia, Countdown to the commencement of the new Federal Circuit and Family Court of Australia, [media release], 30 July 2021.If you haven’t already heard, the Family Court of Australia and the Federal Circuit of Australia have officially commenced operations on the 1st of September 2021.
They will be called the “Federal Circuit and Family Court of Australia” (FCFCA).
FCFCA jurisdiction
The FCFCA divides responsibilities for family law services between two divisions.
- Division One continues the duties of the Family Court of Australia.
- Division Two continues the duties of the Federal Circuit Court of Australia.
Division two is predominantly the first entry point for most cases. It handles divorces and straightforward family law applications. More complex cases will pass to division one. For example, child custody cases involving complications around international jurisdictions or property settlements with complex financial structures.
Family Law Act Amendments
Since the merger of the courts, the Australian government has passed two significant family law amendments: The Family Law Amendment Act 2023 and the Family Law Amendment (Information Sharing) Act 2023. These amendments began on 6 May 2024. The Court’s approach to parenting orders has changed.
Here’s what’s different.
Parenting orders
In family law, children are considered above everything. The amendments changed how the Court approached parenting matters to protect children’s best interests better. The changes cover what the Court considers is in a child’s best interests and how co-parents should handle long-term decision-making.
Child’s best interests
Previously, the Court would assume that equal shared parental responsibility is in the child’s best interests until a parent could prove otherwise. The Court will no longer start from this assumption. Instead, a child’s best interests will be determined through the following six factors:
- Protecting the child’s safety. This includes factoring in any history of family violence and existing protection orders.
- Depending on the child’s maturity level, the Court may consider the child’s views.
- The child’s developmental, cultural, psychological and emotional needs.
- How capable each parent is in caring for those needs.
- What benefits will the child gain from maintaining a relationship with each parent and other significant people?
- Any other factor the Court believes is relevant.
If the parenting order relates to an Aboriginal or Torres Strait Islander child, the Court will consider how best to ensure they maintain a connection to their culture.
Conclusion
The Family Court has changed a lot in recent years. The merger in 2021 improved court processes. The number of cases that last over 12 months has gone down a significant margin. This is a godsend for people going through the stress and uncertainty of Family Court.
If you need help with family law matters, contact us for a free discovery call.
