Pre-action requirements for the new family law court

On 1 September 2021, the Federal Circuit Court of Australia and the Family Court of Australia merged. They have joined to become the new Federal Circuit and Family Court of Australia (FCFCOA).

The merger introduces a number of changes to the family law court processes. The aim is to achieve a more efficient, simplified system with a greater focus on dispute resolution.

There are increased pre-action procedures that are required before a party can issue court proceedings. These include formal disclosure obligations and attempts at dispute resolution, such as mediation, for all matters.

Parties need to take further steps to show the FCFCOA that they have attempted to resolve their dispute without the court system prior to issuing proceedings. As a result, litigants are required to complete a Genuine Steps Certificate which details the efforts they have made to resolve the matter outside of the FCFCOA system. These changes emphasise that issuing court proceedings should be a last resort option for all family law matters.

There is also an increased usage of technology proposed by the FCFCOA, including the continuation of some electronic hearings as has been occurring during the covid-19 pandemic. There are 14 new and specific practice directions issued by the FCFCOA to provide guidance on discrete areas of law, application types and the new processes.

Of particular note for family law litigants is that they are not required to file an affidavit with their initiating application unless they are seeking interim orders in addition to final orders from the FCFCOA.

The FCFCOA have recruited heavily and matters will not automatically go before a Judge in the first instance, instead before a Judicial Registrar for triage. Most significantly for parties to family law proceedings, the FCFCOA will aim for a trial occur within 12 months of the proceedings being commenced.

Tara Paatsch
Special Counsel
M 0412 660 842 | T 03 5225 5222
E tpaatsch@ha.legal

Lisa Hunt
Principal
M 0407 616 729 | T 03 5226 8584
E lhunt@ha.legal