Three new developments in the family law court system – what’s old is new again

Monday September 27, 2021

Three new developments in the family law court system – what’s old is new again

  1. Family Court and Federal Circuit Court merge into a new ‘Super Court’

Return to a single court system

Twenty-two years after splitting family law jurisdiction between two Courts, the government has passed legislation which merge the Federal Circuit Court and the Family Court back into one Court. 

This new Court, named the Federal Circuit and Family Court of Australia (FCFCA) commenced operation on 1 September 2021 with two divisions, under a single set of rules and a single point of entry for family law cases into the Court system.

Division Two replaced the Federal Circuit Court and hears family and general federal law matters. It has 76 judges, 55 of which are specialists in family law. It no longer hears appeals, which are heard by Division One.

Division One replaced the Family Court of Australia and hears only family law matters. It has 35 specialist family law judges hearing both trials and appeals from Division Two.

All appeals from Division Two of the Court are heard by a single judge, unless the Chief Justice considers it appropriate for the appeal to be heard by a Full Court.

What is the purpose of the reform and how will it affect families?

Under laws governing the new Court, the “overarching purpose of the family law practice and procedure provisions is to facilitate the just resolution of disputes: according to law; and as quickly, inexpensively and efficiently as possible.”

For those involved in family law disputes that necessitate resolution by the Courts, the purpose of the merger is to make the court process a more efficient process.  Although, for many families the changes will not be instantly noticeable when it comes to the process of determining property settlement or parenting arrangements, it is hoped that families engaged in the court process are able to have their disputes determined within 12 months of the initiating application being filed (which is the overriding objective).

  1. Launch of the National Contravention List – to deal with non-compliance in family law

The new National Contravention List also commenced on 1 September 2021; it was created to tackle family law non-compliance with court orders that are made in family law proceedings. The new, dedicated national electronic court list will deal, consistently and responsively, with contravention applications. 

Non-compliance with court orders has long been a problem

When a party to orders made in a family law proceeding does not comply with those orders, the other party usually seeks to remedy this by filing a Contravention Application. These applications have become more commonplace recently due to increasing non-compliance with court orders.

Court rules require the Registry Manager list those applications for a first return date as near as practicable to 14 days after they are filed. In a bygone era when the court system had a less onerous caseload, parties and lawyers could expect prompt determination of Contravention Applications and enforcement of court orders.

Unfortunately, this is no longer the case save where such applications are urgent. The problem of non-compliance has become cyclical; the longer parties wait for orders to be enforced, the less they are incentivised to comply and therefore more Contravention Applications are filed and the longer the wait time for determination.

Addressing the issue of non-compliance

Chief Justice William Alstergren conceded recently that family law is “perhaps the worst jurisdiction in Australia for compliance” and to address what has become a long-standing issue, the Courts have created a dedicated court list that will deal exclusively with Contravention Applications which will be given a first return date within 14 days of filing.

His Honour has further said of the conduct of matters on this dedicated court list: “If orders needed to be reassessed, there would also be an opportunity to do so.  There will be costs orders if need be…There will be ramifications. We’re quite confident it will make a significant difference.”

If this new list enables the new Court to once again expediently enforce orders made under the Family Law Act 1975, this new measure will functionally return the jurisdiction to an old state of affairs.

  1. Expanded powers delegated to Judicial Registrars and Registrars in the Family Law Courts

The court system has become increasingly reliant on Registrars to triage and hear proceedings on their first return date and other interim court events. The intention of listing proceedings before Registrars is to ease the burden of an increasing caseload on Judges.

However, even the best intentions go awry and on occasion parties have sought orders at these court events that Registrars did not have the power to make, meaning that they were adjourned (at additional cost to the parties) to be heard by a Judge.

The government passed legislation which commenced on 26 September 2020 to give additional power to Registrars to make more different types of orders under the Family Law Act 1975 and court rules. These additional powers are now exercised by the FCFCA Senior Judicial Registrars, Judicial Registrars and Deputy Registrars.

Some of the additional powers that Registrars now have include:

  • to make parenting orders until further orders or in undefended cases;
  • to make recovery orders when children have been abducted;
  • to order a passport or other travel document be delivered to the court;
  • to order a restraint by injunction;
  • to order a parentage testing procedure that a person give evidence in relation to parentage of a child;
  • to make a declaration of parentage of a child;
  • to make interim child maintenance orders;
  • to make orders in relation to child support;
  • to make interim orders for spousal or de facto maintenance and to vary or discharge previous de facto or spousal maintenance orders;
  • to make orders dividing matrimonial or de facto property by consent or in undefended cases; and
  • to make orders appointing case guardians, litigation guardians (where a party is under a disability) and legal personal representatives (where a party has died) and to add parties to proceedings.

These expanded powers are resulting in the Courts having a greater number of judicial staff to allocate to more court events, reducing the waiting times of parties that had until recently become the status quo, more akin to the shorter waiting times of years before.

Let us help you

If you have a proceeding that is stuck in the family law court system or a family law dispute that might end up being litigated in this system, our family lawyers can help. Contact us on 03 9629 7411.