Although there is now one Court, there will still be two separate divisions as follows: –
- Division 1 – previously known as the Family Court of Australia. This division only deals with complex parenting and property matters, such as large asset pools, international issues and appeals.
- Division 2 – previously known as the Federal Circuit Court of Australia. This division is where the majority of family law cases are dealt with although there are a number of specialised lists, depending on the type of matter.
The major change is that there is now one set of forms, one set of rules and procedures and one single point of entry for all family law matters regardless of complexity. In practice, what this means for parties is that there is a shifted focus on resolving matters as quickly and efficiently as possible in order to minimise any detrimental impact on families with an aim to finalise the majority of matters within 12 months. This is a substantial improvement from the previous delay of 18 months to 3 years.
The changes will apply to all matters, both existing matters before the Court and those yet to be commenced.
For all property matters regardless of commencement, we are now required to file an Undertaking that parties have complied with all requirements for financial disclosure. We note that the onus is on the parties themselves to ensure that they provide and exchange the relevant documents and they will be required to personally guarantee to the Court that this has occurred.
There are now penalties under the legislation for failing to fully disclose one’s financial position, which can include the ordering of costs against one party in favour of the other and the Court has now been provded more power to make and enforce such costs orders. In addition, the Court may also draw negative inferences about a party and/or their case and make orders that the matter proceed on an undefended basis. This means that orders may be made against you in favour of the other party. We also note that the Court is now refusing to deal with and progress financial matters unless disclosure has been exchanged and will stay or essentially pause the matter until this occurs.
For new court proceedings filed with the Court after 1 September 2021, we are required to lodge a document known as a ‘genuine steps certificate’ which outlines the steps taken in order to resolve the matter. This includes confirmation that we have attempted to resolve the matter through negotiation and/or mediation, including where applicable, that a party has complied with their disclosure obligations.
With a focus on resolving the matter as efficiently as possible and preventing the filing of vexatious applications, the Court now expects that in both property and parenting matters (where it is safe to do so) that parties attend a form of alternative dispute resolution prior to commencing proceedings. If parties do not comply and there is no genuine reason for failing to do so, the Court has the ability to make costs orders against parties.
For all existing matters, the Court is allowing a grace period to come up to speed with the new changes and to ensure compliance with the rules in relation to disclosure and alternative dispute resolution. If matters have been ongoing for quite some time, the Court may order parties to attend a form of alternative dispute resolution either through the Court system itself or externally.
If you have an ongoing family law matter before the Court or you are looking at initiating proceedings and need further advice and guidance on navigating these new changes please reach out to our team on (02) 4655 4224 to discuss with one of our experienced solicitors.