LSB September 2021 LR

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FAMILY LAW Introduction of the Federal Circuit and Family Court of Australia THE HON WILL ALSTERGREN, CHIEF JUSTICE OF THE FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA It is hard to fathom that, approximately 18 months since COVID-19 hit our shores, we are continuing to be impacted by the severe effects of the pandemic on individuals and the Australian community in general. As I write this report, many parts of the country are experiencing Government imposed restrictions of varying levels. As you would all attest to, the impact on families and individuals has been very stressful and no doubt, as legal practitioners, you would have seen the consequences of that stress in your own workplace and perhaps through your clients, especially in the area of family law. In respect of family law, now, more than ever, we must do all that we can to continue to identify risk to vulnerable parties and children at the earliest opportunity, and ensure that our processes respond to that risk. The new Court and modern technology can assist us to conduct safer, and earlier, hearings in high-risk cases. We must and will continue to do all that we can as a Court to assist those at risk, and diminish the horrifying level of family violence in our community. I continue to be in awe of the amazing work lawyers do in this area, especially those working in Women’s legal and support services, Men’s legal and support services, Community Legal Centres, Legal Aid and those working in refuge shelters. They remain an outstanding example to the community for their hard work and dedication. At the same time, we must also remind separated or separating couples to focus on what is important, what is in the best interests of the child, and encourage them to engage in dispute resolution opportunities as a preferred way of resolving their disputes, if it is safe and 28 THE BULLETIN September 2021 appropriate to do so. An example of what can be achieved, was the establishment and operation of the COVID-19 List (which was originally the idea of Angela Lynch AM and supported by other experts in my advisory group. If disputes have arisen due to circumstances related to the pandemic, the Court’s national COVID-19 List continues to operate to provide litigants access to urgent family law assistance from anywhere around the country within 72 business hours. The new Court provides an opportunity to change the conversation about family law litigation in particular. The architecture of that conversation includes asking litigants if there is a smarter, better way for them to separate without the impact, stress and expense of protracted family law litigation. It means, however, that we need to do things differently. We now have a system where identifying risk and safety at the very beginning of every case is a priority, where parties will be given ongoing opportunities for dispute resolution where it is safe to so, and if cases cannot be resolved, they will be listed for a trial before a Judge much earlier than previously experienced. For those cases that do need to proceed to litigation, the new Court provides a modern, transparent and more efficient system of justice which is aimed at getting these parties through the process as safely, quickly and fairly as possible without undue delay. It has been an extraordinarily busy year for the Court. As well as adapting to deal with much of the workload electronically and adjusting to those challenges, we have been working diligently to establish the new Federal Circuit and Family Court of Australia (FCFCOA) by 1 September Chief Justice Alstergren 2021. This has included a rejuvenation of all areas of the Court, including areas set out below such as rules, forms, case management, appeals management and resources. The FCFCOA comprises two divisions, Division 1 (formerly the Family Court of Australia) and Division 2 (formerly the Federal Circuit Court of Australia). Division 1 deals only with family law matters (including family law appeals), while Division 2 deals with family law, migration and general federal law matters. The profession and the litigants can have faith that there is no diminution of specialist family law experience and skill in the new Court. Both Divisions of the Court will continue to have judges with specialist knowledge, skill and experience in family law. Division 1 has 35 specialist family law judges hearing both trials and
FAMILY LAW appeals (the highest number of judges since 2009) and Division 2 now has a total of 76 judges, 55 of which are specialists in family law. Importantly, specialist Judges with expertise in family law will continue to be appointed, with the FCFCOA Act requiring that, by reason of knowledge, skills, experience and aptitude, all Judges exercising family law jurisdiction must be suitable to deal with family law matters, including matters involving family violence. Members of the profession are encouraged to familiarise themselves with the many changes to Court operations, details of which are accessible from the new Court website, www.fcfcoa.gov.au. The Court’s new website has been designed to provide users with simplified access to, and navigation of, the Court’s information. Instead of having two separate websites, the single website will make it easier for the profession, litigants and the public to source specific information about family law, migration and general federal law. There are also three professionally created videos published on the new website. One is aimed at assisting parties, before they commence litigation, to consider better ways to separate and encourage the use of dispute resolution. The other two videos provide details about the new FCFCOA, and a step-by-step guide on what parties can expect when they come to court. What to expect with the commencement of the new Federal Circuit and Family Court of Australia The Federal Circuit and Family Court of Australia provides a new structure that is innovative, fair and efficient and focuses on risk, responsiveness and resolution, by: • Improving early risk identification and safety of children and vulnerable parties • Encouraging smarter ways to separate with less acrimony, less cost and more dispute resolution, where it is safe to do so • Expecting compliance with court orders • Enhancing national access to justice for vulnerable parties and regional communities through the use of technology, and • Aiming to resolving up to 90 per cent of cases within 12 months. The legislative changes have enabled the Court to undertake major structural changes which feature: • A single point of entry for all family law matters • A new case management pathway • Specialist lists • Harmonised family law rules • New family law practice directions • Focus on dispute resolution and an increase in internal dispute resolution in parenting and financial matters • Enhanced and effective child expert reporting process • An informative and modernised website • Appellate jurisdiction exercised in Division 1 through a Full Court model rather than an Appeal Division Please note, there will always be cases which, because of their complexity cannot resolve in 12 months. Some of those case will take time and the Court will continue to utilize its supervisory functions to assist parties through these challenging times. FAMILY LAW JURISDICTION OF THE FCFCOA The overarching purpose (ss 67, 68, 190 and 191) The FCFCOA has a legislative overarching purpose that is resolution focused, and can carry costs consequences if not complied with. The overarching purpose of the family law practice and procedure provisions is to facilitate the just resolution of disputes: (a) according to law; and (b) as quickly, inexpensively and efficiently as possible. All practice and procedure, and any powers or duties imposed, are to be carried out in the way that best promotes the overarching purpose. Parties have a duty to conduct proceedings in a way consistent with the overarching purpose, and lawyers must assist their clients to comply with that duty. Harmonised Rules and Practice Directions Following extensive consultation with the legal profession and other stakeholders, the harmonised family law Rules commenced 1 September 2021. A central practice direction, which sets out guidelines for the management of family law proceedings in the FCFCOA, also commenced from 1 September. To accompany the harmonised family law rules, a suite of 14 new practice directions have been developed and are available on the new Court website. Forms A comprehensive review of all existing forms has been conducted to align with the new FCFCOA. Most form changes involved updating references to legislation, names and terms where required. In addition, where possible, some forms have undergone more substantive changes to improve functionality and usability. It is important for practitioners to note, however, that a 90 day grace period allowing the use of old forms commenced from 1 September 2021, but after this period the old forms will not be accepted. September 2021 THE BULLETIN 29
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LSB September 2021 LR

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