Procedural changes in family law courts

2019 was the year of review of the Family Law system which operates in Australia and on 9 April 2019 the Australian Law Reform Commission issued its final report “Family Law for the Future – An Enquiry into the Family Law System”.

One of the significant recommendations of the Commission was the harmonisation of the rules applicable in the two courts which administer Family Law matters being the Family Court of Australia and the Federal Circuit Court of Australia.  The Commission stated “having two sets of rules for different courts exercising Family Law jurisdiction increases complexity, duplication, and confusion for professionals and parties”.  The Commission recommended that the Family Law Act and its subordinate legislation be comprehensively redrafted and it is expected that later in 2020 there will be a wholesale revision of the Family Law Rules and the Federal Circuit Court Rules so that all professionals and parties are working from the same rule book.

In keeping with 2020 being the year of change, on 28 January 2020 the Family Court of Australia and the Federal Circuit Court of Australia issued a joint practice direction (No. 1 of 2020) entitled “Core  Principles in the Case Management of Family Law Matters”.  The practice direction sets out the ten core principles that underpin the exercise of the Family Law jurisdiction of the courts.  The practice direction is designed to ensure the pragmatic, sensible and cost effective provision of legal services in the Family Law sector.

In summary the core principles are as follows:-

1. The prioritisation of the safety of children, vulnerable parties and litigants are essential elements of all case management.
2. The overarching purpose to be achieved is to ensure the just, safe, efficient and timely resolution of matters at a cost to the parties that is reasonable and proportionate.
3. The courts’ judicial, registrar and family consultant resources are to be allocated and used efficiently.
4. Effective case management of all cases relies on:-
   • A consistent approach.
   • Early triaging of matters to an appropriate case pathway.
   • The use of alternate dispute resolution.
5. The courts encourage the use of appropriate dispute resolution procedures.
6. Non-compliance with orders of the court and the rules of the court may attract cost consequences.
7. Parties and their lawyers are expected to take a sensible and pragmatic approach to litigation and to incur costs only as are fair, reasonable and proportionate to the issues that are genuinely in dispute.
8. Issues in the case are to be narrowed to those issues genuinely in dispute. In particular:-
   • All parties are required to make frank disclosure.
   • Applications should only be brought before the court if they are reasonably justified.
   • It is expected that parties will negotiate both prior to, and at court.
   • When appropriate, a single expert should be engaged to assist the parties and the court to resolve disputes.
   • Costs consequences may flow if parties seek to reopen issues already resolved or unreasonably agitate issues.
9. Parties and their lawyers are to be familiar with the specific issues in the case and prepared for court events and the final hearing in a timely manner.
10. The courts will act effectively and efficiently in achieving the prompt and fair disposition of pending matters, with judgements being delivered as soon as reasonably practicable after the receipt of the final submissions.

For far too long the non-adherence to the basic principles underpinning the provision of legal services in the Family Law sector has resulted in a significant emotional and financial cost to litigants.  The joint practice direction of the court’s exercising Family Law jurisdiction represents a step towards a firmer approach to improper or poor conduct by litigants, lawyers and judicial and other officers of the court.  The effect of the joint practice direction will be a focus on an adherence to those guidelines which embody the ethos of Family Law as it should be practiced today.  The outcome will be pragmatic, sensible and cost effective litigation which will be of great benefit to all involved in the Family Law system.  A progressive and practicable approach by the leaders within the Family Law sector is to be applauded.