There has been a significant restructure of the family law court system, the Federal Circuit and Family Law Court of Australia (FCFCOA or family court) in recent years.
Parties going to court involved in family law proceedings will be given a copy of the central practice direction (CPD), this is a lengthy document. Our family lawyers explain the CPD and the steps involved in proceedings in the Family Court.
If you are involved in a family law matter then this information is helpful to understand what the court processes are and the avenues available to help you seek a resolution.
Overview of the Central Practice Direction – Family Law Case Management
The CPD is directly aimed to assist parties to resolve their family law dispute quickly before, during and after formal proceedings.
Family law is one area where many parties can reach agreement through mediation and consultation quite easily. If a matter does proceed to court it can be costly both emotionally and financially not just to the parents or parties, but also children.
Purpose of the Central Practice Direction:
- Outline the core principles that apply to family law proceedings.
- To reduce unnecessary costs and delays in family litigation and proceedings to be conducted with the least animosity to reduce the harm to children and families.
- Ensure the safety of families and children.
- just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.
Core Principles of the CPD
The CPD is underpinned by ten principles designed to help resolve family law proceedings. These principles apply to all steps taken before court proceedings commence.
10 core principles:
- Risk To identify and handle risk issues regarding safety of Children, vulnerable parties and litigants.
- Parties', lawyers', and the Court's Obligations and overarching purpose The overarching purpose to be achieved is to facilitate: the just resolution of disputes according to law; and as quickly inexpensively and efficiently as possible.
- Efficient & effective use of resources The court's judicial, registrar and Court Child Expert resources are to be used efficiently to achieve the purpose of the CPD.
- Approach to Case Management This principle outlines the elements of effective case management such as consistent approach; early triaging of matters and prioritisation of internal and external Dispute resolution eg mediation.
- Importance of Dispute Resolution The court is encouraging the use of dispute resolution procedures and before commencing proceedings parties are expected to make a genuine attempt to resolve their dispute. Failing to do so may have cost consequences.
- Non-compliance Not complying with the court's orders or practice directions may have consequences for parties and their lawyers. The court may act if the parties/lawyers acted without legal foundation and/or not in good faith or without making reasonable attempts to resolve the dispute.
- Lawyers obligations about costs Parties and their lawyers are to take a "sensible and pragmatic" approach and only incur costs that are fair, reasonable and proportionate to the issues genuinely in dispute. Lawyers also have their standard cost agreement obligations that they should comply with.
- Identifying and narrowing issues in dispute
Issues being disputed in the case are to be narrowed to those that
are genuinely in dispute:
- Parties are to make full frank disclosure and assist the court
- Applications should only be brought if they are reasonable justified on the material available
- Parties are expected to negotiate both prior and at court to reach agreement on as many issues as possible before having the matter heard.
- When appropriate a single expert or assessor should be engaged to assist resolving the dispute
- Cost consequences may flow if parties reopen resolved issues or unreasonable agitate issues.
- Preparation for hearings parties are to be familiar with the issues of the case and fully prepared for court events and the final hearing. They must also provide the court with an estimate of the hearing time, number of witnesses and specific issues to be decided.
- Efficient and timely disposition of cases The court will act effectively and efficiently in delivering judgments. They may use short form reasons to deliver judgments.
Steps to Family Court proceedings under the Central Practice Direction
Before commencing proceedings, parties must comply with necessary procedure and also take genuine steps to resolve their issues.
Parties must file a genuine steps certificate outlining the compliance with these procedural steps and steps they took to resolve the dispute or explain why they are exempt from compliance.
Most family court applications will follow this pathway:
First Event
The purpose of the first court event is to determine issues such as these listed below and more:
- Can orders or directions be made by consent
- Have parties complied with pre-action procedures
- Identify the issues and what steps are required to resolve them
- Consider next steps
Parenting and financial cases have different considerations. There is an emphasis on Dispute Resolution and order will be make at the First Court Event to facilitate the conduct of meaningful Dispute Resolution.
Interim Hearing
An interim hearing may be required in more urgent circumstances.
Dispute Resolution
Dispute resolution is required within 5 months of the date of commencement of a proceeding and if not resolved it is required again during the court proceedings.
Before proceeding, the parties must have taken real steps to resolve their dispute. Parties in a parenting matter must still obtain a Section 60I certificate to confirm that they participated in family dispute resolution, or that it is not appropriate.
The Court will consider the resources and means of the parties when deciding which type of dispute resolution is best suited for the situation. They will be referred to either:
- private mediation; and/or
- private, legal aid facilitated or community-based FDR; and/or
- arbitration with the consent of the parties.
Parties are required to assist in the dispute resolution process and those that don't could face financial consequences.
Parties should be ready to consider and make reasonable settlement offers throughout the course of their case.
Compliance and Readiness Hearing
This hearing has many objectives and is designed to ensure the parties have made genuine attempts to resolve the dispute and to ensure that they are prepared for the final hearing. This is so that final hearing runs smoothly and the parties are agreed on what the issues that are to be heard and that they are aware of the responsibilities and consequences if they are not.
Trial Management Hearing – If Required
A trial management hearing may be required before the final hearing. This is to consider the consequences and costs from non-compliance and make any other directions regarding the conduct of the Final Hearing.
Final Hearing
If possible, cases will get a hearing date listed before 12 months from the commencement of the proceedings. If the date for the final hearing is reached and unable to be heard it may be directed to engage in Dispute Resolution or electronic hearing by another judge in another registry or court or referred to the National Assessment Team for relisting.
The CPD does cover in more detail the items outlined above and also other items such interlocutory applications and Circuits and Specialist Lists. The full Central Practice Directions can be viewed here.
How a Family Lawyer assists you through your court proceeding
For clients trying to navigate a matter in the court system the new directions should make the process simpler and more transparent. It also places a larger onus on the parties to reach a resolution before starting proceedings and limiting the use of the courts to frustrate the other party.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
