Recent Developments – Family Court and Federal Circuit Court of Australia Introduce New Central Practice Direction – Important Changes

24/11/2021

Watson & Watson Lawyers have discussed in other articles on this website the significant delays that occur in the Family Court of Australia and Federal Circuit Court of Australia.  The time from the commencement of a case to the date when the case is heard by a Judge of Court can be 2 to 3 years. This has caused parties to look to other alternative methods of dispute resolution such as Mediation and Arbitration which we have discussed on the Watson & Watson website.

The Courts are now trying to deal with delay by introducing new rules which will address the practises and procedures that have contributed to the delays.

Family Law Case Management – Central Practice Direction

The Family Court of Australia and the Federal Circuit Court of Australia have introduced the Central Practice Direction (CPD) to attempt to deal with the delay and inefficiencies within the system and to speed up the final determination of cases. 

The Central Practice Direction will have a significant effect on the parties to family law proceedings and to their Lawyers as how the case must be conducted. There is an emphasis on efficiency, competency, costs and merit.

It is essential that parties and their lawyers conduct their cases in accordance with the CPD.  Failure to comply will have adverse cost consequences for those parties and their Lawyers.  Also a failure to prosecute the case in a timely manner can result in a dismissal of the case.  Also commencing or maintaining a case that has no merit, can result in a dismissal and an adverse costs order against a party and or their lawyer.

This article discusses some of the most important changes which can be seen as a warning to parties to comply with the CPD.

The CPD introduces:

Stricter Obligations and Increased Potential for Penalty of a defaulting party

1. A new Genuine Steps Certificate must be filed at the time of the filing of any Initiating Application or Response.  This new Certificate will set out and confirm the filing parties’ compliance with pre-action procedure requirements and list the genuine steps that they have taken to resolve the dispute or will need to claim exemption from compliance.  There are some exemptions if there are safety concerns. 
2. Requirement for faster service of Initiating Applications on Respondent Party. The Initiating Application must be served on each other party to the proceedings as soon as is reasonably possible. 
3. Sets out a timeline for the case from its initiation to its conclusion. 
4. Re-states the requirement that a party to a case and his or her Lawyer must attend all Court events unless excused from attending.
5. Imposes obligations on the Lawyer for each represented party to provide to the Court and to each other party, a Notice in relation to genuine attempts to resolve and costs to date and anticipated future costs.
6. Imposes a limitation on the number of Interlocutory Applications which can be filed.  A party may not file an Interlocutory Application in a case seeking Interim Orders without first attempting to resolve the issue to which the Application results and are not permitted to file any more than 2 Applications in a proceeding without the leave of a Court.
7. Introduces compliance and readiness hearings before allowing a matter to proceed to hearings.  The purpose of the compliance and readiness hearings are to ensure that the Courts do not waste hearing dates when the cases are not properly prepared and not in a position to proceed on an allocated hearing date.
8. If a matter does not proceed or if a matter is unable to be listed for Final Hearing as a consequence of the non-compliance by one party, consideration will be given to a grant of leave to the complying party or parties to proceed on an undefended basis and/or to make an order for costs against the defaulting party.

Overview of Potential Consequences for Parties and Lawyers

The introduction of the Central Practice Direction is an attempt by the Family Court and Federal Circuit Court to streamline a system which has been unable to deliver timely outcomes for litigants in family law cases.  The Courts are attempting to fix this problem by a combination of streamlined procedures and to ensure that parties comply with those procedures in accordance with strict timelines. 

The Central principle is that a conscientious party who does everything on time and complies with orders, should not be disadvantages in their case by reason of the opposing party not acting properly, not obeying orders and not complying with timetables. 

The CPD attempts to achieve this by a mix of penalties for the non-compliant party including costs orders and potential for dismissal of their case.  Every party and their lawyers need to be aware of the requirements of the Central Practice Direction so as to ensure their case is properly conducted. 

At Watson & Watson we can provide an initial assessment of your matter at an early stage which can assist in facilitating the parties entering into negotiations at an early stage, in an attempt to resolve the matter.  In keeping with the Courts current Central Practice Directions (CPD), compliance with the new regime is an approach the Courts support.  Our experienced Senior Family Law Solicitors can assist you in navigating your family law matter whether it relates to contact/parenting issues or financial/property settlement adopting the new CPD pathway to ensure that your matter is handled expeditiously and cost effectively and to reduce the duration of what can often be a stressful time.  Please contact Richard Watson Senior Family Law Solicitor or his Personal Assistant Shereen Da Gloria to discuss your matter and seek appropriate advice.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 9221 6011.