On 1 September 2021, the Federal Circuit Court of Australia and Family Court of Australia merged and a new Court was formed, called the Federal Circuit and Family Court of Australia. With the merger came a new set of rules known as the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”).
The Rules apply to all family law matters with an emphasis on assisting parties to resolve their dispute through dispute resolution and compliance with pre-action procedures (except in limited circumstances) before an application can be made to the Court for parenting or property orders.
The Pre-Action Procedures are found in Schedule 1 of the Rules. They require a prospective party to:
- invite the other party to participate in family dispute resolution, such as mediation;
- co-operate with the other party to agree to an appropriate dispute resolution service; and
- make a genuine effort to resolve the dispute by participating in family dispute resolution.
Dispute Resolution may include engaging in negotiations and/or attendance at mediation.
Parties are not required to continue to follow the Pre-Action Procedures if it is not safe to do so, or if reasonable attempts to follow the Pre-Action Procedures have not achieved a satisfactory solution.
At all stages in Family Law property negotiations (including after an Application is made), the Rules make it clear that the parties must have regard to matters including:
- The best interests of any child, including the need to protect them against harm;
- Facilitating a meaningful relationship between a parent and the child;
- The potential damage to a child in involving a child in the dispute;
- Exploring options for settlement;
- Avoiding inflammatory exchanges;
- Seeking only those Orders that are reasonably achievable on the evidence; and
- Ensuring that all relevant facts and documents are disclosed (Schedule 1 of the Rules).
If an agreement is reached, then Consent Orders can be drafted to formally record the agreement.
If no agreement is reached, however, a party who wishes to make an application to the Federal Circuit and Family Court of Australia must give to the other party written notice of an intention to start proceedings. The notice of intention to start a proceeding must set out:
- the issues in dispute;
- the Orders to be sought if proceedings are started;
- a genuine offer to resolve the issues; and
- a time that is at least 14 days after the date of the notice within which the other party must reply to the notice.
In every family law matter, each party to a proceeding has a duty to the Court and to each other party to give full and frank disclosure of all information relevant to the proceeding in a timely manner. This duty of disclosure applies from the start of the proceeding and continues until the end of the proceedings.
The Duty of Disclosure is contained in Chapter 6 of the Rules.
In property matters, both parties must make full and frank disclosure of their financial circumstances, including their income, assets, liabilities and financial resources. Documents usually exchanged in property matters include bank statements, tax returns, superannuation statements and valuations.
Examples of relevant documents that parties may have an obligation to disclose in parenting proceedings include medical records, school reports, letters and photographs.
There can be serious consequences for failing to comply with the Duty of Disclosure including costs orders, the making of unfavourable findings against a party who has failed to comply with their Duty of Disclosure and the setting aside of Orders (including Consent Orders).
To assist with compliance with the Pre-Action Procedures and Duty of Disclosure, parties must file a Genuine Steps Certificate and an Undertaking as to Disclosure when commencing proceedings in the Federal Circuit and Family Court of Australia.