Core Principles of Family Law Proceedings

On 1 September 2021, the Federal Circuit Court and Family Court merged to become the Federal Circuit and Family Court of Australia (FCFCA). As part of this change, the court published the Central Practice Direction – Family Law Case Management. Amongst other things, the Central Practice Direction sets out the ten core principles that underpin the exercise of the family law jurisdiction. These principles were adopted to facilitate the resolution of family law proceedings and act as a guide to the new case management pathway. All steps taken in family law proceedings, including the commencement of proceedings are now required to comply with these core principles.

Risk

The first core principle prioritises the safety of children as well as vulnerable parties and litigants. By nominating this factor an essential part of case management, and through early and ongoing identification of risks, appropriate and timely responses that mitigate risks can be implemented. 

Parties’, Lawyers’ and the court’s obligations and overarching purpose

The second core principle sets out the overarching purpose of the court, which is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.

The court’s overarching purpose is:

(a) The just determination of all proceedings before the court;

(b) The efficient use of court resources;

(c) The efficient disposal of the court’s overall caseload; 

(d) The disposal (finalisation) of all proceedings in a timely manner; and

(e) The resolution of disputes at a cost and through a process that is proportionate to the importance and complexity of the issues that are in dispute.

The court’s Central Practice Direction and Family Law Rules must be interpreted and applied by parties, lawyers and the court in a way that best promotes the court’s purpose and priorities the best interests of children.

Efficient and effective use of resources

The third core principle for determining family law proceedings provides that the court’s resources, including those of Judges, Senior Judicial Registrars, Judicial Registrars and Child Court Experts are to be allocated and used efficiently to achieve the overarching purpose. They must also ensure the appropriate handling of risks wherever these are identified as issues in proceedings.

Effective Case Management

The fourth core principle requires effective case management of all matters in the form of:

(a) A consistent approach to case management (similarly matters should be case managed in a comparable way);

(b) Early triaging of matters to determine the level of urgency, including assessment of any risks; and

(c) The prioritisation of dispute resolution. This may be internal (facilitated by the court) or external and can include private mediation, Family Dispute Resolution and Conciliation Conferences or arbitration (for property matters).

Importance of Dispute Resolution

The fifth core principle of family law proceedings in the FCFCA concerns the importance of using dispute resolution procedures. These start before the commencement of court proceedings by way of compulsory Family Dispute Resolution Mediation (for parenting matters) and the pre-action procedures (for both financial and parenting matters).

After the commencement of proceedings, parties are expected to be proactive about identifying appropriate opportunities for further dispute resolution (by way of mediation, Family Dispute Resolution (FDR), conciliation conferences etc). Parties should also be prepared to make and consider reasonable offers of settlement throughout all stages of the proceedings. Failure to do so may have costs consequences. 

Non-compliance with orders

The sixth core principle provides that where a party or their lawyer fails to comply with court orders, Practice Directions, the Family Law Rules or the obligations to conduct proceedings consistent with the overarching purpose, such non-compliance will be treated seriously by the court. 

If the court considers a party of their legal representative has pursued or defended an Application, Response or Reply without legal basis other than in good faith or without making a reasonable and genuine attempt to resolve the issues in dispute, the court may grant the compliant party to proceed on an undefended basis or by making costs orders against the non-compliant party (and/or their lawyers).

Costs

The seventh core principle of FCFCA family law proceedings is the expectation that parties and their lawyers take a sensible and pragmatic approach to litigation and only incur costs that are fair, reasonable and proportionate to the matters that are genuinely in dispute.

Lawyers are expected to comply with the cost estimates provided to their clients, and prepare cost notices at each court event, setting out the actual costs incurred and those likely to be incurred in the next steps of the proceedings.

Identifying and narrowing issues in dispute

The eighth core principle of FCFCA family law proceedings is that parties must do all things necessary to narrow issues to those genuinely in dispute.

In particular:

(a) All parties must make full and frank disclosure to assist the court in determining the dispute or assist the parties in resolving the dispute;

(b) Applications should be brought before the court only if they are reasonably justified on the material available;

(c) It is expected that parties will negotiate both prior to, at court, in order to reach an agreement about as many issues as possible, and aim to resolve procedural directions (for example, in relation to valuations, specific disclosure, and expert evidence).

(d) When appropriate, a single expert or assessor should be engaged to assist the parties and the court resolve disputes;

Costs consequences may follow where a party unreasonable seeks to reopen an issue already resolve or unreasonably agitate issues.

Preparation for hearings

The ninth core principle provides that parties and their lawyers must be familiar with the specific issues in the case and be fully prepared for court events (and the final hearing) in a timely matter. Parties must provide the court with considered estimates of hearing time, the specific issues to be decided and, where appropriate, the number of witnesses.

Efficient and timely disposition of cases

The tenth core principle specifically imposes obligations on judicial officers. The court will act effectively and efficiently in providing prompt judgments as soon as reasonably practicable after final submissions. In some circumstances, short-form reasons may be given by the court to facilitate the expeditious delivery of judgments.

For advice or representation in any legal matter, contact Armstrong Legal.