The implications of family law professionals and clients working with the newly established Federal Circuit and Family Court of Australia (FCFCOA) were explored at Smokeball’s State of Family Law webinar on 25 February 2022.
In the live interactive session, Senior Judicial Registrar of the Federal Circuit and Family Court of Australia Anne-Marie Rice, CEO of FamilyProperty and Principal of Kirkman Family Law, Fiona Kirkman and Principal Solicitor of Amanda Little & Associates, Amanda Little, came together virtually to discuss the effect of the new court on those involved in the family law space and how law firms can successfully navigate the FCFCOA to ensure that they can continue to service and support families across Australia.
The impact the new court has made
The panel have advised it is possibly too early to assess accurately what long-term improvements the FCFCOA will make to Australian family law, as it had only been in operation since 1 September 2021.
There are still several thousand legacy matters in the system filed prior to 1 September 2021 which have remained in judge dockets. The more legacy matters that settle and the greater the effort practitioners make in moving those matters through, the faster the whole process will go.
The panel did note that the court is aware that there have been delays in the making of consent orders, particularly where parties and practitioners have had very quick turnarounds historically.
In recent weeks, the courts have been looking at how they can pour more resources into this so that we are getting to the expected timeframe (that is, parties should receive their orders within four weeks from the date of filing). It was understood the effort that it takes for practitioners to help parties negotiate an agreement and that the Australian public is deserving of timely consent orders in circumstances where they have done everything that is asked of them
A family law matter can be settled in twelve months
It was acknowledged that the court’s twelve-month timeframe for matters to settle was ambitious and that it was possible for family law matters to resolve within a year provided the profession saw the newly established court as so much more than a merger.
If parties and their legal advisors can embrace that conflict can be resolved without combat even when they come into the court then absolutely matters can leave the system within twelve months.
Ms Kirkman agreed that the twelve-month period was a great benchmark for solicitors to work towards and mentioned that she had seen more preparation at mediation that was resulting in more resolutions.
According to Ms Little, people were coming better prepared for mediations when they were not before because there are court orders requiring compliance. She told attendees of the webinar:
“As a mediator or Family Dispute Resolution Practitioner, you are walking into the room understanding the asset pool, contribution arguments and risk issues, so that helps you use the time that you have got set aside to reach a resolution.” Amanda Little
How practitioners can successfully navigate the FCFCOA
Each member of the panel had different advice for family law professionals with respect to managing the FCFCOA’s new procedures:
1. Educate your clients on the practical side and focus on interim or partial agreements
From Ms Kirkman’s perspective as a mediator, practitioners should focus on educating their clients not just on the legal side of things but also on practical solutions.
“I educate the parties on the aim of dispute resolution, I always say that while it is ideal to reach a final agreement, an interim agreement is great too.” Fiona Kirkman
The panel have said that the court places a high emphasis on interim agreements and partial agreements. The reason why that matters so much from a court’s perspective is that we want to be able to offer timely decisions where the risk requires it and the matter really means that a judicial determination is needed. What practitioners should be bringing to the court is more than just the problem and the legal position. They need to bring to the court opportunities that might result in an improvement of the circumstances for the parties.
2. Use technology
The FCFOCA case management pathway has several steps in both the pre-action and post-filing stages that lawyers and mediators need to comply with, and technology can assist.
“The benefit of the technology is to automate the administration as much as possible to free up professionals to do the work that they should be doing like providing advice and helping assist families resolve their disputes. Programs like Smokeball and FamilyProperty can assist lawyers and clients greatly in family law matters. Smokeball assists with automating tasks and workflows, and communication. FamilyProperty allows lawyers and clients to easily upload and exchange disclosure documents and create shareable Balance Sheets, Case Outlines and Consent Orders. It also provides all the mandatory information that family lawyers are required to give clients under the Central Practice Direction, to review it and tick it off. Lawyers then have peace of mind that they have complied with all their obligations.” Fiona Kirkman
3. Costs notices are powerful
The costs notice is a very important tool for a mediator to ensure that parties truly understand – not only how much money they are spending on their legal costs – but how much energy and emotional spend they are incurring in generating a financial resource to pay for their proceedings. Long gone are the days that parties can build a savings plan and wait years before they get to a trial.
“Whilst time-consuming, costs notices help parties to understand what their priorities are and the financial implications of any decisions they make. Parties then can weigh that against what they are trying to achieve.” Amanda Little
Join us for the State of Family Law Conference
The 2022 State of Family Law Conference will be touching down in Brisbane, Sydney and Melbourne throughout June.
Join this free conference as family law thought-leaders and legal technology experts deconstruct and assess the current state of family law, all while offering practical guidance to family lawyers seeking to better understand the newly merged rules of the FCFCOA.
All conference attendees will receive:
- Complimentary working lunch
- Practical FCFCOA Merger checklist and guide
- Opportunity to claim 2 CPD points
We can't wait to welcome you all in June as we further explore the current state of family law.
