On 1 September 2021, the two Courts which previously conducted family law matters in Australia merged, becoming the Federal Circuit and Family Court of Australia (“the FCFCoA”). While the overarching Family Law Act 1975that legislates how to resolve divorce, parenting and property issues arising from the conclusion of a marriage or de facto relationship has remained the same, there are new Rules that support how any resolution is to be achieved. There are also comprehensive Practice Directions that have issued to assist in understanding how to approach the new FCFCoA system.
With the FCFCoA bringing a stronger focus on parties complying with their pre-action duties and resolving, where possible and appropriate, their matter through dispute resolution alternatives to litigation, it is important that you are aware of your duties and obligations before making an application to the FCFCoA to resolve your property matter.
The Family Law Rules 2021 sets out a clear procedural pathway for the resolution of property matters:
1. Complete Pre-Action Procedures set out in Schedule 1 of the Family Law Rules 2021.
a. You may fall into one of the limited circumstances where exceptions to completing the pre-action process are permitted.
2. Failing resolution of your matter at the Pre-Action stage, you may then need to progress to alternative means of dispute resolution such as:
a. Mediation.
b. Private Arbitration.
c. Collaborative process.
3. Failing resolution at the dispute resolution stage, and subject to pre-action procedures being complied with, or an exception relevant to your circumstances being available, you may then need to progress to litigation:
a. If the total property pool is less than net $ 500,000 – filing in the “Priority Property Pools” list after reading the relevant Practice Directions.
b. If the property pool is greater than net $ 20,000,000 or otherwise involves a complex issue in dispute – filing in the “Major Complex Financial Proceedings” list after reading the relevant Practice Directions.
c. For all other property matters – filing in the usual manner after having read the relevant Practice Directions.
d. Although you may be in litigation, there are still a range of Court facilitated dispute resolution processes available to you, including:
i. Financial mediation through a Conciliation Conference facilitated by a Registrar of the Court.
ii. Court Ordered Arbitration managed through the National Arbitration List.
4. Following the conclusion of litigation, a Judge will make a determination and issue Orders. At any stage during litigation, it remains open to the parties to resolve their matter by agreement.
The agreement can be formalised by way of Consent Orders that are filed with the Court, or in certain circumstances, by entering into a Binding Financial Agreement.
It is important to remember that whether your property matter is resolved by way of decision of the Court, arbitrator, or jointly by the parties, the resolution must be just and equitable to both parties if the Court is required to make the Orders.
A failure to comply with your obligations at any stage of your matter, and particularly the pre-action stage, may see a resolution of your property matter delayed, or disadvantaged. It may help you better understand how to cost effectively progress your property matter by getting specialist family law advice tailored to your circumstances. If you would like to discuss your matter and how we can assist you, contact us today on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online.