ByLawyers News and Updates

New family law court – FED

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The new family law court, the Federal Circuit and Family Court of Australia (FCFCOA), commences 1 September 2021.

The FCFCOA will have 2 divisions. Essentially Division 1 replaces the existing Family Court and Division 2 replaces the existing family law functions of the Federal Circuit Court. There will be a single point of entry to the new family law court through Division 2.

Summary of the changes

  • There will be harmonised rules, new practice directions, updated forms and one website.
  • The new court’s website will be launched on 1 September 2021 with simplified access and navigation.
  • All forms will be updated. An Application in a Case will become an Application in a Proceeding.
  • Transitional arrangements will allow for the use of new forms, with a 90 day grace period for old forms.
  • Existing matters will generally remain in the existing courts, unless the parties are advised otherwise.
  • Division 2 will have a general federal law jurisdiction similar to that of the Federal Circuit Court currently.
  • Division 1 will have jurisdiction to hear family law appeals and there will be a single national appeals filing registry.
  • A National Contravention List will be introduced and a practice direction will accompany the commencement of the list.
  • The new court will have Senior Judicial Registrars, Judicial Registrars, and Deputy Registrars. While the titles change, their powers and roles will be the same as existing Registrars.
  • Child Disputes Services will be known as the Court Children’s Service. Family Consultants will be known as Court Child Experts.
  • Parties in children’s matters will receive assistance earlier, with a greater emphasis on expert guidance.

Updates for the FCFCOA commencement on 1 September 2021

All By Lawyers Family law guides – Children, Divorce, Financial Agreements, and Property Settlement – will be updated to reflect the commencement of the new court. This will include a full review of the:

  • commentaries for the new procedures and rules;
  • matter plans with a single Going to court section reflecting the new process;
  • forms – with all new forms on the matter plans; and
  • precedents, to incorporate the changes where necessary.

By Lawyers always keep our content – and our subscribers – up to date!

Family Law guides – FED

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Author review

A full review of the By Lawyers Family Law guides has been conducted to ensure that all content is in line with current law and practice.

This review was conducted by our experienced author Keleigh Robinson, a Family Law Accredited Specialist.

Resulting updates and enhancements to our Family Law guides include:

Children

  • New commentary on Watch list order applications.
  • New tables summarising:
    • Family violence legislation; and
    • Appeals from the Federal Circuit Court and the Family Court.
  • Amendments to the matter plan to cover potential issues, interim and urgent applications in the one section.
  • New example content precedents:
    • Application in a case for substituted service;
    • Affidavit in support of the application in a case for substituted service; and
    • Changing parenting orders by consent.

Property settlement

  • Expanded commentary on Conciliation conferences in the Federal Circuit Court.
  • A new table summarising appeals from the Federal Circuit Court and the Family Court.
  • ‘Going to Court’ sections on the matter plan updated in line with current practice.
  • New example content precedents:
    • Application in a case for substituted service; and
    • Affidavit in support of the application in a case for substituted service.

Financial agreements

  • Expanded commentary on the Court’s power to set aside a financial or termination agreement and Death of a party to a financial agreement.
  • Expanded table comparing financial agreement legislation for marriages and de facto relationships, including de facto relationships in Western Australia.
  • New precedent letters for drafts of the different types of financial agreements.
  • Improved accessibility on the matter plan to real property transfer forms for the different jurisdictions.

Divorce

  • Expanded commentary on:
    • The filing process for same-sex couples;
    • The application and service;
    • Marriage certificates;
    • Separation under the one roof;
    • Reduction of court fees;
    • Substituted service and dispensation of service; and
    • Finalising the divorce.
  • A new table and accompanying notes on property division.
  • A new same sex couples section on the matter plan.
  • Revised service section to reflect current practice.

101 Family Law Answers

  • New cases and commentary on:
    • Urgent and interim spousal maintenance;
    • Interim costs orders;
    • Amending applications, responses and other documents; and
    • Private mediation and lawyer attendance.

Keep up to date with By Lawyers

This review of our Family Law guides is part of By Lawyers commitment to regular updating and enhancement of our publications. With By Lawyers always keeping you up to date you can enjoy practice more.

Family Law updates – FED

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Family Law updates are included in the Civil Law and Justice Legislation Amendment Act 2018, which provides for amendments to numerous statutes, including the Family Law Act 1975 and the Marriage Act 1961.

These updates have been incorporated in the commentaries for Property Settlement and Divorce in the By Lawyers Family Law Guide.

Final property division orders being made out of time by consent – de facto couples

Section 44(5) of the Family Law Act 1975 now provides that de facto couples may consent to final property division orders being made out of time, without the necessity for a judge to grant leave. This means that de facto couples who reach agreement to a property division more than two years after separation can now have orders made using the Application for Consent Order process. This will be done by including an order that they consent to the making of orders out of time, rather than having to issue proceedings to seek the leave of the court.

Renumbering Superannuation Interests sections in the Family Law Act

Effective 22 November 2018 Part VIIIB of the Family Law Act, being the Superannuation Interests sections, will be re-numbered in a more logical sequence. Section 90MA will become s 90XA and so on down to s 90MZH being replaced by s 90XZH.

 

Family Law Courts fees increase 1 July 2018

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The fees payable in the Family Court and Federal Circuit Court are changing from 1 July 2018. These increases will impact on Children and Property Settlement matters as well as Divorce/Nullity.

The By Lawyers Family Law guide will be updated where applicable to reflect these amended fees.

Family Law – Divorce publication review

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The By Lawyers Family Law author has reviewed the Divorce publication covering commentary, matter plan and precedents.

Commentary updates include the following additions:

  1. Application without marriage certificate – If the parties do not have a copy of the marriage certificate, an application should be made at the relevant state Births, Deaths and Marriages. In the case of an overseas marriage, if a copy of the marriage certificate cannot be obtained, the applicant may be able to file an affidavit pursuant to r 25.01(3) of the Federal Circuit Court Rules addressing the reasons for the failure to file the marriage certificate.
  2. Appealing a divorce order – In Price & Underwood (Divorce Appeal) [2009] FamCAFC 127, the Full Court addressed the issue of whether an appeal may be filed after a divorce order has taken effect. The court was split on the issue, with Boland and Ryan JJ finding that s 93 of the Family Law Act is clear and unambiguous – no appeal lies from a divorce order which has become final. Where a divorce order which has become final the only relief available is a declaration under s 113 that the divorce order is void. May J took the view that a divorce order could be subject to an appeal even if it is of effect, on the basis of a miscarriage of justice.

As there have not been any changes in terms of significant case law or legislative changes in the last 12 months, no changes were made to precedents or the matter plan.

VIC – Estates – Effect of marriage and divorce on will beneficiaries

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Our commentary on the effects of marriage and divorce on wills has been added to. While a will is revoked by the marriage of the testator a number of exceptions apply, as per s 13 of the Wills Act. The commentary on the impact of divorce on a will is also enriched.

Family Law – Discontinuance & Summary Dismissal

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Commentary has been added to the Property Settlement, Children and Divorce publications on discontinuance and summary dismissal of proceedings. The necessary forms have also been linked to the relevant matter plans.

Proceedings maybe discontinued according to Family Law Rule 10.11 and Federal Circuit Court Rules 13.01 and 13.02. …

See Bigg and Suzi [1998] FamCA 14 (5 March 1998) where the Court said that not only did it have power to summarily dismiss an
application which could not succeed, but also the Court had inherent power to dismiss or permanently stay an application.

Family Law

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Family Law 

NOVEMBER
  • Further Information – Added “Parenting orders – what you need to know”
  • Costs Agreements – Included reference to time limit for requesting itemised bill as per the Family Law Rules, reference to interstate costs laws added, updated interest clause
OCTOBER
  • Costs Agreements
    • Disputes section improved, fields for client and firm details added, trust account details added, solicitor’s lien added, execution clauses for individuals and corporations added and general formatting and grammatical improvements.
    • VIC/NSW – included reference to time limit for bringing costs assessment included total estimate of legal costs section with provision for variables and included authority to receive money into trust.
    • WA – added clause on scale fees.
  • Property Settlement Commentary – Amend – Step one – identify and value the net property 3.
  • New precedents
    • To do list – Children
    • To do list – Financial Agreement
  • 101 Family Law Answers – added new commentary on Foreign Resident Capital Gains Withholding Payments.
AUGUST
  • Divorce, Children and Property Settlement guide – New Costs Agreements added for Tasmania and Northern Territory.
  • Children commentary –  Considerations specific to children matters added to commentary on social media evidence
  • New precedents
    • Letter to other side inviting them to family dispute resolution
    • Letter to other side’s solicitor inviting them to family dispute resolution
JULY
  • Children commentary – Amended to discuss in more detail paternity and the presumption of parentage. In certain circumstances, proving parentage can be particularly important. Parentage is also a relevant consideration as the number of blended families in Australia continues to rise.
JUNE
  • Divorce commentary – Updated and restructured the commentary discussing divorce applications and reduction of court fees.
APRIL 
  • Property Settlement – New precedent added – Letter to other side’s solicitor with offer of settlement – Calderbank offer.
  • File Cover Sheets for all publications have been completely re-formatted for a better look.
MARCH
  • Property Settlement – Commentary concerning social media evidence in financial proceedings has been added to the property settlement guide.
  • Children commentary – Added section on making urgent applications – Early hearing and urgent orders ex parte.
FEBRUARY
  • Children commentary – Added section on variation of parenting orders. In particular, a commentary on the threshold test as established in Rice v Asplund (1978) 6 Fam LR 570 has been added.
  • Making life a little easier for practitioners – look out for Blank Deed, Agreement and Execution Clauses folder in the matter plan at the end of each Getting the Matter Underway.
JANUARY
  • All By Lawyers Family Law cost agreements have been updated in line with the 2016 Family Law Rules itemised scale of costs.

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