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Implications of the FCFCOA on the family law space

Whilst there are still ways to go before improvements in the newly established Federal Circuit and Family Court of Australia (FCFCOA) will be able to be seen, the future of dispute resolution looks promising, this webinar revealed.

user iconLauren Croft 23 March 2022 Big Law
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The implications of family law professionals and clients working with the new FCFCOA were explored at Smokeball’s State of Family Law webinar recently.  

The live interactive event – hosted by Smokeball and FamilyProperty – saw FCFCOA senior judicial registrar Anne-Marie Rice; FamilyProperty chief executive and Kirkman Family Law principal Fiona Kirkman; and Amanda Little & Associates principal solicitor Amanda Little come together virtually to discuss the effect of the new court on those involved in the family law space and how firms can successfully navigate the FCFCOA to ensure that they can continue to service and support families across Australia.

Whilst the court has only been in operation since 1 September 2021, the panel revealed there is still work to be done. There are still several thousand legacy matters in the system filed prior to 1 September 2021 that 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.


During a live poll as part of the webinar, 31 per cent of those watching said that they have seen their matters resolved more quickly under the new FCFCOA, whilst 69 per cent said otherwise.

However, Ms Rice said it’s too early for the court to assess accurately what the long-term improvements will be just yet.

Despite this, Ms Little said that her firm rewrote all of their precedents, as to set realistic expectations for clients and get onboard with the new FCFCOA.

“Navigating the client through the pathway includes providing them with a lot of initial information – we always did provide that, but in a very structured way to meet the CPD requirements, which required redrafting the precedent.

“So, for us, it’s about setting client expectations of how long things will take and they won’t have the same judge necessarily every time they appear, how the pathway works, giving them advice on, once you file here’s what to expect from each point, so that they understand their obligations,” she said.

“So, I’m hopeful that in the next six to 12 months, we’ll see the changes we’re all hoping for, because obviously there’s teething and we still have matters that are working their way through [the old] system.

To assist with this, Amanda Little & Associates is using a number of tech tools.

“We use Smokeball Matter Management, and we prepared all our own precedents and integrated them. I created checklists that allow us to systematically check off each of the CPD requirements as we work through it, use the tech to basically create workflows that allow us to section off – and we’ve identified 10 different steps in the CPD pathway – and it allows us to systematically move through those steps,” Ms Little added.

“What it means for lawyers is that by doing that and breaking it down, you make sure you’re CPD-compliant as well, which is important.”

From a mediator perspective, Ms Kirkman is also using a number of tech tools to help with the transition to the new FCFCOA.

“In the disclosure portal, we use that to collect documents and exchange between parties, and with the new family law rules, there’s an enhanced requirement for disclosure, particularly around family law and parenting matters. So, we’ve made recommendations as to the requirements to provide criminal, medical, school reports, family violence orders … and they can upload those straight into the portal and exchange those as necessary,” she said.  

“The benefit of that technology is to automate the admin as much as possible, hopefully freeing up ourselves as family lawyers to do the work we love and should be doing.”

However, is it realistic for the court to be able to resolve matters within 12 months? Ms Rice said that from the court’s perspective, they “have an ambitious time frame”.

“We think it is possible for matters to resolve within 12 months, but what that’s going to require from the profession is an understanding that what’s happened in the courts as of September 1 is so much more than a merger and requires a real focus on fulfilling the overarching purpose of the FCFCOA Act, which is for the court to facilitate the just resolution of disputes, the resolution of disputes, according to law and as quickly, inexpensively and efficiently as possible,” she explained.

“A judicial determination of courts will resolve a conflict, but there is renewed emphasis on the court on parties being able to come to an agreement themselves – and the court is now deeply committed to facilitating those dispute resolution opportunities.

“This is not just a single point of entry, it’s not just a focus on resolution of matters, it’s not just a harmonisation of rules across two courts, it’s not just a reinvigorated reaction procedure; this is a registrar-led, case management pathway where practitioners can anticipate that they will be really invited by registrars to think deeply and carefully, not about where the conflict sits but where the pieces of the puzzle that might lead to resolution lie.”

Ms Little added that the acknowledgement from the courts that this is an important issue to focus on has been well-received by solicitors and mediators alike.

“People are coming prepared now for mediations when they never did before because there’s court orders requiring compliance and the production of all sorts of materials to the mediator,” she said.

“So as a mediator as well, you’re walking into the room knowing where you sit already; understanding the contribution arguments, understanding the risk issues before you’ve even seen the parties. So that really helps using the time you’ve got set aside to settle a resolution.”

Ms Kirkman agreed with this sentiment – and said that whilst she’s seeing more preparation, it’s often resulting in more resolutions, too.

“We’re also seeing a significant increase in dispute resolution, and I think that’s a great thing,” she said.  

“That’s obviously in light of the genuine step certificate or referring matters back out to dispute resolution under the central practice direction. So, I’ve definitely seen that in my experience.”