On 21 March 2022, FamilyProperty attended The Law Society of NSW's ''6 Months On'' webinar, an interactive and insightful session where a panel of expert Senior Judicial Registrars and Judges provided practical guidance for conducting proceedings in the FCFCOA.
The webinar was attended by The Hon. Justice Joshua Wilson; Senior Judicial Registrar Anna Parker; Senior Judicial Registrar Sharney Jenkinson; Senior Judicial Registrar Lisa O’Neill; Judicial Registrar Kimberly Buttriss, and was chaired by Chair Cassandra Banks, Snr Vice President, The Law Society of NSW; Principal Solicitor, CB Legal.
Here we provide a summary of the key takeaways learned during the event, including the primary focus on how the changes and updates processes have improved the system by resolving matters more quickly and cost effectively without the need for court intervention.
The National Arbitration List is one that began prior to the FCFCOA merger. It allows a Registrar, Judge or Party to refer a matter to arbitration. The list is conducted by AIFLAM arbitrators where the identity of the arbitrator, prescribed timeline and Award is produced within four (4) months).
Parties can apply for registration (generally by consent), with only limited grounds for Awards to be resisted. A review of the Award is only permitted on stated ground. However, not one of the reviews has been successful so far.
The statistics show that matters have been dealt with great efficiency, with approximately 240 matters finalised. This has been a huge success with growing attraction every day. The list has been taken up in Sydney and Brisbane but not yet in Melbourne.
Another example was the Major Complex Financial Proceedings List (MCFP List) which requires an asset pool of above $20 million with complex issues regarding disclosure, trusts, businesses etc. There was a new decision regarding discretionary trusts considered as property (see Judge Wilson). The people who are hearing and determining these cases are experienced in such issues. The average timeline for such cases is 6 months with approximately 46 cases in Australia.
The Court abides by the Bangolawah Declaration in the delivery of judgements int the MCFP List being within three (3) of the hearing. The expectation by the Chief Justice is to be within three (3) months.
Judicial Registrar Buttress on Expert Reports
The Child Dispute Conference Memorandum (CDC) or Child Inclusive Conference Memorandum (CIC) were replaced by a Child Impact Report (CIR) to give a voice to the child at the early stage of proceedings. It looks at risk, impact of parent-inflicted conflict and is heavily child- focused.
The CIR is also useful when it comes to informing FDRP’s and the Dispute Resolution process.
Accordingly, a Family Report will only be ordered if there is a change of circumstances as to why the CIR cannot be relied upon.
Other report options include a Child Impact Addendum Report (provides updates to the situation) or a Private Report.
FDRP has been a big focus with more options to resolve family law disputes in an informal manner. The Central Practice Direction 5.26 gives 5x options for FDR including conciliation conference and Court FDR session for parenting matters (about 40% being of these FDR sessions are now being conducted with Court Child Expert).
Senior Judicial Registrar O’Neil on the Evatt List
The Evatt List still continues to provide for matters with allegations of child abuse, family violence or a risk of such issues. Matters are screened by the Court and not by the parties. According, placement of a matter on the Evatt List is a procedural matter which cannot be reviewed.
Matters in the Evatt List must be carefully prepared noting the onus of proof does not change due to mental health issues. However, individual litigants are still responsible for raising issues relevant to the case.
Senior Judicial Registrar Parker on Review of Registrar decisions
Reviews of Registrar decisions are powered by rule 4 and are heard de novo. This is not a specialised list but conducted by a specific Judge on a national basis. The review application triggers a complete re-hearing where practitioners need to consider the following:
1. A review application should not be made because one is not happy with the decision.
2. Judges are applying the overarching purpose.
3. Judges have a focus on efficiency including, efficient use of resources and efficient disposals of matters.
4. The application should be well-founded with a good prospect of success. To achieve this there needs to be proper foundations.
5. A failure to successfully review the Registrar’s decision can result in a costs order being made.
Between August 2021 to February 2022 there was a decrease by 2500 or 12% of matters. Trial pools also significantly reduced from 250 to 80 matters. The Court is seeing that there is also a much quicker allocation of trials.
Senior Judicial Registrar Jenkinson - Do’s and Dont’s:
1. DO understand that there are different rules for Division 1 and Division 2. For example, the length of Affidavits is 10 pages in Division 2 vs 25 pages in Division 1. There is also a different scale of costs.
2. DO NOT rely on leave to file additional material. Only the Court has discretion with respect to material relied on.
3. DO NOT assume material will be read if it falls outside the rules.
4. DO NOT run arguments that do not have a good prospect of success.
5. DO manage client’s expectations and keep the expectations realistic.
6. DO read the Central Practice Directions (CPD) - eg it provides power to order costs against practitioners if practitioners do not comply with the overarching purpose.
7. DO NOT overload applications and be clear regarding the orders sought for example, spousal maintenance and lump sum costs.
8. DO prepare Minutes eg: of orders sought.
9. DO serve all relevant parties eg Departure for Child Support - serve DHS (Child Support)
10. DO NOT expect the Court to read hundreds of pages in tender bundle - DO tab and tender the relevant material and ensure they are part of the evidence
11. DO NOT assume that the matter will be before a JR or Judge - may or may not proceed
12. DO read the rules and communicate with opponents.
13. DO understand the time involved in the matter.
14. DO assume that a matter may go to a Judge on the day
15. DO know next steps in the Case Management Pathway.
16. DO know that there is only one interim hearing per application.
A big takeaway is that there are more matters in a day and more matters in a week than can be read by a JR or Judge. There are many parts in a very big system and we all need to do our parts.
The FCFCOA FamilyProperty Pilot launched in the Sydney registry late 2021. This pilot is for eligible property matters for conciliation conferences. The fee to participate is $99 and requires consent by all parties.
Visit www.FamilyProperty.com.au/pilot to learn more about the FCFCOA FamilyProperty Pilot.