The Federal Circuit and Family Court of Australia (the Court) commenced on 1 September 2021. Below is a brief summary of the new rules of Court that govern practice and procedure in the new Court.
New rules
1. Federal Circuit and Family Court of Australia (Family Law) Rules 2021
These rules are the harmonised family law rules. They are made under the Division 1 power to make rules of court in section 76 of the FCFCOA Act, and in the first instance, only apply to the FCFCOA Division 1. They are adopted to apply in the FCFCOA Division 2 by the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021, and in other courts exercising jurisdiction under the Family Law Act, such as State and Territory courts, by the Family Law (State and Territory Courts) Rules 2021. They are referred to and defined as the ‘Family Law Rules 2021’ in the practice directions, forms and on the website.
2. Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021
These rules adopt the harmonised family law rules for the FCFCOA Division 2. They are made under the Division 2 power to make rules of court in section 217 of the FCFCOA Act. Aside from adopting the Family Law Rules 2021, there are a small number of additional rules contained in these rules dealing with:
- Transfers from Division 2 to Division 1;
- The retention of the existing FCC scale of costs for family law or child support proceedings (with updated amounts), which may be applied instead of the scale of costs in Schedule 3 to the Family Law Rules 2021;
- The delegation of Division 2 specific powers to registrars.
3. Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021
These rules are the relevant provisions of the Federal Circuit Court Rules 2001 that applied to general federal law proceedings renumbered and updated where necessary. The Federal Circuit Court Rules 2001 are automatically repealed by the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 on 1 September 2021.
These rules are the provisions of the Federal Circuit Court (Bankruptcy) Rules 2016 that applied to bankruptcy proceedings renumbered and updated where necessary. The Federal Circuit Court (Bankruptcy) Rules 2016 are automatically repealed by the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 on 1 September 2021.
4. Family Law Repeal Rules 2021 These rules repeal the Family Law Rules 2004.
5. Family Law (State and Territory Courts) Rules 2021
These rules are the standard rules of court made under section 123 of the Family Law Act for all other courts exercising jurisdiction under the Family Law Act aside from the FCFCOA. This instrument also incorporates the recently made Family Court Rules 2021 (WA) as the rules of court that apply in the Family Court of Western Australia and the Magistrates Court of Western Australia, and clarifies that those rules prevail in proceedings in the WA courts to the extent of any inconsistency with these Rules.
Cross-reference tables
Cross reference tables have been drafted that indicate where provisions of the Family Law Rules 2004, Federal Circuit Court Rules 2001 (in both family law and general federal law) can be found in the new rules, or if they have been omitted. These are:
- Cross-reference table between the Family Law Rules 2004 and Family Law Rules 2021
- Cross-reference table between the Federal Circuit Court Rules 2001 and the Family Law Rules 2021
- Cross-reference table between the Federal Circuit Court Rules 2001 and the FCFCOA Division 2 General Federal Law Rules 2021
Transitional arrangements
A practice direction has been issued to set out transitional arrangements, and how the rules should apply to proceedings commenced before 1 September 2021 and not yet determined. Generally speaking, the new rules apply to all new proceedings from 1 September 2021. However, the Court retains the discretion to dispense with compliance with any provision of the new rules at all times, including where application of the new rules would operate unfairly or cause injustice.
All of the rule instruments are now available on the Federal Register of Legislation.
New practice directions
Three Central Practice Directions have been issued by the Chief Justice/Chief Judge which set out the management of family law, migration and general federal law proceedings. These Central Practice Directions are available here:
- Central Practice Direction – Family Law Case Management
- Central Practice Direction – Migration proceedings
- Central Practice Direction – General Federal Law proceedings
In total, the Court has also developed 25 new practice directions to provide guidance for litigants and practitioners about the various practice areas within the Court’s jurisdiction.
The new practice directions are listed in the table below.
New information notices
In total, the Court has also developed 3 new information notices relevant to specific aspects of the Court’s work, including special arrangements in light of COVID-19.
The new information notices are listed in the table below.
A number of existing Practice Directions and Information Notices have been revoked as of 1 September 2021. These are listed in the FCFCOA Practice Direction – Revocation of Practice Directions and Information Notices and can be accessed from these links:
Forms
A comprehensive review of all existing family law and general federal law forms has been undertaken. Most form changes have involved updating references to legislation, names and terms where required. In addition, where possible, some forms have undergone more substantive changes to improve functionality and usability.
Practitioners are advised that the name of the form for an Application in a Case has changed to Application in a Proceeding. The name of a Response to an Application in a Case has also changed to Response to an Application in a Proceeding.
Importantly, the Court will accept old forms until 29 November 2021. After this date, they will no longer be accepted by the Court.
