Central Practice Direction: Family Law Case Management

(FAM-CPD)

1. Purposes
2. Application of this Practice Direction
3. Core principles
4. Case management

   Pre-action requirements
   Filing and service
   Urgency
   Triage and assessment
   Allocation between courts

5. Court events

   Overview
   Additional orders
   Defaulters List
   Requirement to attend court in person

6. Procedures at court events
   First Court Event
   Interim Hearing
   Subsequent interlocutory applications
   Dispute Resolution
   Mention
   Fast Track Hearing List
   Compliance and Readiness Hearing
   Trial Management Hearing
   Final Hearing
   Unreached matters
   Judgment

7. Circuits and specialist lists

Schedule A: Core Principles
Schedule B: Standard trial directions

1. Purposes

1.1 The purposes of this Central Practice Direction are to outline the core principles applicable to family law proceedings and to establish a consistent national case management system in the Federal Circuit and Family Court of Australia (Division 1) and the Federal Circuit and Family Court of Australia (Division 2) (the Courts) that:

  1. reduces unnecessary cost and delay in family litigation and facilitates proceedings being conducted with the least possible acrimony in order to minimise harm to children and families;
  2. ensures the safety of families and children; and
  3. achieves the overarching purpose of the family law practice and procedure provisions of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act), being to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.

1.2 All other Family Law Practice Directions are to be read within the framework established by this Central Practice Direction. Parties should not commence or take steps in proceedings without first considering the principles set out in this Practice Direction.

1.3 The Courts take the overarching purpose enshrined in the FCFCOA Act seriously. Parties and their lawyers are expected to fully comply with that statutory obligation in all cases without exception, regardless of the complexity of the case or the issues in dispute, subject only to ensuring the safety of parties and children. This co-operation requires (and the Courts expect) that the parties and their lawyers think about the best way to conduct their cases in accordance with the overarching purpose. The parties and their lawyers can expect that the Courts will engage with them in a dialogue to achieve the overarching purpose.

1.4 The Courts expect parties and their lawyers to have in mind, at all times, the cost of each step in the proceedings and whether it is necessary, and to avoid unnecessary process-driven costs and unjustified use of court resources. In everything they do, parties and lawyers are expected to approach proceedings in a manner directed towards identifying the issues in dispute and ascertaining the most efficient, including cost efficient, method of resolution or determination. This includes giving proper consideration to identifying the issues in dispute, complying with their obligation to provide full and frank disclosure in a timely manner (see Part 6.1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (the Family Law Rules)), engaging in productive and resolution-focused communication with other parties, making appropriate admissions and pressing only issues of genuine significance. Ambit claims should be avoided and aggressive and unnecessarily adversarial conduct will not be tolerated. At all stages in the proceedings, parties must avoid filing evidence that is unnecessarily lengthy or only of limited relevance to the issues genuinely in dispute. Parties should limit the number of witnesses they rely on to those necessary to prove or disprove those issues truly requiring determination.

1.5 Any failure to comply with these requirements may attract costs orders against parties and/or practitioners and other consequences including, in appropriate cases, the drawing of adverse inferences, the making of a summary decree pursuant to section 102QAB of the Family Law Act 1975 (Cth) (Family Law Act), or orders providing that a matter be heard on an undefended basis.

1.6 The Courts recognise that parties to family law proceedings and their children are often under significant stress and that litigation can add to that stress in addition to being costly. This Central Practice Direction aims to minimise the impact of litigation on families and children by encouraging the early and focussed resolution of family law disputes.

1.7 The safety of parties and children and protection from the consequences of abuse and violence remains a priority for the Courts. No obligation or requirement in this Central Practice Direction should be taken to require parties to put themselves or their children at risk or to compromise or attempt to do so in circumstances that are unsafe or where concerns about abuse or violence compromise their ability to negotiate fair or reasonable outcomes. No part of this Central Practice Direction should be read or interpreted in a manner that is inconsistent with the prioritisation of the best interests of children and safe and sustainable outcomes for families.

1.8 Lawyers representing parties in family law proceedings must provide a copy of this Central Practice Direction to their clients prior to filing an Initiating Application or Response to Initiating Application and are requested to provide a copy to any unrepresented parties to the proceedings at the earliest possible opportunity.

2. Application of this Practice Direction

2.1 Subject to the following paragraph, this Central Practice Direction applies to all family law applications filed in or transferred to either Court. The obligations outlined in this Central Practice Direction apply to the parties to such proceedings and to their legal representatives.

2.2 Other than Part 3: Core Principles, this Central Practice Direction does not apply to:

  1. appeals (see Family Law Practice Direction – Appeals);
  2. matters arising from arbitration (see Family Law Practice Direction – Arbitration);
  3. Applications for Divorce (see Family Law Practice Direction – Divorce proceedings); and
  4. applications for consent orders.

2.3 This Practice Direction is to be read in conjunction with the Family Law Act, the FCFCOA Act and the Family Law Rules. In the event of a conflict between the contents of this Practice Direction and the provisions of the Family Law Act, the FCFCOA Act or the Family Law Rules, the legislation or Family Law Rules, as applicable, shall apply to the extent of the inconsistency.

2.4 Unless otherwise expressly stated, and save for obligations as to costs disclosure, all obligations imposed on parties by this Central Practice Direction apply to Independent Children's Lawyers.

3. Core principles

3.1 The Central Practice Direction will be interpreted and applied in a manner that is consistent with the Overarching Purpose, and the Core Principles that are set out in Schedule A and summarised as follows:

  1. The Courts prioritise the safety of children, vulnerable parties and litigants.
  2. Parties and their legal representatives must act consistently with the Courts’ overarching purpose to resolve disputes according to law and as quickly, inexpensively and efficiently as possible.
  3. The Courts’ resources will be used as efficiently and effectively as possible.
  4. Consistent case management and risk assessment is prioritised.
  5. Dispute resolution is encouraged wherever safe.
  6. Compliance with orders is expected.
  7. Legal representatives must regularly and clearly inform parties about the costs of proceedings.
  8. Parties must clearly identify and narrow the issues in dispute.
  9. Parties and legal representatives must be fully prepared for hearings.
  10. Judgments will be delivered in a timely way.

4. Case management

Pre-action requirements

4.1 Prior to commencing proceedings, parties are required to:

  1. comply with the pre-action procedures for both financial and parenting proceedings (see Schedule 1 of the Family Law Rules and section 60I of the Family Law Act); 
  2. clearly identify the issues requiring determination; and
  3. take genuine steps to attempt to resolve those issues prior to commencing proceedings, unless it is unsafe to do so or a relevant exemption applies.

4.2 A Genuine Steps Certificate in the approved form must be filed with an Initiating Application or Response to Initiating Application, outlining:

  1. the filing party's compliance with the pre-action procedures; and
  2. the genuine steps taken to resolve the dispute; or
  3. the basis of any claim for an exemption from compliance with either or both of these requirements.

4.3 Other than in urgent circumstances, and subject to any safety concerns, no application for final or interim orders should be filed without appropriate notice being given to the respondent of the intended contents of the application and without genuine steps being taken to avoid the need for the application to be filed.

4.4 Failure to comply with the relevant pre-action procedures may result in the application being adjourned or stayed until the failure to comply is rectified (see Part 4.1 of the Family Law Rules).

Filing and service

4.5 An Initiating Application and any other document filed in family law proceedings must be served on each other party to the proceedings as soon as reasonably practicable after filing and no later than the time (if any) specified in the Family Law Rules.

Urgency

4.6 In the case of urgent issues, an application may be made to the Court for an urgent Interim Hearing.

4.7 The material to be provided in support of an urgent application is set out in paragraph 2.9 of the Family Law Practice Direction: Parenting Proceedings and paragraph 2.10 of the Family Law Practice Direction: Financial Proceedings.

4.8 Such applications will be assessed by a Registrar at the time of filing. If a matter is accepted as urgent, an Interim Hearing date will be provided at the earliest available time, having regard to the issues in dispute, including the extent of the urgency and considerations of procedural fairness. Directions may also be made in Chambers in relation to service or the filing of additional documents prior to the interim hearing.

4.9 Following an urgent hearing, such matters will be referred to FDR where appropriate, and will otherwise be listed in accordance with the Case Management pathway outlined in this Practice Direction.

4.10 If a matter is not accepted as urgent, it will be listed in accordance with the Case Management Pathway as outlined in this Practice Direction. Directions may be made in Chambers in relation to service or the filing of additional documents prior to the next court date.

Triage and assessment

4.11 Immediately after filing an Initiating Application or Response to Initiating Application, if parenting orders are sought, each eligible party will be invited to complete the confidential Lighthouse online risk screen in order to receive safety planning, service referrals and appropriate case management.

4.12 A case may, at any time, be reviewed for consideration of:

  1. whether the matter is one of a small number of cases of a specialist type which may be appropriate for immediate allocation to Division 1 (such as matters suitable for the Magellan List);
  2. the suitability of the matter for inclusion in a specialist list in accordance with the relevant specialist list practice direction, if applicable;
  3. any special procedures required as a result of risk associated with family violence, such as whether orders should be made relieving a party from being required to be physically present at court events;
  4. whether all pre-action procedures have been complied with; and
  5. whether, in a parenting proceeding, the requirements of section 60I of the Family Law Act have been complied with, noting that if an Initiating Application or a Response to Initiating Application which introduces parenting issues is filed without either a certificate issued pursuant to subsection 60I(8) or an affidavit setting out the factual basis of the exception claimed under subsection 60I(9), the Court must stay the application until such time as the applicant complies with the requirements of section 60I: see subsections 60I(7) and 60I(10).

Allocation between courts

4.13 The appropriate court for the hearing of a matter will be considered:

  1. as part of the initial triage and assessment process at the First Court Event, at which a small number of specialist cases which necessitate immediate transfer to Division 1 may be transferred;
  2. at the Compliance and Readiness Hearing, at which the most appropriate Division for final determination of the matter will be considered, having regard to the issues remaining in dispute; and
  3. at such other time as may be considered appropriate by the Court.

4.14 Any matter in relation to which Division 1 holds exclusive jurisdiction shall be transferred to that court upon filing without the need for an application seeking transfer to be filed by any party to the proceedings. This includes matters involving an exercise of jurisdiction pursuant to section 1337C of the Corporations Act 2001 (Cth).

4.15 Determination of the appropriate court for the hearing of a matter will be made at the Court's discretion, having regard to:

  1. the Family Law Act and the Family Law Rules; and
  2. any submissions made by or on behalf of one or more of the parties.

4.16 The factors relevant to the assessment of the appropriate Division for the hearing of a matter shall include:

  1. the complexity of the legal, factual, jurisdictional, or risk issues involved;
  2. whether the case involves international issues;
  3. whether the case involves multiple parties;
  4. whether the case involves multiple expert witnesses;
  5. whether the case is likely to involve questions of general importance to the development of family law jurisprudence;
  6. the likely length of the case;
  7. the respective workload of each court;
  8. the impact on litigants of the matter being transferred;
  9. any circumstances that require the matter to be referred to or case managed in a specialist list;
  10. in relation to a parenting proceeding, whether the case involves serious criminal conduct;
  11. in relation to a financial proceeding, whether the case involves:
    1. complex asset structures;
    2. complex valuation issues;
    3. complex taxation or like issues;
    4. bankruptcy or insolvency; and/or
    5. the interests of an estate.

4.17 Unless otherwise ordered, a matter transferred between courts will retain the same priority as it had in the court from which it was transferred.

5. Court events

Overview

5.1 In accordance with the overarching purpose, and having regard to the potential harmful consequences of litigation for families and children, the Courts will always strive to find the most efficient and effective way to assist parties to resolve or finalise their family law cases. In most cases, this will be achieved by adherence to the case management pathway outlined below. The Courts will however, retain discretion and flexibility to depart from or alter this pathway in individual cases in the interests of promoting the overarching purpose.

5.2 Other than urgent applications and cases allocated to specialist lists, in the absence of an order or direction from the Court to the contrary, the following listing pathway will apply to family law proceedings irrespective of Division:

Flowchart of the listing pathway

5.3 The listing pathway will involve the following events:

  1. unless an urgent hearing is required, a First Court Event, which will be listed wherever possible on a date between 1 and 2 months from the date of commencement of a proceeding;
  2. an Interim Hearing (where such a hearing is required), which will be listed at an appropriate time having regard to urgency and the need for preparation of any required expert and other evidence;
  3. a Dispute Resolution event (such as mediation, a Conciliation Conference or Family Dispute Resolution, as appropriate), which is to be completed either within the Courts or externally, as early as possible and usually no later than 5 months after the date of commencement of a proceeding;
  4. for matters which remain unresolved following Dispute Resolution and are not allocated to the Fast Track Hearing List, a Mention event will be listed following Dispute Resolution not more than 2 weeks after the Dispute Resolution event;
  5. for matters proceeding to Final Hearing, a Compliance and Readiness Hearing will be listed as close as possible to 6 months after commencement of a proceeding;
  6. if determined appropriate by the allocated trial Judge, a Trial Management Hearing will be held prior to the Final Hearing;
  7. subject to the parties complying with relevant orders and directions, a Final Hearing will be listed on a date earlier than 12 months from the date of filing; and
  8. the Courts will endeavour to deliver judgment within 3 months of completion of the trial.

Additional orders

5.4 In addition to the pathway outlined above, the Court may, in circumstances of urgency or if at any time it considers that to do so would facilitate the resolution or determination of the proceeding in accordance with the overarching purpose or otherwise promote the interests of justice:

  1. make such directions as the Court considers appropriate;
  2. list a matter for an immediate or further hearing, conference or callover;
  3. determine that one or more of the court events outlined in this Central Practice Direction be dispensed with; or
  4. otherwise depart from the case management practices outlined in this Central Practice Direction.

Defaulters List

5.5 In the event of a party failing to take a step required by this Central Practice Direction, the Family Law Rules, or a procedural order, the Court may refer the matter to the Defaulters List where a judicial officer may consider exercising any of the powers conferred by rule 10.27.

Requirement to attend court in person

5.6 Other than where a consent position is being presented, unless a party has been exempted from the obligation to physically attend, the parties, and if represented, their lawyers, must attend every court event in person or by any electronic means directed by the presiding judicial officer unless excused by the Court.

6. Procedures at court events

First Court Event

6.1 On a date between 1 and 2 months after the date of filing, applications will be listed for a directions hearing before a Registrar.

6.2 In advance of the First Court Event:

  1. the court may make orders for case management in chambers including in relation to service and the filing of response material;
  2. the lawyer for each represented party must provide to the Court and to each other party a notice indicating:
    1. whether the party is in receipt of legal aid funding, and if not, providing particulars of the total costs and disbursements incurred by the party in the proceeding to date;
    2. an estimate of the anticipated costs expected to be incurred in each stage of the proceeding; and
    3. an estimate of the likely duration of the final hearing and the total anticipated costs and disbursements expected to be incurred for the remainder of the proceeding.

6.3 Subject to paragraph 6.4, any party who is not required by the Family Law Rules to file a Financial Statement must provide to the Court and to each other party a signed statement indicating whether they are in receipt of legal aid funding, and if not, providing particulars of their income, expenses and any other circumstance relevant to their ability to contribute to the cost of any necessary expert report(s) and/or private Dispute Resolution event(s).

6.4 Paragraph 6.3 does not apply where the parties have agreed to privately fund the expert report and/or Dispute Resolution event.

6.5 The primary purposes of the First Court Event are:

  1. to ascertain whether any orders or directions can be made by consent;
  2. to ascertain whether the parties have complied with the pre-action procedures and made a genuine attempt to resolve the issues in dispute unless it is unsafe to do so, and if not, to make provision for them to do so prior to the proceeding progressing further;
  3. to identify the issues in dispute between the parties and the steps required to resolve them;
  4. to consider whether an Interim Hearing is required;
  5. to consider whether the matter is suitable for court-based Dispute Resolution, having regard to the means and resources of the parties, or alternatively, whether it is suitable for referral to external dispute resolution (or, with the consent of the parties, arbitration);
  6. to consider whether the matter is one that requires individual case management;
  7. to consider whether any additional material ought be requested including from child welfare authorities or police;
  8. to consider whether any application before the Court is of such urgency or exceptional circumstances that it requires immediate transfer to a Judge or Senior Judicial Registrar; and
  9. to make such orders and directions as are necessary (including but not limited to orders for future listings, the preparation of expert reports, the issuing of subpoenas and the exchange of documents) to facilitate the future progression of the proceeding in a manner consistent with the overarching purpose.

6.6 In parenting cases, the Court will consider:

  1. submissions from the parties about what information produced under subpoena or pursuant to an information sharing order is relevant to the proceedings and is proposed to be relied upon at the next court event;
  2. whether an Independent Children's Lawyer should be appointed; and
  3. whether a written or oral report from a social scientist, psychologist, psychiatrist or other appropriately qualified expert is necessary and/or likely to promote the resolution or determination of the proceeding in accordance with the overarching purpose, and if so, the material to which that expert is to have regard.

6.7 In financial cases, the Courts will consider:

  1. an appropriate timetable for the exchange of any outstanding documents;
  2. whether a single expert report is necessary and/or likely to promote the resolution or determination of the proceeding in accordance with the overarching purpose; and
  3. subject to the consent of the parties, the suitability of the matter for arbitration.

6.8 Unless an exceptional circumstance exists, orders and directions will be made at the First Court Event to prepare the matter for Dispute Resolution and may include by way of notation or annexure a Summary Statement of the issues the parties have identified as being in dispute, and the material evidentiary contentions, bearing on those issues.

6.9 Where matters resolve prior to the Compliance and Readiness Hearing date, consent orders should be submitted to the Registrar who made the orders for the matter to be listed for Compliance and Readiness Hearing for consideration in chambers.

Interim Hearing

6.10 Other than in the case of urgency or exceptional circumstances, an application for interim orders contained within an Initiating Application or a Response to Initiating Application will be listed on a date before a Senior Judicial Registrar or, where necessary or appropriate in the circumstances of the case, a Judge, after the First Court Event.

6.11 An Interim Hearing will usually be listed prior to Dispute Resolution taking place, however, in the interests of case management, the Courts may, where appropriate, defer, until after Dispute Resolution has been completed, any interlocutory application which appears to the Court to be unnecessary to decide prior to Dispute Resolution. Parties are encouraged to keep interlocutory applications to a minimum.

6.12 Where practicable and in circumstances where it does not cause undue delay, an Interim Hearing will be listed for a date after receipt of any expert reports, subpoenaed documents and responses from child protection agencies which are likely to assist with the determination of the interlocutory issues in dispute. The applicant (or if applicable, the applicant's lawyer) must ensure that all expert reports which are relevant to the issues to be determined at the Interim Hearing are filed and served no later than 7 days prior to the hearing.

6.13 No less than 7 business days prior to the Interim Hearing, the parties must file and serve:

  1. a minute setting out the precise terms of orders sought at the hearing; and
  2. a Case Outline document in the approved form setting out the party's major contentions in relation to the issues to be determined at the Interim Hearing and a list of documents to be relied upon at the Interim Hearing (such list to be limited to documents which are relevant to the particular issues to be determined at that hearing).

6.14 Parties and their lawyers must ensure that all interlocutory applications are ready to proceed on the date of the Interim Hearing. It should not be assumed that adjournment applications made on the day of the hearing will be granted or that multiple Interim Hearing dates will be provided. Costs consequences may flow from attendance for Interim Hearings in the absence of proper preparation and readiness to proceed.

6.15 In order to reduce delay and enhance the efficiency of hearings, parties are requested to inform the Courts of instances where they do not require the delivery of formal reasons in relation to procedural and/or other interlocutory decisions.

Subsequent interlocutory applications

6.16 After a proceeding has commenced, unless a relevant exemption applies, a party may not file an Application in a Proceeding seeking interim orders, without complying with rule 4.03 of the Family Law Rules, which requires the parties to make a reasonable and genuine attempt to settle the issue to which the application relates.

6.17 Other than in urgent circumstances relating to issues of high risk, or where the application is made by an Independent Children’s Lawyer, parties may seek interim orders:

  1. as set out in their initiating application or response; or
  2. by filing a maximum of one additional Application in a Proceeding without leave.

6.18 Leave of the Court must be sought as part of any additional interlocutory application. A leave application may be determined by a Registrar in chambers.

6.19 Parties to an Application in a Proceeding must comply with the requirements of Chapter 5 of the Family Law Rules in respect to the length of affidavits.

6.20 At an interim hearing each party may rely upon one affidavit sworn or affirmed by themselves and one affidavit by each witness, provided the evidence is relevant and cannot be given by a party to the proceeding. Affidavits should be updated and consolidated and may not incorporate earlier affidavits by way of cross reference.

6.21 A party seeking to rely on more than one affidavit from the same witness may be required to elect which affidavit they rely upon for the purpose of the proceeding.

6.22 To ensure procedural fairness, parties may not rely on affidavits filed later than two business days prior to a hearing without leave of the Court.

Dispute Resolution

6.23 Unless exceptional circumstances exist, within 5 months of the date of commencement of a proceeding, the parties will be required to participate in Dispute Resolution.

6.24 For proceedings involving family violence and safety concerns, consideration will be given to whether Dispute Resolution is appropriate and whether measures can be implemented which will facilitate Dispute Resolution occurring as safely as possible. Such measures may include Dispute Resolution being conducted electronically or in separate rooms.

6.25 If the Court is satisfied, having regard to the means and resources of the parties, that it is appropriate for the parties to participate in a privately funded Dispute Resolution event, they will be referred to:

  1. private mediation; and/or
  2. private, legal aid facilitated or community-based FDR; and/or
  3. arbitration with the consent of the parties.

6.26 If the Court is satisfied, having regard to the means and resources of the parties, that it is appropriate for the parties to participate in court-based Dispute Resolution, a matter will be listed on a date within 5 months from the date of filing for:

  1. a Conciliation Conference; or
  2. a Judicial Settlement Conference; and/or
  3. a Family Dispute Resolution Conference pursuant to section 13C(1)(b) of the Family Law Act with a Registrar (as a Family Dispute Resolution Practitioner (FDRP)) and, where appropriate, a Court Child Expert (as a Family Counsellor).

6.27 All forms of Dispute Resolution, including mediation and conferences, whether court-based or external, will be confidential. No evidence of any documents prepared for such events, offers, representations or concessions made at or in preparation for any such events will be admissible in court proceedings, other than in the limited circumstances permitted by section 131 of the Evidence Act 1995 (Cth). However, registrars and FDRPs conducting court-based events will be expected to provide to the parties and place on the court file a Certificate of Dispute Resolution in the approved form setting out whether the matter was resolved, partially resolved or not resolved, and whether one or more of the parties failed to attend or to make a genuine effort to resolve the issues in dispute. In the case of external Dispute Resolution events, the applicant will be required to request that the person conducting the Dispute Resolution event provide a Certificate of Dispute Resolution, and to file and serve the Certificate upon receipt.

6.28 Parties will be expected to engage in good faith negotiations and make a genuine effort to resolve all issues in dispute at a Dispute Resolution event, and where this is not possible, to utilise Dispute Resolution to limit or reduce the areas of dispute and to record all agreements reached in writing.

6.29 In appropriate cases, the parties will also be encouraged to give consideration to participating in arbitration.

6.30 The Courts expect parties to place themselves and each other party in the most informed position possible for any Dispute Resolution event, including by providing sufficient disclosure and obtaining any required valuations, so as to enable such events to be productive and to maximise the prospects of resolution.

6.31 If a Dispute Resolution event does not proceed as a result of a party's non-attendance or non-compliance with orders, directions or the Family Law Rules, costs consequences may follow.

6.32 A second or subsequent Dispute Resolution event may be ordered or listed at any time if it appears to the Court that such event is reasonably likely to assist with the resolution or narrowing of the issues in dispute between the parties.

6.33 A Confidential Case Outline is to be provided in accordance with either paragraph 6.33 or paragraph 6.34 below on a without prejudice basis and will not be placed on the court file. Such documents are privileged and may not be used in contested hearings or for purposes other than genuine attempts to resolve disputes between the parties.

Private Mediation and External Family Dispute Resolution

6.34 If the parties participate in private mediation, external FDR or arbitration, the parties must:

  1. provide to the mediator, FDRP or arbitrator:
    1. a confidential case outline document
    2. a copy of all current or previous family violence orders between the parties;
    3. all other information and documentation reasonably requested by the mediator, FDRP or arbitrator; and
    4. a Certificate of Dispute Resolution for completion by the mediator or FDRP;
  2. comply with all reasonable requests made by the mediator, FDRP or arbitrator; and
  3. personally attend the mediation, FDR or arbitration (if applicable, by electronic means) and make a genuine attempt to resolve issues in dispute.

6.35 In advance of an external Dispute Resolution event, the lawyer for each represented party must provide to his or her client and to each other party a notice indicating whether the party is in receipt of legal aid funding, and if not, providing particulars of:

  1. the total costs and disbursements incurred by the party in the proceeding to date;
  2. an estimate of the anticipated costs expected to be incurred in each remaining stage of the proceeding; and
  3. an estimate of the likely duration of the final hearing and the total anticipated costs and disbursements expected to be incurred for the remainder of the proceeding.

Court-Based Dispute Resolution

6.36 If a matter is listed for a court-based Dispute Resolution event, such as a Conciliation Conference, Judicial Settlement Conference or court-based FDR, the parties must, unless the Court otherwise directs, no later than 14 days prior to the event:

  1. ensure that all documents required to be exchanged between the parties pursuant to Chapter 6 of the Family Law Rules have been exchanged;
  2. ensure that any private expert report that is relevant to the proceedings has been filed; and
  3. provide to the Court and each other party a single collated bundle of documents comprising:
    1. a Confidential Case Outline in the approved form;
    2. a minute setting out the precise terms of orders required to give effect to the entitlement asserted;
    3. a copy of any document exchanged between the parties which is directly relevant to an issue remaining in dispute (with relevant passages highlighted); and
    4. in a financial case:
      1. particulars of any financial resource and a valuation or market appraisal of any real estate or other asset, the value of which is in dispute;
      2. statements for, and where applicable, valuations of any superannuation interests;
      3. written confirmation that the superannuation trustee of any fund that may be the subject of a splitting order has been afforded procedural fairness.

6.37 In advance of a court-based Dispute Resolution event, the lawyer for each represented party must provide to the Court and to each other party a notice indicating whether or not the party is in receipt of legal aid funding, and if not, providing particulars of:

  1. the total costs and disbursements incurred by the party in the proceeding to date;
  2. an estimate of the anticipated costs expected to be incurred in each remaining stage of the proceeding; and
  3. an estimate of the total anticipated costs and disbursements expected to be incurred for the remainder of the proceeding.

6.38 If appropriate and consistent with the overarching purpose, directions may be made for a court-based Dispute Resolution event to take place by electronic means.

6.39 Orders excusing a party or legal representative from personal attendance at court-based Dispute Resolution should ordinarily be sought at the First Court Event, but may also be sought from a Registrar in chambers, on written request, no later than 7 days prior to the date of the Dispute Resolution event.

6.40 At court-based Dispute Resolution, the Registrar will assess compliance with previous procedural orders made. Costs consequences may flow from non-compliance. If the requirements of the Family Law Rules or relevant orders have not been properly complied with, or if, for any other reason, realistic negotiations are unable to be held, the Registrar may make such orders or directions as are necessary for the matter to be determined in accordance with the overarching purpose including, if necessary, referred the matter to the Defaulters List.

6.41 In the event that the matter is not resolved at a court-based Dispute Resolution event, the presiding Registrar shall prepare, provide to the parties and place on the court file, a Certificate of Dispute Resolution indicating:

  1. whether the parties were in attendance (including by electronic means);
  2. whether the parties have complied with the costs notification requirements of the Family Law Rules; and
  3. whether the parties have complied with their obligations under the Family Law Rules and any directions of the Court, including making a genuine attempt to resolve the issues in dispute.

Mention

6.42 Any matter referred for either private mediation, external FDR or court based dispute resolution will be listed for a Mention not more than 2 weeks after the Dispute Resolution event to prepare any unresolved matter for a Compliance and Readiness Hearing. Where a matter resolves prior to the Compliance and Readiness Hearing, consent orders should be submitted to the Registrar who presided over the First Court Event for consideration in chambers.

6.43 Any matter which has proceeded to interim defended hearing and is not suitable for Dispute Resolution will also be listed for Mention to prepare the matter for a Compliance and Readiness Hearing.

Fast Track Hearing List

6.44 Parties are encouraged to consider whether their matter can be resolved by way of the Fast Track Hearing List and to that end, at any court event, parties may request that their matter be referred Fast Track Hearing List.

6.45 In determining whether a matter is suitable for the Fast Track Hearing List, the Court will consider whether:

  1. the parties have been unable to resolve the matter despite making a genuine effort to do so;
  2. the parties have clearly identified the issues in dispute between them;
  3. the issue or issues to be determined have been clearly defined;
  4. reports from experts have been obtained and any relevant requisitions and conferences have been held with those experts;
  5. the parties agree that the matter may be determined:
    1. on the basis of affidavit evidence without the need for cross examination, and
    2. on the basis of written submissions of no more than 10 pages setting out the relevant contentions as to law and fact or oral submissions not exceeding one hour in respect to each party;
  6. the parties will be in a position to present their case on the provision of 28 days' notice of the hearing date; and
  7. the parties consent to the use of short form reasons for judgment.

6.46 The Court may, in the interests of achieving the overarching purpose, refer all or part of a proceeding or a discrete issue to a Fast Track Hearing.

Compliance and Readiness Hearing

6.47 For cases other than those allocated to the Fast Track Hearing List, on a date as close as possible to 6 months from the date of filing, a matter will be listed for a Compliance and Readiness Hearing (CRH) before a Judge or Senior Judicial Registrar.

6.48 Prior to the CRH, parties and their lawyers are expected to have conferred and made a genuine effort to identify and agree on a trial plan, including the timing and duration of the evidence of each witness proposed to be called.

6.49 No later than 7 days prior to the CRH, each party must file and serve:

  1. an Amended Application or Response, as appropriate, setting out the precise orders sought, if the most recently filed Application or Response is not current;
  2. an undertaking as to disclosure in accordance with rule 6.02 of the Family Law Rules; and
  3. a Certificate of Readiness in the approved form.

6.50 The primary purposes of the CRH are:

  1. to ensure that the relevant issues of fact and law and the relief sought by the parties are appropriately defined and particularised including, if appropriate, by requiring the filing of formal pleadings or short form statements of contentions;
  2. to ensure that the parties have made a genuine attempt to attempt to resolve the issues in dispute to the extent that it is safe to do so;
  3. to ensure, in respect to property proceedings, that the parties are aware of the proportionality of the costs they have and are likely to incur in respect to the amount actually in dispute;
  4. to ensure that the parties have complied with their duty of disclosure and have provided all relevant documents to the other party or parties;
  5. to ensure that the parties have complied with all relevant orders and directions;
  6. to consider the costs and other consequences that are to flow from any non-compliance;
  7. to confirm that the parties have attended to necessary preparations for the matter to be listed for Final Hearing;
  8. to consider whether determination of a discrete issue would likely facilitate the timely resolution of the overall proceedings;
  9. in a financial proceeding, to ensure that the parties have exchanged compulsory offers of settlement pursuant to rule 4.11 of the Family Law Rules;
  10. to consider whether the matter is suitable for transfer prior to Final Hearing, having regard to the issues remaining in dispute and the capacity of each Division to hear the proceeding;
  11. to allocate the matter to a Judge for Final Hearing;
  12. to make such orders and directions as will ensure the matter is resolved in a timely, economical and just manner, including the filing of party and witness affidavits, the service of expert reports and the issuing of subpoenas;
  13. to consider whether any orders pursuant to section 102NA of the Family Law Act must or should be made;
  14. to make directions as to the consequences of default in compliance with any trial directions made;
  15. to ensure that the matter is otherwise ready to be allocated a Final Hearing date; and
  16. to list the matter for Final Hearing and make trial directions.

6.51 In the absence of parties submitting appropriate alternative consent orders, Trial Directions may be made in accordance with the standard trial directions in Schedule B.

6.52 If the CRH does not proceed or the matter is unable to be listed for Final Hearing as a consequence of the non-compliance of one party, consideration will be given to a grant of leave to the complying party or parties to proceed on an undefended basis and to orders for costs.

6.53 If the contents of a Certificate of Readiness are found not to be accurate, consideration will be given to a grant of leave to the non-defaulting party or parties to proceed on an undefended basis and to orders for costs.

6.54 At the CRH, the parties or their legal representatives must (in addition to being able to address the relevant matters referred to in the Family Law Rules):

  1. be able to advise the Court of the following matters:
    1. the factual issues requiring determination at a Final Hearing;
    2. the main legal and factual contentions advanced in relation to each issue in dispute;
    3. the proposed witnesses (including expert witnesses) and their availability;
    4. whether interpreters are required;
    5. whether video facilities are required;
    6. whether expert evidence should be given by video link;
    7. the estimated length of the Final Hearing and proposed trial plan; and
    8. whether any other step is required in order for the matter to proceed to a Final Hearing; and
  2. provide a minute setting out, with precision, any procedural directions sought to aid the limiting of issues or time required for the Final Hearing.

Trial Management Hearing

6.55 Should the allocated trial Judge consider it appropriate and consistent with the overarching purpose, the matter may be listed before the trial Judge for a Trial Management Hearing prior to the Final Hearing.

6.56 Where a party is represented, it is expected that, unless it is not reasonably practicable, the representative who appears at the Trial Management Hearing will be the same representative who will be appearing at the Final Hearing or the solicitor with the conduct of the matter.

6.57 The purposes of the Trial Management Hearing include:

  1. to consider the costs and other consequences that are to flow from any non-compliance with trial directions orders, Family Law Rules or Practice Directions; and
  2. to make any other directions as to the conduct of the Final Hearing in a manner that is consistent with the overarching purpose as the allocated trial Judge considers appropriate.

Final Hearing

6.58 Wherever possible, matters will be listed for Final Hearing on a date earlier than 12 months from the commencement of the proceedings.

6.59 No less than 14 days' notice must be provided to the Court Children's Service in the event that a party seeks to cross-examine a Court Child Expert at the Final Hearing. A party who provides such notice must immediately notify the Court Children's Service if the Court Child Expert is no longer required.

Unreached matters

6.60 In the event that a matter is ready to proceed but is not reached on the date upon which it is listed for Final Hearing:

  1. the parties may be directed to engage in Dispute Resolution on the day upon which the Final Hearing was listed; or
  2. subject to availability and the suitability of the matter for electronic hearing as assessed by the Court, the matter may be referred to be heard by another Judge, including a Judge sitting in another registry and/or if ordered by the Chief Justice (or a delegate of the Chief Justice), a Judge sitting in the Division of the Court other than that in which the matter was originally listed; and
  3. if the matter cannot be resolved or heard on the date upon which it was listed, it will be referred to the National Assessment Team for relisting before the first available Judge after that time which may, subject to the suitability of the matter for electronic hearing, be a Judge sitting in another registry and/or if ordered by the Chief Justice (or a delegate of the Chief Justice) a Judge sitting in the Court other than that in which the matter was originally listed.

Judgment

6.61 Judgments will be delivered as soon as reasonably practicable after the receipt of final submissions and usually within 3 months.

6.62 If a party wishes to enquire about the delivery of an overdue judgment, the enquiry should be made:

  1. if the party is represented, in accordance with the protocols in place between the Court and the applicable professional body; or
  2. if the party is unrepresented, by letter to the Chief Justice (Division 1) or Chief Judge (Division 2) in relation to the decision of a Judge, or the Principal Registrar in relation to the decision of a Registrar or Senior Judicial Registrar.

6.63 Such an enquiry may include a request that the identity of the party making the enquiry not be revealed to the judicial officer concerned, and every endeavour will be made to accommodate such requests.

7. Circuits and specialist lists

7.1 The Court recognises that for proceedings in regional and rural circuits, which will be individually case managed by the relevant circuit Judge and/or Registrar, strict application of the case management processes outlined above will not always be possible. In such cases, a flexible, common sense approach is to be applied.

7.2 For cases in specialist lists, the Practice Direction particular to that list may vary the extent to which the case management process outlined in this Practice Direction applies.

The Honourable Justice William Alstergren
Chief Justice (Division 1) | Chief Judge (Division 2)
Federal Circuit and Family Court of Australia
Date: 1 September 2021
Updated: 28 November 2022,1 May 2024

Schedule A: Core Principles

The following 10 core principles underpin the exercise of the family law jurisdiction of the Court and are designed to facilitate the resolution of family law proceedings. All steps taken in proceedings before the Courts, including commencement of proceedings, should follow these principles.

  1. CORE PRINCIPLE 1 – Risk
    1. The prioritisation of the safety of children, vulnerable parties and litigants, as well as the early and ongoing identification and appropriate handling of issues of risk, including through risk screening, such as allegations of family violence, are essential elements of all case management.
    2. Parties have a positive obligation to inform the Court of any changes to issues of risk, including by providing the Court with copies of current and updated family violence orders.
  2. CORE PRINCIPLE 2 – Parties’, lawyers’ and the Courts’ obligations and overarching purpose
    1. The overarching purpose to be achieved is to facilitate the just resolution of disputes:
      1. according to law; and
      2. as quickly, inexpensively and efficiently as possible.
    2. The overarching purpose includes the following objectives:
      1. the just determination of all proceedings before the Courts;
      2. the efficient use of the judicial and administrative resources available for the purposes of the Courts;
      3. the efficient disposal of the Court’s overall caseload;
      4. the disposal of all proceedings in a timely manner;
      5. the resolution of disputes at a cost and by a process that is proportionate to the importance and complexity of the issues in dispute.
    3. This Central Practice Direction and the Family Law Rules must be interpreted and applied in the way that best promotes the Courts’ overarching purpose and prioritises the best interests of children.
  3. CORE PRINCIPLE 3 – Efficient and effective use of resources
    1. The Courts’ judicial, registrar and Court Child Expert resources are to be allocated and used efficiently to achieve the overarching purpose in the context of ensuring the appropriate handling of risks wherever they are identified as issues in proceedings.
    2. Parties are required to assist the Courts in achieving the overarching purpose by clearly identifying:
      1. The relief they are seeking on a final basis and, where relevant, on an interim basis and the relevant power to make orders granting that relief;
      2. The issues requiring determination; and
      3. The material findings of fact that they are seeking in order for those issues to be determined.
  4. CORE PRINCIPLE 4 – Approach to case management
    1. Effective case management of all cases relies on:
      1. a consistent approach to the case management of like cases;
      2. early triaging of matters to an appropriate case pathway, including assessment of risk; and
      3. the prioritisation of both internal and external Dispute Resolution, including private mediation, Family Dispute Resolution (FDR), Conciliation Conferences and arbitration in property disputes for as many appropriate cases as possible.
  5. CORE PRINCIPLE 5 – Importance of Dispute Resolution
    1. The Courts encourage the use of Dispute Resolution procedures. Before commencing an action, unless it is unsafe to do so, parties are expected to make a genuine attempt to resolve their dispute, including by complying with the requirements and obligations of section 60I of the Family Law Act and the pre-action procedures as set out in Schedule 1 to the Family Law Rules. Subject to an exception applying, the Courts must not hear an application for parenting orders unless a section 60I certificate has been filed.
    2. After the commencement of an action, parties are expected to:
      1. be proactive in identifying the appropriate time, and the appropriate way, in which they can participate in Dispute Resolution, either by agreement or by court order; and
      2. be prepared to make and consider reasonable offers of settlement at any stage of the proceedings. Failure to do so may have costs consequences.
  6. CORE PRINCIPLE 6 – Non-compliance
    1. Non-compliance with orders, Practice Directions, the Family Law Rules or the obligations imposed on parties and their lawyers to conduct proceedings in a manner consistent with the overarching purpose will be taken seriously by the Courts. Non-compliance may lead to serious consequences for parties and for their lawyers including, if relevant, liberty being granted to the compliant party to proceed on an undefended basis, and/or costs orders being awarded against parties and/or their lawyers.
  7. CORE PRINCIPLE 7 – Lawyers’ obligations about costs
    1. Parties and their lawyers are expected to take a sensible and pragmatic approach to litigation, and to incur only such costs as are fair, reasonable and proportionate to the issues that are genuinely in dispute. Lawyers are expected to act consistently with costs estimates provided to their clients, and regularly inform their clients and the Court of the actual costs they have incurred and are likely to incur (see Part 12.3 of the Family Law Rules).
    2. A party’s lawyer may be required to provide an explanation to their client and the Court where their estimate of likely costs has been substantially exceeded.
  8. CORE PRINCIPLE 8 – Identifying and narrowing issues in dispute
    1. Issues in the case are to be narrowed to those issues genuinely in dispute. In particular:
      1. all parties are required to make full and frank disclosure to assist the Courts in the determination of the dispute or the parties in the resolution of the dispute;
      2. applications should only be brought before the Courts if they are reasonably justified on the material available;
      3. it is expected that parties will negotiate both prior to, and at court, in order to reach agreement about as many of the issues in dispute as possible and procedural directions required before having the matter heard;
      4. when appropriate, a single expert or an assessor should be engaged to assist the parties and the Courts to resolve disputes; and
      5. costs consequences may flow if parties unreasonably seek to reopen issues already resolved or unreasonably agitate issues.
  9. CORE PRINCIPLE 9 – Preparation for hearings
    1. Parties and their lawyers are to be familiar with the specific issues in the case and be fully prepared for court events and the Final Hearing in a timely manner. Parties must provide the Courts with a considered and informed account of:
      1. the issues requiring determination;
      2. the material findings of fact they are seeking in order for those issues to be determined;
      3. the expected hearing time;
      4. the number of witnesses; and
      5. whether specific arrangements are required for matters such as interpreters and whether the proceedings can appropriately be conducted by video link.
  10. CORE PRINCIPLE 10 – Efficient and timely disposition of cases
    1. The Courts will act effectively and efficiently in achieving the prompt and fair disposition of pending cases, with judgments being delivered as soon as reasonably practicable after the receipt of final submissions. Where permitted by legislation, short form reasons may be utilised in appropriate cases to facilitate the expeditious delivery of judgments.

Schedule B: Standard Trial Directions

UPON APPLICATION TO THE COURT IT IS ORDERED THAT:

Trial

  1. The proceedings are listed for trial for ## days on (insert dates or / dates to be allocated by the Court).

Material to be filed

EVIDENCE

Simultaneous filing of evidence

  1. No later than 4:00pm on the day that is 42 days prior to the trial date, the Applicant and the Respondent file and serve:
    1. a single consolidated trial affidavit;
    2. other witness affidavits upon which they intend to rely; and
    3. In property proceedings;
      1. an updated financial statement, and
      2. an updated undertaking as to disclosure.

Or

Staggered filing of Evidence

  1. No later than 42 days prior to the trial date, the Applicant file and serve:
    1. any Amended Initiating Application setting out with particularity the precise final orders sought;
    2. an updated single consolidated trial affidavit;
    3. other witness affidavits upon which they intend to rely; and
    4. in property proceedings;
      1.  an updated Financial Statement, and
      2. an updated undertaking as to disclosure.
  2. No later than 28 days prior to the trial date, the Respondent file and serve:
    1. any Amended Response setting out with particularity the precise final orders sought;
    2. an updated single consolidated trial affidavit;
    3. other witness affidavits upon which they intend to rely; and
    4. in property proceedings, an updated Financial Statement.
  3. No later than 14 days prior to the trial date:
    1. the Applicant file and serve any affidavit(s) in reply addressing only the evidence presented in the Respondent(s)’ affidavits; and
    2. the Independent Children’s Lawyer file and serve any affidavits relied upon.
  4. Each party will be permitted to rely on one consolidated trial affidavit. Reliance on earlier or additional affidavits, other than an affidavit in reply, will not be permitted.

BALANCE SHEET

  1. In financial matters, the Applicant shall not later than 28 days prior to the trial date serve upon the Respondent a joint draft balance sheet to include all assets, liabilities, superannuation interests, financial resources and property suggested to be relevant and to include values as alleged by each party and:
    1. the Respondent shall within 7 days of receipt of the draft balance sheet make any additions to the balance sheet as required to reflect contra allegations by the Respondent and any values that are agreed (if applicable);
    2. wheresoever controversy exists as to the inclusion of an item or the value of an item a footnote shall be appended to explain the controversy;
    3. upon completion of any Single expert valuation the balance sheet shall be amended to reflect determined/agreed values; and
    4. A final, settled version of the joint balance sheet shall be filed not later than 7 days prior to the trial date.

ELECTRONIC FILING

  1. All documents required to be filed and all other documents sought to be relied upon (including any court books) must be filed or provided (as applicable) in electronic format to the Court and to each other party.

SUPERANNUATION

  1. Each party seeking a superannuation splitting order binding the trustee of an eligible superannuation fund shall no later than 28 days prior to the commencement of the trial, notify the trustee in writing of the terms of the order sought and the date of the commencement of the Trial and shall provide a copy of such notification to the Trial Judge on the first day of the trial.

TENDER BUNDLE

  1. The parties have liberty to issue up to five subpoena each

    or in parenting matters

    The Independent Children’s Lawyer has liberty to issue such subpoena as they deem necessary or as is reasonably requested by the parties.

  2. Any subpoena for production issued in accordance with the Family Law Rules shall be made returnable no later than 21 days before the commencement of the Final Hearing.
  3. Not later than 4:00pm on the day that is 7 days prior to the trial, each of the Applicant and the Respondent is to prepare and serve a bundle of copies of documents not annexed to their Affidavits, arranged chronologically, paginated and indexed, proposed to be tendered at the hearing, subject to objections. 
  4. In parenting matters the parties have liberty to provide to the Family Consultant or Court Child Expert copies of the parties’ trial affidavits and any material produced under subpoena or pursuant to information sharing orders made under the Family Law Act, such material to be agreed by the parties or considered relevant by the Independent Children’s Lawyer.

OUTLINE OF CASE

  1. No later than 4:00pm on the day that is 7 days prior to the trial date, all parties are to file and serve a case outline document, of no more than 10 pages in length (or 15 pages if both property and parenting are in dispute), which shall include:
    1. a final Minute of Orders sought; 
    2. a list of the material relied upon;
    3. a bullet point statement of the issues to be determined in the proceedings;
    4. a brief chronology listing significant events that are material to the issues to be determined by the Court; 
    5. in parenting cases – a summary of contentions as to the section 60CC factors relied upon to satisfy the Court that it is the best interests of the children to make the orders sought; and
    6. in property cases – 
      1. A draft balance sheet;
      2. specification of the adjustment sought pursuant to s79(4) and a summary of contentions as to why that adjustment is appropriate
      3. specification of the adjustment sought pursuant to s75(2) and a summary of contentions as to why that adjustment is appropriate.
      4. A list of authorities, together with copies of any unreported decisions to which it is intended that reference shall be made.

STATEMENT OF AGREED FACTS

  1. Not later than 4:00pm on the day that is 2 days prior to the trial date the parties are to have conferred and thereafter forward to the Associate of the Trial judge a joint chronology in Microsoft Word format setting out all agreed facts that the parties ask the Court to take into account.

OBJECTIONS TO EVIDENCE

  1. Each party shall, not less than 4.00 pm on the day that is 7 days before the commencement of the trial:
    1. notify the other party in writing of any objection to any material in any affidavit filed by the other party;
    2. specify the paragraph or part of the paragraph objected to; and
    3. detail the grounds of the objection.
  2. The other party shall reply to the objections in writing 2 days prior to the trial date.
  3. The parties before the trial shall confer in relation to any objections and provide to the Court at the commencement of the trial a list setting out:
    1. the agreed deletions from each affidavit; and
    2. the objections to be argued on the hearing date and the ground for the objection.

TRIAL PLAN 

  1. Not later than 2 days prior to the commencement of the trial, the parties are to confer and prepare a trial plan allowing for the matter to complete within the allocated time, including oral submissions.

FAMILY VIOLENCE

  1. Each party is to advise the Court forthwith upon becoming aware of any charge or conviction of a family violence offence, any family violence order (other than an interim order) currently in place, or any injunction under ss 68B or s 114 of the Family Law Act 1975 (Cth) with respect to the parties or child or any other matter that may fall within the ambit of s 102NA and which may prohibit a self-represented party from cross-examining the other party.

NOTATION

Rule 6.17 provides that if a party does not disclose a document as required by the Rules, 

  1. the party:
    1. must not offer the document, or present evidence of its contents, at a hearing or trial without the other party's consent or the court's permission; and
    2. may be guilty of contempt for not disclosing the document; and
    3. may be ordered to pay costs; and
  2. the court may stay or dismiss all or part of the party's case.