1.1 This Practice Direction establishes the pilot of a Major Complex Financial Proceedings List (MCFP List) which applies to any Initiating Application (Family Law) seeking financial orders pursuant to the Family Law Act 1975 (Cth) (Family Law Act) that is a Major Complex Financial Proceedings List case (MCFP List Case). The pilot of the MCFP List commences on 1 October 2021.
1.2 This Practice Direction applies to any MCFP List Case in the Melbourne, Sydney or Brisbane registry of the Federal Circuit and Family Court of Australia (Court), or if appropriate to be managed electronically, a MCFP List Case in any other registry of the Court.
1.3 It is to be read together with:
- the Family Law Act;
- the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act);
- the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Family Law Rules), where applicable;
- Central Practice Direction – Family Law Case Management;
- Family Law Practice Direction – Financial proceedings;
- Family Law Practice Direction – Corporations Act proceedings; and
- Family Law Practice Direction – Arbitration.
1.4 This Practice Direction applies to all proceedings commenced on or after 1 September 2021, and also applies to all proceedings commenced prior to 1 September 2021, unless unfair or impractical to do so, at the Court’s discretion.
1.5 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, having regard to the power of the Court to dispense with compliance with the Family Law Rules.
2.1 The purpose of the MCFP List is to:
- achieve a just, efficient and timely resolution of MCFP List Cases, at a reasonable and proportionate cost to the parties in all the circumstances; and
- ensure the efficient use of the judicial and administrative resources available for the purposes of the Court, in accordance with the overarching principles as outlined in the Central Practice Direction – Family Law Case Management.
2.2 The purpose will be achieved by:
- identifying and narrowing the issues in dispute, including through the requirement, where appropriate, for pleadings, strict timetabling for the finalisation of disclosure, valuations and any other expert evidence;
- ordering Dispute Resolution to occur at the earliest appropriate opportunity; and
- where Dispute Resolution is unsuccessful, intensive case management to ensure proceedings are ready for final hearing as soon as practicable.
3. Requirements for a MCFP list case
3.1 In order to be considered as a MCFP List Case and be included in the MCFP List, an application should satisfy the following criteria:
- involve a contested net asset pool of $20 million or more; and
- involve a complex disputed issue such as:
- serious allegations of non-disclosure;
- serious disputes in relation to valuations or other expert reports;
- substantial assets held through a trust/corporate entity or offshore;
- substantial third-party claims to the asset pool;
- serious allegations of fraud; or
- other complex questions of law or novel points of law; and
- not involve a parenting dispute, or if it does, the parenting dispute can be considered and determined separately at a discrete hearing, or referred to Dispute Resolution, such as a Parenting Dispute Resolution Conference.
4. Inclusion in the MCFP List
4.1 A party or parties may apply to be included in the MCFP List at any time after the First Court Event, by emailing the National Assessment Team (the NAT) via NAT@fcfcoa.gov.au. Parties should provide:
- the file number and file name for the proceeding; and
- an explanation of how the proceeding meets the criteria for inclusion in the MCFP List.
4.2 If the case is assessed by the Court as suitable for the MCFP List, the matter will be administratively transferred to Division 1 of the Court, pursuant to section 51 or section 149 of the FCFCOA Act. The parties will receive a return date in the MCFP List before a Judge or Senior Judicial Registrar (MCFP List First Return Date).
4.3 If the matter is assessed as not meeting the criteria for the MCFP List, the parties will be notified by the NAT and the matter will remain listed for the next court event in the usual course.
4.4 The Court may also include a matter in the MCFP List at any time on the Court’s own initiative.
5. Operation of the list
5.1 Parties are required to bring the following documents to the MCFP List First Return Date:
- a jointly prepared timetable for the progression of the matter; and
- proposed orders for the finalisation of any outstanding disclosure issues and the preparation of any necessary valuations or expert reports.
5.2 If appropriate, the Court may consider appointing an Assessor pursuant to rule 7.34 of the Family Law Rules.
5.3 Prior to the MCFP List First Return Date, parties will be expected to have:
- agreed upon a suitable form of Dispute Resolution, including whether the matter or part of the matter is suitable for arbitration; and
- made a reasonable and genuine attempt to resolve interim issues by negotiation or private mediation, as required by rule 4.03 of the Family Law Rules.
5.4 If an interim hearing is required, the proceedings will be strictly managed in accordance with a timetable set by the Court.
5.5 Parties can expect that the Court will impose limits on the number and length of documents that may be relied upon, including the limits imposed by rule 5.08 of the Family Law Rules in relation to affidavits.
5.6 In accordance with rule 5.09 of the Family Law Rules, the hearing of an application for interlocutory orders must be no longer than 2 hours, and cross-examination will not be allowed unless there are exceptional circumstances.
5.7 Proceedings in the MCFP List will be strictly managed in accordance with:
- a timetable set by the Court, and
- Central Practice Direction – Family Law Case Management, modified as necessary to address the particular needs of each case.
6.1 Parties should also consult the Court’s website at www.fcfcoa.gov.au for further information about financial proceedings.
The Honourable Justice William Alstergren
Chief Justice (Division 1) | Chief Judge (Division 2)
Federal Circuit and Family Court of Australia
Issued: 30 September 2021