Family Court of Australia vs Federal Circuit Court of Australia
Although this is all about to change after the Commonwealth Government passed “the Federal Circuit and Family Court of Australia Bill 2019″ to merge the two courts, here is an overview of their current roles in cases where parties are seeking an adjustment of their interests in property
After separation, it can be difficult to consider the division of the joint assets. Whilst divorce proceedings cannot be initiated until 12 months after the date of separation, you can commence property discussions immediately after separation. If parties are able to come to an agreement with respect to the division of property, this agreement can be translated into Consent Orders which are legally binding Court orders. These Consent Orders effectively tell the Court and the parties what the intentions are regarding the division and how they are going to affect this division.
If the parties are unable to come to an agreement, they may need to file in the Family Court or Federal Circuit Court for a judicial determination of your case.
What is the difference between the Family Court and the Federal Circuit Court of Australia?
Whilst both these Courts deal with issues of Family Law, the Family Court is the specialised Court where more complex matters or matters with a large property pool are dealt with. Such complex matters may include:
- Matters with numerous parties, or a party that includes a corporation;
- Matters that have complex valuations of trusts or declarations of trusts are made;
- Matters with complex corporate structures;
- Matters of significant wastage or depletion of the property;
- Matters with complex questions of law or jurisdiction; and
- Matters with complex superannuation issues such as issues with self-managed superfunds.
Recent statistics released by the Courts note that the Family Court, on average, deals with 1 in every 5 Family Law matters that have been filed. Due to the complex nature of the Court and the lesser filings, the Court is generally able to offer parties a speedier resolution. If the matter is filed in the Family Court without adequate reasons, the matter will be transferred to the Federal Circuit Court.
It is important to note that whether you file in the Family Court or the Federal Circuit Court, you will still need to file an Initiating Application, Affidavit and Financial Statement. You will also need to comply with your obligation of full and frank financial disclosure.
Is there any difference in the process?
Fundamentally, there is very little difference in the property settlement process between the two Courts. One difference is that after an Initiating Application is filed in the Family Court, you will be allocated a Case Assessment Conference with a Registrar of the Court. A Case Assessment Conference is a conference between the parties and the Registrar which provides an opportunity for the parties to reach an agreement with the help of a Registrar. In the event that no agreement can be reached, the Registrar will ascertain the issues in dispute as well as making directions on how to proceed the matter. Such issues may include:
- Issues as to disclosure of documents such as bank statements;
- Issues as to the value of the property or chattels.
Once the parties have complied with all directions of the Registrar, the matter may be referred for a Conciliation Conference or a private mediation depending on the size of the property pool and the issues in dispute. A Conciliation Conference can be sought in the Federal Circuit Court of Australia as well as long as the property have complied with all directions, the property pool is ascertained and there are no issues as to disclosure.
A Conciliation Conference is a financial mediation run by a Registrar of the Court at the Court. Conciliation Conferences allow the parties to express their concerns and reasons for seeking the orders that they have whilst allowing negotiations to occur. Conciliation Conferences have a fairly high settlement rate allowing parties to settle their matters and avoid protracted litigation. Conciliation Conferences are often given to parties whose total property pool is below $700,000 with private mediations being the best step for matters with larger property pools.
Does my matter have to go to hearing if we don’t settle at a Conciliation Conference?
Of course not. The parties can always choose to settle their matter any time during the litigation through negotiations or even multiple mediations. If the parties are unable to settle their matter and do require some determination, the other option available to the parties is Arbitration. Arbitration is often offered to the parties by the Judges when their matter is not of a complex nature and does not have an issue of public interest, such as Family Violence. Given the current delays in the Court system, Arbitration is proving to be much quicker and more cost effective than a final hearing.
What is Arbitration?
Family Arbitration involves the parties presenting their arguments and evidence to an accredited Family Arbitrator who then makes a determination by way of an ‘award’ to resolve the issues in dispute. The Arbitrator is often able to issue their award within 28 days of the arbitration concluding which is drastically quicker than the Courts which can take anywhere up to 12 months after the conclusion of a hearing. The other time factor that is beneficial is that the parties can commence an Arbitration within around 6 weeks of choosing an Arbitrator which is significantly quicker than waiting for a final hearing date which can take up to 12 months to be allotted.
Arbitration is voluntary and can be undertaken by way of an agreement between the parties or by a Court referral provided directly by the Judge. Arbitration can occur in similar conditions with cross examination of the parties or can be dealt with ‘on the papers’ meaning by way of written evidence only.
Once an award is registered with the Court, the decision takes effect as if it were a judgement of the Court.
Contact us today for a consultation with one of our solicitors regarding the Court and your entitlements.