Sweeping changes to the Family Court rules aim to make access to justice in family law matters quicker, easier, cheaper and less adversarial. The new rules came into effect on 29 March 2004 and are the result of extensive consultation with interest groups, the legal profession and other users of the family law process. Some of the more significant areas of reform are highlighted in this article.

Fewer forms and more user-friendly

The number of forms used in family law matters has been significantly reduced from over 80 to now only 25. The forms have been drafted in plain, clear language making them easier to understand, user-friendly and electronically compatible. Divorce applications are now filed in the Federal Magistrates’ Court (FMC) and new divorce forms and kits are available from the court’s website: www.fmc.gov.au .

Encouragement of mediation/resolution between parties

The new rules encourage parties to resolve matters through negotiation, mediation and counselling rather than immediately applying to the court for orders. The court process is to be used as a measure of last resort only. The rules outline pre-action procedures for financial matters and matters relating to children, procedures which include the use of counselling, mediation and arbitration services. If these services do not result in an agreement being reached, parties are required to provide full details of a claim including an outline of the issues in dispute, orders being sought and a genuine offer to resolve issues. A party in reply must provide similar details. Duties to disclose financial information and all relevant documentation relating to the dispute aim to ensure that the parties are fully aware of all the matters in dispute. A failure to comply with pre-action procedures may affect the costs awarded when court orders are made.

Less formality in proceedings

The new rules aim to make family court proceedings less formal and more accessible to parties. The rules express that “a party may apply for an order. . .” instead of “the court may order. . .”. This subtle drafting technique arguably gives the parties more active responsibility for proceedings and a greater sense of ownership. The rules also seek to limit the overuse of experts in court proceedings by requiring the leave of the court to call more than one expert witness. These measures seek to reduce the costs associated with family law cases.

The impact of the new family law rules will be able to be measured in the coming months. If you are concerned about any aspect of the new rules and how your family law matter may be affected, consult your solicitor.