As the dust starts to settle on the May 6 changes, we are taking a look at some of the other changes that have been less publicised
The Central Practice Direction
There are several significant changes that have been made which will significantly affect the way you practice:
- Parties can now only file 1 Application in a Proceeding without leave of the Court.
- The inclusion of the “Defaulters List”, where the Court can refer a matter at any stage in proceedings if a party has defaulted from their obligations in the CPD. Matter in this list will be determined pursuant to rule 10.27 of the FCFCOA Rules.
- The CPD has been amended at 6.20 to confirm the requirement for 1 consolidated and updated affidavit from a party and 6.21 has been added reiterating the power of the Court to require party’s to nominate 1 affidavit to be read where they have failed to file a consolidated affidavit.
- There is a new Prescribed Compliance Readiness Certificate which is to be affirmed and filed prior to the matter’s Compliance Readiness Hearing. In the amended form parties are required to identify not only the issue in dispute but the finding of fact that the Court would need to make in respect to that issue in dispute.
- The Standard Trial Directions are more comprehensive and have relocated to Schedule B, including an amended timeframe for the filing of material
- Parties attending Private Dispute Resolution have been provided a simplified list of documents required to be provided to mediator at 6.34, however parties can no longer opt out of exchanging such documents by Consent.
- The participation in Lighthouse Triage and Assessment process has been reviewed for only those parties considered to be “eligible” ad pursuant to the existing Practice Direction – Evatt List.
- The requirements for Fast Track hearing has been amended, including the reduction in the length of the affidavit to not more than 20 pages with annexures or not more than 50 pages and written submissions of not more than 5 pages.
The Core Principles, previously embedded at Part 3 of the CPD have been revamped in Annexure A and a summary provided at Part 3. The move to Annexure A has not come without changes though:
- Core Principle 1 has been amended to provide parties with a positive obligation to inform the Court of any changes to issues of risk, including amendments to family violence orders
- Core Principle 3 and 9 have been amended to require parties to provide to the Court, as requested by the Court, the issues for determination and the findings of fact required for those issues to be determined.
- Core Principle 7(b) has been included which requires practitioners to be able to explain to their client, and the Court, where their estimate of likely costs has been substantially exceeded.
Family Law Amendment (Information Sharing) Act 2023
Section 69ZW has been replaced by sections 67ZBD and 67ZBE with a renewed emphasis on the Court not requiring an agency to produce information or material that is protected material.
Section 67ZBD gives the Court the ability to request information not documents, however an agency may still to produce material in response to section 67ZBD Order should they elect to do so. Section 67ZBE provides the Court the ability to request an agency produce material itself.
Both new sections also broaden the scope of what can be requested beyond information or documents related to notifications, assessments, or reports of the agency.
Finaly s.67ZBK codifies the requirement for leave of the Court in the event a party wishes to subpoena an Agency after a section 67ZBD and/or 67ZBE Order has been made.
What is protected material
Protected material, which is defined under s.67ZBF includes disclosure that is:
- privileged;
- would enable a person to identify the notifier;
- would endanger a person’s life;
- would prejudice legal proceedings;
- would contravene a Court Order or Law; and
- would be contrary to the public interest.
Family Law Practice Direction: Parenting Proceedings
When filing on an urgent basis parties must now file, in addition to their Affidavit and Application/Response, a copy of the most recent family violence order if there is one and, if not previously filed, a Notice of Child Abuse, Family Violence or Risk. The Court can also make Orders in Chambers requiring the filing and service of additionaldocuments
The requirement for disclosure in respect to Family Violence, which is also included in the CPD continues to demonstrate the Court’s commitment to ensuring that risk issues are at the forefront of consideration when determining what is in a child’s best interest.
Family Law Practice Direction: Property Proceedings
The focus of the 2023 Amendment Bill was more on parenting however we have still seen minor amendments to the Property Proceedings practice direction in particular in the simplifying the filing requirements for urgent proceedings.
Parties are also required to file with any Initiating Application a copy of any current family violence order.
Family Law Practice Direction: Critical Incident List
Perhaps one of the most significant amendments has come in the Critical Incident with the inclusion of 1 word “urgent”.
This amendment means that an Applicant looking to list in the Critical Incident List must not only meet the existing requirements, but they now must show that the matter requires the urgent attention of the Court.
What are we doing at FLENA to support you
Keep an eye out for the amended precedents available through our PMS Integration Systems, Smokeball and Smarter Drafter.
