Two recent Full Court cases highlight the practical implications of the 2021 court merger for family law cases.
In September 2021, the Federal Circuit Court of Australia merged with the Family Court of Australia and became the Federal Circuit and Family Court of Australia (FCFCOA). This new court structure was divided into two distinct divisions. Division 1 handles more complex family law cases (both parenting and property) and appeals, while Division 2 is responsible for first instance decisions in straightforward family law matters.
One significant change brought about by this merger was the mandatory requirement for all family law and child support proceedings to commence in Division 2 of the FCFCOA. This change was introduced to streamline family law cases via a single-entry point to allow for a more efficient allocation of judicial resources and faster resolution of cases.
The recent cases of Vang & Chung1 and Gilford & Cavaco2 demonstrate the practical implications of this requirement. In Vang & Chung, the court reaffirmed that Division 1 retains jurisdiction over legacy cases that were started before the new structure's initiation, but emphasised that new applications in existing proceedings, for example for spousal maintenance, must start in Division 2 and be transferred if necessary (even if the principal proceeding had already been transferred to Division 1).
Similarly, in Gilford & Cavaco, the court examined the filing of a spousal maintenance application. The majority of judges hearing the case reiterated that such applications must originate in Division 2, consistent with the single-entry point for new applications. The dissenting judge, however, considered that this requirement should not apply to interlocutory applications or amendments that add causes of action to pending proceedings in Division 1.
These cases highlight the legislative intent behind the single-entry point system but suggest that there is still complexity and procedural confusion for litigants, and that opinions can differ among judges.
Lander & Rogers' team of experienced family lawyers can assist you to navigate the jurisdictional issues arising from the creation of the FCFCOA, in both first instance cases and in appeals.
1 (No 3) [2024] FedCFamC1A 199
2 [2024] FedCFamC1A 55
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