Fragility and the FCFCOA

Fragile. It is OK to be fragile in these…wait for it…(sorry)…”unprecedented times”. But, you are not alone. Almost everyone with whom we are interacting is extremely fragile.

So, what can we do about it? To fix anything, you need to recognise that it exists in the first place. Next? Check on yourself. Am I the kind of person that likes to take advantage of other people’s fragility? Do I thrive in this environment like a voracious virus? If the answer is “yes”, this article is not for you.

For the rest of us, words of the Statler Brothers song “A little less of me” spring to mind:

What does fragility have to do with the FCFCOA? Fragility in all its forms is exposed in the FCFCOA and not just during “unprecedented times” (Sorry).

The FCFCOA sounds like an anagram for a football club or a fancy bit of blasphemy. It is the anagram for the newly amalgamated Federal Circuit and Family Court of Australia which started up on 1 September 2021 with a new set of rules –Federal Circuit and Family Court (Family Law) Rules 2021. The overarching principle of the FCFCOA is “to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.”

For those of you who are currently caught up in family court proceedings or have been in the past, the heckles of your cynicism may be rising as your experience may have been significantly different. Having practiced family law for the last 20 years, my experience generally has been that the Courts do expend enormous resources to enable parties to resolve their disputes in a just and equitable manner. It does, however, require the co-operation of the parties in dispute and where there is a significant imbalance of power between the parties, fair resolution of the dispute without judicial intervention can be far more elusive.

With respect to the division of property in family law, there is now a greater onus on the parties to attempt to resolve issues that arise in relation to the division of property prior to commencing proceedings rather than during the proceedings. Applicants must file a Genuine Steps Certificate before commencing financial proceedings, for example. See brochure: www.fcfcoa.gov.au/fl/pubs/pre-action-financial.

If parties don’t embrace this opportunity, it may simply result in a longer and more expensive Court resolution process. All negotiation that takes place is “in the shadow of the law”. In Australia, Judges retain the power to make such orders as the Court considers appropriate in circumstances where it is just and equitable to make such orders. This gives the Court considerable discretion notwithstanding the fact that the discretion must be exercised in accordance with legal principles.

In other countries, such as New Zealand, a default rule applies. There is a presumption of equal sharing of property or a “community of property” approach where property acquired during the relationship is presumed to be jointly owned but property owned before or after the relationship belongs solely to the person who acquired it.

Perhaps this approach would give negotiations greater clarity and result in the “quick, inexpensive and efficient resolution” of disputes that we all aspire to.

Unfortunately, as with these “unprecedented times”, we do not control the Rules but we do need to work with them and sometimes just being a “little kinder” and being “a little blinder to the faults of those around, thinking a little more of others and a little less of me” parties in a family law dispute can resolve their issues in a quicker, inexpensive and more efficient manner notwithstanding (or in accordance with) the prevailing Court process.

Priest Legal now have three experienced family law lawyers keen to help you resolve your family law property issues and are pleased to welcome Tim Couch to the practice.