Discrete Property List (Sydney and Brisbane)

In November 2019, the Sydney and Brisbane registries of the Federal Circuit Court implemented a new system. This system is the Discrete Property List and it is intended to fast-track simple property matters, with little delay and expense for parties.

Why the Discrete Property List?

It is well known that matters in the Federal Circuit Court of Australia experience significant delays. Most matters filed in the Brisbane Registry will not end up before a Judge or Registrar for at least three months (unless circumstances are urgent). After the first mention, matters are adjourned from anywhere between three and six months. Parties may have to wait one to two years before appearing and attending at a Final Hearing and receiving a Judgment. This can cause further stress and expenses to parties who are already facing the stress of separation.

What is the new system?

Prior to the implementation of the Discrete Property List, parties seeking financial orders would generally appear before a Judge. Judges are usually faced with a large duty list, with more than 20 matters to be dealt with in one day. The Discrete Property List will allocate simple property matters to a Registrar, as opposed to a Judge. The Registrar will then act as a ‘case manager’ with the matter generally remaining before the same Registrar until the matter is resolved or alternatively, listed for Hearing. The Discrete Property List also seeks to improve dispute resolution outcomes through case management.

The Discrete Property List only deals with Applications that are for financial orders only. It will generally not include the following matters:

• Cases where parentings orders are sought;
• Where parenting and property orders are sought together;
• Child support cases;
• Child maintenance cases; or
• Contravention applications.

In some circumstances the Registrar may refer an Application from the Discrete Property List to a Judge. This may occur where:

• Urgent interim issues, where parties are unable to resolve same by way of consent;
• Where a party has contravened the relevant rules and/or Orders; or
• Where dispute resolutions processes have been undertaken unsuccessfully.

Mediation and conciliation

On the first return date (the first court event) the Registrar will generally make Directions for Disclosure and valuations to be undertaken. However, it is important to note that even if parties have reached an agreement to attend a Mediation or Conciliation Conference, it will be unlikely that the Registrar will make any Orders for parties to attend those events at this time. A Registrar will only make such an Order if the Court is satisfied that all relevant documents relating to the parties’ financial position have been exchanged, and that all expert reports and valuations have been completed. However, parties may still attend an agreed mediation without a court order.

Once disclosure has been completed and all valuations are finalised, the court may then consider ordering a Mediation or Conciliation Conference. In most circumstances, the court will not order a Conciliation Conference, and would instead make orders that parties attend a private mediation.

If parties are seeking a Conciliation Conference, the court will take into account the property that is included in the asset pool, and the financial capacity of each party. Generally, Conciliation Conferences cost significantly less than private mediations.

Consent orders

After Mediation or Conciliation has been completed, parties may seek that orders be made by consent in chambers. This means that the Judge signs off on the orders without the need for parties to attend court.  If parties are seeking that orders be made in chambers, then they should provide the court with a joint letter certifying the following:

• That all relevant disclosure documents have been exchanged;
• That if a splitting Order is to be made in respect of Superannuation interest, that the Superannuation fund has been accorded procedural fairness;
• That an Affidavit of procedural fairness is provided;
• That all reports and Affidavits have been filed;
• That the case is ready to proceed to dispute resolution; and
• Details of the Meditation and the Mediator.

What does the new system achieve?

The Discrete Property List aims to manage property matters in a way that will reduce the current backlog and wait time in the family law system. The platform is intending to have a 90 day turnaround time, ensuring that the parties have completed disclosure and other procedural issues, and have the opportunity to either mediate or settle the matter, within three months of the initial court date.

If parties arrive at court on the first date with these requirements completed, the matter may be able to either be settled by consent or listed for Hearing within three months. This is promising for parties, and could result in lower litigation costs, and a reduction in the emotional toll of going through court proceedings.

If you require legal advice or representation in a family law matter or in any other legal matter, please contact Go To Court Lawyers.

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