Congratulations to Judge Steven Middleton and Judge Sandra Taglieri on their appointments to the Federal Circuit and Family Court of Australia (FCFCOA) — Family Court (Division 1), and to Ms Tracy Flintoff on her appointment to FCFCOA (Division 2). Judge Middleton and Judge Taglieri were previously Division 2 judges, and Ms Flintoff was previously a Senior Judicial Registrar.
These appointments across different divisions have prompted a simple question many separating families (and even practitioners) ask: what is the difference between the two “branches” of the FCFCOA — Division 1 and Division 2 — and why does it matter? While many people refer to “the Family Court” as if it is a single court, the FCFCOA family law system is structured into two divisions that work together, with different roles particularly when it comes to case complexity, hearing length, and appeals.
Division 2: where most family law cases are dealt with
For most families, FCFCOA (Division 2) is where their case will start — and where it will usually stay. In practice, the majority of parenting and property matters are managed and finalised in Division 2.
A key practical point is that final hearings in Division 2 are generally capped at 4 days. This affects what kinds of cases are suitable to be finally determined there, particularly where a matter requires extensive oral evidence.
Division 1: more complex matters, more experienced judges, and appeals
FCFCOA (Division 1), is more likely to deal with the most difficult and complex family law matters. Division 1 is also generally regarded as having more experienced and senior judges, and a move from Division 2 to Division 1 is commonly viewed as a promotion for a Judge. For parties, the key benefit is that cases which are too complex or time-consuming for a shorter final hearing can be managed and determined in a division designed to accommodate that level of complexity, including through its appeal work.
Examples of matters more likely to be allocated to Division 1
- Appeal matters, including appeals from decisions made by judges in Division 2 (for example, where a party says the Division 2 judge made a legal error or reached a decision that should be set aside or changed).
- Complex Financial List matters, such as property proceedings involving an asset pool over $20 million.
- Cases with a large quantity of witnesses, where the evidence cannot realistically be heard within the Division 2 four-day hearing cap.
Differences in Rules
Both Divisions are governed by the Federal Circuit and Family Court of Australai Rules 2021. However each division has some rules which are slightly different, the rule differences are largely practical elements.
- Costs (if awarded): there are differences in the scale of costs that may apply depending on whether the matter is in Division 1 or Division 2.
- Interim hearings: there are differences affecting the length of affidavit material that may be filed and relied upon in interim applications.
Freedman & Gopalan Solicitors is experienced in running matters in both Division 1 and Division 2. Whichever division a case proceeds in, parties can expect their matter to be dealt with within a skilled judicial system designed to determine family law disputes fairly and according to law.