The Major Complex Financial Proceedings List – Federal Circuit and Family Court of Australia
On 1 October 2021, the Federal Circuit and Family Court of Australia (“FCFCOA”) launched the Major Complex Financial Proceedings (“MCFP”) List. The List will operate as a pilot program in the Melbourne, Sydney, and Brisbane registries, or if appropriate to be managed electronically, a MCFP List Case in any other registry of the Court.
This list will case manage complex property pools with a net asset pool of $20 million or more. It is one of many new initiatives aimed at improving case management in the family law system.
The List falls under the ‘Family Law Practice Direction – Major Complex Financial Proceedings List’ (“FAM-MCFP”).
Why a new List?
The purpose of the MCFP List is to ensure the timely and efficient resolution of MCFP List Cases, at a reasonable and proportionate cost to the parties in all the circumstances. Chief Justice Alstergren has stated that:
“The Court acknowledges that matters that involve high net property pools and include complex financial or commercial issues have often required numerous court events and generated significant costs to the parties”
Without effective case management, it has been found that family law cases involving complicated commercial issues can require the additional and sometimes unnecessary allocation of significant Court resources in dealing with ongoing interim and protracted disputes. These may include disputes about disclosure or discovery, the management of technical or complex expert evidence and disputes concerning interests in trusts or other corporate structures.
The aim of the new list is to ensure that the Court’s resources are used efficiently to ensure other urgent and priority cases are being heard in a timely manner.
Determining eligibility for the list
Matters which qualify for this List will have it applied to any Initiating Application (Family Law) seeking financial orders pursuant to the Family Law Act 1975 (Cth). In order to qualify as a MCFP List Case, an application must satisfy the following criteria:
involve a contested net asset pool of $20 million or more; and
Involve a complex disputed issue such as:
serious allegations of non-disclosure;
serious disputes in relation to valuations or other expert reports;
substantial assets held through a trust/corporate entity or offshore;
substantial third-party claims to the asset pool;
serious allegations of fraud; or
other complex questions of law or novel points of law; and
Not involve a parenting dispute, or if it does, the parenting dispute can be considered and determined separately at a discrete hearing, or referred to Dispute Resolution, such as a Parenting Dispute Resolution Conference
Transfer to the List
That matter can be included in the MCFP list at any stage after the First Court Event, or the Court itself may determine the matter should be transferred.
If the matter is assessed to be eligible for the MCFP List, it will be transferred to Division 1 of the FCFCOA.
Prior to the MCFP List First Return Date, parties will be expected to have agreed upon a suitable form of Dispute Resolution and have made a reasonable and genuine attempt to resolve interim issues by negotiation or private mediation.
At a MCFP List First Return Date, parties shall bring:
a jointly prepared timetable for the progression of the matter; and
proposed orders for the finalisation of any outstanding disclosure issues and the preparation of any necessary valuations or expert reports
Proceedings in the MCFP List will be strictly managed in accordance with a timetable set by the Court and the ‘Central Practice Direction – Family Law Case Management’, modified as necessary to address the particular needs of each case.
Through strict timetabling, early dispute resolution, and intensive case management, it is hoped that this initiative will save resources for litigants and the Court. For more information, parties should visit www.fcfcoa.gov.au.