Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Rules 2021 — Zoe

Commonwealth legislation

Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Rules 2021

In ForceCTH

Jurisdiction

Commonwealth

Collection

legislative instrument

Plain English Summary

3/10 complexity

What this instrument does

This instrument preserves certain existing fee rules and reassigns ongoing family law cases after a court structure change that took effect on 1 September 2021.

How it works, mechanically

Commencement: The instrument starts at the same time as the Federal Circuit and Family Court of Australia Act 2021 — taken to be 1 September 2021 (s 2).
Saving of pre-existing fee regulations: Fees for services that were requested before 1 September 2021 remain governed by the Federal Court and Federal Circuit Court Regulation 2012 (s 5) and the Family Law (Fees) Regulation 2012 (s 6), each as they were immediately before 1 September 2021. That is, the old rules continue to apply to those earlier requests even though the underlying Federal Circuit Court of Australia Act 1999 is repealed (see notes to ss 5–6).
Transitional reclassification of ongoing proceedings: Proceedings (or parts of proceedings) that were before the Family Court of Australia immediately before 1 September 2021 and not finally decided are treated, for the purposes of the new Act, as proceedings in the Federal Circuit and Family Court of Australia (Division 1) (s 7). Likewise, proceedings that were before the Federal Circuit Court of Australia immediately before 1 September 2021 and not finally decided are treated as proceedings in Division 2 of the new court (s 8).

Who is affected

People who requested court services before 1 September 2021: Their fee liabilities are determined under the old fee regulations in force immediately before that date (ss 5–6). Practically, this mostly affects users of federal family-court services and any persons obliged to pay those fees.

JSON API

Deep Dive

5,108 words · generated 09/06/2026

What it does

This instrument preserves certain pre‑existing fee regulations and converts ongoing family law proceedings into the new Federal Circuit and Family Court of Australia structure when the Federal Circuit and Family Court of Australia Act 2021 (the FCFCA Act) commenced on 1 September 2021. It does three mechanical things.

First, it establishes its name and commencement timing. The instrument is the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Rules 2021 (s 1), and the whole instrument is taken to commence at the same time as the FCFCA Act, namely 1 September 2021 (s 2 and the commencement table).

Second, it preserves fee regulation provisions that would otherwise be rendered inoperable by the repeal of the Federal Circuit Court of Australia Act 1999. Section 5 provides that, despite that repeal by the FCFCA CA and TP Act, the Federal Court and Federal Circuit Court Regulation 2012 as in force immediately before 1 September 2021 continues to apply in relation to a fee for a service requested under that regulation before that day (s 5). Section 6 does the same for the Family Law (Fees) Regulation 2012 (s 6). The instrument expressly records the provenance of those regulations in the accompanying notes, stating they were made under the Federal Court of Australia Act 1976, the Family Law Act 1975 and the now‑repealed Federal Circuit Court of Australia Act 1999.

Third, it fixes the legal identity of pending proceedings when the statutory court architecture changed. Section 7(2) converts proceedings that immediately before 1 September 2021 were in the Family Court of Australia and not yet determined into proceedings in the Federal Circuit and Family Court of Australia (Division 1) for the purposes of the FCFCA Act (s 7(1)-(2)). Section 8(2) makes the corresponding conversion for matters that were in the Federal Circuit Court of Australia, taking them to be proceedings in Division 2 of the Federal Circuit and Family Court of Australia (s 8(1)-(2)).

Current sections

Direct links to the current provisions in Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Rules 2021.

Official source available

Zoe has indexed the source text for search and analysis. Use the official register for the original document and download formats.

View on official register

Sourced from the Federal Register of Legislation (legislation.gov.au), CC BY 4.0.

Official rationale (as expressed by the instrument): to preserve continuity of fees and case status at the moment of the statutory repeal and reconstitution of the courts (ss 5–8). The instrument’s concrete mechanism is to “save” the old fee regulations for pre‑existing requests and to reclassify ongoing proceedings into Division 1 or Division 2 for the purposes of the new Act.
Costs, incentives and practical trade-offs:
- Who pays: Individuals whose services were requested before 1 September 2021 remain liable under the old fee rules (ss 5–6). That preserves existing fee entitlements and obligations rather than substituting new fee rules for those requests.
- Administrative burden and compliance costs: Registries and parties must determine whether a service was “requested before that day” or whether a proceeding was “immediately before 1 September 2021” in a given court (ss 5–8). That requires date-stamping and may generate additional record checks or queries from parties and their lawyers.
- Implementation risks and disputes: Because the instrument’s rules hinge on timing (actions or requests made before a single date), there is a concrete risk of disagreements about when a request or an aspect of a proceeding was made; resolving such disputes will require administrative or judicial clarification.
- Bureaucratic discretion: The instrument effects a mechanical saving and reclassification; it does not itself create new discretionary powers or new substantive rights. Any discretion will mainly arise in application (for example, how registries determine the precise timing of a request) rather than in the instrument’s text (ss 5–8).
- Effects on private enterprise and market actors: The instrument does not change market regulation or competition directly. It affects users of the courts (including businesses that use federal family law processes or lawyers acting for clients) by preserving pre-existing fee rules for certain requests and by changing the institutional location of ongoing proceedings (ss 5–8). Firms that provide legal services may need to advise clients about which fee regime applies and about the reclassification of proceedings, which carries modest compliance and advisory costs.

Main concepts

The instrument rests on a narrow set of statutory concepts and temporal gates. Those concepts and the statutory mechanics they trigger are:

Commencement coupling. The entire instrument is tied to the commencement of the FCFCA Act. The commencement table in s 2 records that the whole instrument commences at the same time as the FCFCA Act on 1 September 2021. The table entries are not part of the instrument except where they are expressly part of the instrument (s 2(2)).
Saving of regulation for specified fees. The saving provisions are confined to fees for services requested before the cut‑off date. Section 5 preserves the Federal Court and Federal Circuit Court Regulation 2012 as in force immediately before 1 September 2021, but only in relation to a fee for a service requested under that regulation before that day. Section 6 does the same for the Family Law (Fees) Regulation 2012. The operative phrase is “in relation to a fee for a service requested under that regulation before that day”, which limits the saving to fees where the relevant service request predates 1 September 2021.
Transitional classification of proceedings. Sections 7 and 8 operate on pending proceedings at the cut‑off. If, immediately before 1 September 2021, a proceeding or part of a proceeding was in the Family Court of Australia and had not been determined, the proceeding is taken, for the purposes of the FCFCA Act, to be a proceeding in the Federal Circuit and Family Court of Australia (Division 1) (s 7(1)-(2)). The mirror provision applies to cases that were in the Federal Circuit Court of Australia, converting them to Division 2 proceedings under the FCFCA Act (s 8(1)-(2)). The transitional rule applies to whole proceedings or parts of proceedings that satisfy the temporal and location condition.
Definitions and instrument of authority. The instrument defines FCFCA Act as the Federal Circuit and Family Court of Australia Act 2021 and includes instruments made under that Act (s 4). It also records the instrument’s authority under item 38 of Schedule 5 to the FCFCA (Consequential Amendments and Transitional Provisions) Act 2021 (s 3). These definitions affect interpretation within the instrument itself.
Repeal overlay. The instrument operates against the backdrop that the Federal Circuit Court of Australia Act 1999 is repealed by the FCFCA CA and TP Act on 1 September 2021, a fact expressly noted in the instrument’s explanatory notes to ss 5 and 6. Those notes identify the earlier statutory bases under which the preserved regulations were originally made.

These concepts make the instrument a narrowly targeted transitional vehicle: it does not purport to carry forward all prior regulation or to preserve substantive jurisdictional rules beyond the two stated savings and the two stated transitional conversions. The cuts are temporal and specific to (a) fee claims where the service was requested before the cut‑off and (b) proceedings ongoing in the two legacy courts immediately before the cut‑off.

Who it affects

The instrument affects a limited set of actors, with different impacts depending on the narrow categories the instrument defines.

Parties to family and federal circuit proceedings that were ongoing as at 1 September 2021. If a party’s matter, or part of it, was before the Family Court of Australia and not yet determined immediately before 1 September 2021, that matter is, for the purposes of the FCFCA Act, taken to be a proceeding in the Federal Circuit and Family Court of Australia (Division 1) (s 7(1)-(2)). If the matter was before the Federal Circuit Court of Australia and not determined, it becomes a proceeding in Division 2 (s 8(1)-(2)). That legal reclassification affects every participant in such proceedings, including litigants, counsel, solicitors, expert witnesses and court officers dealing with those files.
Persons and entities seeking or charged fees for court services where the service was requested before 1 September 2021. Section 5 preserves the Federal Court and Federal Circuit Court Regulation 2012 for fees for services requested before that date. Section 6 does the same for the Family Law (Fees) Regulation 2012. Those who requested services before 1 September 2021, and those who administer, invoice or collect fees for those services, must apply the saved regulations as they read immediately before that date.
Court administrators and registry staff. The instrument imposes a record‑keeping and administrative requirement in practice. Registries must identify whether services were requested before or after 1 September 2021 and must treat pending matters as belonging to the specified divisions under the FCFCA Act. This affects registry procedures, docket management and the application of fee rules to particular transactions.
Government legal and policy officers. The instrument was made under item 38 of Schedule 5 to the FCFCA (Consequential Amendments and Transitional Provisions) Act 2021 (s 3). Officials implementing the FCFCA Act must apply these transitional rules when operationalising the new court structures.
Lawyers and advisers. Solicitors and barristers advising clients on fees and procedural status must determine the precise date of any “service requested” to decide whether the saved fee regulations apply, and must update pleadings and court references to reflect Division 1 or Division 2 where appropriate.

Actors not directly affected include persons whose services were requested on or after 1 September 2021 and proceedings that were determined before that date. The saving clauses are explicitly temporal and limited to services requested before the cut‑off and to proceedings not yet determined as at the cut‑off (ss 5-8). The instrument’s scope does not extend beyond those narrow classes.

Key duties and rights

The instrument primarily creates rights and duties by preservation and reclassification rather than by creating fresh substantive obligations. The operative duties and rights flow from its savings and transitional provisions.

Duties

Duty to apply saved fee regulations in the defined circumstances. For any fee for a service requested under the Federal Court and Federal Circuit Court Regulation 2012 before 1 September 2021, the duty imposed on administrators, registries and other fee collectors is to apply that regulation as it was in force immediately before that date (s 5). The same duty applies for fees under the Family Law (Fees) Regulation 2012 (s 6).
Duty to treat pending proceedings as belonging to the appropriate division. Court officers, registries, and practitioners must treat proceedings that were in the Family Court of Australia immediately before 1 September 2021 and not determined as proceedings in Division 1 of the new Federal Circuit and Family Court of Australia for the FCFCA Act’s purposes (s 7(2)). Likewise, matters that were in the Federal Circuit Court of Australia and undetermined are to be treated as Division 2 proceedings (s 8(2)).
Duty to determine timing. Parties and courts must identify whether a service was requested before 1 September 2021 to determine which fee regulation applies, since the savings are triggered by the date the service was requested (ss 5-6).

Rights

Right to have fees determined under the prior regulations if the service was requested before the cut‑off. Where a service was requested before 1 September 2021, the person subject to the fee is entitled to have the fee decision governed by the pre‑existing regulation as in force immediately before that date (ss 5-6). That creates a substantive expectation of continuity for fees tied to pre‑cut‑off service requests.
Right to continuity of procedural posture for pending proceedings. Parties to proceedings that were pending immediately before 1 September 2021 have the right, for the purposes of the FCFCA Act, to be treated as ongoing within the new Federal Circuit and Family Court of Australia but in the division that corresponds to the legacy court that was handling their matter (ss 7-8).

Limitations and scope

The savings are expressly limited to fees for services requested before the cut‑off. They do not preserve other aspects of the repealed Acts beyond fee rules so far as the instrument provides (ss 5-6).
The transitional classification applies only to proceedings that were ongoing immediately before the cut‑off and not determined (ss 7(1)(b), 8(1)(b)). Determined proceedings are outside these transitional rights and duties.
The definitions in s 4 affect interpretation, notably that “FCFCA Act” includes instruments under that Act, which could influence how rights and duties under the new Act are read in conjunction with these transitional rules.

Practitioners, registries and fee administrators must therefore perform precise temporal analyses to determine which duties and rights are engaged in each case.

Penalties and enforcement

The instrument itself does not create new criminal offences or specify a new penalty regime. It is a transitional and saving instrument that operates by statutory deeming and preservation rather than by establishing enforcement mechanisms. The penality and enforcement consequences arise indirectly through the instruments and Acts that remain operative or that now govern ongoing proceedings.

Elements relevant to enforcement and potential penalties are:

No express penalties in the instrument. The text contains no penal provisions, fine schedules, or enforcement powers. It neither authorises nor prescribes sanctions for non‑compliance with the transitional rules contained in ss 5-8.
Enforcement flows from preserved regulations. Where s 5 or s 6 preserves the Federal Court and Federal Circuit Court Regulation 2012 or the Family Law (Fees) Regulation 2012 for fees requested before 1 September 2021, any enforcement or penalty regimes embedded in those preserved regulations remain relevant to the extent they apply. The instrument preserves those regulations “as in force immediately before 1 September 2021” in relation to qualifying fees (ss 5-6). Enforcement of fee obligations and penalties for contravention of those regulations would therefore continue under the terms of the preserved regulations, not under this instrument.
Jurisdictional realignment for proceedings. Sections 7 and 8 reclassify pending matters into divisions of the new court. Any enforcement powers, contempt jurisdiction, procedural sanctions, or penalty powers that the FCFCA Act confers on the Federal Circuit and Family Court of Australia, and specifically on its divisions, will apply to those matters now treated as Division 1 or Division 2 proceedings under the FCFCA Act. The instrument does not itself create these powers; it shifts the forum and thus the applicable enforcement framework to the new Act.
Administrative compliance and record‑keeping consequences. While not penal in themselves, registries and administrators who fail to apply the correct fee regulation where a service was requested before 1 September 2021 risk administrative error, fee disputes and challenges. Those consequences play out through dispute resolution procedures or appeals that exist under the relevant preserved regulations or under the FCFCA Act for proceedings shifted into the new structure.

In short, penalties and enforcement are inherited from two sources: the preserved fee regulations (ss 5-6) for qualifying fee matters and the FCFCA Act for procedural and judicial powers in proceedings reclassified under ss 7-8. This instrument performs a continuity function but does not itself prescribe enforcement mechanisms.

How it interacts with other laws

This instrument is explicitly consequential to and dependent on the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 and the FCFCA Act. The text records the statutory overlay and the provenance of preserved regulations.

Statutory authority and origin

The instrument is made under item 38 of Schedule 5 to the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (s 3). That item supplies the legislative power to make these consequential and transitional rules.
The instrument defines “FCFCA Act” to mean the Federal Circuit and Family Court of Australia Act 2021 and to include instruments made under that Act (s 4). This definition ties the instrument to the new Act and makes it part of the programme of statutory transition.

Interaction with repealed Acts and preserved regulations

The instrument operates against the repeal of the Federal Circuit Court of Australia Act 1999 by the FCFCA CA and TP Act, a repeal that occurs on 1 September 2021 as recorded in the instrument’s notes to ss 5 and 6. The instrument therefore functions to preserve regulatory effect where necessary despite that repeal.
Sections 5 and 6 preserve, for a limited purpose, regulations that were made under earlier Acts. Section 5 preserves the Federal Court and Federal Circuit Court Regulation 2012 as it stood immediately before 1 September 2021, noting the regulation was made under the Federal Court of Australia Act 1976 and the Federal Circuit Court of Australia Act 1999. Section 6 preserves the Family Law (Fees) Regulation 2012, noting that it was made under the Family Law Act 1975 and the Federal Circuit Court of Australia Act 1999. Those notes identify the statutory instruments’ original legal bases; the savings operate notwithstanding the repeal of the 1999 Act.
The instrument’s savings are narrowly framed. It does not purport to preserve the substantive jurisdictional or procedural provisions of the repealed Acts beyond the specified fee regulations; nor does it preserve the entire regulatory environment. The operation of other laws, including the FCFCA Act and instruments made under it, therefore takes precedence for matters outside the narrow savings in ss 5-6 and outside the transitional classifications in ss 7-8.

Effect on pending proceedings and subsequent application of FCFCA Act provisions

Sections 7 and 8 transfer the identity of pending proceedings into the new court structure for the purposes of the FCFCA Act. This means that provisions of the FCFCA Act that apply to Division 1 or Division 2 proceedings will govern those matters from 1 September 2021 onwards. The instrument does not itself specify which procedural or substantive provisions of the FCFCA Act apply, it simply effects the reclassification (ss 7-8).
Where preserved regulations impose procedural requirements or fee entitlements, those will continue to interact with the FCFCA Act. For example, fee questions that arise from services requested before 1 September 2021 must be decided by reference to the preserved regulations as in force before the cut‑off, while the ongoing conduct of proceedings will be shaped by the FCFCA Act once the matters are reclassified (ss 5-8).

Other interpretive caveats

The instrument’s commencement table includes a note that any information in column 3 of the table is not part of the instrument and may be edited in published versions (s 2(2)). Users should therefore rely on the instrument text itself and the explicit sections rather than on ancillary table notes in published copies.

Overall, the instrument serves as a narrow bridge between the repealed statutory framework and the new FCFCA Act, preserving fee regulation effect for specific transactions and relocating pending matters into the appropriate new division without purporting to preserve wider elements of the old regime.

Amendment history

The instrument contains its original making date and commencement mechanics, and it records that the table entry relates only to the instrument as originally made. The points the text provides about amendment history are minimal and declarative.

Date made. The instrument is dated 3 August 2021 and bears the signature of the Attorney‑General, Michaelia Cash, as the officer making the rules. The instrument’s header and closing formalities record this date and signatory.
Commencement. The instrument commenced at the same time as the Federal Circuit and Family Court of Australia Act 2021, which the commencement table records as 1 September 2021 (s 2 and the commencement table). The instrument records that the commencement table relates only to provisions as originally made and will not be amended to deal with later amendments of the instrument.
No amendments noted in the instrument. The instrument itself contains no amendment provisions and no record of subsequent amendments. The commencement table contains a statutory note that any information in column 3 is not part of the instrument and may be edited in published versions (s 2(2)). That note indicates the instrument as printed may include editorial material that is not part of the legislative text.
Authority for making. The instrument states it is made under item 38 of Schedule 5 to the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (s 3). Any future amendments to the instrument would need to be effected under the correct legislative power and, if amended, the instrument would carry appropriate amendment history in official records.

Practical implications for users consulting amendment history

If a reader needs to know whether the instrument has been amended since it was made on 3 August 2021, the instrument itself contains no amendment record. Users must consult the official legislative database or government gazette for any amending instruments or later versions. The instrument’s internal note that the commencement table relates only to the instrument as originally made (s 2) is the only self‑contained record indicating the text on its face is the original text.
The narrowness of the instrument reduces the likely need for amendment, because it performs two discrete saving and transitional functions tied to a single commencement date. Nevertheless, any later policy or operational changes to fees or to further transitional detail would be expected to appear in subsequent instruments or legislative amendments external to this instrument.

Litigation history

The instrument itself contains no litigation references. It does not cite cases, decisions or judicial interpretations. The text is purely statutory and transitional. The only material relevant to litigation from the instrument is procedural and temporal: it changes the forum label for pending proceedings and preserves certain fee regulations.

What the instrument records on litigation‑related points

No cases named. The instrument does not name any judicial decisions or report any litigation concerning its operation. There are no references to case law, no interpretive commentary from courts, and no schedule of legal challenges recorded in the text.
Procedural consequence for existing litigation. The principal litigation‑related effect is statutory: matters pending in the Family Court of Australia that were not determined before 1 September 2021 are, for the purposes of the FCFCA Act, treated as proceedings in Division 1 of the Federal Circuit and Family Court of Australia (s 7(1)-(2)). Matters pending in the Federal Circuit Court of Australia are treated as Division 2 proceedings (s 8(1)-(2)). This reclassification changes the statutory label attached to pending litigation; any litigation involving interpretation of the FCFCA Act’s division‑specific provisions may therefore involve matters that were originally commenced in the legacy courts.
Potential for future litigation. The instrument’s practical operation could give rise to disputes about whether particular services were “requested” before 1 September 2021 for the purposes of the fee savings in ss 5 and 6, or whether parts of proceedings were in a particular court immediately before 1 September 2021 for the purposes of ss 7 and 8. Such disputes are foreseeable given the temporal cut‑offs, but the instrument itself contains no litigation history.

Guidance for practitioners seeking litigation records

To locate any judicial consideration of the instrument’s operation, practitioners must search case law databases and court judgments for references to the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Rules 2021 or to disputes hinging on the date‑of‑service or the transitional classification into Division 1 or Division 2. The instrument provides no internal litigation history.

Gotchas

The instrument is compact but introduces several concrete practical pitfalls and points of uncertainty that practitioners and administrators should watch for. These are drawn from the instrument’s narrow formulations and from the textual notes attached to certain provisions.

The saving applies to fees for services requested, not to fees where work was performed. Sections 5 and 6 preserve the two regulations “in relation to a fee for a service requested under that regulation before that day.” The operative trigger is the date the service was requested. Parties and registries therefore must establish the exact date of the request. Disputes may arise where a request was made shortly before the cut‑off but the service was delivered after it.
“Requested” is not defined in this instrument. The instrument does not define how to determine when a service is “requested.” That leaves room for conflicting interpretations between registries, fee payers and courts about the documentary or factual proof required to show a request date was before 1 September 2021. The lack of a statutory definition increases the risk of fee disputes.
The preserved regulations apply “as in force immediately before 1 September 2021.” Any amendments to those regulations that took effect on or before that date are preserved; later amendments are not. Practitioners must consult the precise historical version of each regulation as it stood immediately before 1 September 2021 to compute applicable fees (ss 5-6).
Repeal of the 1999 Act does not disadvantage the note about provenance. The instrument’s notes record that the preserved regulations were made under Acts that included the Federal Circuit Court of Australia Act 1999, but that Act was repealed on 1 September 2021. While the notes identify the origin of the regulations, they do not themselves preserve the 1999 Act beyond the narrow fee application (notes to ss 5-6). Users should not assume broader provisions of the old Acts remain operative.
Parts of proceedings may be bifurcated for the transitional rule. Sections 7 and 8 apply if “the proceeding, or part of the proceeding, was in the Family Court of Australia” or in the Federal Circuit Court of Australia immediately before 1 September 2021 and the proceeding had not been determined (ss 7(1)(a)-(b), 8(1)(a)-(b)). This raises practical questions where different parts of a litigation were in different registries or where matters were transferred shortly before the cut‑off. Determining the precise locus of a “part” of a proceeding will affect whether the transitional classification applies.
Administrative records must be accurate and date‑stamped. Registries and practitioners must rely on contemporaneous records to prove when services were requested and where parts of proceedings were situated immediately before 1 September 2021. Missing, inconsistent or informal records will complicate application of the savings and transitional rules.
The commencement table’s editorial material is not law. Section 2(2) warns that any information in column 3 of the commencement table is not part of the instrument and may be edited in published versions. Users should not rely on column 3 material in published tables as legal text.
The instrument does not address interactions beyond the preserved regulations and reclassification. There may be gaps where fees, costs or procedural rules changed under the FCFCA Act but the instrument preserves only certain fee regulations. Practitioners must analyse whether any particular procedural or cost entitlement is handled by the preserved regulations or by the new Act.
No express mechanism for disputes about the application of the savings. The instrument does not set out a dispute resolution route for contested questions about whether a fee was governed by the saved regulation or whether a part of a proceeding meets the transitional criteria. Those disputes will be resolved under the general jurisdictional and procedural framework applied by courts and under any appeal or review mechanisms in the preserved or new instruments.
Narrow scope means other fee or procedural changes apply from 1 September 2021. The instrumental savings are limited. If an invoice or fee claim arises from a service requested on or after 1 September 2021 the preserved regulations will not apply. Practitioners must therefore check the cut‑off carefully to determine which regime applies.

These are not speculative policy critiques. Each arises from the instrument’s specific wording, the absence of definitions for key temporal terms and the limited scope of the savings and transitional provisions (ss 2, 5-8; notes).

How to comply

Compliance is a matter of precise temporal identification, record verification and updating procedural references. The instrument’s narrow scope focuses compliance obligations on two categories: fee matters where the service was requested before 1 September 2021, and pending proceedings that require reclassification into Division 1 or Division 2 of the new court.

Practical steps

Audit service request dates and file records. For each fee that might be impacted, identify the date the service was requested and retain documentary proof such as signed instructions, email requests, lodgement receipts, or other contemporaneous records. The saving provisions in ss 5 and 6 trigger on the date the service was requested; absent clear records disputes may arise.
Consult the preserved historical regulations. Where a service was requested before 1 September 2021, consult the Federal Court and Federal Circuit Court Regulation 2012 and the Family Law (Fees) Regulation 2012 as each was in force immediately before 1 September 2021 to determine applicable fees and any exemptions or concessions embedded in those instruments (ss 5-6). Ensure you are looking at the correct historical versions.
Distinguish requests from performance dates. Be careful to differentiate between the date a service was requested and the date it was performed or invoiced. The instrument preserves regulation only where the request date precedes 1 September 2021. Record both dates clearly in files.
Reclassify proceedings in court communications and filings. For any proceeding that was in the Family Court of Australia and undetermined immediately before 1 September 2021, update client correspondence, court forms and internal records to reflect that, for FCFCA Act purposes, it is a Division 1 proceeding (s 7(2)). For matters from the Federal Circuit Court of Australia that were undetermined, classify them as Division 2 proceedings (s 8(2)). Ensure that citations in subsequent filings reference the new court name and relevant division as required.
Check registry procedures and local practice directions. Contact the relevant registry to confirm how they expect filings and fees to be presented under the transitional framework. Registries will have to apply different fee regulations depending on whether the service was requested before the cut‑off and will have local procedures for how they will record and process matters now under Division 1 or Division 2.
Preserve file documentation for potential disputes. Retain all material that evidences when services were requested and the court status immediately before 1 September 2021. This includes transfer orders, notices of motion, lodgement receipts and correspondence. Those documents will be material if questions arise about which regulation applies or whether the transitional classification is engaged.
Review retainer and billing practices. If you are a legal practice that rendered services bridging the 1 September 2021 cut‑off, ensure client retainer agreements and billing entries clearly reflect the date a service was requested and whether the old fee regime applies to a particular line item. This will reduce later disputes about fee law application.
Monitor instruments under the FCFCA Act. The instrument defines “FCFCA Act” to include instruments made under that Act (s 4). Keep an eye on any regulations, rules or practice directions issued under the FCFCA Act that might affect procedure, fees or enforcement for matters now treated as Division 1 or Division 2 matters.
Seek clarification from courts if necessary. Where there is genuine ambiguity about whether a “part” of a proceeding was before a legacy court immediately before 1 September 2021, or where there is ambiguity about whether a service was requested before that date, consider seeking a judicial or registry determination. The instrument does not provide an internal dispute mechanism for these questions.
Update templates and precedents. Amend court forms, precedents and internal guidance to reflect the new division labels for pending matters and to incorporate steps for checking the date of service requests when preparing fee invoices linked to court services.

Checklist items to include on each affected file

Date(s) of any request for court service.
Documentary evidence of the request (email, form, receipt).
Which regulation applies and the version date (identify the pre‑1 September 2021 text where relevant).
Whether the proceeding or a part of it was in the Family Court of Australia or the Federal Circuit Court of Australia immediately before 1 September 2021.
Updated court heading and division reference for ongoing filings.
Registry confirmations or directions where obtained.

Following these steps will align practice with the instrument’s saving and transitional mechanics as set out in ss 2, 4-8. The central practical task is temporal precision: establish whether the relevant request or proceeding occurred before the statutory cut‑off and then apply either the preserved regulatory text or the new FCFCA Act framework as the instrument dictates.