If you are in a family law battle, deciding whether to take the matter to court or not requires careful consideration.
Litigating in the Federal Circuit and Family Court of Australia should only be considered as a last resort. It is beneficial to settle outside of court wherever possible as it can be financially and emotionally draining.
Nevertheless, there are circumstances where litigating at court becomes necessary. This article explains the court proceedings in general terms, so that you can have a better understanding on what to expect.
It is important to note that and there are opportunities at every stage to negotiate and settle.
Parties will have to engage in pre-action procedures prior to filing at court. The pre-action procedures are designed to encourage parties to take genuine steps to resolve their disputes. For instance, parties will need to exchange financial disclosures, participate in family dispute resolution and provide written notice of their intention to commence proceedings.
There are exemptions that apply, such as if the application is urgent, there is a family violence intervention order in place, or if a previous family law application has been filed in the last 12 months.
If parties are still unable to resolve their dispute, then an application in the Court can be brought.
First Court Event and Directions Hearing
Unless deemed urgent, the first court date usually takes place between 1-2 months from the date of filing. The first court event is a procedural hearing where the Judicial Registrar will make orders and directions on how the matter should proceed and the steps that parties will need to take.
The further directions hearing may also take place. This is also a procedural hearing with the purpose of making orders or directions about a matter, not to hear the substantial facts of the case.
For example, the Judicial Registrar may make an order that a valuation report be conducted, that expert reports be gathered, disclosures be exchanged, to attend mediation, to complete a parenting program, to attend an event with a Court Child Expert, or determine if an interim hearing is required.
It is likely that many other cases will be listed on the same day. Your matter may be “stood down” for a few hours for discussions to take place with the other side or adjourned to another day.
Interim or Interlocutory Hearing
An interim hearing can be scheduled if interim orders in addition to final orders are being sought, or if issues in dispute need to be determined on an interim basis. For example, an increase in time with the child, or for a property to be sold. Each party has only two chances to file for interim orders.
A Senior Judicial Registrar or a Judge will look at the materials filed by each party, and hear both parties’ submissions and make a decision. Only interim issues in dispute will be considered, and there generally will not be any cross examination of the parties.
Once an interim order is granted, it will be in place until the matter is finally settled.
The court may direct the parties to engage in a conciliation conference or privately funded mediation. This provides the parties with the chance to negotiate and reach an agreement, or to narrow the issues in dispute with the assistance of the Judicial Registrar, mediator or legal representative.
If an agreement is reached, then consent orders can be made, and the matter finalised.
If an agreement cannot be reached, then the Court will make further procedural directions to prepare for the final hearing. For instance, it may be the case that an updated valuation report of the property will need to be obtained.
The court may direct the parties to engage in a child dispute resolution conference. This is where the parties meet with a Court Child Expert to discuss the issues and reach an agreement. A report will be prepared summarising any issues in dispute as well as make recommendations on how the matter should proceed. For example, the Court Child Expert may recommend that an Independent Children’s Lawyer be appointed to represent the child and their interest if there are welfare concerns.
For parenting matters, before it proceeds to a final hearing, a Family Consultant Report will need to be done. This is where the parties and the children (depending on their age) are interviewed by a Family Consultant or a psychiatrist. A report is then prepared, with recommendations on the final orders the Judge should make.
Compliance and Readiness Hearing
If dispute resolution has not been successful, then a compliance and readiness hearing will be conducted to ensure that the parties have complied with all directions and orders so that the matter is ready to proceed to a final hearing before a Judge.
The final hearing is where each party presents their case before the Judge. Only 3% of cases proceed to a final hearing. For the cases that do proceed to a final hearing, a few years will likely have passed since the application was first brought before the court. A final hearing can be listed for 1-5 days depending on the complexity of the matter.
At the final hearing, each party will give an opening address, give evidence, and present their submissions to the court. Witnesses may be presented, and parties may be cross-examined. The judge generally will not make a decision on the day and will usually take approximately three months to make a final decision.
We assist our clients to settle out of court wherever possible. However, when litigation is required, our experienced family lawyers will fiercely advocate for you. Talk to us today for a FREE 15-minute family law consultation by calling 1300 111 835 or via email at email@example.com we look forward to helping you achieve a better outcome