If you’re going through a difficult family matter, whether it be divorce, separation or child custody matter, obtaining advice from a family lawyer is vital. The earlier you make contact with a family law firm, the better. Without a clear understanding of your legal options, it is almost impossible to embark on meaningful negotiations to try and resolve issues.
If you are unable to reach an agreement, court procedures are likely to commence. There are many rules in place regarding the family law court process, and if you are considering taking that path, it should only be entered with legal representation.
A Guide To Family Court Proceedings
Set out below is a brief outline of the events that occur once a matter is before the Court.
- Interim Hearing
- Case Assessment Conference
- Conciliation Conference
- Pre-Hearing Conference
- Independent Children’s Lawyer
- Final Hearing
- Consent Orders
- Financial Agreements
An Application can be filed in the Family Court or the Federal Circuit Court. Applications for property settlement proceed to a Case Assessment Conference and then to a Conciliation Conference and then (possibly) to a Final Hearing.
Applications for parenting and children’s arrangements proceed to an Interim Hearing and (possibly) then to a Final Hearing. At any stage of the Court process the parties are able to reach agreement. If an agreement is reached the parties should file it with the court as “Consent Orders”.
An Application can either seek Interim Orders and Final Orders or just Final Orders. There is a filing fee payable to the Court when filing an Application, or a Response. If Interim Orders are sought an Affidavit needs to be filed with the Application.
Interim Hearings usually relate to urgent issues and are intended to be of a short-term nature, i.e until the Court has an opportunity to conduct a Final Hearing. Interim Hearings are based on Affidavits and do not provide (usually) for oral evidence.
Examples of matters that are considered at an Interim Hearing include:
- Children’s living arrangements;
- Occupation of the matrimonial home;
- Interim spouse maintenance;
- Injunctions to protect property.
Case Assessment Conference
The Case Assessment Conference is the first major event in Court. It may be conducted by a Registrar or Judge if a property matter or a Registrar and Family Consultant if a children’s matter. As the Case Assessment Conference provides an opportunity for the parties to reach an agreement with the help of the Court, it’s important to have a family lawyer by your side.
If an agreement cannot be reached, the Court will:
- Assess the main issues and facts of the case;
- Where appropriate, recommend other services that might help settle the dispute (for example further family dispute resolution or progression to a Hearing); and
- Explain what will happen next.
If you have family law lawyers representing you, they will take part in the conference.
A conciliation conference is an opportunity for each party to make a concerted effort to compromise, settle and resolve their financial dispute and occasional/limited parenting dispute. The Court may order the Conciliation Conference to occur with or without the party’s consent.
Attendance of the parties and their lawyers is usually compulsory. Conferences are conducted on a ‘without prejudice’ basis. This means that except in very limited circumstances neither party can later give evidence about what was discussed at the Conference.
If a matter fails to resolve following an Interim Hearing (usually in relation to children’s issues) or at a Conciliation Conference (usually in relation to property settlement matters) it will be listed for a Pre-Hearing Conference.
The Pre-Hearing Conference is conducted by a Registrar of the Court. The parties and their lawyers are required to attend. At the Conference a timetable is fixed for the filing of Court documentation including Affidavits and Reports and the matter is allocated a Pre-Trial Conference date when a Final Hearing date will be allocated.
Independent Children’s Lawyer
An Independent Children’s Lawyer is a Solicitor appointed by the Court to act on behalf of the children. Appointments may be made at any stage by the Court, if the Court is satisfied that there are appropriate reasons for the appointment.
The sorts of issues that the Court will look for in making such an appointment is where child abuse is an issue, where there are cultural or religious issues, where there is intractable conflict between the parties, where one of the parties is not a natural parent, where there is a proposal to separate siblings, where there are mental health issues etc.
The Final Hearing is conducted before a Judge. At the Final Hearing the witnesses give evidence and are cross-examined.
Sometimes the Judge will give a Judgment immediately or the Court will reserve the Judgment and the decision will be handed down at a later date.
Parties who reach agreement are advised to document their agreement in writing. This is usually achieved by way of a Consent Order. The Family Court has a standard form for Consent Orders and once the document is completed (and if both parties are legally represented and it has been signed by the parties and their Solicitors) it should be filed in Court. Only after the Court has accepted and issued the sealed Order is it enforceable.
In finalising a property settlement married or de facto couples (since 1 March 2009) are able to enter into a Financial Agreement. A Financial Agreement can be entered into by parties (married or de facto, however, this is only applicable to de facto couples that have separated after the 1st of March 2009) either before marriage (a pre-nuptial agreement), during a marriage or after divorce. To be binding the Financial Agreement must:
- Be in writing and signed by both parties;
- The original must be given to one party, with a copy given to the other;
- It must specify the extent of any spouse maintenance provided and state that each party have received independent legal advice; and
- Annex a certificate of independent legal advice signed by each Solicitor.
A Financial Agreement is not registered with the Court however if it is completed correctly in accordance with the formal requirements it is binding.
A Financial Agreement can only be set aside in very specific circumstances.