When going through a separation, we always recommend that people try to negotiate and resolve their financial and parenting matters by agreement, rather than litigating the matter in Court (See our post “Why You Should Avoid Going To Court In Family Law”).
However, there are times when Court litigation might be your only option. For example, if you and your former partner haven’t been able to reach an agreement after protracted negotiations, if your matter is urgent, or if there is a risk to your safety and wellbeing or your children’s.
In this post, we hope to give you an an understanding of the Family Law Court process.
In Australia there are two separate Court’s that deal with family law matters:
- The Family Court
- The Federal Circuit Court (FCC)
Only a small percentage of family law cases are heard in the Family Court, with the majority of cases being heard in the FCC. Cases heard in the Family Court are generally more serious and complex than matters heard in the FCC (for example, where there are allegations of serious child abuse).
Because most matters are heard in the FCC, this post will focus solely on the FCC Court process.
So, What Does the Court Process Involve?
Step 1 – Prepare and file an Application and other documents in the Court
The first step is to prepare an Initiating Application setting out the orders that you want the Court to make. You can ask the Court to make 2 types of orders:
- Final Orders – these are the orders that you want the Court to make at the Final Hearing; and
- Interim Orders – these are the orders that you want the Court to make at the Interim Hearing(s).
You also need to file additional documents with your Application, which include:
– an Affidavit – this document sets out the facts and supporting evidence that you will rely upon.
– a Financial Statement (property matters only) – this document details your income, spending, assets, debts and superannuation.
– for parenting matters:
– a Notice of Risk – this document outlines any child abuse and/or family violence, or risk to the children; and
– a Certificate issued by a registered Family Dispute Resolution (FDR) Practitioner (called a section 60I Certificate) or an Affidavit of non-filing a Family Dispute Resolution Certificate.
You should prepare these documents in consultation with an experienced family lawyer, as they will form the basis of your entire matter.
Section 60I Certificate
In most cases, the parent seeking the orders must invite the other parent to a FDR Mediation and make a genuine attempt to resolve the matter by consent. After attending or attempting to attend FDR, the practitioner will provide you with a section 60I Certificate.
You can only institute Court proceedings without a section 60I Certificate in exceptional circumstances.
Step 2 – First Court Hearing
After you file the Application, the Court will allocate a date for the First Court Hearing. This is usually 2 to 3 months after filing your Application.
At this hearing the Court may:
– Give directions which might include an order that you complete certain tasks by certain dates, such as providing full disclosure to the other party.
– In parenting matters, order that a Family Report be prepared and possibly appoint an Independent Children’s Lawyer (“ICL”).
– For property matters, set the matter down for a Conciliation Conference or order that a private Mediation is to occur.
– Set the matter down for a Directions / Interim Hearing.
– Set the matter down for a Final Hearing / Trial.
When both parties are represented by lawyers, it is common for ‘out of court’ negotiations to occur in the time between filing the Application and the First Court Hearing. These negotiations occur with a view to agree to interim or final orders and avoid Court. Negotiations can also take place at Court on the day of the First Court Hearing. If orders can’t be agreed on the day, your lawyer will need to present your case to the Judge for them to determine the disputed issues.
The disclosure process involves you and your former partner providing certain documents to each other. For property matters, these documents include tax returns, bank, loan and credit card statements, and financial statements for corporate entities. And for parenting matters documents could include things like medical reports about a child or parent, school reports and photographs. At the First Court Hearing, the Judge will usually make an order setting out what documents the parties must disclose to each other (if they have not already).
A Family Report is a report prepared by a family consultant (social worker or psychologist) appointed by the Court. The family consultant will individually meet with you and with the other parent. The children will also meet with the family consultant. After meeting with all relevant parties, the family consultant provides an independent assessment of the issues to the Court, which will assist the Court when making decisions about the children.
Independent Children’s Lawyer
An Independent Children’s Lawyer may be appointed if there is high conflict between you and the other parent, or if allegations of abuse or family violence have been made. Their role is to independently consider the views of the children and provide recommendations about what they consider to be in the child’s best interests.
A Conciliation Conference is a Court ordered and funded Mediation which is conducted by a Registrar of the Court. The aim of the Conciliation Conference is to resolve financial issues and if there is time, also address parenting issues.
If parties can afford private Mediation, then a Court will be reluctant to order a Conciliation Conference.
Step 3 – Directions / Interim Hearing(s)
The Court may list the matter for a Directions or Interim Hearing if the matter hasn’t resolved after the First Court Hearing, Conciliation Conference/ Mediation, or the Family Report.
At a Directions Hearing the Court may order that you complete further tasks before the matter proceeds to Final Hearing/ Trial. This might include filing certain documents by specific dates.
Interim Hearings are used to determine temporary issues, such as:
– What time the children will spend with each parent.
– Who will continue to reside in the former family home.
– Whether the property will be sold.
– Interim spousal maintenance.
Any interim orders made will remain in place until the matter is finally determined.
Step 4 – Final Hearing / Trial
If your matter hasn’t resolved before this step, then there will be a Final Hearing before a Judge. In our experience, it can take anywhere between 6 to 18 months or more to get to a Final Hearing.
During the Hearing you will need to tell your story to the Judge and you will be cross-examined by the other party or their lawyer/barrister. Experts such as accountants and psychiatrists may also be asked to give evidence at the hearing. The Judge will then consider all of the evidence before making a final Order. It is rare for a Judge to make a final Order at the end of the Trial and in most cases, the final Order will be made many weeks, months or sometimes even years after the hearing.