Family court proceedings are often complex and involve sensitive issues relating to marriage, divorce, parenting arrangements, and property settlements. The family law system in Australia is designed to provide a fair and impartial resolution to such matters. This blog aims to provide an overview on the family court system, keeping in mind that each case is unique and may have variations.
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Before initiating court proceedings, the Federal Circuit Court and Family Court of Australia (Family Law) Rules 2021 require parties to take “genuine steps” to try to resolve their dispute.
If the dispute involves the division of matrimonial property, then parties must:
- Read the pre-action procedures, rules, and information;
- Invite the other side to participate in dispute resolution services such as counselling, negotiation, conciliation, or arbitration but only where it is safe to do so;
- If dispute resolution is unsuccessful, write to the other parties, setting out the claim and exploring options for settlement; and
- Comply, as far as practicable, with the duty of disclosure by exchanging relevant documents.
If the dispute involves children, then parties must attempt to resolve the parenting dispute before proceeding to court using a family dispute resolution (FDR) service. If FDR is unsuccessful, then the parties will receive a section 60I Certificate. The section 60I Certificate is required to commence proceedings. There are some circumstances where a matter may be exempt from FDR and proceed straight to court. These include but are not limited to, urgent matters, where there is a risk of family violence towards a child, and situations where FDR is impractical (for example due to incapacity or physical remoteness).
Initiating Court Proceedings
If resolution attempts are unsuccessful or not appropriate, the next step is to file an application in the Federal Circuit and Family Court of Australia (“the Courts”).
The Courts are broken down into 2 divisions – Division 1 is the Family Court, and Division 2 is the Federal Circuit Court. All matters begin at Division 2. If a matter is found to be more complex, for example parenting cases involving family violence or financial cases involving complex financial interests, then it will be transferred to Division 1.
When making an application for orders, the initiating party is known as the “applicant”, while the responding party is known as the “respondent”. The applicant will file an application for an order (a direction from the court) under Division 2 relating to property, children, or both.
Court orders can be made in two ways; either by consent or by a decision of a judicial officer. Orders by consent are signed by both parties. The agreement is then presented to the judicial officer who will make the Orders by Consent if appropriate.
Consent orders can be interim (temporary) or final. If the parties cannot reach an agreement, the judicial officer will make orders necessary for the case to proceed to the next court event.
First Court Hearing
After an application is filed, the Court will schedule the first hearing, which is often referred to as a “Mention”, “Case Conference” or “Directions Hearing”.
The purpose of the first court hearing is:
- To assess and triage the matter; and
- To make orders to facilitate the timely disposition of the matter.
The Judicial Registrar will check whether all documents have been filed, assess whether there is a need for an interim hearing or for expert evidence to be admitted, make directions for dispute resolution, and decide whether the matter needs to be transferred to Division 1.
The purpose of the Interim Hearing is to determine any interim (temporary) applications brought by the parties. Applications are usually heard before a Senior Judicial Registrar but may be heard before a Judge if necessary. The Judicial Registrar or Judge will consider the material filed by the parties and hear submissions relating to interim issues. If an Interim Order is made, it will be effective until final orders are made.
Dispute Resolution Events
The Court process emphasises dispute resolution. Throughout the Court process, parties are encouraged to resolve their disputes by Mediation, Conciliation Conference or Family Dispute Resolution conducted either externally or within the Court.
Compliance and Readiness Hearing
If dispute resolution is unsuccessful, the matter will proceed to a Compliance and Readiness Hearing. Compliance and Readiness Hearings are usually heard before a Judge. The purpose of the Hearing is to ensure parties have complied with all court orders, directions and are ready to proceed to a final hearing. The court will explore the reasons the matter has continued, the options available to bring the matter to an end, and whether it is appropriate to list the matter for trial.
The matter may also be listed for a trial management hearing to make further directions, and to ensure the matter ready to proceed to trial.
Matters that remain unresolved require a trial or final hearing. The final hearing usually takes place 12 to 18 months after first filing, and it can last anywhere from 1 day to several days depending on the complexity and number of issues in dispute.
The final hearing is where both parties present their case. Parties may call witnesses, conduct cross-examination, and argue about issues in dispute.
After the final hearing, the Judge will deliver the judgement including the reasons for judgement. The decision may be made that day, but usually it is made at a later stage after the Judge has more thoroughly considered the case.
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