Preparing to go to the Family Court? Find out what happens in Family Court to make sure you’re prepared.
A trial in the Family Courts occurs only after various steps in the Court process have been completed.
This article is a general guide concerning certain of the major steps in family law proceedings in the Federal Circuit Court of Australia. The process in the Family Court of Australia is somewhat different. What happens in any particular case will depend upon its particular circumstances.
Unless there are circumstances of urgency (including in a parenting matter, the risk of child abuse), we suggest that you should explore other avenues for resolving family law issues before resorting to court proceedings. For example, you may have negotiations with your former partner, directly or through your solicitors or go through a mediation or collaborative law process. Generally, we recommend that court proceedings, which can be lengthy and are expensive, should be approached only as a last resort.
If you find that it is necessary to initiate an action seeking parenting orders, before filing your application, unless certain exemptions apply, you must obtain a certificate from a family dispute resolution practitioner. That certificate in then included with your application. If you do not file a certificate or an affidavit which demonstrates that the requirements for an exemption apply, the Court cannot accept your application.
There are a number of steps involved before a matter will come to trial. You have the opportunity to reach agreement with your former partner and settle your matter throughout the court process. If you do this, the Court will then issue Consent Orders which confirm your agreement with the other party. Most parties engaged in a court action will settle their matter this way. In this situation, they will not then need to go through to trial but the court action concludes with the issue of the Consent Orders.
The documents to be initially prepared and filed with the Court in property and parenting matters include:
For the person starting the Action (the Applicant)
- An Initiating Application – This document includes any interim orders as well as the final orders that the person starting the action (the Applicant) is asking the Court to make. These orders can be orders concerning financial matters and/or maintenance or orders concerning children or both;
- An Affidavit – This document sets out the evidence of the Applicant as to why the orders which the Applicant seeks should be made.
- Financial Statement – This document sets out the financial information concerning the Applicant and is filed in a case where property or maintenance orders are sought.
For the Applicant’s former partner (the Respondent)
- A Response – This document includes any interim orders and final orders that the Respondent is asking the Court to make.
- An Affidavit – This document sets out the evidence of the Respondent as to why the orders which the Respondent seeks should be made.
- Financial Statement – This document sets out the financial information of the Respondent and is filed in a case where property or maintenance orders are sought.
First Court Date
When the documents are filed, the Court allocates the first Court date. The time and date for this hearing is included by the Registry on the first page of the Initiating Application.
The first court date will generally be about 6 weeks after filing, allowing time for the Initiating Application to be served and for the Respondent to prepare, file and serve the response documents. The first court date may be earlier for more urgent applications.
On the first Court date, the parties advise the Court about the issues. Generally, the Court will address the following areas:h
- Procedural Matters – The Court will make procedural orders for the further progress of the matter (such as dates by which certain steps in the proceedings are to be completed). In property cases, these orders will often include a timetable for the provision of information; the exchange of valuations and relevant documents. They will also often provide for a process for determining the assets and liabilities which comprise the net asset pool of the parties as well as for determining the value of relevant assets where value is in dispute between the parties. In property cases, the orders may also provide for conciliation conference where the parties have an opportunity to agree a final settlement or to narrow the areas in dispute. In parenting cases, the orders made at this stage may include orders requiring the delivery of a family report. This is a document which is prepared by a family report writer after he or she has interviewed each of the parents and the children (at an age appropriate level). You will find further information concerning family reports elsewhere in our blog;
- Interim Orders – The Court will consider any interim orders that may have been sought by either party. Interim Orders may be made at that time or the Court may adjourn hearing of any argument concerning those orders to a later date.There is an opportunity on the first Court date for parties to reach agreement whether on an interim or final basis. If this occurs, the parties present the proposed consent orders to the judge requesting that they be issued whether on an interim or final basis.
The next formal step after the first Court date in a property matter is generally the “Conciliation Conference”.
A Conciliation Conference provides the parties with a formal opportunity to negotiate and reach final agreement or to narrow the matters in issue. Even where parties cannot agree a full settlement of all matters, it may be possible to reach agreement on some issues and to clarify what issues remain in dispute.
If all issues are not settled so that the matter must proceed beyond the Conciliation Conference, further procedural directions will be made (such as dates by which certain steps in the proceedings are to be completed).
The final step in the proceeding is a trial which is held before the Judge. Each party gives their evidence and makes their submissions. The length of a trial varies dependent upon the complexity of the issues which remain in dispute at the time of trial. Unless the Judge otherwise approves, all evidence must be presented to the Court by way of affidavit.
At the final hearing, the Applicant (or his or her lawyer or Counsel) will outline the Applicant’s case and the Respondent may cross-examine the Applicant or his or her witnesses. The Applicant (or his or her lawyer or Counsel) may then re-examine those witnesses. In the same way, the Respondent (or his or her lawyer or Counsel) will outline the Respondent’s case and the Applicant (or his or her lawyer or Counsel) may cross-examine the Respondent or his or her witnesses. The Respondent (or his or her lawyer or Counsel) will have the opportunity to witnesses. You may then re-examine those witnesses.
Any independent children’s lawyer who may have been appointed may also present evidence to the Court and cross-examine witnesses. Any single experts who prepared a report may be cross-examined by the parties. For example, in a case where parenting orders are sought, parties may wish to cross-examine a family consultant may have prepared a report including certain recommendations for arrangements for children. In property proceedings, the parties may wish to cross-examine single experts who provided reports as to the value of certain assets.
Each party also has the opportunity to give a final address to the Court making final comments in support of his or her case.
The Judge will give a decision, including reasons for the decision, following the conclusion of the parties’ respective submissions. However, the decision is often “reserved” so that judgment is not given until a later date. This is usually within three months of conclusion of the trial or at a later date where the Court has a heavy workload. Parties will be informed of the date for delivery of the decision and are required to attend at Court on that date.
Preparing to go to the Family Court can be a stressful time, but one way to reduce that stress is to feel confident and prepared on what will happen during your Family Court matter. If you need advice or are considering taking a matter to the Family Court and want legal advice, contact us. We provide free 15 minute consultations over the phone, so get in touch today.