Family Court Procedures

First return date/case assessment conference/interim hearing

When an application is issued in the Family Court it is given a first hearing date in about six weeks time. At this hearing, it is usual that orders are made relating to the future conduct of the case. Orders will not be made finally disposing of the case unless one party does not appear at court, or unless the parties are in agreement about what final orders should be made. The case will often be adjourned to another interim hearing date at which the court will check whether its earlier orders have been complied with.

Urgent disputes over children or property can be heard at an interim hearing and temporary orders are created pending final orders being made.

Counselling/mediation

If the Court application concerns children, the Court will often order that a family report be prepared by a psychologist. This is not confidential and is used in Court as evidence.

Conciliation conference

If the case concerns property, the Court will order that a Conciliation Conference takes place. This is a confidential conference with a registrar where the parties are obliged to attempt to settle the case by agreement. At the conference, the registrar gives his or her independent assessment of what would be a reasonable settlement in an attempt to encourage the parties to settle the case. Many cases are settled at this stage.

This conference is usually held about three months after the first hearing.

Trial notice list

If matters do not settle as a result of counselling or after a Conciliation Conference, the case will be put in the waiting list for Final Hearing.

Over six months later, the Court holds a trial notice list hearing where directions are given to prepare for trial with final affidavits and valuations, etc.

Pre trial conference

About two months later the court checks that the Trial Notice directions have been complied with and the final hearing or trial takes place one to two months after that.

Final hearing/trial

Over 95% of contested cases settle by agreement without the necessity for a final hearing. Many cases do not even become "contested" as they are settled by negotiation before going to Court. The remainder proceed to a final hearing where the parties and their witnesses (probably for the first time) give oral evidence before a Judge, are cross-examined by the opposing barrister and the Judge gives judgment finalising the case.

Affidavits

All evidence in the Family or Federal Magistrates' Court is initially given in Affidavit form (i.e. sworn documents). In financial cases, parties are also required to file financial statements, which exhaustively detail their income, expenses, assets and liabilities. Each party has the opportunity to reply to any allegations in any Affidavit filed by the other party.

Witnesses

Generally speaking witnesses will not be required to give oral evidence until the Final Hearing or "trial". At earlier stages, the Court will only refer to the sworn Affidavits.

It is important to have witnesses who will co-operate and swear an affidavit where necessary. Witnesses must be aware that they may have to attend Court to be cross-examined about the affidavit at the final hearing. We generally make contact with witnesses you suggest and ask them to prepare a statement concerning relevant issues before we finalise the affidavit for them.

Disclosure of documents

Parties often find there are documents held by the other party which are relevant to their case, and which the other party may attempt to withhold. The Family Law Act makes provision for documentation to be revealed to both parties by the procedure known as discovery and inspection.

Initially, this process is undertaken informally, to avoid legal costs. Formal orders for discovery are only made available with the leave of the court in the early stages, or after the Conciliation Conference has taken place. The idea is to encourage full and frank disclosure of all relevant facts. Any breach of this approach can result in sanctions by the court such as having to pay the other party's costs.

In extreme cases, the guilty party may end up with much less in a property settlement, as the court may decide there are hidden resources which that party can keep instead.

Valuations

It is usually necessary to value assets such as houses, businesses, cars and even chattels. Initially, it is often sufficient to get a real estate agent to give an estimate of a house valuation, but if the valuation cannot be agreed upon it may be necessary to get a registered valuer to give a valuation of the property.

Appearances at court

If your case goes to Court, with the exception of a divorce, there would usually be more than one Court hearing and more than one occasion when you would need to attend Court. Your solicitor may appear at Court on your behalf, or alternatively may brief a barrister to represent you. Depending on the nature of the hearing, it can be less expensive to have a barrister represent you as they specialise in advocacy and Court appearances.

Finalising property and maintenance cases

Family Law settlements are generally not legally binding unless formal Family Court or Federal Magistrates' Court Orders are made or a Binding Financial Agreement is signed by both parties and their lawyers.

Consent orders

Orders are drawn up describing the settlement that has been reached and these Orders are made by consent by a Court. Such Orders are made pursuant to Section 79 of the Family Law Act. These Orders will finalise the parties' rights in relation to property (in the absence of fraud or other very unusual circumstances).

Court orders - not by consent

If a property case does not settle and a Judge makes a final determination at the end of a trial, an order will be made pursuant to Section 79 of the Family Law Act. This will be equivalent to, and as final as, Consent Orders.

Court proceedings confidential

There are high penalties for publishing court proceedings. Please be careful in discussing your matter publicly, and do not show Court documents to anyone other than witnesses in your case.

Children should not be shown Court documents. It is not fair on them to be involved in the dispute. If their views are relevant, these will usually be best put to the Court with the assistance of a Court counsellor.