THE COURT PROCESS
Upon separation, you will need to consider parenting arrangements for children and/or the division of the matrimonial property pool.
This can be achieved in a number of ways, including:
1. By coming to an agreement between yourselves, without court involvement, and informally dividing up the assets and/or come to an arrangement for your.
2. If you and your former spouse agree, you can formalise your agreement by:
- A parenting plan (for children’s parenting matters and parenting arrangements)
- Applying for a consent order in the Family Court; and/or
- Entering into a financial agreement (in respect to property settlement and spousal maintenance matters); and/or
- Entering into a binding child support agreement (in respect to child support matters only); or
3. If you cannot agree, you can apply to the court for financial orders which relate to property settlement, spousal maintenance, child support, and parenting matters.
At Ramsden Lawyers, we understand that most people prefer to avoid court, and attempt to negotiate an amicable resolution. There are benefits of settling the matter outside of court, but there are also circumstances where filing an application to commence proceedings is necessary. The court process differs slightly, depending on whether you are seeking orders as to parenting matters, property matters, or both.
Once the court process commences, the parties can continue to negotiate an outcome. If an agreement can be reached by negotiations, a consent order can be filed, and the matter will be finalised. This can be done at any time, and will save the parties’ significant time and costs. Generally, the court process is as follows:
INITIATING APPLICATION AND RESPONSE TO INITIATING APPLICATION
1. An application to commence court proceedings will requires the following documents to be filed in the Federal Circuit Court of Australia (more commonly) or the Family Court of Australia (if the matter is more complex):
- An initiating application – setting out the orders sought on an interim (short term) and final (long-term) basis’
- An affidavit – setting out the relevant facts and circumstances and the basis for your application;
- A notice of risk (for parenting matters) – setting out out any concerns relating to the risk to any child or allegations of family violence; and
- A financial statement (for property matters) – setting out the relevant income, expenses, assets, liabilities and financial resources for an individual.
INITIATING APPLICATION AND RESPONSE TO INITIATING APPLICATION
2. Once your application has been filed and ‘sealed’ by the court, it should be personally served on the respondent or otherwise served on the respondent’s lawyers.
3. A First Court Event will be allocated (‘First Court Event’).
4. Prior to the First Court Event, the other party is required to file the following documents response to the initiating application and other relevant documents (as set out above).
5. Once proceedings have been commenced, and each party has portrayed their position (within their initiating application and response), the applicant and respondent should attempt to negotiate an outcome. Negotiations can be in respect to interim matters or with the view of settling the matter on a final basis.
FIRST COURT EVENT
All parties to the proceedings will be required to attend the First Court Event. The First Court Event usually consists of:
1. The judge determining any application for interim orders sought (if time permits, or otherwise set the matter down for an interim hearing on another day), and also seek an indication of the following: A summary of the relevant facts and issues in dispute; The evidence and the witnesses who would ultimately be called to give that evidence as required in proving each party’s case; and The expected duration of the final trial.
FIRST COURT EVENT
2. At the First Court Event, the judge will also make directions as to how the matter will proceed. The following are an example of directions made:
- The parties attend conciliation conference or private mediation;
- Whether the parties attend a child inclusive conference and/or child dispute conference;
- The parties exchange disclosure (see duty of disclosure);
- The parties appoint an independent valuer to value items of property;
- Whether it is necessary to appoint an independent children’s lawyer;
- The preparation of a family report;
- Any specific directions sought by the parties such as drug testing, medical reports, psychiatric assessments.
For more information, see FCC Fact Sheet: The first court event – helpful information
1. In the event that your matter does not resolve by direct negotiations or family dispute resolution, the matter will be set down for trial.
2. The trial date is typically about 18 to 24 months after the initiating application has been filed.
3. At the time of trial, you and your witnesses (the people who have sworn affidavits on your behalf) must attend Court to be examined on oath in relation to matters in dispute.
4. At the Trial, you and your lawyer will attend Court, together with a barrister who has been briefed with the full particulars on your case.
5. After hearing all of the evidence, the judge will then make a decision determining all of the matters before the Court which are in dispute.
6. It can take a further 6 months to 1 year for a Judge to deliver their judgment.
Undeniably, there are benefits to settling a matter outside of the court process (in particular, the emotional exhaustion, and the time and money involved).
Pre-action procedures are procedures which parties and their legal representatives can use to attempt to resolve a dispute, or otherwise narrow the issues in dispute, so that a matter can be resolved outside of court.
If you are proceeding in the Family Court of Australia (more complex family law matters), pre-action procedures are mandatory. If you are proceeding in the Federal Circuit Court of Australia (for most family law matters), pre-action procedures are not mandatory, however they are recommended by all practitioners. Usually a judge will make procedural orders that require pre-action procedures be attended to throughout the proceedings.
Pre-action procedures include: (a) Participating in dispute resolution; (a) Writing to the other party setting out the parameters of your claim (including a genuine offer to resolve the matter) and negotiating options for settlement; and (b) Complying, as far as practicable, with the duty of disclosure.
By complying with the abovementioned pre-action procedures, the parties are encouraged to exchange information and better understand the objectives of their opponent. By resolving the issues in dispute quickly, legal action can be avoided (or at least minimised) and this will limit costs and stress for both parties involved. Of course, in certain circumstances, participating in pre-action procedures is not viable. For example:
(a) If your matter involves urgency, allegations of family violence or fraud;
(b) In situations where your former partner simply refuses to negotiate;
(c) If someone would be unduly prejudiced or adversely affected if another person became aware of the intention to start a case, such as attempting to defeat the claim or becoming increasingly aggressive as a result of the proceedings; and
(d) If a time limitation is close to expiring.
It is important to give pre-action procedures a genuine attempt. If the court finds that a genuine attempt was not made, the court may order that the non-complying party pay all or part of the other parties’ costs, and/or take non-compliance into account when making orders.
For more information see: Family Court of Australia, Before you file – pre-action procedure.
For more information on avoiding the court process or commencing the court process, we invite you to contact our family law department for a free initial consultation to discuss your options.