FAMILY COURT PROCEEDINGS WHAT TO EXPECT FROM THE PROCESS
Family Court is a place most Australians would probably rather not find themselves. Under most circumstances, except when there is an urgent parenting matter, a risk of child abuse, a risk of family violence or when one party is unwilling to negotiate, it is often better to settle as many issues as possible without recourse to the Family Courts. If court proceedings are commenced, parties will have the opportunity to negotiate their own settlement at every step of the legal process. Matters that are resolved in this way become the subject of Consent Orders issued by the Court. In fact, only about 5 percent of cases go all the way through the Family Court proceedings to a final hearing and judgement. The court process can vary depending on the circumstances of each case, and also whether the matter relates to parenting or property matters or both although the Family Court process generally consists of the following steps:
1. Preparation and filing of documents The individual bringing the action must file an Initiating Application that sets out the orders that the applicant would like the Court to make. The application must be accompanied by a sworn statement, known as an Affidavit, which sets out the applicant’s evidence. In property matters only, the applicant must also complete and swear a Financial Statement, which is effect sets out their financial circumstances. The individual responding to the action will file a Response to Initiating Application (this will set out the orders they want the court to make), a supporting Affidavit and, in property matters only, a Financial Statement. In the Initiating Application and Response the parties may seek interim orders (which are urgent temporary orders that will be in place until the matter is determined on a final basis) and/or final orders.
1st Court Date
2. First Court Date At the first court date, which will usually occur about 6 to 12 weeks after the initial filing, the Family Court will make procedural orders about how the matter is to proceed and what steps are to be taken by the parties.
3. Interim Hearing If the parties are seeking interim orders, the court may set the matter down at a specific time and date for an interim hearing. At an interim hearing the judge will read the Affidavits filed by the parties and their witnesses and will then hear short oral submissions from the parties (if they are self-represented) or the parties' lawyers about what orders should be made based on the evidence set out in the Affidavits and the law which is set out in the Family Law Act (1975). The judge will then make a decision. The parties and their witnesses do not give any oral evidence at this stage, therefore, the court is unable to make any determinations about who is or is not telling the truth.
4. Conciliation Conference In property matters, the parties may be directed to participate in a Conciliation Conference. A Conciliation Conference is in effect a mediation, and is an opportunity for the parties to negotiate and try to reach a final agreement or to narrow the issues in dispute with the assistance of their lawyers and a court appointed Registrar or mediator. When parties are able to reach a final agreement at this stage, they can enter into Consent Orders that (once made by the court) finalise their matter. For parties who are unable to reach an agreement, the Court will make further procedural directions, again including the dates by which certain steps in the proceedings are to be completed. Throughout the process, prior to the final hearing, there will be an exchange of financial documents, expert's reports (especially if there are disputes over property values), correspondence with the other side and perhaps further attempts at mediation or a negotiated settlement.
5. Child Dispute Conferences In parenting matters, the parties are usually directed to participate in a Child Dispute Conference where they meet with a court appointed Family Consultant to discuss the issues in dispute and to try to reach an agreement. In some circumstances children may also participate in this process. At the conclusion of this conference the Family Consultant prepares a short report for the judge which summarizes the issues in dispute, and makes recommendations about how the matter should proceed. For example, a Family Consultant may recommend that an Independent Children's Lawyer be appointed, which is a solicitor that represents the child.
6. Family Report and/or Expert Report In parenting matters, before a matter proceeds to a final hearing it is necessary for both parties and the children to be interviewed by a court appointed Family Consultant or an external Psychiatrist who then prepares a detailed report that is released to the parties, their lawyers and the judge. This report will make recommendations about what final orders the judge should make.
7. Final Hearing Where parties are still unable to reach an agreement, their matter will be set down at a particular date and time for a final hearing. A final hearing often runs for one, two or three days. Prior to the final hearing, each party and their witnesses will set out their evidence in a sworn Affidavit, which will be read by the judge and both parties prior to the hearing. At the final hearing they will also be required to give oral evidence in court. The other party's legal representative will also have an opportunity to ask them questions about their evidence, which is called cross-examination. Any experts, such as Family Consultants or Psychiatrists may also be required to give oral evidence in court. After the evidence is heard by the judge, both parties (if they are self-represented) or their lawyers will be able to make oral arguments about why the judge should make the orders sought by them based on the evidence and the law. At the end of the hearing the judge will not make a decision straight away. Instead the judge will ask the parties to return at a later date to hear their decision.
8. Final Hearing Within about three months of the end of the trial, the judge will hand down a decision and supporting explanation. Parties will be informed of the date for delivery of the decision and are required to attend at Court on that date.
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