By Caitlin Elliott, Senior Associate
The Federal Circuit and Family Court of Australia has strict requirements for actions that must be taken before starting Court proceedings. They are called pre-action procedures.
Here is an overview of what to expect once you have been through the pre-action procedures and are ready to start Court proceedings for parenting or property orders.
1. Filing and serving your Initiating Application
Your Initiating Application outlines the orders you want the Court to make. The Court makes final orders at a contested final hearing, or earlier if you can both agree. You may also need to ask for interlocutory (interim/short-term) orders that will be in place until final orders are made.
Your Initiating Application and any necessary supporting documents are filed with the Court. Supporting documents may include summary documents to give the Court an overview of your situation and the issues involved. If you are asking for interim orders, you usually need to file a detailed Affidavit with further information.
You must serve your filed (also known as “sealed”) Initiating Application and other filed documents on all other parties to the proceedings. Usually, that means serving your former partner or their lawyers.
Once filed, the Court allocates a date for a “first Court event”. Your application then follows a case management pathway. The usual case management pathway is explained below. Depending on the circumstances, the Court can sometimes change the pathway for a particular case.
The Court usually deals with procedural issues like exchanging information, obtaining valuations of properties or a business and getting your case ready for the next court event. Substantive issues such as living arrangements for children or a sale of a house are only made by agreement, or if the matter is very urgent.
2. First Court event
The first Court date is usually about one to two months after you file your Initiating Application.
A Judicial Registrar will manage the first Court event and may take actions including:
- Making orders by consent if parties agree.
- Checking if parties have complied with pre-action requirements.
- Identifying issues in dispute.
- Deciding whether an interim hearing is required and, if so:
(a) Whether the matter is so urgent or exceptional it should be transferred immediately to a Judge or Senior Judicial Registrar for hearing that day; or
(b) Allocating another date for an interim hearing a few days or weeks later.
- Deciding what kind of dispute resolution is appropriate, such as mediation.
- Making orders for the future progression of the case, which may include:
(a) Further Court events, such as an interim hearing or mediation.
(b) Preparation of expert reports, such as a Family Report by a child expert to make recommendations for parenting arrangements, or a business valuation.
(c) Exchanging documents to help clarify issues.
(d) Appointing an Independent Children’s Lawyer.
3. Interim hearing (if required)
Where parties cannot agree what interlocutory orders should be made, an interim hearing will take place. At an interim hearing, a Senior Judicial Registrar or Judge will decide what interlocutory orders should be made.
Some common disputes about interim issues relate to:
- Living arrangements for children.
- Payment of spousal maintenance.
- Litigation funding.
- Valuation of assets.
- Injunctions or restraints to prevent a party from dealing with assets.
An interim hearing usually takes place after any expert reports are received and relevant documents exchanged between the parties.
Unless there is urgency or exceptional circumstances, an interim hearing will be listed on a date after the first Court event. Some matters may need more than one interim hearing.
4. Dispute resolution
The Court almost always requires parties to try to resolve their dispute at a dispute resolution event.
The usual forms of dispute resolution are:
- Conciliation Conference – Court based, before a Judicial Registrar, in relation to property matters only.
- Family Dispute Resolution – Court based or external, in relation to parenting matters only.
- Private mediation – External and in relation to property or parenting matters, or both.
A dispute resolution event will take place as soon as possible after all the relevant information is available (exchange of documents, valuations, Family Report), usually within about 6 months after the Initiating Application is filed. Some matters may require more than one dispute resolution event.
All dispute resolution events are confidential, with some very limited exceptions.
5. Compliance and readiness hearing
If an overall agreement is not reached at dispute resolution, the Court will hold a compliance and readiness hearing as soon as possible after the dispute resolution event.
At the compliance and readiness hearing the Court will decide if what needs to occur so the matter can proceed to final hearing.
Orders will be made regarding when Affidavits of evidence from parties and witnesses must be filed, and when the matter will be listed for a final hearing. The Court may also make other orders to make sure the matter is ready for a final hearing.
6. Trial management hearing (if required)
The Court may hold a trial management hearing before the final hearing. At a trial management hearing the Court will check everything has been done, and can make other orders if necessary to make sure the final hearing can proceed. The Court may adjourn the final hearing date if the matter is not ready
7. Final hearing (and judgment)
The final hearing usually runs for two or more days. At the final hearing, a Judge will make a final decision about the issues in dispute and make final orders ending the proceedings.
The Court aims for final hearings to occur within 12 months of filing the Initiating Application.
At a final hearing, parties are usually represented by their lawyer and a barrister. Each party presents their evidence and their barrister argues their case through submissions to the court. Evidence is usually in writing based on detailed Affidavits signed by the parties and their witnesses. The other party’s barrister can cross examine parties and witnesses. Submissions are usually a mix of written and verbal.
After hearing all the evidence and submissions, the Judge will make final orders. The Judge’s decision, called the judgment, is not usually given on the day as the Judge needs time to consider everything and put their decision in writing. The judgment is usually delivered within 3 months of completion of the final hearing.
The Court may alter the usual case management pathway at any time if it considers it is appropriate. That may be in circumstances of urgency, or to facilitate the resolution of the proceeding, or otherwise promote the interests of justice.
We aim to resolve disputes without going to Court, but that is not always possible. Our lawyers are very experienced at all stages of the Court process: analysing your situation, developing a strategy and plan, preparing the necessary evidence and documents for Court, negotiating at the dispute resolution event and running contested hearings.
If you are considering starting Court proceedings in a family law matter, or if you have already started Court proceedings, and would like to have a discussion with one of our lawyers, please call us on (03) 8672 5222.