The Family Court Process

A court application can be brought in the Federal Circuit and Family Court of Australia if the parties cannot reach an amicable agreement through a parenting plan, consent orders, and/or a financial agreement. A variety of rules control the family court process.

When the parties have exhausted all efforts, through their respective legal representation, to achieve an agreement on the matter, which can subsequently be formalised by consent orders, court procedures should always be seen as a last resort. If you and your former partner cannot agree on issues relating to property and parenting, we strongly recommend that you consider mediation as an alternative to litigation.

The Family Court System

If legal action is taken in the Federal Circuit & Family Court of Australia, the following is a synopsis of what will happen and how the court procedure will work (as opposed to an out-of-court settlement).

On September 1, 2021, the Federal Circuit and the Family Court of Australia merged to form the Federal Circuit and Family Court of Australia (FCFCA). The Family Law Rules are the current set of rules that regulate the family court system.

As a result of the merger, the family law system has experienced considerable structural changes. There is now a single point of entry into the court system for all actions, as well as a new case management pathway, synchronized family law norms, and a greater emphasis on pre-action procedures and dispute resolution (mediation). In other words, the court has once again emphasized the importance of mediation to resolve family law dispiutes.

The new system’s main purpose is to produce a more efficient justice system that aids parties in moving through the process as quickly, safely, and fairly as possible.

The Next-Generation Case Management System

The following case management method will apply to all applications presented in the Federal Circuit and Family Court of Australia, with the exception of those designated to specialised lists such as the Covid-19 List, the Evatt List, child support, child maintenance, and divorce proceedings.

All problems that cannot be resolved through the new case management pathway will be scheduled for a Final Hearing within 12 months of the proceedings beginning.

At the initial court appearance, the Court will triage the case, validate that the pre-action procedures were followed, and establish a case management strategy for the case.

In parental matters, the Court will order the creation of a Child Impact Report and, if needed, the appointment of an Independent Children’s Lawyer. After obtaining the Child Impact Report, the Court may schedule an Interim Hearing and subsequently a compliance check. After then, the court may issue orders compelling the parties to appear before a dispute resolution hearing. If conflict mediation is not appropriate or does not resolve the dispute, the Court will convene a compliance and readiness hearing before setting a trial date.

The Court may impose orders requiring full and open disclosure, the compilation of assessments in cases where property value is challenged, and attendance at mediation in financial procedures. When necessary, the court will evaluate whether the matter is appropriate for arbitration. If the disagreement cannot be addressed through mediation, the Court will hold a compliance and readiness hearing, after which a trial date will be determined.

What exactly is an application?

An initial application may seek interim and ultimate orders. If just final orders are filed, the court will not make any orders until the Final Hearing. In most parenting situations, the applicant will seek interim parental orders. In most property proceedings, interim orders are not required unless there are severe difficulties that must be resolved before the Final Hearing.

A parenting application must be accompanied by an affidavit and a Notice of Risk.

A financial application must include an affidavit and a financial statement.

Several new documents must be filed with an application for parental or financial orders under the new system, including the following:

• A genuine Steps Certificate certifying the Applicant has followed the pre-action procedures for parenting and/or financial proceedings is required before filing.
• A parenting questionnaire, a financial questionnaire, and a vow to keep information about parenting and/or money concerns confidential.

The documents indicated above are in addition to those required when requesting parenting or financial orders.

What are the Pre-Action Procedures under the Family Law Rules?

Pre-action procedures have the purpose of requiring parties to exhaust all opportunities for resolving the problem, or at the very least narrowing the issues that require a judicial ruling, before going to court.

Anyone filing an application, anyone responding to an application, and their lawyers are all subject to the pre-action procedures.

Parties should not take legal action unless all pre-action conditions have been met, which include the following:

• Participation in the Resolution of Disputes (section 60I certificate)
• Negotiation with the other side and the possibility of a correspondence-based settlement;
• Exchanging a notice of intent to launch proceedings that includes the following information: the issues in dispute;
• a settlement offer;
• and the orders sought if proceedings are initiated
• Genuine attempts to settle the issue;
• adherence to the obligation of disclosure.

The usual exceptions to the pre-action procedures include genuine urgency or the inability to complete the preceding acts safely.

When applying for parental or financial orders, the applicant must present a genuine steps certificate verifying that they followed the pre-action processes and made a genuine effort to resolve the conflict.

The Court may impose costs on the non-complying party or, where appropriate, their counsel if they fail to follow all of the pre-action proceedings.

The Court will evaluate each party’s compliance with the pre-action steps when deciding the case management pathway of a matter. If a party fails to follow a pre-action procedure, for example, the court may refuse to proceed with the application until the non-compliance is resolved.

What is the obligation to disclose?

Parties shall offer complete and open disclosure of all relevant facts about the issues under dispute.

The obligation of complete and open disclosure must be met prior to the start of judicial proceedings.

Among the records that must be produced in financial matters are a list of assets, obligations, superannuation, and all papers in that party’s custody and control relating to the property pool, each party’s financial status, and any other document relevant to an issue in dispute.

In parental issues, all medical reports, school reports, other types of reports etc related to a contested issue, must be disclosed.

Failure to provide timely and thorough disclosure to the other party can result in serious consequences, including contempt of court.

What should I be aware of when it comes to the new Family Law Rules?

Before initiating an application, you must make a genuine effort to address the problem by doing the following things, according to the new family law standards:

• In the absence of a valid exception, attendance at mediation and dispute resolution;
• settlement talks and investigation;
• Follow all disclosure guidelines;
• Send each other a notice of intent to start legal action as well as a settlement offer.

If you do not follow the procedures outlined above before filing an application, you may face serious consequences, including the enforcement of costs orders against you and your lawyer.

What Is an Interim Hearing?

While the parties wait for the Final Hearing, an Interim Hearing permits them to resolve any pressing issues through interim orders. The orders are only meant to be temporary until the Court has had a chance to evaluate all of the evidence, hear cross-examination from the parties, and convene a Final Hearing.

Interim hearings usually take no longer than two (2) hours. At an Interim Hearing, a Judge’s decision will be based on the parties’ affidavits and any other independent evidence they offer to the court (e.g. reports or subpoena records). Cross-examination (oral evidence) is not permitted at the Interim Hearing unless there are exceptional circumstances and for a specific cause.

At an Interim Hearing, the Court is not in a position to make determinations (findings) about the facts of the case (i.e. what is true and what is not true).

Simply said, a court cannot decide whether party A or party B is telling the truth when they differ about the truth of a fact or facts in a case (these are known as disputes of fact).

As you might expect, when a case goes to court, the parties frequently have significant factual conflicts as a result of conflicting charges leveled against each other. This puts a Judge in a difficult position during an Interim Hearing because they must make a decision (Judgement) based on the evidence presented to them and issue temporary orders until the majority of the facts are disputed at a Final Hearing (which might take twelve to fifteen months or longer). At an Interim Hearing, the Judge is expected to make a decision based on the acknowledged facts, as well as any independent material that has been provided, and assign it the proper weight.

This implies that in a parenting matter, the Courts carefully consider any claim made by one party against the other that, if true, would make the Court concerned about the safety of the children in that party’s custody. As a result, if the parties have serious factual disagreements, the Courts will always move cautiously in the orders they issue in an Interim Hearing to safeguard the children from physical and/or psychological harm until the parties’ evidence can be ‘tried’ at a final hearing. When a party presents independent evidence to back up their claim, the Court is more inclined to accept the claim seriously. In any situation, the child’s best interests take precedence above the interests of each of the parties. This does not mean that the Judge has already decided whether a party’s allegation is true; rather, the Court will always err on the side of caution until it has had the opportunity to thoroughly examine all of the evidence, listen to the parties’ cross-examination, and make decisions on the facts of the case at a Final Hearing.

Orders for the children’s living arrangements, the occupation of the matrimonial home, interim spousal maintenance, litigation funding orders, injunctions to protect property, and orders to progress the case, such as the appointment of an Independent Children’s Lawyer and the preparation of a Family Report, may be made at an interim hearing.

What is an independent children’s lawyer’s role?

A lawyer appointed by the court to advocate the best interests of children is known as an Independent Children’s Lawyer (ICL). An ICL is appointed if the Court deems there are good reasons for their appointment.

Allegations of child abuse, concerns about the parties’ mental health and/or parenting capacity, religious and cultural issues, where one of the parties is not the biological parent of the children, where an older sibling is rejecting one parent, where there is a proposal to separate the siblings, or where the parties are in intractabl are the most common reasons for appointing an Independent Children’s Lawyer.

The ICL does not take orders from the children, but rather represents their theoretical best interests by conducting their own investigations, separate from those conducted by the parties, and arranging for the preparation of certain reports that will assist the Court in determining what orders are in the best interests of the children.

What is a Family Report’s purpose?

The Family Report process begins with an interview with the parties, their children, and their significant others, followed by a detailed report in which the psychologist or family consultant draws conclusions and makes recommendations based on those conclusions about what orders are in the best interests of the children.

The Family Report Writer may be designated by the Court or by the parties jointly (a report writer will only be appointed by and paid for by the court if the parties financial circumstances are such that the Court deems that they are not in a position to pay for the Family Report).

The Family Report is a very essential piece of evidence in general, according to the Court. It is frequently the only (or one of the few) independent pieces of evidence the Court has at an interim hearing stage to guide them as to what interim orders are in the best interests of the children until they can examine all of the evidence in detail at a Final Hearing.

At a Final Hearing, the weight given to the Family Report will vary depending on what each party says during cross-examination of the report writer and if the Court accepts the report writer’s findings.

The Court is not obligated to follow the report writer’s recommendations and make orders based on them. The Court will make its own decision after hearing all of the evidence at a Final Hearing, which may or may not differ from the family report’s conclusions and recommendations.

The Final Hearing

The Final Hearing is conducted by a judge from Australia’s Federal Circuit and Family Court. Prior to the Final Hearing, the parties and witnesses will file affidavits. During the Final Hearing, the parties and all other witnesses, including the family report writer, will testify and be cross-examined about their Affidavits’ testimony. Each party will retain a Barrister to lead the proceedings at the Final Hearing. The Barristers will make submissions summarising the evidence, their client’s argument, and why the Court should give the orders sought by their client at the conclusion of the Final Hearing.

On the day of the Final Hearing, the Judge rarely makes a ruling (ex tempore). The Judge will normally reserve judgement and issue the decision at a later date, usually 2 or 3 months later.

A final hearing will be held in only 3% of cases. A case’s journey to the Final Hearing stage can take up to two years.

After a Court process has begun, the parties can negotiate a final agreement and have it formalised by the Court at any time. If this occurs, the Court will issue Final Orders based on the parties’ agreement, pending the determination of whether the orders are just and equitable (property) or in the best interests of the children (children).

Approximately 97 percent of court cases settle before a final hearing.

Reaching an agreement with your former spouse over your property may have advantages such as allowing you to make the best decisions for your situation and reducing the financial and emotional consequences of court processes. With the help of a conflict resolution service or a lawyer, you might be able to reach an agreement without going to court. At Mediations Australia, we can obviously help you.

Other Things to Consider

The Family Law Act allows you and your spouse to finalise your arrangements through a financial agreement or consent orders if you and your spouse can agree on how your property and finances should be distributed. You must apply within one year of the end of your de facto relationship or two years of the conclusion of your divorce. You can only apply after this period if there are special circumstances and the court approves it. The Act also lays forth the fairness criteria that the court will consider when considering whether your agreement is reasonable.

If you can’t agree on how to share your property, the Federal Circuit and Family Court of Australia can issue financial orders (FCFCA). It is in your best interests to get legal advice before signing any agreement or orders to ensure that you understand your legal rights and responsibilities.

Financial Agreements

The Family Law Act permits married or de facto couples to create a legally binding agreement about their financial arrangements if their relationship ends. These provisions apply to de facto couples in Western Australia under the Family Court Act 1997. (WA).

Agreements can be signed before, during, or after the commencement of a major partnership (prenuptial agreements are sometimes used, but the formal term is financial agreement). A person cannot enter into a new financial arrangement if they are a party to another legal and current one. If you want the agreement to be legally enforceable, you must both have your own lawyer who has given you separate legal and financial advice before signing it.

Consent Orders

A consent order is a written agreement that has been approved by the court.

You do not have to present in court to request consent orders. You have the option of hiring a lawyer to prepare the application and draught the orders for you, or you can do it yourself. There are online forms accessible.

When you sign a drafting consent order, you are expressing that you agree with the orders and that you will follow the document’s contents. If the judge approves the draughts orders, they will have the same effect as orders made after a court hearing. Property transfers or sales, spousal support, and superannuation division are all examples of financial orders that can be dealt with by consent orders.

Couples who desire to file for consent orders must meet the standards of the Family Law Act. Before issuing the orders, the court must be satisfied that they are properly prepared and that the terms of the agreement are reasonable. The court will consider the application and, if the orders are granted, each party will get a sealed consent order document as proof of approval. You will be contacted and requested to provide additional information if the court has any reservations or questions about the evidence in your application. The court will notify you if your orders are not authorised.

One of the aims of the court when issuing consent orders is to ensure that they are definitive. As a result, it is extremely difficult to reverse property consent orders. To do so, you must establish that your agreement was made through deception or fraud, or that following the directions is impractical (not merely inconvenient), or that unique circumstances involving the relationship’s children have happened.

How Long Does the Family Court Process Take?

As mentioned previously, most parenting and/or property settlement proceedings will take at least eighteen months to reach the Hearing stage. Unfortunately, some cases have been in the system for more than 2 1/2 years due to the time it takes to get a case listed for a Final Hearing.

However, the 18 to 2 1/2-year time frame does not account for any concerns of complexity that may arise throughout the court procedures, which could create further delays in the matter being scheduled for a Final Hearing. It also disregards any further interim petitions filed by the parties during the Court proceedings and prior to the Final Hearing. In family court procedures, urgent issues frequently develop, forcing a party to file an interim application (also known as an application in a case) and request a fresh Interim Hearing so that the Court can address those issues that they believe cannot wait until a trial.

These reasons could cause a three-year or longer wait for a Final Hearing.

Due to current court system delays, courts are unwilling to allow parties a second interim hearing unless there is a compelling explanation and a necessity for it.

Going to Court Expenses

Court proceedings are very expensive. Parties in the 3% of cases that make it to a Final Hearing can expect to pay between $60,000 and $150,000. This does not include any expenditures orders made by the court. Charges can sometimes escalate over this threshold due to delays and complexity.

Additionally, there are psychological expenses. This procedure can be incredibly stressful and emotionally and psychologically draining for all parties involved, particularly the children.

Finally, there are the costs of time. As previously said, court proceedings frequently take two (2) years to reach a hearing conclusion. This does not include the time spent negotiating before filing an application with the court.

We recommend that you seek legal advice from a family lawyer and carefully consider all of the costs of going to court, including not only the financial charges, but also the time and emotional costs.

What is Mediation?

Mediation is a type of Alternative Dispute Resolution (ADR), which is an out-of-court technique of resolving disputes between two or more parties. Family Dispute Resolution, often known as Family Mediation, is a sort of mediation that is specifically developed for child-related issues, property settlements, divorce, and child support.

A mediator usually assists both parties in achieving an amicable agreement. Unlike the legal process, a resolution is not determined by a Judge and imposed on one or both parties. If the parties cannot agree on a common solution, the dispute will remain unresolved.

The Mediation Process

Mediations Australia approaches each case individually, using various strategies, depending on the circumstances and people involved. We like to think of ourselves as facilitators of creative problem-solving!

Each issue must first be assessed to see if it is acceptable for mediation and, if so, what type of mediation is required.

Despite the fact that mediation is a professional subject, a typical mediation session has no established criteria. We will generally work through the following processes throughout our meetings: creating and agreeing on ground rules for the mediation, each side giving their experience, and then working together.

Advantages of Mediation versus Court Proceedings

There are various compelling reasons to select mediation as a means of resolving or narrowing a disagreement, particularly when considering the delays and costs associated with the court system:

• Mediation saves you money, settles your issues more faster than the family courts, and provides you with a predictable and certain conclusion over which you have control and ownership.
• No one ever ‘wins’ in the Family Court system. Many people, on the other hand, lose because of the financial and emotional costs of coming to court. A third party, who was not chosen by you or the other party, makes a decision for you, and many times both parties are unhappy with the outcome. A successful mediation will result in a mutually agreeable agreement, eliminating the risk of a Final Hearing.
• Mediation is a win-win situation for both parties. It gives you the freedom to make your own choices. Mediation is a more efficient and cost-effective path to a conclusion that you control and own.

What to Do Next

Family law disputes can become worse over time. We highly recommend that you seek initial legal advice from one of our family lawyers at Mediations Australia. We offer a free initial consultation with one of our family lawyers and if necessary at that point, can arrange for you to have a further free consultation with one of our family law mediators. We have a team of family lawyers and mediators who can assist you in Canberra, Perth, Adelaide, Melbourne, Sydney, and all other locations in Australia. Get legal advice from us today!