If alternate dispute resolution is not successful, you may then apply to a Court for orders. At times, going to Court is the only solution to reach an agreement due to the factual matrix of your case.
The following diagrams identify some of the considerations in determining whether to commence proceedings in the Family Court of Australia or the Federal Circuit Court of Australia:
There are several formal initial steps to take when you commence proceedings. We provide a general overview of these steps below.
Filing an application
You must only file an application in a court if you cannot reach your own agreement. Once you file an application, a court process begins, which may result in a hearing before a judge.
Paying filing fee
There is a filing fee which must be paid. In some circumstances, you may qualify for a fee reduction. For example, you are entitled to apply for an exemption of court fees if you:
- If you are receiving Centrelink youth allowance or Austudy payments;
- Are under 18 years of age;
- Hold a health card, pensioner concession card, seniors card or any other card issued by the Department of Human Services or the Department of Veterans’ Affairs; or
- Have been granted Legal Aid.
Serving of proceedings
Service is a legal term used to describe when the Court is satisfied that you have given the Court documents to the other person.
Responding to an application
The respondent is given the opportunity to respond if they disagree with the orders sought in the application.
The Court may issue a subpoena, which is generally at the request of a party, requiring a person to produce documents or give evidence to the Court.
First court date
The First Court date is usually where the court gives directions, conducts an interim hearing, fixes a date for an interim or final hearing, approve Consent Orders or finalise the application. Also, the First Court date provides you with an opportunity to identify and define the issues in your dispute and if possible come to an agreement.
To ensure you comply with orders
If an agreement is reached on the day, you may ask the Judge to grant you the orders by consent. These orders can be interim or final.
Orders which are effective until the final determination can be heard.
Finalise the application
Issuing a final order.
Fix a final hearing date
Court may fix a date for the final hearing depends on the facts of the case. You and your lawyer, must be in attendance to the first court date and have a thorough understanding of your case, along with all the documents filed and prepared for the judge.
Case Assessment Conference
If your case involves financial issues or property orders, a case assessment conference is the first key event that you will attend in the Family Court. A Registrar conducts your Case Assessment Conference by providing you with an opportunity to reach an agreement with the other party.
If an agreement cannot be reached, the Registrar will:
- Examine and outline the main issues of disagreement based on fact;
- Contemplate the information necessary to highlight areas of disagreement and disputed fact;
- If it is appropriate, recommend alternative services in order to settle the dispute; and
- Refer to steps that will occur next.
Preparing for a case assessment conference
There is a duty upon each party to provide full disclosure and to provide the Court and the other party with all relevant information regarding the case. This exchange of documents must occur a minimum of two days before the first court date.
The following documents are relevant:
- The three most recent taxation returns and assessments of each party.
- All and any superannuation documents for both parties, including:
- The completed Superannuation Information Form
- If a self-manager superannuation, the deed and the three last financial statements are required.
- For a corporation, business, partnership or trust, party must disclose financial statements (balance sheets, profits and losses, taxation returns) for the past three financial years.
Business Activity Statements
- A Business Activity Statements for the 12 months ending immediately before the first court date.
- All relevant corporation documents (annual return, directors, shareholders and memorandum and articles of association).
- If it is a trust, the trust deed.
- If there is a partnership, the partnership agreement.
- A valuation for any item of property which a party has an interest in.
The next step after the Case Assessment Conference
The conference is concluded by a Procedural Hearing conducted by the Registrar. If an agreement has been reached, legally binding orders will be used by the Registrar. If you are yet to reach an agreement, the Registrar will make orders regarding the following steps to be taken and what necessary preparation is required. You must comply with these instructions for the next event.
The next step is either a Conciliation Conference or an allocation to be heard by a judge if the case is ready to proceed.
After the case assessment conference and depending on the orders, you must:
Within 21 days file and serve a Financial Questionnaire. If the proceedings relate to both a financial case and a parenting case, a procedural hearing is generally conducted by the Registrar at the end of the conciliation conference. The Child Responsive Program is usually heard before the conference.
The Child Responsive Program
This process a series of meetings between a family consultant, the children and the parents. The focus of the meeting is on the children’s needs and the aim is to guide parents and the Court identify the most suitable outcome for the children. You should be aware that the family consultant is not able to keep information private or confidential and all must be reported to the Court about the meeting.
The family report
If children are involved, the court might order a family report to be prepared to assist the judge at trial. The report is written by a family consultant or other appointed expert and is subject to specific directions from the judge.
All parties will be interviewed by the family consultant and anybody else who could be involved in the lives of the children. The consultant may make recommendations on where the children should live and other arrangements regarding the children’s wellbeing.
A copy of the family report will be handed to you before the final stage of the trial. The family consultant can be cross-examined in the final stage of the trial. If you wish to do this, you must inform the Principle Child Dispute Services in writing 14 days before the consultant is to appear in court.
Procedural hearing in a joint issues case
The Registrar reviews the issues in the parent and children assessment by issuing procedural orders to progress the case to a first day of trial. The Registrar issues orders referring the parties to family counselling, family dispute resolution, appointing an independent children’s lawyer or directing parties to complete a Parenting Questionnaire at least 28 days prior to the first day before trial.
The aim of a Conciliation Conference is to assist the parties in coming to an agreement regarding financial and parenting issues. The Registrar conducts the Conciliation Conference and is there to assist the parties in resolving the issues. There is an expectation that a genuine effort is made in order to reach an agreement so that a fully contested final hearing is avoided.
The following documents are generally required for the conference:
- Documents regarding procedural hearing, legal costs to date and estimate of future costs;
- List of all bank accounts and statements for the past 12 months and passports;
- Income tax return and assessments for the past 12 months;
- Documents regarding superannuation/pension/social security;
- Details of investments (shares/bonds/stocks/real estate);
- Valuation of goods such as cars, television etc.;
- Records of life or disability insurance, psychiatric reports, medical certificates; and
- Records of details of the above if relevant and relate to your children.
A Conciliation Conference is concluded by a Procedural hearing.
The duration of the Final Hearing will depend on the factual and legal issues of the case. Unless the judge says otherwise, you are instructed to prepare and present all evidence by way of an affidavit to the Court.
The following table outlines some of the likely stages of the Final Hearing:
|Steps in trial||What goes on|
|Hearing opening||The opening of the trial is usually where the judge hears housekeeping issues, preliminary legal arguments and objections to evidence. This consists of listening to each party’s case, as they draw upon part of the other party’s affidavits, claiming them to be inadmissible based on the rules of evidence. The judge determines whether the evidence is acceptable or not.
|The applicant’s evidence||
|The respondent’s evidence/Independent Child’s Representative||The respondent and the Independent Child Representative follows the process outlined above for the applicant.|
|The respondent and the Independent Child Representative follows the process outlined above for the applicant.||In the final stage, both the applicant and the respondent make their closing statements. This occurs once all the witnesses have been questioned (and/or cross-examined) and all relevant facts of the case have been summarised to the Court. This is known as a closing address. It will include any legal matters considered, cases and legislation.|
|After the trial||After the hearing, the judge may make orders and provide reasons for his/her judgement. Alternatively, the judge may reserve the decision and wait until another day, usually within three months. The Court will instruct you of the date so that you can be in attendance, and the Court will hand over a copy of their decision, which will include the orders made and the reasons for the decision. Once an order is made you must strictly comply with these orders.|
|Adjournment of the trial||If you cannot make the trial, you need to file an Application in a Case form in advance, along with an affidavit outlining the reasons as to why you need to adjourn. All parties must be served with these documents.
Generally, trials take place on their set date. It is not unless unforeseen or exceptional circumstances arise that trials are adjourned for, as the person who Is granted an adjournment might have to pay the other parent’s costs.