Family Court Proceedings and Processes: How they Work
Family law courts of Australia
In September 2021, the different family law courts in Australia merged to become one court with jurisdiction over all family law issues in all states and territories except Western Australia.
This new court is called the Federal Circuit and Family Court of Australia (FCFCOA). It helps Australian families reach agreements when they are unable to resolve their own parenting or property disputes. It has been designed to provide a better way for families to progress through the family court system, with a focus on reducing unnecessary cost and delay in all family court proceedings.
Going to court for your family law matter
The family court system is not designed to take decision-making power away from individuals. In fact, the system does its best to divert families to alternatives that keep them out of court and helps them to make their own decisions, such as by negotiation, conciliation conference, and mediation. But when parents cannot agree about what is in the best interests of the child, or former partners cannot agree what constitutes a fair property settlement, child support or spousal maintenance, then the family court system provides a mechanism to resolve disputes.
The processes and proceedings of the family court system vary depending on the parties’ individual circumstances and the specifics of each family law matter. There are, however, common stages to family law matters, which will be described in this article.
The family court process
Almost everyone approaching a family law court matter aims to achieve the best outcome in the shortest possible time. To promote this outcome, parties to a family law matter are encouraged to participate in pre-action procedures. There are actions that you and the other party can take to resolve disputes before a hearing. Even if you cannot agree on all aspects of your matter, pre-action procedures provide an opportunity to narrow down the focus to the key issues which need to be adjudicated by a court.
It is important that you approach these pre-action procedures with the right frame of mind, with the intention of resolving the matter before the hearing if you possibly can. If the Court finds that either party did not make a genuine effort in the pre-action stages, the court may award legal costs against that party, and it can even have an impact on the final orders.
One example of a pre-action procedure is dispute resolution, where you write to the other party with the details of your claim and include a genuine offer to negotiate and settle. This also requires that each party comply with the duty of disclosure. This allows you and the other party to understand each other’s position and what the other party believes is a fair outcome. Resolving issues this way can minimise the need to attend court and decrease costs and stress for everyone involved.
However, there are circumstances where pre-action procedures are not appropriate. In those circumstances, the pre-action procedures may be shortened or dispensed with altogether. Reasons that pre-action procedures may not be suitable include if the matter is urgent or if there is a history of domestic or family violence.
When you start a family court matter, one of the parties will make an initiating application that sets out what orders are being sought in the short term (interim orders) and long term (final orders). This application will also include:
- An affidavit that explains the basis for your application and sets out the important facts;
- In a parenting matter – a notice of risk that highlights any concerns over the welfare of the child and any family violence allegations; and
- In a property matter – a financial statement that lists each party’s assets, resources and income as well as expenses and debts.
Once you have filed your initiating application and it has been ‘sealed’ by the court, it needs to be personally delivered (‘served’) on your former partner (or his or her lawyers). At this stage you will be allocated a First Court Event.
Responding to an initiating application
Alternatively, if you are not the person who made the initiating application, you will need to respond to the action.
This will involve filing your own affidavit responding to the application. In property matters you will need to provide your own financial statement, while in parenting matters you will also need to file a notice of risk, including any allegations of child abuse or family violence.
Get ready for Court
Once both sides have submitted their documentation, this is ideally the point at which the applicant and respondent should negotiate.
The parties can negotiate with a view to agreeing interim matters (such as the care of children while you wait for final orders, or the sale of a property pending orders about property division). Alternatively, you can agree final parenting orders or property orders with your spouse and settle the matter on a final basis without ever appearing in court.
A family court matter can drag on for several years. During this time each party has two chances to file for interim orders to get a decision from a judge or registrar. For instance, you might seek an interim order for the sale of the property. Before this type of hearing, you and the other party will have to provide the court with a Case Outline Document and a draft of the orders that you would like the court to make in your matter.
An interim hearing differs from a standard hearing in several ways, notably in that there is rarely any cross-examination of the parties when they give evidence. At an interim hearing, the judge will simply hear from both sides and look at the submitted material before making a decision. An interim order is in place until the whole matter is fully resolved.
It is actually very unusual for a family court matter to reach a Final Hearing, as 97% of cases resolve before reaching this stage. For the small number of cases that progress to a Final Hearing, it will probably be several years from the initial application to the final hearing.
During the final hearing a Judge or Justice will conduct the proceeding. You, your former spouse, witnesses and various expects such as the family report writer will give evidence and be cross-examined. The legal submissions will usually be handled by opposing barristers instructed by solicitors. The Judge will probably not make a judgment on the day of the final hearing, as it usually takes a few months to receive a final decision.
Independent Children’s Lawyer
In a parenting matter, the court can appoint an independent children’s lawyer (ICL) to represent your child and make sure that his or her interests are central to any decisions. The lawyer will advise the court on matters such as where your child should reside and parental rights of each parent.
The court will usually only take the step of appointing an ICL if there are concerns for the child or young person’s welfare. If you have concerns yourself you can ask for an independent children’s lawyer to be assigned to the case. You will need to explain why this is a necessary measure and may need to defray some of the cost. An independent children’s lawyer remains impartial and does not represent either party in the family court matter.
Family law mediations
Families are encouraged to reach an agreement between themselves rather than wait and rely on the judgment of the court. Family law mediation is a method of dispute resolution where the parties talk out issues in the presence of a neutral third party, or mediator. In Australia, the Family Law Act 1975 (Cth) insists that a separating couple must attend Family Dispute Resolution (FDR) before they can apply to the court for parenting orders. This is designed to be a confidential and low-cost way to resolve disputes and outstanding issues. Parents can use this setting to prepare a parenting plan.
Benefits of mediation versus court proceedings
There are undeniable benefits to resolving family matters through mediation rather than a court proceeding. Mediation is cost-effective, quick, confidential and effective in most cases.
For parties who are co-parenting, mediation allows you to keep the lines of communication open with your former partner. Negotiating a parenting plan will give you a chance to make your wishes clear and understand the other parent’s priorities.
If you can reach an agreement with your former partner at any stage, then you can ask the court to formalise this agreement in Final Orders. The court will only make these Final Orders if they are in the children’s best interests (for a parenting matter) and just and equitable (for a property division).
Costs of the family court process
One of the reasons why it is far better to resolve matters before resorting to a final hearing is the costs involved.
Financially, it can cost anywhere between $40,000 and $100,000 to go all the way to a final hearing in a family matter, and that does not include any costs orders that the court might make against you. You might be unlucky and have even higher costs if there are long delays or complications during the hearing.
Emotionally, there are costs involved in litigating a family court matter. The process is undeniably distressing for everyone, including any children who are involved.
Length of the family court process
A family court process is also a commitment of time and effort. You may well feel that you have put your life on hold until the matter is settled. On average, a court proceeding will take at least two years to reach the final hearing stage, not including pre-action procedures.
This average also does not reflect delays that can come up during the court proceeding, especially if you or your former partner file interim applications. A highly contested matter may drag on for three years or longer before reaching a final hearing.
Contacting the family law courts
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Unified Lawyers knows how difficult it can be to contemplate going to court for delicate family matters. You need someone by your side who understands how the legal side of things works and is looking out for your interests. We can guide you through the processes involved in a divorce or separation, and provide you with the legal advice about how family court proceedings work. Our offices are open every day so please get in touch with our team on 1300 667 461 for a free consultation to discuss your legal options.