Family Court Proceedings – What to Expect
Attending the Family Court can be a very daunting experience. The process is different depending on whether you’re involved in Financial or Parenting matters, and we explain below the different Court events you are likely to encounter.
The First Return Date (Initial Hearing)
Irrespective of whether you have filed an Application with respect to Parenting or Property matters, the initial Hearing is commonly referred to as the “First Return Date”. Unless the matter is urgent (an issue determined by the Court, not the Applicant or their Solicitor) the first Court event will usually occur between 1 and 2 months from the date of filing.
The initial Hearing generally commences at 10:00am. There can be anywhere from 5 to 25 Applications in the same list, and the Family Court is always very busy at this time. As there are inevitably numerous matters in the same list, all listed for the same time (10:00am), these initial Hearings may be rather fast paced.
The Magistrate will seek guidance from you or your Solicitor as to how the matter should proceed. This will initially be determined by whether your Application seeks Parenting Orders or Financial Orders (or both); and whether only Final Orders or a combination of both Interim Orders and Final Orders are sought.
It is rare for any material decisions to be made by the Court on this date. The Judicial Officer will consider the most appropriate pathway for your matter to be managed (whether it be via Alternate Dispute Resolution, risk assessment or further hearing(s), etc.) and a series of programming Orders will be made to that effect.
The Court will also make Orders with respect to the gathering of requisite evidence, disclosure, valuations, expert reports, the filing of further Court documents, or other “procedural” Orders as the Court deem appropriate.
Unless you and the Other Party reach agreement on the day, it is most unlikely that any specific, substantive Orders will be made to determine any disputed parenting or property issues such as “spend time” arrangements, or interim payments.
Parenting – Case Assessment Conferences
If there are any “risk issues” such as alcohol or illicit substance misuse, physical/psychological or financial abuse reported in your or the Other Party’s Initiating Court documents, your case will generally be listed to a Case Assessment Conference.
This Court event provides an opportunity for you (and your Solicitor) to speak with a Family Consultant (who is either a Social Worker or Psychologist employed by the Family Court) to discuss any allegations made by you or the Other Party, and for the Consultant to undertake an assessment of risk. You should be aware that everything you say to the Family Consultant is reportable.
At the Case Assessment Conference, you and the Other Party will meet separately with the Family Consultant. The Family Consultant will then write a report – a “Case Assessment Conference Memorandum” for the Magistrate to consider.
Within this Case Assessment Conference Memorandum, the Family Consultant may offer recommendations, such as:
- attending parenting courses;
- testing for illicit substance use and/or excessive alcohol consumption by one or both parties;
- what “spend time” and/or communication arrangements with the “non-resident” parent should be put in place;
- whether the Family Consultant should meet separately with the child/ren to note/assess their wishes (and consider, if possible, whether these are genuinely expressed); and
- whether the matter should progress via a further Interim Hearing or otherwise be referred to a Dispute Resolution process.
Parenting – Dispute Resolution Conferences
Depending on the circumstances of the case, such conferences can also be listed before a Family Consultant (especially in circumstances where that Consultant has already met with the child/ren).
Generally, however, Legal Aid facilitate a great number of Dispute Resolution Conferences (“DRCs”) within their own premises. The Family Court will make Orders for parties to attend a Legal Aid DRC in circumstances either where one party is represented by Legal Aid, or if an Independent Children’s Lawyer (“ICL”) has been appointed to your case.
Dispute Resolution Conferences vary in length and have the potential to last a number of hours.
The primary aim is to attempt to resolve all aspects of a parenting dispute by agreement and without the need for the matter to progress within the Court system (and ultimately towards a Trial).
Trials – also known as Final Hearings – are expensive, stressful (with cross-examination) and the outcome is never certain.
Negotiating an outcome at a Dispute Resolution Conference – even if you have to compromise – allows both parties to retain an element of control over the outcome.
It also needs to be borne in mind that, from the date an Initiating Application is filed, it may well take over two years to reach Trial (unless there are urgent circumstances justifying its being expedited. However, this is not common). Even once the Trial is concluded it might take many months for the Judicial Officer to publish their decision.
Property – Conciliation Conference
A Conciliation Conference is a dispute resolution event for financial matters that is conducted by a Registrar of the Family Court, and normally lasts up to three hours.
Their role is to assist the parties in resolving the dispute by facilitating an agreement (where possible). The Registrar will not, under any circumstances, provide legal advice to any of the parties although – where appropriate – they can offer their views on what a likely outcome might be in respect of specific issues that are in dispute (or even the overall matter).
That being said, Registrars can generally only make Orders of a procedural nature, and any substantive Orders may only be made with the clear consent of both parties.
The Conciliation Conference is a unique Court event as, unlike other Court events, the documents filed in advance of the Conference and the discussions, negotiations and any proposals made at the Conference remain confidential, are not retained on the Court’s record, and cannot be relied upon or even referred to later in the proceedings.
This presents a real opportunity for the parties to negotiate directly and genuinely. In the event that there is no resolution, however, each party’s documents are returned to them at the conclusion of the Conference.
Depending on the type and extent of the issues that remain unresolved, the Registrar will likely make “programming Orders” to ensure the matter keeps its place in the queue of cases awaiting Trial and is still progressing towards a Final Hearing – for example, Orders regarding the appointment of a Single Expert Witness(es), the filing of Trial documents, etc.
A Pre-Trial Conference is facilitated by a Registrar of the Court and represents the final opportunity (within the Court system) for parties to attempt to settle their dispute with direct assistance from a Judicial Officer.
The Registrar may offer their views and “guide” the parties towards achieving a settlement that each of them can “live with”.
Like a Conciliation Conference, the Registrar cannot provide legal advice, but they may act as a Mediator. Unlike a Conciliation Conference, though, the parties are offered half a day (and sometimes a full day – depending on the complexities and the extent of the matters in dispute) to endeavour to resolve all outstanding issues.
As with a Conciliation Conference, the discussions are “without prejudice” and remain confidential if no settlement occurs.
The Registrar will initially meet with each party (and their Solicitor) separately to determine the issues in dispute, explain how the Conference will proceed and obtain an understanding of what is most important to each party.
Thereafter – usually – everyone will convene together in the same room (if considered appropriate) in an effort to:
- agree the constitution and totality of the net asset pool;
- discuss any issues that are in dispute;
- explore the underlying interests of each party; and
- make proposals for settlement.
In the event no agreement is ultimately reached, the Registrar (similar to a Conciliation Conference) will likely make Directions and/or programming Orders to progress the matter towards Trial.
Essentially, a Directions Hearing is another type of procedural hearing that may occur where required at various points throughout the proceedings, and at which certain Orders or Directions are made about your case.
This type of hearing usually follows a preceding Court event such as Case Assessment Conference, Conciliation Conference, Interim Hearing or the publication of a Single Expert Report, and is designed to ensure the timely progression of your matter.
An interim hearing is a Court event whereby a judicial decision is made about particular issues in dispute, and which require determination prior to (and cannot await) Trial. For example:
- spousal maintenance payments;
- care arrangements for children; or
- the sale of a property.
Before an interim hearing takes place, parties are required to file further affidavits in support of the specific Orders they are seeking.
At the interim hearing, the Judicial Officer will consider the evidence filed by each party and hear submissions from their Solicitors. Any decision is ordinarily determined based upon the contents of the affidavit material. Unless in exceptional circumstances, the cross-examination of parties and the giving of oral evidence is not permitted at an Interim Hearing.
Orders made at the Interim Hearing remain in place “until further Order” or Trial. In the event the parties subsequently agree to alternative interim orders being made during the proceedings, this can be achieved by filing a jointly-executed Minute of Consent Orders in substitution for the original Interim Orders.
The number of interim hearings afforded to litigants throughout proceedings is limited.
The aim of a Readiness Hearing (as the name implies) is to ensure all parties are “ready” for Trial and the matter is likewise “ready” to proceed to a determination at a Final Hearing – that is, all of the evidence (affidavit material for themselves and their witnesses) sought to be relied upon by each party at Trial has been filed.
The Court also uses this event to confirm compliance with previous Orders, such as obtaining valuations or other expert evidence to be relied upon at Trial.
The purpose of a Callover is to allocate a date for your Trial. A large number of cases are allocated Trial dates at each Callover, so there is no time to deal with any issues other than the allocation of the Trial date.
Prior to the Callover, you should file a Callover Certificate.
You or you Solicitor should attend Court with a list of all dates when you or your witnesses will be unavailable to attend Trial in the following three months.
The Judicial Officer conducting the Callover will suggest a Trial date(s) and they must at that time be advised as to whether the proposed date suits you and your witnesses.
Sometimes there are insufficient dates available for all cases in the Callover to be allocated a Trial, or else the only dates available may still be unsuitable. If this happens, your case is likely to be “stood over” to the next available Callover, which could be approximately one or two months thereafter.
If you require a fixed starting date for your Trial, you must request this at the Readiness Hearing or otherwise note it on the Callover Certificate. Generally, fixed starting dates are only given where parties or witnesses have to travel from interstate or overseas for the Trial. Otherwise your trial will be listed as starting “Not Before” a particular date.
At the Callover you will be told the name of the Judicial Officer who will be conducting the Trial; however, the case may still be re-allocated to another Judicial Officer closer to the Trial date.
A Trial is the Final Hearing that ultimately determines the outcome of your proceedings and whereby Final Orders are made. Trials are adjudicated by either a Magistrate or a Judge. The duration of a Trial will vary from one day to several days (or possibly weeks) depending on the overall complexity, the number of issues in dispute and the number of witnesses involved.
At the Trial, each party must present their case which involves:
- an opening address;
- the giving of evidence (each party and their respective witnesses are called to the stand to take the Oath, to confirm their affidavit evidence and then be cross-examined); and
- the making of submissions to the Judicial Officer (closing address) about the evidence and how the relevant law should be interpreted/applied to your matter in light of that evidence.
After Trial, the Magistrate or Judge will deliver their Reasons for Judgement (almost always in written form). This rarely occurs on the same day (known as an “ex tempore” decision) and is usually “reserved” and delivered in writing at a later date (up to 3 months after Trial and sometimes longer).
For more information about the particular steps or events involved in the Family Court process, please contact DS Family Law to arrange an initial consultation.
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