Family matters present many social and emotional issues, as well as legal issues, for individuals experiencing a family breakdown.
When court proceedings are necessary, this adds an extra layer of conflict and legal complexity to the matter, and having legal support to take you through the process is key.
While we encourage both separating parties to settle their differences through alternative dispute resolution (ADR) consistent with the rules and key objectives of the family law system, in certain cases, going to court is unavoidable.
At Ramsden Family Law, we’ll simply and transparently take you through each step of the Australian family court process – leaving no questions unanswered.
Let’s dive right in.
Family Court Structure in Australia
The Federal Circuit and Family Court of Australia (FCFCOA) was established on September 1, 2021, blending the former Family Court of Australia and Federal Circuit Court of Australia together in the hopes of making the family court process more streamlined. Western Australia has their own separate family court, which is the Family Court of Western Australia.
The FCFCOA has two divisions:
- Division 1: Deals with complex family law matters, including appeals and cases involving significant financial or parenting issues.
- Division 2: Handles the majority of family law cases, focusing on more straightforward matters. All family law matters enter the court system through Division 2 in the first instance and may be transferred to Division 1 if certain criteria are met.
Alternative Dispute Resolution (ADR) & Mediation
It is important to undergo alternative dispute resolution options prior to attending court to try to narrow the issues in dispute or reach an agreement without judicial determination. This is applicable in matters involving parenting arrangements for child and financial issues. There are exceptions to the pre-requisite requirement to engage in family dispute resolution and make a genuine effort to resolve the issues in dispute before commencing proceedings. Such exceptions include circumstances of urgency, if there are allegations of child abuse or family violence, or if one party would be prejudiced by satisfying this requirement.
Other Pre Action Procedures
Prior to commencing proceedings, as well as engaging in alternative dispute resolution and making a genuine effort to resolve the matter, it is important that you communicate with the other party about your proposed court claim and make an offer to settle. It is also important that you provide full and frank financial disclosure of your financial circumstances by providing disclosure documents.
The Court Process
First Court Event
The first court event is a procedural hearing whereby the judicial officer hears from the each of the parties about the various legal issues and thesteps that need to be taken to prepare the matter for determination by the Court. This typically occurs 1-2 months from the filing date unless the matter is assessed by the Court as urgent and given a priority listing date.
Directions Hearing
A directions hearing is another type of procedural hearing that occurs where the Court assesses the progress made by the parties in getting the matter ready for hearing, and will make further directions_regarding the case. This is conducted by a Judicial Registrar, Senior Judicial Registrar, or a udge.
Interim Hearing
An interim hearing occurs when a party has filed an interim application in addition to a final application. The interim hearing allows the Court to consider and make interim orders pending the final determination of the matter and may relate to procedural matters or substantive parenting arrangements for a child, spousal maintenance or property matters. . This is typically done in cases where an immediate decision that cannot wait until the final hearing needs to be made.
Dispute Resolution
Dispute resolution typically happens prior to court proceedings. However, the Court strongly encourages further and ongoing engagement in alternative dispute resolution if appropriate throughout the litigation process. If dispute resolution is conducted through the Court (typically done by an FDR practitioner or Judicial Registrar), then a Conciliation Conference, Dispute Resolution Conference or a Judicial Settlement Conference may be allocated
Conciliation Conference
A conciliation conference is a dispute resolution process for financial proceedings facilitated by a Judicial Registrar who is trained in dispute resolution and mediation.
Dispute Resolution Conference
A dispute resolution conference is conducted in parenting proceedings and conducted by a Judicial Registrar with the help of Court Child Experts, who are specialist FDR practitioners.
Judicial Settlement Conference
A Judicial Settlement Conference is a dispute resolution event where the Judge confidentially mediates a dispute between parties..
Court Children’s Service Interviews Reports
In parenting matters, a judicial officer may make orders for the preparation of a child impact report or a family report which requires the parties and their children to attend upon a child court expert or family consultant. A report is then prepared containing observations and recommendations made by the expert. The Court may take into account the expert’s opinion in determining what arrangements are in the best interests of the children. This resource provided through Court Children Services is limited. Where the Court assesses that the parties have the financial means to fund their own private report, the parties will be required to participate in the same process in the private space at their own expense.
Compliance and Readiness Hearing
In situations where both parties cannot reach an agreement after engaging in the court processes set out above, a Compliance and Readiness Hearing is undertaken by a judge.. The purpose of this hearing is to determine whether both parties have complied with all court orders and directions for a final hearing. Parties need to complete a Certificate of Readiness before the event.
Trial Management Hearing
After your case is allocated a judge to determine your matter at a final hearing, the judicial officer may list the matter for a trial management hearing to give further directions and ensure that the parties are ready for a final hearing. The types of orders made at this event generally include timelines for the filing of applications/responses, affidavit evidence, obtaining any updated expert reports (if required), preparation of proposed tender bundles and any other documents/matters that need to be attended to before the commencement of the final hearing.
Final Hearing
A final hearing is where each party has the opportunity to present their case to a Judge who will then consider all the evidence and make a final judicial determination. The length of the final hearing can range from 1 day to several days, depending on a number of factors including the complexity of the issues in dispute, evidence to be tendered, and number of witnesses to give evidence and be cross examined. In most cases, the Court will reserve judgment which means that the Orders they make and reasons for their decision will not be released immediately at the conclusion of the hearing. Whilst most reserved judgments are provided within about 3 to 6 months from the conclusion of the hearing, the Court may reserve judgment for longer.
In Summary
Because court proceedings in the family law system are dealing with issues that personally affect parties’ lives, the process can be emotionally stressful. Having the support and expertise of a family lawyer is essential.
At Ramsden Family Law, we’re here to help you throughout your family matter, ensuring you get the best outcome possible for you and your family.
Find out more about family court representation services.
If you have any questions or want to book our services, get in touch with our lawyers today.
