What i need to know about Famly Court Proceedings

   

What I need to know about Family Court proceedings?

Family Court proceedings can be very long and expensive.  The Australian Government has recognised this and have made attempts to improve the system by encouraging the parties to settle their issues out of court so as to minimise emotional stress of the parties and others involved (such as the children) and to reduce time and costs in comparison to attending a full hearing.

The Court process involved can be looked at as the following stages:

1.   Making the Application in Court;

2.   Responding to the Application;

3.   Attending Case Conference and Directions Hearing;

4.   Attending a Child Dispute Conference (if children are involved in dispute);

5.   Attending the Conciliation Conference (with respect to property dispute);

6.   Attending a Pre-Trial Conference;

7.   Attending the Final Hearing.

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Making the Application in Court

The party that is seeking to have the matter heard in Court is titled the Applicant.  The Applicant must file the following documents along with a filing fee (however there are some exemptions):

1.   Application on a case (with the option of a supporting Affidavit);

2.   The Applicant’s Financial Statement;

3.   Information Sheet (if applicable); and

4.   The original Marriage Certificate (if applicable).

The said Application must state what the Applicant is seeking the Court to Order on their behalf.

 

Responding the the Application

The Court then gives the other party, titled the Respondent to respond to the Application.  Thus, the Respondent must file the following:

1.   Response to an Application on a case (with the option of a supporting Affidavit); and

2.   The Respondent’s Financial Statement;

 

Case Conference or Direction Hearing

The Court will schedule a Case Conference requesting that the parties attend a mediation at the Court in a conference room.  The mediator will hear both sides of the dispute allowing each party to share their thoughts and feelings in an attempt to resolve the matter.  The parties’ legal representatives will not attend, however, they can advise you before your attendance.

It is informal and no legally binding decisions are made.

If an agreement is reached, then the parties can enter into an agreement and file it in Court.

If no agreement is reached then the matter will be before a Directions Hearing, which is very simple and short.  At the hearing the judge ascertains that the matter is heading for a resolution.

 

Conciliation Conference / Child Dipute Conference

This process is also informal and the parties and legal representatives attend the Court in a conference room.  A Registrar attends as the mediator, which will further attempt to allow the parties to reach an agreement.

Before attending the Conference, the parties (or their legal representatives) will each need to prepare a case summary, which will need to be filed in Court and served on the other party.

Again, if no agreement is reached, the parties are referred to the Pre-Trial Conference.

 

Pre-Trial Conference

This process involves all parties attending Court where a Registrar will again ascertain whether the matter can be settled before the parties attend the Final Hearing.  If the Registrar deems that settlement cannot take place then the parties are referred to the Final Hearing.

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Final Hearing

This is potentially the last process involved.  The parties and their legal representatives attend Court before a judge to have their matter heard.  Each party must prepare the case, that is have their evidence and witnesses present, if any.  The judge will hear both parties’ case and evidence and will ultimately make a judgement, which is binding on both parties. 

This process is often very formal and the parties are to obey the rules of the Court.

What do I need to know about Family Court proceedings

Sadly, every year, many thousands of marriages end in divorce. 

Legal proceedings to end marriage will have huge emotional and financial impact on all family members  -  whether you are the “leaver” or the “left”.

Commencing proceedings  -  what is involved ?

Once the Application, financial statement, copy of the Marriage Certificate and information sheets are filed, proceedings can commence.  A filing fee applies, and must be paid unless you are subject to exemptions. 

The person who instigates and files the application is known as the ‘applicant’ and the other party is known as the respondent.  The applicant needs to clearly state in the documentation the actions they wish the Court to make on their behalf.

After the Respondent and the Applicants documentation has been filed there are several steps in proceedings.  Case Conference/Directions Hearing, a Conciliation Conference, a Pre-Trial Hearing and lastly a Final Hearing.

Once Court proceedings have begun, settlement between parties outside of Court is still possible.

What happens at the Case Conference/Directions Hearing ?

Approximately 6 weeks after the application has been filed, both parties will be instructed to attend the Case Conference at the Family Court.  The Conference will be conducted in a Registrar’s office, and not in a Court room.  The Case Conference presents an opportunity for a mediated settlement or to clearly define the issues of the case.

If agreement is reached during this stage of the proceedings the Terms of Settlement will then be prepared.  Once approval from both people has been given, the Terms need to be signed by both parties.  A Registrar will then make the orders, the matter will be finalised and further proceedings are not required.

If settlement is not achieved during the Case Conference, a Directions Hearing is held (usually on the same day as the Case Conference).  A Directions Hearing simply establishes whether the matter is on track to a resolution.  This stage of the proceedings does not admit evidence, and no decisions in regards to the case are made.

The Respondent needs to ensure that seven days prior to the Directions Hearing all documentation (including the Response and Financial Statement) have been filed.  The Respondents answer needs to include the direction they would like the Court to consider.

If neither the Case Conference, nor the Direction Hearing proves successful in achieving an outcome, then the Court will order the case to proceed to the next stage.  This being the Conciliation Conference.

 

What happens at the Conciliation Conference ?

When the case usually involves property mattes, the Conciliation Conference will finalise the mattter, most of the time.

The Conciliation Conference usually proceeds approximately ten to fourteen weeks after the initial Case Conference.  Like the Case Conference, proceedings are conducted in a Registrar’s office and not in a Court room.  This stage of proceedings sees no evidence given and no decisions made.

This stage of proceedings is establish if a settlement can be reached with the help of a Registrar, who acts as a mediator between the two people and lawyers.  A case Summary needs to be organised prior to the Conference, and copies need to be filed with the Court and also with the other person.

If both people come to an agreement, then Terms of Settlement will be prepared and signed during the Conference.  If the people cannot come to an agreement, then the case proceeds to the next stage, being a Pre-Trial Conference.  This usually occurs 12 to 14 weeks after the Conciliation Conference.

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What happens at the Pre-Trial Conference?

A Pre-Trial Conference is another step in the proceedings to establish whether the case can be settled through negotiations.  If an agreement between the two people cannot be reached at this stage, then the Registrar will declare that a Final Hearing will be held.

If both parties come to an agreement, then a Terms of Settlement will be prepared and signed

 

What happens at the Final hearing?

The Final Hearing is typically the last stage of proceedings.  A Final Hearing involves presentation of evidence, examinations, and cross-examinations conducted by lawyers. 

When property is relevant to the case, witnesses include the Applicant and Respondent, as well as family, friends, and new partners if applicable.  Most Final Hearings are conducted in a formal manner. 

Judgement from the Court will usually be made after there has been time to examine and consider all the evidence.  Seldom will the Court deliver judgement immediately after the Hearing.

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