The many stages in your family law matter

The first stage in a family law matter, from our point of view, is the initial appointment, with our client when we obtain detailed instructions about our client’s case. That means obtaining details about the facts, about the history of the marriage, the parties, and the children. At the same time, we will:

1. Provide detailed advice about the law.
2. Provide detailed advice about the client’s prospects.
3. Ascertain the client’s wishes and expectations.
4. To the extent that the client’s expectations and wishes do not appear to correlate with his/her prospects, we will provide information and advice about whether we consider that it is prudent to pursue the client’s expected outcome.
5. Provide information about the large range of Alternative Dispute Resolution (ADR) options available to parties to resolve their family law dispute via mediation/counselling, arbitration and so on (see below).
6. Advice about the new Court, the Federal Circuit Court, and Family Court of Australia, established in September 2021 and its new detailed rules including the  requirements for parties to make “genuine attempts” to resolve their dispute before they commence court proceedings – “pre action” procedures.; and
7. Advice about tactical and strategic considerations about how to approach the dispute with the other party, what we like to call, devising the “case plan” with our client.

The new rules state:

“Each prospective party to a proceeding in the Federal Circuit and Family Court of Australia must make a genuine effort to resolve the dispute before filing an application to start proceedings…” [4]

The Pre Action procedures encourage parties in a dispute to complete early and full disclosure by the exchange of information and documents about the prospective proceeding, to attend mediation/counselling, to make offers of settlement and generally to take genuine steps to resolve the dispute  and to do all that before proceedings are commenced.  [5]  A party planning to commence proceedings  must write to the opposing party and advise that he/she intends to commence Court proceedings.

The new Court Rules warn that there may be “serious consequences for non‑compliance with the pre‑action procedures, including costs penalties or a stay of proceedings pending compliance”.

Parties involve in a family law dispute often settle without the need to commence Court proceedings.

There are various ways that parties may resolve a dispute including that:

1. The parties may engage a mediator to assist them to mediate their dispute and attend mediation session(s) with the solicitors.
2. The parties may engage a mediator and attend mediation without the solicitors.
3. The parties may meet with their solicitors without a mediator (“four-way meeting).
4. The parties may be able to resolve their dispute by direct discussion around the kitchen table.

Importantly, when parties negotiate a settlement, there should be a level playing field between them. This can be achieved by engaging their lawyers to be involved in the negotiations or at least to receive comprehensive legal advice before and after the matter settles.

The agreement reached should be formalised legally between  them for various reasons as explained in the next section.

If a settlement is achieved, the next stage in a family law matter is to formalise the agreement legally.

Normally the agreement is formalised by the parties entering consent orders which may be filed with the Court. In property matters, it is essential to formalise the agreement legally between them either by entering consent orders  or entering into a Binding Financial Agreement (BFA) under the relevant sections of the Family Law Act, 1975 (Cth). [6]

Quite often, parties are motivated to enter consent orders or a BFA because that will attract an exemption to pay stamp duty in relation to the transfer of title to real property or shares or a motor vehicle. There are also capital gains tax benefits in formalising such a family law agreement legally.

However, the most important reason to enter into a legal agreement that reflects the overall agreement is to end the financial relationship between the parties in order that nether may bring an action in the future against the other under the Family Law Act (Cth) 1975.

Regarding children’s matters, it is recommended that the parties also formalise a settlement legally with either consent orders or a “Parenting Plan”. [7]

When all pre-action procedures have been exhausted and after a party has notified the other party of his/her intention to commence Court proceedings, that party may commence Court proceedings. 

The party will need to file an Initiating Application and an Affidavit in support. The affidavit is the party’s story that tells the Court about the party, the party’s marriage/relationship and why it is that the party is going before the Court and what the applicant would like the Court to do.

In a parenting matter, a Notice of Risk must also be filed.  In a property matter a Financial Statement must also be filed.

Once the documents are filed, there are clear “Court Events” within the life of a family law matter. We proceed to describe below the various Court Events.

Under Paragraph 5.2 of the Central Practice Direction – Family Law Case Management state that:

“ Other than urgent applications and cases allocated to specialist lists, in the absence of an order or direction from the Court to the contrary, the following listing pathway will apply to family law proceedings commenced in the Court irrespective of Division:

The First Court Event will take place before a Judicial Registrar of the Court (not a Judge),  and it will be listed normally about two months after the applicant had filed the  Initiating Application.

The other party, the respondent  should have filed documents in response before the First Court Event takes place.

The Judicial; Registrar will:

1. ascertain whether the parties have complied with the pre-action procedures and made a genuine attempt to resolve the issues in dispute
2. identify the issues in dispute between the parties and the steps required to resolve them.
3. consider whether an Interim Hearing is required.
4. consider whether the matter is suitable for court-based Dispute Resolution, having regard to the means and resources of the parties, or alternatively, whether it is suitable for referral to external dispute resolution (or, with the consent of the parties, arbitration).
5. consider whether the case is so urgent that it requires immediate transfer to a Judge or Senior Judicial Registrar; and
6. make such orders and directions as are necessary (including but not limited to orders for future listings, the preparation of expert reports, the issuing of subpoenas and the exchange of documents) to facilitate the future progression of the proceeding in a manner consistent with the overarching purpose.

There are numerous reasons why an interim hearing may be required during the life of a family law matter.

In children’s matters, an interim hearing may be required, for example:

1. to locate and recover a child from the other parent.
2. to restrain a party from removing a child or relocating with a child to another city or country.
3. to obtain interim orders that will allow a parent to spend time with a child.

In property matters, an interim hearing may be required , for example:

1. to restrain a party from transferring or disposing of property or wasting matrimonial assets before the Court can make final property orders.
2. to grant one party as against the other sole occupation to former matrimonial home.
3. Seeking that one party pay the other spousal maintenance.

The Judicial Registrar at the First Court Event  will order parties to attempt to negotiate a settlement of their dispute either by attending private mediation or a conciliation conference jointly with their respective lawyers.

Depending on the size of the pool, the Court may order that the parties engage a private mediator and attend mediation to resolve their dispute. Alternatively, in simpler matters or matters where the pools divisible between the parties is relatively small, the  Court may order a conciliation conference to be presided by a registrar of the Court. A conciliation conference is a mediation to be presided by a registrar who will allocate a limited period, two to three hours. A conciliation conference is a cheaper option as the registrar will not charge for his/her services.

In children’s matters, the Court may request that a short report be prepared by a court appointed expert. The expert will be a psychologist appointed inhouse by the Court or a private expert engaged by the parties for the same purpose. The report will be based on interviews between the expert and the parents and, the children.

The parties will be directed to attend interviews with the psychologist and to arrange for the children and other relevant persons to attend interviews with the expert. The expert will write a report based on his/ her observations and with her recommendations. The matter will then return to the Judge and the Judge will be assisted by the observations and recommendations of the expert to make any appropriate interim orders.

The new rules of the Court assume that the life a family law matter will be about eight months. Normally, matters take no less than eighteen months before they reach a final hearing.[8] 

Under the new rules, sometime as close as possible to 6 months from the date of the commencement of proceedings, the Court will list he matter for a Compliance and Readiness Hearing to ascertain whether, among other things:

1. The parties have made a genuine attempt to attempt to resolve the matter.
2. The parties have complied with their duty of disclosure and with all relevant orders and directions.
3. The parties have attended to necessary preparations for the matter to be listed for Final Hearing.
4. The issues which are truly necessary to be determined at trial and the evidence that is truly necessary to be adduced is identified.
5. The relevant issues of fact and law and the relief sought by the parties are appropriately defined.
6. The parties have exchanged compulsory offers of settlement
7. to ensure that the matter is otherwise ready to be allocated a Final Hearing date; and
8. to list the matter for Final Hearing.

Normally, the length of time between the filing of an Initiating Application and the date of a final hearing in the Canberra Registry is about eighteen months. In other registries as for example in Sydney and Melbourne, the length of time is considerably longer.

One or several days may be allocated for the Final Hearing depending on the complexity of the matter.