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Family Court is a place most Australians would probably rather not find themselves. If court proceedings are commenced, parties will have the opportunity to negotiate their own settlement at every step of the legal process. Matters that are resolved in this way become the subject of Consent Orders issued by the Court. Most divorcing couples settle their issues in this way. This fact sheet gives an overview of what to expect from the family court proceedings process in Australia.
The family lawyers at Owen Hodge Lawyers would be happy to assist you through the difficult and sometimes trying times of separation and divorce. Our attorneys have great expertise in the formulation of parenting arrangements, the negotiation of financial settlements and vigorous advocacy. Please call us at your earliest convenience at 1800 770 780 to schedule a consultation with our experienced family lawyers.
Family Court Proceedings: What to Expect From the Process
FAMILY COURT PROCEEDINGS
WHAT TO EXPECT FROM THE PROCESS
Family Court is a place most Australians would probably rather not ﬁnd themselves. Under most circumstances, except when there is an urgent parenting matter,
a risk of child abuse, a risk of family violence or when one party is unwilling to negotiate, it is often better to settle as many issues as possible without recourse to
the Family Courts. If court proceedings are commenced, parties will have the opportunity to negotiate their own settlement at every step of the legal process.
Matters that are resolved in this way become the subject of Consent Orders issued by the Court. In fact, only about 5 percent of cases go all the way through the
Family Court proceedings to a ﬁnal hearing and judgement.
The court process can vary depending on the circumstances of each case, and also whether the matter relates to parenting or property matters or both although
the Family Court process generally consists of the following steps:
1. Preparation and ﬁling of documents
The individual bringing the action must ﬁle an Initiating Application that sets out the orders that the applicant would like
the Court to make. The application must be accompanied by a sworn statement, known as an Aﬃdavit, which sets out the
applicant’s evidence. In property matters only, the applicant must also complete and swear a Financial Statement, which is
eﬀect sets out their ﬁnancial circumstances.
The individual responding to the action will ﬁle a Response to Initiating Application (this will set out the orders they want
the court to make), a supporting Aﬃdavit and, in property matters only, a Financial Statement. In the Initiating Application
and Response the parties may seek interim orders (which are urgent temporary orders that will be in place until the matter
is determined on a ﬁnal basis) and/or ﬁnal orders.
2. First Court Date1st Court Date
At the ﬁrst court date, which will usually occur about 6 to 12 weeks after the initial ﬁling, the Family Court will make
procedural orders about how the matter is to proceed and what steps are to be taken by the parties.
3. Interim Hearing
If the parties are seeking interim orders, the court may set the matter down at a speciﬁc time and date for an interim hearing.
At an interim hearing the judge will read the Aﬃdavits ﬁled by the parties and their witnesses and will then hear short oral
submissions from the parties (if they are self-represented) or the parties' lawyers about what orders should be made based
on the evidence set out in the Aﬃdavits and the law which is set out in the Family Law Act (1975).
The judge will then make a decision. The parties and their witnesses do not give any oral evidence at this stage, therefore, the
court is unable to make any determinations about who is or is not telling the truth.
4. Conciliation Conference
In property matters, the parties may be directed to participate in a Conciliation Conference.
A Conciliation Conference is in eﬀect a mediation, and is an opportunity for the parties to negotiate and try to reach a ﬁnal
agreement or to narrow the issues in dispute with the assistance of their lawyers and a court appointed Registrar or mediator.
When parties are able to reach a ﬁnal agreement at this stage, they can enter into Consent Orders that (once made by the court)
ﬁnalise their matter. For parties who are unable to reach an agreement, the Court will make further procedural directions, again
including the dates by which certain steps in the proceedings are to be completed.
Throughout the process, prior to the ﬁnal hearing, there will be an exchange of ﬁnancial documents, expert's reports (especially
if there are disputes over property values), correspondence with the other side and perhaps further attempts at mediation or a
5. Child Dispute Conferences
In parenting matters, the parties are usually directed to participate in a Child Dispute Conference where they meet with a court
appointed Family Consultant to discuss the issues in dispute and to try to reach an agreement. In some circumstances children
may also participate in this process. At the conclusion of this conference the Family Consultant prepares a short report for the
judge which summarizes the issues in dispute, and makes recommendations about how the matter should proceed.
For example, a Family Consultant may recommend that an Independent Children's Lawyer be appointed, which is a solicitor that
represents the child.
6. Family Report and/or Expert Report
In parenting matters, before a matter proceeds to a ﬁnal hearing it is necessary for both parties and the children to be
interviewed by a court appointed Family Consultant or an external Psychiatrist who then prepares a detailed report that is
released to the parties, their lawyers and the judge. This report will make recommendations about what ﬁnal orders the
judge should make.
7. Final Hearing
Where parties are still unable to reach an agreement, their matter will be set down at a particular date and time for a ﬁnal
hearing. A ﬁnal hearing often runs for one, two or three days. Prior to the ﬁnal hearing, each party and their witnesses will
set out their evidence in a sworn Aﬃdavit, which will be read by the judge and both parties prior to the hearing.
At the ﬁnal hearing they will also be required to give oral evidence in court. The other party's legal representative will also
have an opportunity to ask them questions about their evidence, which is called cross-examination. Any experts, such as
Family Consultants or Psychiatrists may also be required to give oral evidence in court.
After the evidence is heard by the judge, both parties (if they are self-represented) or their lawyers will be able to make oral
arguments about why the judge should make the orders sought by them based on the evidence and the law. At the end of
the hearing the judge will not make a decision straight away. Instead the judge will ask the parties to return at a later date to
hear their decision.
8. Final Hearing
Within about three months of the end of the trial, the judge will hand down a decision and supporting explanation. Parties
will be informed of the date for delivery of the decision and are required to attend at Court on that date.
Please call us at your earliest convenience at 1800 770 780to schedule a consultation with our experienced family lawyers.