Pre action procedures
There are 5 steps which must be undertaken before a family matter can proceed to the Court.
Step 1: Provide a copy of the Before you file – pre action procedure.
Provide a copy of the Before you file – pre action procedure for financial cases or parenting cases (prescribed brochure) to the responding party in your matter. You must also invite them to attend mediation proceedings.
Step 2: Comply with the requirements of Compulsory Family Dispute Resolution.
This means that the parties must attend mediation and obtain a 60(I) certificate which shows that they attempted to settle the dispute through mediation. If your case is resolved the parties can enter into a parenting plan or apply to the Court for consent orders.
Parties who are engaged in property proceedings are not required to be issued a mediation certificate as a pre-requisite to initiating Court proceedings.
Step 3: If the issue is not resolved through mediation, a person can apply to the court.
A person considering applying to the Court must give the other person/s written notice of the intention before filing their initiating application which should include:
- The issues in dispute
- The orders to be sought if a case is started
- A genuine offer to resolve the issues
- A nominated time (at least 14 days after the date of the letter) by which the other person must reply.
Step 4: Reply to notice of intention.
If you receive a notice of intention, you are required to reply in writing whether you agree or disagree. If you disagree you must send a letter outlining the same four points as above.
Step 5: In the event the parties are unable to agree.
In the event the parties are unable to agree to the terms of the offer put forward in their respective notices of intention. Either party may file in their application in the Federal Circuit and Family Court of Australia without further notice.
Initiating application
The individual who is bringing the matter to court (the applicant) will need to file an initiating application.
This document includes an affidavit of the individual and includes short term (interim) and long term (final) orders that the party is seeking. The other party (the respondent) will have to respond to the application by providing their affidavit and Response form.
First court event
The first court event takes place approximately six to twelve weeks from the date of filing of the initial application.
At this event, the Judicial Registrar hears from both parties regarding what steps need to be taken to prepare the matter for the next stages of the court process.
Interim hearing
As family law matters can proceed for a long period of time, the interim hearing provides a chance for the parties to place short term orders until the final orders are agreed upon or enforced.
Each party or their lawyer will give a short oral submission to the Registrar regarding which orders from the affidavit should be enforced. There is no evidence or cross examination at this stage.
Family Dispute Resolution
- conciliation conference and dispute resolution conference
Family Dispute Resolution is a form of mediation which is mandatory for parties to undertake before proceeding to the final hearing in an attempt to reach an agreement before the final hearing. This is undertaken with the assistance of the party’s lawyers and a court-appointed Registrar.
There are two types of conferences which can be engaged in:
- Conciliation Conference
- Family Dispute Resolution Conference
The Conciliation Conference settles matters relating to the division of property and assets. As part of this process, parties will need to make ‘full and frank’ disclosure of all relevant financial documents. Negotiations will take place and the Registrar will assist the parties in reaching a fair agreement.
The Family Dispute Resolution Conference (FDRC) settles matters relating to parenting. This process is compulsory unless there is a history of family violence. FDRC is broken into two parts. The first part is a private, confidential 45-minute phone call between the registrar, each party and each of their lawyers. The second part is where the negotiations take place between both parties, their lawyers and the Registrar. The Registrar is able to make either interim or final orders if an agreement is reached by the parties.
Final hearing
If an agreement cannot be reached by way of Family Dispute Resolution, the matter will move to the final hearing.
This proceeding is conducted by a Judge or Justice, where each party will be required to give evidence and will be cross-examined (asked questions about evidence). Witnesses may be called to give evidence, including other individuals or experts. The final decision will not be reached on the same day as the final hearing. The judge will hand down a decision roughly 3 months after the end of the trial, where binding parenting orders will be enforced.