FAMILY LAW LEGAL PROCEEDINGS

The court process is different across the different areas of law. For this article, the focus will be on Family Law court process.

Filing an application

If you cannot reach an agreement, you may consider hiring our family lawyers and applying to the courts for an order, as this may be the only way to deal with a dispute. However, before applying to the courts, and as a quick and affordable option for resolving disputes, parties may be required to use dispute resolution services before accessing the courts.

If an agreement cannot be reached, you may file an application with the court. Once the document is filed with the court, the court process begins and the matter will be heard before a judge, commonly known as hearing.

Filing fee

A filing fee is required when a document is filed with the court. You may be eligible for a fee exemption or reduction, if you meet the criteria. The Family Court provides a guideline as to the court fee exemptions, namely:

• You hold any of the following cards issued by the Department of Human Services: health care card, pensioner concession card, Commonwealth seniors health card or any other card issued by the Department of Human Services or the Department of Veterans’ Affairs that certifies your entitlement to Commonwealth health concessions, or
• You have been granted Legal Aid, or
• You are an Independent Children’s Lawyer appointed to represent a child’s interests in proceedings under the Family Law Act (only exempt for Subpoena and Interim application fees), or
• You are receiving youth allowance, Austudy or ABSTUDY payments, or
• You are under the age of 18; or
• An inmate of a prison or otherwise legally detained in a public institution.

If the above do not apply to you, you may apply for an exemption of court fees through financial hardship. In determining financial hardship, your income, day-to-day expenses, liabilities and assets, will be considered and whether the payment of the court fees would cause you financial hardship.

Service

Service is a legal term used to describe the delivery of a legal document from one person to another with the aim of informing them of the court proceeding that may involve them. Service must be given in a way that satisfies the court that the person has received the document. This is especially important where the person does not attend court. If a person has been served correctly, the court may proceed without the person being present.

All documents that are filed with the court must be served.

There are time limits in which the documents must be served, however as good practice, documents should be filed as soon as practicable.

Depending on the document, ordinary or special service may be required.

Methods of ordinary service are:

• Hand – you may arrange for a process server or any other person over the age of 18 years to hand deliver the document for you;
• Post or electronic communication (email or fax);
• On a lawyer, if they are representing the party and agrees to accept service;
• At a person’s contact address (address for service) in Australia; or
• If a person does not have a contact address, their last known address.

Methods of special service are:

• Hand – you may arrange for a process server or any other person over the age of 18 years to hand deliver the document for you;
• Post or electronic communication (email or fax); or
• On a lawyer, if they are representing the party and agrees to accept service.

The difference between ordinary service and special service is that special service documents require an acknowledgement of service to be signed by the person who is receiving the document, when the document is served.

Procedural hearing

Before applying to the court, the parties must have genuinely made an attempt and effort to reach an agreement through other family dispute resolution procedures such as mediation or conciliation conference. The purpose is to reduce matters heard in court which can be costly and time consuming for all parties involved.

The Family Court website provides a useful step-by-step guide of pre-action procedure before a party considers starting a case with the courts.

Step 1 – Invite other party to participate

Invite the other party to participate in dispute resolution and give them a copy of the “Before you file – pre-action procedure for financial cases (prescribed brochure)”.

Step 2 – Decide which dispute resolution service

Decide which dispute resolution service to attend and make a genuine effort to resolve the dispute by participating. If the dispute is resolve, the parties may enter into a financial agreement or apply to the courts for consent orders.

Step 3 – Written notice

If:

• No dispute resolution service is available;
• A person refuses or fails to participate; or
• The dispute is not resolved;

then a party considering to apply to a court must give the other party written notice of their intention to initiate court proceedings (referred to a notice of claim) setting out:

• The issues in dispute;
• Orders sought;
• Genuine offer to resolve the dispute;
• Stipulate timeframe in which the other party is to respond by;
• Attach the “Before you file – pre-action procedure for financial cases (prescribed brochure)” to the notice of claim.

Step 4 – Replying to notice of claim

If you receive a notice of claim, you must reply within the stipulated timeframe whether you accept the offer. If you accept the offer, the parties may enter into a financial agreement or apply to the courts for consent orders.

If you do not accept the offer, you must set out in a letter:

• The issues in dispute;
• Orders sought;
• Genuine offer to resolve the dispute;
• Stipulate timeframe in which the other party is to respond by.

Step 5 – Taking other action

After reasonable attempts, if an agreement is not reached, the parties may file an application to the court.

Parenting case

If the matter is not resolved, a family dispute resolution certificate, also referred to as a section 60I certificate, is required unless an exemption is granted.

Before the initial procedural hearing in a parenting case is heard, the party applying must have filed the following:

• Initiating application form;
• Family dispute resolution certificate, unless exempt;
• If there is an allegation of child abuse or family violence, a notice of child abuse, family violence, or risk of family violence with supporting affidavit;
• If interim orders are applied for, an affidavit.

The registrar may also direct that the parties complete the child responsive program before the case proceeds before the judge.

The registrar will:

• make review the child and parent issues from program.
• procedural orders for the matter to proceed before the judge.
• allocate a date for the trial before the judge.

The orders may concern the following matters:

• Refer the parties to family counselling, family dispute resolution or any other family services;
• Appointing an independent children’s lawyer;
• Directing the parties to complete a parenting questionnaire at least twenty-eight (28) days before the trial before the judge.
• Directing the parties to file and serve an undertaking as to disclosure at least twenty-eight (28) days before the trial before the judge.

Property/Financial matters

A property/financial order is made by the court in the division of property. A court can make a determination based on an agreement between the parties or after a court hearing.

In considering what order should be made, the court will consider:

• Financial contribution – what assets each parties have and debts, effect of any proposed order upon the earning capacity of either party, whether direct or indirect;
• Non-financial contribution – such as contribution to the welfare of the family
• future requires – such as a party’s age, income, ability to earn, commitments, responsibilities.

First day of trial

The judge will review all evidence filed with the court as well as determine the issues in dispute. The court may direct the parties to obtain expert reports and other reports the court determines necessary.

Continuation of trial

Based on the matter and its complexity, the judge may conduct more than one trial to determine the issues.

The court may direct that the trial does not need to be conducted in court, but in chambers or by telephone.

The court may again direct the parties to obtain expert reports and other reports the court determines necessary.

Final stage of trial

The judge makes a determination or decision about your matter through court orders.

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