If two parties cannot reach an agreement by way of mediation or negotiation, court proceedings may be commenced. The Federal Circuit & Family Court of Australia hears all family law matters. There are various rules governing the family court process. We recommend having legal representation from an experienced Brisbane family lawyer if your matter is in Court to increase the prospects of you achieving the best practical outcome for you and your family.
Court proceedings should always be considered a last resort after every effort is made by both parties through their respective legal representatives, to negotiate a resolution of the matter by agreement, which can then be formalised by way of consent orders. We strongly recommend that you seek legal advice and representation before commencing family court proceedings.
If you are searching for trusted and compassionate family law advice, get in touch with the team at Barton Family Lawyers on 3465 9332 – the leading Brisbane family lawyers the region depends on. We have an industry reputation for a reason; because our clients put their faith in our abilities, and we provide them with the outcomes they and their families truly need.
Family Court Advice: The Court Merger
On September 1, 2021, the Federal Circuit and Family Court of Australia merged to form the Federal Circuit and Family Court of Australia (FCFCA). There is now one central set of rules that governs the family court process, known as the Family Law Rules. This merger resulted in major structural changes to what we know as the family law system. There is now a single point of entry into the court system for all matters, a new case management pathway, synchronised family law rules and a heavier focus on compliance with pre-action procedures and dispute resolution, also known as Mediation.
The objective is to provide a more efficient justice system aimed at assisting both parties through the court process quickly, safely, and fairly without undue cost and/or delay. The new management pathway aims to have all matters that are unable to be resolved listed for a Final Hearing within 12 months from the date proceedings commenced.
We are of the view that this is overly optimistic and that matters are more likely to require 18 months to two years (sometimes more) to reach a Final Hearing.
Learn more about the amalgamated family law rules, the increased emphasis on compliance with pre-action procedures and the new case management pathway below.
The New Case Management System – Family Court Process
This case management pathway will apply to all applications filed in the Federal Circuit and Family Court of Australia. At the first court event, the Court will triage the matter, ensure there has been compliance with the pre-action procedures and develop a case management plan for the matter. The Court can make any interim orders agreed between the parties in relation to parenting/financial matters (e.g. for time between a child and a parent).
- In parenting proceedings, the Court may make orders for the preparation of a Child Impact Report/Family Report and/or where appropriate, order the appointment of an Independent Children’s Lawyer.
- After receipt of the Child Impact Report/Family Report, the Court may list the matter for an Interim Hearing and thereafter a compliance check. Where appropriate, the court may then make orders for the attendance by the parties at dispute resolution.
- If the matter is not appropriate for/does not resolve at dispute resolution, the Court will conduct a compliance and readiness hearing and thereafter list the matter for Trial.
In financial proceedings, the Court may make orders for the exchange of full and frank disclosure, the preparation of valuations where the value of property is in dispute and make orders for attendance at Mediation. Where appropriate, the court will assess the appropriateness of the matter for Arbitration. If the matter is not resolved at dispute resolution, the Court will conduct a compliance and readiness hearing and thereafter will list the matter for Trial.
Receive Leading Family Law Advice with Barton Family Lawyers
If you’re looking for a lawyer experienced in all areas of family law, get in touch with the Barton Family Lawyers team on 3465 9332 today. We’re here, and ready to assist in making our family law services as comfortable, safe, and streamlined as possible for you and your family.
Frequently Asked Questions (FAQ’s)
What is an Application?
An initiating application sets out the orders you seek. You can seek interim orders and final orders. In most parenting matters, the applicant will seek interim parenting orders. In most property matters, there is no need for interim orders unless there are urgent issues that need to be dealt with prior to a Final Hearing.
What is a Response?
A response sets out the interim and final orders sought by the Applicant, with which you agree, as well as any additional orders sought by you.
What other Court Forms must be filed with my application/response?
There are various documents that are required to be filed when an application/response seeking parenting/financial orders, including as follows:
- Initiating Application;
- Section 60I certificate (evidencing attendance at mediation);
- An affidavit of non-filing of a dispute resolution certificate (if no 60I certificate is filed);
- An Affidavit setting out the facts relied on in support of any interim orders sought;
- Notice of Risk;
- Genuine Steps Certificate;
- Undertaking as to disclosure.
- Initiating Application;
- An Affidavit setting out the facts relied on in support of any interim orders sought;
- Financial Statement;
- Financial Questionnaire (if no affidavit is filed);
- Genuine Steps Certificate;
- Undertaking as to disclosure.
These documents may be found on the FCFCOA website.
What are the Pre-action procedures under the Family Law Rules?
The pre-action procedures are listed in Schedule 1 of the Family Law Rules. The purpose of the pre-action procedures is to require parties to exhaust all possibilities for resolving the matter or at least narrowing the issues which require court determination, prior to commencing proceedings.
The pre-action procedures apply to any person commencing proceedings, any person responding to an application and to their lawyers.
Parties should not file proceedings unless they have exhausted all pre-action requirements, including as follows:
- Attendance at Dispute Resolution;
- Negotiation with the other party and exploring options for settlement via correspondence;
- Exchanging a notice of intention to commence proceedings which outlines:
- the issues in dispute;
- an offer of settlement;
- orders sought if proceedings are commenced;
- a request for a response in 14 days.
- Complying with the duty of disclosure;
- Genuine attempts to settle the dispute.
Some exceptions apply to compliance with the pre-action procedures including if reasonable attempts have been made to follow the pre-action procedures, genuine urgency or where it is not safe to undertake the above steps.
When an applicant files an application for parenting/financial orders, they must file a genuine steps certificate which certifies that they have complied with the pre-action procedures and the genuine steps they have taken to resolve the dispute, prior to filing the application.
If a party is found not to have complied with all the pre-action procedures, the Court may make costs orders against the non-complying party or, where appropriate, their lawyer.
The Court will also take compliance by each party with the pre-action procedures into account when making orders as to the case management pathway of a matter. For example, if a party has not complied with a pre-action procedure, the court may refuse to progress the application until each party has complied.
What is the duty of disclosure?
Parties have a duty to make full and frank disclosure of all information relevant to the issues in dispute.
The purpose of the Undertaking as to Disclosure is to ensure the Applicant has complied with his/her duty to give full disclosure of all information relevant to the issues in the proceeding, prior to commencing proceedings in the family law court Brisbane.
The duty of full and frank disclosure must be complied with prior to family court proceedings being commenced.
Documents that must be disclosed in financial matters include evidence of the parties income and earnings as well as evidence of all assets, liabilities and superannuation in the name of that party or in which the party has power and control of.
Documents required to be disclosed in parenting matters include medical reports, school reports, letters, drawings and photographs and any other documents relevant to an issue in dispute.
There are serious consequences for failing to provide full and frank disclosure to the other party in a timely manner, including punishment for contempt of court and costs orders.
What do I need to remember regarding the new Family Law Rules?
Under the new family law rules, you must make a genuine effort to resolve the dispute by doing the following prior to commencing proceedings:
- Extend an invitation to attend mediation to the other party;
- Attend mediation and dispute resolution (where a valid exception does not apply);
- Negotiate and explore of settlement options;
- Comply with disclosure obligations;
- Exchange a notice of intention to commence proceedings including an offer of settlement.
If the above steps are not complied with prior to you commencing family court proceedings, serious consequences may flow including the making of costs orders against you and your lawyer.
Why can’t the Court make the orders I want at the First Return date?
At the first court event, the matter is listed before a Registrar. It is a Directions Hearing only (i.e. procedural in nature). The Registrar Court can make any interim orders agreed between the parties in relation to parenting/financial matters (e.g. for time between a child and a parent).
The Registrar does not have the power to make orders that are not agreed between the parties, except in relation to procedural issues, for example, for the preparation of a Family Report / Child Impact Report.
This unfortunately means that if you are a parent seeking time with your child and other orders, unless they are agreed by the other parent, the court is not able to make those orders on the first court date. In circumstances where there are no interim orders agreed and/or there are substantial issues in dispute, the Registrar will likely direct the parties to attend upon a Child Expert for preparation of a Child Impact Report, or alternatively, the parties may agree to privately fund a Family Report.
The Child Impact Report / Family Report will provide independent evidence to the Court as to what is in the child’s best interests. The Court will generally list the matter for an Interim Hearing before a Senior Judicial Registrar after receipt of the Child Impact Report / Family Report.
What is an Interim Hearing?
An Interim Hearing enables any urgent issues of the parties to be dealt with, pending a Final Hearing. Interim orders are short term, until the Court has the opportunity to examine all of the evidence, listen to cross-examination and conduct a Final Hearing.
The decision made by a Judge/Senior Judicial Registrar at an Interim Hearing will have regard to the Affidavits filed by the parties, the agreed facts and the facts/issues in dispute.
At an Interim Hearing, the Court is not in a position to make decisions (findings) about the facts of the case (i.e. what is true and what is not true).
This means that a Court cannot make a decision as to whether party A or party B is telling the truth where the parties disagree as to the truth of a fact or facts in the case.
Where most of the facts are disputed, the Judge will look to the agreed facts and any independent evidence that has been produced (e.g. reports or subpoena records). Cross-examination (oral evidence) is generally not permitted at the Interim Hearing.
In a parenting matter, the best interests of the children is the paramount consideration. Where an allegation is made by a party against the other which causes the Court concern about the safety of the children in the other party’s care, the Court will err on the side of caution until it has the opportunity to examine all the evidence in detail, listen to cross-examination of the parties and make decisions in relation the facts of the case, at a Final Hearing.
Check out our family law information videos below for more information:
What is a Conciliation Conference? How does it differ from Mediation?
A Conciliation Conference is a form of mediation conducted by a Registrar of the Court that provides the parties with an opportunity to negotiate an agreement to their dispute. A Conciliation Conference is paid for by the Court and is therefore only ordered in small property pool cases.
A Mediation is conducted by a Mediator/Family dispute resolution practitioner appointed jointly by the parties and the costs of the mediation are paid for by the parties.
Most property settlement cases will be settled at the Mediation/Conciliation Conference.
What is an Independent Children’s Lawyer?
An Independent Children’s Lawyer (ICL) is a lawyer appointed by the Court to act in the best interests of the children.
An Independent Children’s Lawyer may be appointed where there are allegations of child abuse, concerns in respect of the mental health of the parties and/or their parenting capacity, religious and cultural issues, where one of the parties is not the biological parent of the children, where there is an older sibling who is rejecting one parent, where there is a proposal to separate the siblings or where the parties are in intractable conflict.
The ICL does not take instructions from the children but represents their theoretical best interests by performing their own investigations, independent of those performed by the parties, and arranging for preparation of certain reports which will assist the Court to determine what orders are in the children’s best interests.
What is a Family Report?
The Family Report process is where a psychologist or family consultant experienced in child related matters interviews the parties, the children and significant others, and writes a detailed report wherein they draw conclusions and make recommendations based on those conclusions, as to what orders are in their view, in the children’s best interests.
Check out our information video on What is the purpose of the Family Report for more information on this topic.
What is the Final Hearing?
The Final Hearing is the final court event where the Judge listens to the evidence and then delivers judgement. Prior to the Final Hearing, the parties and witnesses will have filed Affidavits. At the Final Hearing, the parties and all other witnesses, including the family report writer, will give evidence and be cross-examined in relation to their evidence. Usually the parties will instruct a barrister to attend and speak at the Final Hearing on their behalf. The Barrister will make submissions at the conclusion of the Final Hearing, summarising the evidence that supports why the Court should make the orders sought by their client.
It is rare that a Judge will give his/her judgement on the day of the Final Hearing. Usually, the decision will be handed down at least 2 or 3 months down the track.
What are Consent Orders?
At any point after a Court proceeding has been commenced, the parties can negotiate a final agreement, and have that agreement formalised by the Court. If this occurs, the Court will make Final Orders reflecting the agreement between the parties, provided those orders are Just & Equitable (property) / in the children’s best interests (children).
Check out our family law information videos below for more information on the family court process and consent orders:
What is the Length of Family Court Process?
The family Court process may take up to two years (sometimes more) to reach a Final Hearing stage.
What are the costs of the Family Court Process?
Family Court Proceedings are very expensive. For matters that reach a Final Hearing, the parties will each pay legal costs of between $60,000 and $300,000. Sometimes costs can escalate higher where there are delays and complexities arise.
There are emotional costs too. The family court process can be very stressful and emotionally draining for all parties and the children.
Lastly, there are time costs. Family Court proceedings take an average of two (2) years to resolve at a Hearing. This does not include the time spent negotiating prior to a Court application being commenced in the Family Law Courts Brisbane.
What are the Benefits of Mediation vs Court Proceedings?
When considering the delays inherent in the Family Court process and the costs involved, there are good reasons to choose mediation over court:
- Mediation saves money;
- Mediation resolves your issues much quicker than through the court;
- Mediation ensures a certain and predictable resolution, that you have control and ownership of.
No one ever ‘wins’ in the Family Court system. There are however many losers due to the financial and emotional costs involved. A decision is handed down to you by a third party and often parties will walk away with an outcome that neither of them are happy with.
Successful mediation will result in an agreement that everyone can live with, which eliminates the uncertainty of court.
Check out the following pages for more information on the mediation and family court process:
- Our Mediation Services
- Do I have to mediate before Court? The exemptions explained
- Can I go to court without mediating first?
- ‘Why you should give Mediation a Crack’
Seek Advice Promptly
Be proactive in seeking legal advice from an experienced family lawyer following separation about the family court process and your rights and entitlements. The most common mistake we see being made is that people will wait for months or even years following separation before seeking family law advice and they do so in a reactive manner, after a climactic event that has caused them emotional or financial stress.
Seeking prompt legal advice following separation will maximise the prospects of your matter being resolved quickly and cost effectively.
Before deciding on your lawyer, we recommend you watch our video, 6 things to know before hiring a family lawyer.