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Most people following marriage breakdown and separation wish to avoid having to go to court and want to resolve property settlement as quickly and as cost effectively as possible.

Separation is an emotional time and it is not uncommon for family law solicitors to encounter situations where poor communication and troubled relationships impede the party’s ability to resolve the dispute.

While people usually think of lawyers and Court, they think of court hearing and family law litigation, however when emotions are high, family lawyers and the Court Rules and procedures can assist in resolving the property settlement.

Family Court and Federal Circuit Court pre-action procedures

In the Family Court of Australia, there are strict pre-action procedures that have to be followed prior to commencing property settlement proceedings.

There are no such strict requirements in the Federal Circuit Court, however parties are encouraged to make a genuine effort to resolve the matter by Family Dispute Resolution prior to commencing proceedings.

Most Family Law matters would be filed in the Federal Circuit Court; however, it is helpful if the pre-action procedures are followed in all matters.

Explore Mediation and Family Law Dispute Resolution

Once you see your lawyer and get some advice as to where you stand it can be helpful to make contact with the other party and provide a copy of the pre-action procedures brochure produced by the Family Court and invite the other party to participate in a dispute resolution process. This can include a mediation, arbitration and/or negotiation through solicitors.

If the other party refuses to engage in negotiation, attend dispute resolution or attends but it is unsuccessful, then a written notice of intention to commence proceedings can be forwarded to the other party.

Family Law Rules 2004 r1.05.
Federal Circuit Court Rules 2001 r1.03
Family Law Rules 2004 Schedule 1 Part 1 (1)(a).

Family Law Rules 2004 Schedule 1 Part 3 (4).

This notice sets out the issues in dispute, the orders being sought and a further offer to resolve the matter and a timeframe to respond (no shorter than 14 days).

The other party should respond with his or her position. If no response is received proceedings could be commence if the party desires. The advantages of this are:

  • Extensive efforts are made in a structured way before the “last resort option” of going to court is commenced;
  • If you end up in Court most Judges will want to see that parties have made every effort to resolve the dispute before commencing family law proceedings. In some situations, there may even be costs orders made against a party who has unreasonably refused to participate in alternate dispute resolution such as mediation or refused to accept a reasonable offer of settlement; and
  • Following these procedures can make subsequent Family Court proceedings less expensive and more quickly resolved. This is because in conducting settlement negotiations the parties would have usually narrowed the issues in dispute and collected much of the information necessary for resolution.

Other steps to assist in resolving family law property settlement faster with less expense

Each party has a duty to make full and frank disclosure of all information and documents relevant to the dispute. This should occur when the negotiations are taking place and should include a schedule of assets and liabilities and supporting documents. It should also include income (i.e. tax returns) and details of any property disposed of or purchased since separation.

The best way forward is to produce a list of the documents you have for disclosure and provide the list to the other party. The other party should disclose documents relevant to the dispute that are within his/her possession or if he has the power to obtain them. However until a Judge Orders disclosure, there is no way to enforce the obligation. By providing your disclosure contemporaneously with a request the other party is more likely to comply and be less suspicious of the process. We generally recommend to self-represented people who are unsure about obligations to make disclosure to seek independent legal advice.

If a party refuses to make disclosure, Court action can become necessary to compel compliance. Thus, making timely disclosure makes commencing proceedings less likely to be necessary.

If no disclosure is ongoing there can be substantial consequences for non-disclosure, including that a party may not be able to rely on the document as evidence, client may face a costs order or be guilty of contempt or the court.

When pre-action procedures may not be appropriate

There are exceptions to pre-action procedures, including grounds of urgency, where allegations of family violence exist or a genuinely intractable dispute. If the matter does not fall under one of the exceptions parties and lawyers should follow the procedures.

Family Law Rules 2004 Schedule 1 Part 3 (6).
Family Law Rules 2004 Schedule 1 Part 3 (5).
Family Law Rules 2004 r 13.01; Family Law Rules 2004 Schedule 1 Part 4 (1).
Family Law Rules 2004 r 13.01 (2); Family Law Rules 2004 Schedule 1 Part 4 (2)
Family Law Rules 2004 Schedule 1 Part 4 (2)(a).
Family Law Rules 2004 r 13.04.
Family Law Rules 2004 Schedule 1 Part 5 (b).
Family Law Rules 2004 r 13.07.

 

For most people going to court is a daunting experience. The gravity of the occasion, coupled with the formality of the environment can be extremely stressful and can cause a lot of anxiety.

The good news is you can prepare yourself for the experience, and hopefully reduce some of your stress/anxiety to give yourself the best opportunity of presenting well before the Judge.

The Family Law Courts

Before getting into the practical aspects of your court appearance, I think it is helpful to know a little bit about the background of the system you’re in.

The family law system in Australia is largely controlled by the Federal and not State Governments. This means most of the laws are made by the Federal Parliament, and the primary source of these laws is the Family Law Act 1975 Cth (“FLA” for short).

A number of different courts can exercise jurisdiction under the Family Law Act but the court that most people will attend in a family law parenting or property settlement matter is the Federal Circuit Court of Australia.

This court is where most of the day to day family law business is conducted and from here on when I say “court” this is the court I’m referring to.

More complex matters and appeals from the Federal Circuit Court are generally dealt with by the Family Court. In some circumstances State Magistrates Court can exercise jurisdiction and the High Court is the last avenue for appeal.

Thus, when you attend court in a family law matter it will usually be in different building to traffic matters, criminal matters and commercial law suits etc.

How does a matter come to court?

A matter comes before the court when a party files an application for final orders. This party is called “the applicant”.

When applying for final orders a party can seek interim orders as well. Final orders are the orders you want long term, while interim orders are orders you are seeking while you are waiting for the final orders to be determined.

Once the application is filed it will be given a court seal and a date to come to court. This date is usually referred to as “the first return date”.

The application is then served on the other party (“the respondent”), who will respond with the orders they are seeking (and hopefully state whether they agree to any of the orders the applicant wants).

Each court has their own Rules as to how this process is to occur and for the Federal Circuit Court the relevant Rules are the Federal Circuit Court Rules 2001.

What about once the matter is in court?

Once the application is filed, responded to, and the parties first come before the Judge, you can expect the court to direct a number of procedural steps before a Judge can be called upon to make a decision to determine the matter.

These procedural steps (called directions) generally relate to each party gathering the information necessary for the Judge to do his or her job in determining the case based upon the evidence produced by each party, and, most importantly, to assist the parties to explore alternate dispute resolution options.

Just because the matter is filed in court doesn’t mean it will go to a final hearing or trial. In a property matter (and sometimes in parenting matters) mediation will be ordered after proceedings are commenced and once there is sufficient evidence available for the parties to settle the dispute.

Resolution can occur at any time during the process and is strongly encouraged by Judges and most legal practitioners.

If the matter does proceed to a trial, there will be a number of different court hearings before your trial dates are set in the court calendar.

The court’s time is precious as there are a large number of matters and a limited number of Judges. Therefore, several appearances are usually necessary to ensure everything is ready before matters are allocated their trial dates.

So, I’m in Court…

At any time during the process when you’re in open court (i.e. your matter is called before the Judge) there are a number of important things to remember.

If you have a lawyer, you have an advantage in court because your lawyer will do the speaking for you.

If you have a lawyer rarely will you be addressed directly by the Judge. Obviously if you’re at the Trial and called upon for cross-examination you will need to speak at that point (a whole other blog), but for most of the procedural hearings you will not be required to speak.

Even if you have a lawyer, it is important to conduct yourself with proper respect for the Judge and institution of the court.

This means dressing appropriately, making sure your phone is off or turned down, no sunglasses on your head, refraining from making noises or facial expressions if something is said you don’t agree with, not fidgeting etc.

It is also important to remember that even when your matter is not before the Judge and you are waiting at the back of the court, the Judge can see you. This means be respectful and act appropriately at all times.

If you don’t have a lawyer, things can be a bit more difficult and my recommendation would be to consider the following:

  • Again, show respect for the Judge and court as set out above in relation to dress etc;
  • Don’t talk over the Judge or other party. Typically, the applicant speaks to the Judge first and then the respondent. You will have your turn to speak so remain patient;
  • Listen carefully to any questions the Judge asks you. Judges are busy, and they will have a good idea in advance how to manage your matter. Answer questions directly and don’t try to give explanations instead of answers;
  • At procedural hearings, it is not the time to tell the Judge about your whole case and your evidence. This only occurs at the trial. If there is to be an interim hearing for interim orders, stick to the facts and circumstances necessary to achieve the interim orders you seek. The Judge can’t make “findings of fact” anyway on an interim basis so usually you will be referring the Judge to the facts and circumstances that are agreed or not controversial;
  • Be on time; and
  • Never tell the Judge something that isn’t true. This is critical because if you lose credibility with the Judge they may not believe you on other issues after that.

One of the big disadvantages you have as a self-represented litigant is the Judge gets to see you perform at every hearing in the lead up to the trial.

If you have a lawyer, your case is filtered through the lawyer before you are called to be cross-examined at a final hearing or trial.

For the most part, the court is operated on a “docket system” which means that the Judge you have at the start of the matter will be the one who also hears the final hearing or trial. Judges are smart people and will remember you, if they have observed you to be calm, respectful and considered throughout the proceeding this will hold you in good stead in presenting your case.

If your matter is going to court and you need assistance, contact Hooper Family Lawyers at Victoria Point on (07) 3207 7663.

 

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