A Guide to Family Court Proceedings
An application can be filed in the Family Court or the Federal Circuit Court.
If the Application is for children’s arrangements it will proceed to an Interim Hearing and (possibly) then to a Final Hearing. At any stage of the Court proceedings the parties are able to reach agreement. If agreement is reached the parties should document it as “Terms of Consent Order”.
An Application can either seek Interim Orders and Final Orders or just Final Orders. There is a filing fee payable to the Court when filing an Application, or a Response. If interim Orders are sought an Affidavit needs to be filed with the Application.
Interim Hearings usually relate to urgent issues and are intended to be of a short term nature, i.e until the Court has an opportunity to conduct a Final Hearing. Examples of matters that are considered at an Interim Hearing include:
- Children’s living arrangements
- Occupation of the matrimonial home
- Interim spouse maintenance
- Injunctions to protect property
A Conciliation Conference or a Private Mediation is a compulsory Court Ordered mediation that provides an opportunity for the parties to attempt to settle their dispute. Attendance of the parties and their Lawyers is usually compulsory. Conferences are conducted on a ‘without prejudice’ basis. This means that except in very limited circumstances neither party can later give evidence about what was discussed at the Conference.
If a matter fails to resolve following an Interim Hearing (usually in relation to children’s issues) or at a Conciliation Conference/Mediation (usually in relation to property settlement matters) it will be listed for a Pre-Hearing Conference.
At a conference a timetable is fixed for the filing of Court documentation including Affidavits and Reports and the matter is allocated a Pre-Trial Conference date when a Final Hearing date will be allocated.
Independent Children’s Lawyer
An Independent Children’s Lawyer is a Solicitor appointed by the Court to act on behalf of the children. Appointments may be made at any stage by the Court, if the Court is satisfied that there are appropriate reasons for the appointment.
The sorts of issues that the Court will look for in making such an appointment is where child abuse is an issue, where there are cultural or religious issues, where there is intractable conflict between the parties, where one of the parties is not a natural parent, where there is a proposal to separate siblings, where there are mental health issue etc.
The Final Hearing is conducted before a Judge or Federal Magistrate. At the Final Hearing the witnesses give evidence and are cross-examined. The Barristers make submissions to the Court summarising their client’s case. Sometimes the Judge will give a Judgment immediately or the Court will reserve the Judgment and the decision will be handed down at a later date.
Parties who reach agreement are advised to document their agreement in writing. This is usually achieved by way of Consent Order.