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If you and your ex cannot agree on how your property will be divided, parenting or financial issues, the next step is to file an application for your matter to be heard by the Federal Circuit and Family Court of Australia.
The process can be lengthy and typically involves a variety of court appearances and hearings before going to trial…
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Before you file with the courts
Here in Australia, you’re required to attempt to resolve your matter through negotiation, mediation, or dispute resolution unless there are factors like family violence or other issues that make this inappropriate.
In fact, before applying to have your matter heard by the Courts, a registered Family Dispute Resolution Practitioner needs to issue a Section 60I Certificate, which documents if you have attempted mediation or why it could not proceed.
Once the Section 60I Certificate is issued, the necessary applications and documentation can be filed with the Courts.
Your options for going to court
If your property pool is less than $550,000 (excluding superannuation) or not significantly greater, your case may be eligible to be designated as a Priority Property Pool Case (PPP). PPP cases are managed in an expedited manner, focusing on specific issues, with the goal of limiting legal costs and preserving the parties’ assets. The judge directs, controls, and manages the conduct of proceedings, meaning the process is more flexible, less formal, and less costly.
Traditional court hearing procedures, on the other hand, are far more regimented. Evidence and material relating to all issues must be submitted and considered rather than just those that are being disputed. Both parties and any support witnesses are also typically cross-examined, and several steps, court appearances, and hearings are required before the trial can commence.
Your first court appearance
If your matter proceeds through the traditional pathway, your first Court appearance will be within roughly eight weeks of your application being filed, depending on the urgency. The purpose of it is to assess and triage the matter. The Registrar will make appropriate Court orders upon:
- assessing compliance with all pre-filing requirements;
- considering whether all required documentation has been filed;
- evaluating the need for an interim hearing and any expert evidence;
- considering directions for further dispute resolution measures;
- assessing risk issues;
- identifying if the matter is appropriate for transfer to Division 1 or allocation to specialist lists.
Interim hearing
If there are pressing property, financial, or parenting matters that need to be resolved urgently, an interim hearing may be held to address and resolve them. The timing of an interim hearing will be determined based on the urgency of the matter and the time required to obtain appropriate evidence.
Dispute resolution
Even though you’re required to attempt to resolve your matter through dispute resolution measures before filing, the Court will likely require you to undertake further dispute resolution measures within five months, either externally or within the Court, if appropriate.
This is because, often, as matters progress through the Court system, people’s priorities or willingness to compromise shifts. With documents and expert evidence being produced, both parties are often in a better and more informed position to negotiate and resolve matters between them. In fact, parties are expected to continue to attempt to resolve the issues in dispute throughout the Court process.
Compliance and Readiness Hearing
This hearing is expected to occur within six months of your dispute resolution (if it is unsuccessful). Its purpose is for the Court to ensure both parties have complied with court orders and directions and made a genuine attempt to resolve issues.
The hearing will involve a robust exploration of the reasons for the continuation of the matter and the potential for it to be brought to a conclusion prior trial. The Court will make Orders for directions to enable the matter to be heard at trial and allocate a trial date.
Trial Management Hearing
If required, a Trial Management Hearing may occur before the trial.
Trial
You can expect your matter to be listed for trial within 12 months of filing your application with the Courts. Depending on the complexity or number of issues in dispute, the duration of the trial will vary from one day to several days. At the final hearing, the Judge will make rulings and provide reasons for judgment.
Need advice?
If you’re navigating a separation or divorce or want to understand your options, the team at Lakey Family Law is here to help. We have extensive experience in all aspects of divorce, property settlements and parenting matters and can assist. Contact us for an initial, obligation-free chat.
