The decision to litigate your family law matter is not an easy one to make. Litigation in the family law system is often considered to be notoriously lengthy, expensive, and emotionally draining.
However, for some families, litigation can reduce costs, stress and lead to a quicker resolution of the issues between the parties. This occurs, for example, when the parties cannot agree or co-operate, where one or both parties are withholding information relevant to the issues in dispute or in cases involving complex matters.
When discussions with your former spouse have reached a stalemate, you need an experienced and empathetic family law litigation lawyer on your side to advocate for you on your behalf.
Pre-action Procedures
Pre-action procedures refers to the steps separating spouses are encouraged to make before commencing proceedings. When commencing proceedings, you must demonstrate to the court that you have tried to resolve your matter prior to approaching the court.
In parenting matters, this involves attending family dispute resolution and being issued with a section 60I certificate however if your matter is urgent or involves family violence or child abuse, this may not be required, and you should seek legal advice.
In property matters, whilst you are not required to attend family dispute resolution, you will need to attend a form of alternative dispute resolution (ADR) prior to filing or at least invite your former spouse to engage in a form of ADR such as mediation.
Engaging with your former spouse through these channels means that you may be able to reduce the issues in dispute, leaving only the issues that cannot be agreed to be determined by the court.
At Dettmann Phair Lawyers, our family lawyers take the time to listen to our clients and understand the intricacies of your family and the circumstances surrounding your separation. With this deep understanding, we can advise you of the best alternative dispute resolution processes to engage to attempt to resolve your dispute. Alternatively, we can also confidently advise you if your matter is not suitable for ADR and should instead be litigated early.
Initiating Application
To commence proceedings in the Federal Circuit and Family Court of Australia you will need to prepare and file with the court an initiating application. The initiating application sets out the orders you seek that the court make both in the short term (“interim”) and long term (“final”).
Depending on your matter, you will also need to file further documents to support your application such as the following documents:
- Affidavit: a statement setting out the facts of the matter which is sworn or affirmed to be true.
- Notice of child abuse, family violence or risk: a mandatory form in parenting matters requiring parents to confirm whether they consider themselves or their child/ren at risk of abuse, neglect or family violence.
- Financial statement: a mandatory form in property matters setting out your financial circumstances, such as income, expenditure, property owned, liabilities and superannuation.
- Financial questionnaire/parenting questionnaire: required forms that allow you to set out your individual circumstances relevant to issues in financial/parenting cases.
- Genuine steps certificate: a required document setting out your compliance with the pre-action procedures and the genuine steps you have taken to resolve, or at least narrow, the issues in dispute
Once your initiating application and supporting documents have been filed with the court and stamped with the court seal, you must then serve those documents on your former partner or his/her solicitors. Your former partner is then required to file and serve a response to initiating application and other required documents responding to your interim and final orders sought.
We know that starting a case off on the best foot is important. We take the time to carefully draft initiating or responsive documents which are correct and address all the relevant issues in accordance with your instructions. This way, should your case proceed to final hearing the building blocks are already in place to achieve the best possible outcome in your matter.
Going to Court
First Court Event
When you file your initiating application, your matter will be listed for hearing before a judicial registrar who will make procedural orders. Unless it is urgent, the hearing will be between 4 and 8 weeks from the date of filing. At this first court event, the judicial registrar will hear from the parties in relation to what steps need to be taken to prepare the matter for the next stages of the court process and make orders in relation to those next steps. These steps could involve:
- Attending dispute resolution
- Exchanging disclosure
- Preparation of a valuation
- Preparation of an expert report
- Attending a court event before a court child expert
- Completing parenting programs
Interim Hearing
Given that the court may not make a final decision in your case for between 1 and 3 years, there may be occasions where you will need to apply to the court to make orders in the short term, called interim orders. The interim Hearing is heard by a judge or senior judicial registrar who will consider the documents filed by the parties and hear submissions prior to determining interim orders which the parties must comply with.
Other Court Events
Other court events prior to the final hearing of your matter could include a conciliation conference which is a form of dispute resolution in financial proceedings facilitated by a judicial registrar or a dispute resolution conference which relates to parenting and is also conducted by a judicial registrar but with the assistance of a court child expert. If an agreement cannot be reached and the parties still require judicial determination, the matter will be listed for a compliance and readiness hearing which is heard by a judge and aims to ensure that all court orders have been complied with and the parties are ready to proceed to final Hearing. A trial management hearing may be listed whereby directions are made by a judge as to the conduct of the final hearing and to make sure it is ready to proceed to final hearing.
Final Hearing
The final hearing is the very last court event in your matter where a Judge will determine the issues between you and your former spouse on a final basis and make final orders. Depending on the complexity and quantity of issues in dispute, the final hearing could run for one day or several days. During the hearing, you, your former spouse, witnesses and various experts will give evidence and be cross-examined. Only 3 percent of cases reach this final stage, and some parties agree on Consent Orders just before or during the final hearing.
Dettmann Phair Lawyers: On Your Side Throughout the Entire Litigation Process
Throughout the court process, from the first directions hearing all the way to final hearing our solicitors provide our clients with fierce representation. With our experience and knowledge of the law, we carefully listen to our clients and take the time to understand you and your family’s needs to ensure that we provide you with the best representation at court.
It is important to note that once proceedings are commenced, this does not mean that negotiation ends. Our experienced solicitors will utilise the court process to open negotiations and try to resolve matters at each step.
However, if negotiations and alternative dispute resolution do not resolve the issues between you and your former spouse, our solicitors will have put the foundations in place at court to move your matter to completion and help you achieve the best possible outcome in your case.
If you are considering litigating your family law matter, contact our office today to organise an appointment to speak with one of our experienced accredited specialist family lawyers.
