Navigating the Family Law court process and how you can avoid it

Harsh words are spoken, promises are broken and in the words of the old song by Grayson Hugh, love has walked out the door. Most people can make amicable arrangements for managing their financial and parenting issues post-separation without Court intervention, but for those with more complex issues, Family Court involvement may be necessary to resolve the dispute as a last resort. Streeterlaw’s Accredited Specialist in Family Law, Simone Green explains process of filing in the Federal Circuit and Family Court of Australia (‘the Court”) for family law orders.

In September 2021, the practice and procedures of the Australian Family Law Courts went through the biggest changes in 45 years. The filing requirements are outlined within the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (‘the Rules’) and make it significantly more complicated to commence proceedings. Here is what you need to know about filing an Application for family law orders.

1. Pre-action filing procedures

• The Court requires family law litigants to prove that they have made a genuine effort to resolve the issues before filing an Application seeking Orders (with few exceptions). This may include attending mediation. See our article on alternative dispute resolution.
• For Financial issues, this includes compliance with the exchange of full and frank financial disclosure (see Schedule 1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021) and attempting to participate in some form of alternate dispute resolution (with some exceptions).
• For Parenting issues, this includes at least inviting the other parent to participate in mediation with a family dispute practitioner for mediation (with some exceptions eg. family violence).
• Filing an Application without having complied with the host of pre-action procedures, may result in a costs order being made against the Applicant and orders made for compliance before the case can proceed along the pathway to hearing.
• Make a genuine offer to settle the dispute in writing stating your intention to file an Application (providing a minimum of 14 days’ notice) if the offer is not accepted.
• Serve a copy of the Central Practice Direction Family Law Case Management (FAM-CPD) on the other party and any other relevant Practice Direction.

2. What to file

• Initiating Application (Family Law) – clearly setting out the Orders you wish the Court to make on both a final basis and on an interim basis if you require an interim hearing.
• Affidavit (if seeking interim orders only) – concisely setting out the reasons why you need each of the orders you seek.
• Genuine Steps Certificate – certifying that you have followed pre-action procedures and taken genuine steps to resolve the dispute.
• Undertaking as to Disclosure – stating compliance with pre-action procedures.
• Parenting only:
  
  • Notice of child abuse, family violence or risk
  • Copy of any family violence order
  • Parenting Questionnaire
• Financial only:
  
  • Financial Statement – this is a court form setting out your current financial circumstances.
  • Financial Questionnaire – this is a court form setting out your contributions and requires you to provide an estimate of your contributions made throughout the relationship together with setting out details of other issues which impact upon the future needs of yourself and the other party such as age, state of health, employment and caring responsibilities for children or others.

3. What happens next?

• On filing the Application, the Court triages cases for urgency, and the type of proceeding, often fast tracking its journey through the court.
• The Central Practice Direction Family Law Case Management sets out the usual pathway which the usual case will take, noting that the Court has discretion as to how it will ultimately deal with the matter.

• It is anticipated that from the date of filing to the first court event (an on-line directions hearing before a Judicial Registrar) will be around 8 weeks.
• The judicial registrar will make orders on the first event directing the next steps, usually towards an interim hearing if sought, or another dispute resolution event, either privately funded mediation or arbitration, or a court-based Dispute Resolution event such as a Conciliation Conference (financial) or Family Dispute Resolution which will involve a Registrar and Court Child Expert.
• There is a strong focus by the Court on the swift resolution of cases. Most cases are settled by consent long before they get to a final hearing before a judge, usually during a Dispute Resolution event.
• The aspirational timeframe from filing an Application to a final hearing is said to be 12 months however this may vary from case to case and will likely be much longer given the need to clear the backlog of cases within the Court system.

The Australian Family Law system is complicated and procedural. Always seek advice from an Accredited Specialist in Family Law early in your separation process, it may help you avoid the expense, delay, and the uncertainty of family law litigation. If you need help navigating the process of separation and finalising agreements and orders, or with initiating or responding to family law proceedings, speak to our friendly specialist team at Streeterlaw today on 1300 293 957 and let us help you resolve your dispute.