Many clients are on their way to Court hoping that this is the Court Date where the Court makes the Orders that they have been asking for and ends their involvement with the Family Law system. While everyone will get their day in Court it is important to understand the process and the different types of Court dates you will experience while engaged in Family Law proceedings.
You will usually find yourself in the duty list the first time that you attend Court after filing your Application. The duty list operates a little like an Emergency Department in that the Judge must triage all of the matters in the list to ensure that the most urgent matters are dealt with first. It is therefore important that on this date you are able to identify the issues that are in dispute and require the determination of the Judge.
After the Judge has heard what issues are in dispute the Judge can either conduct an Interim Hearing to determine the issues on an Interim basis, encourage the parties to enter into discussions to see if they are able to resolve the issues with the assistance of their lawyers, refer the parties to a Family Dispute Resolution Conference or for the preparation of a Report or set the matter down for an Interim Hearing at a later date.
This is usually a short Court appearance where the Judge makes Orders that provide the parties with a “to do list” to be completed prior to the next Court date. This to do list may include Orders that require you to attend an appointment with a Family Consultant, file further documents or attend a Family Dispute Resolution Conference.
An Interim Hearing is required when the parties are unable to agree on what should happen in the short term. Interim Hearings require each of the parties to identify the issues that they are unable to resolve between themselves or with the assistance of their lawyer, file affidavit evidence of no more than ten pages setting out the evidence they intend to rely upon at the interim hearing and make oral submissions that go to why you say the Orders sought by you are in the best interests of the children.
Once the Judge has heard the evidence they will make a decision that provides for a set of Interim Orders that will be in place until either a further Application is made to the Court in the form of an Application in a Case or alternatively and most often a Final Hearing.
Call Over: –
This is the final check in by the Court prior to your matter proceeding to Final Hearing. At the Call Over you will be expected to know whether you have complied with previous Orders preparing the matter for Final Hearing for example whether you have issued all outstanding subpoena, whether you have filed your trial affidavit and affidavits of any witnesses that you intend to rely upon. You should also be able to identify the outstanding issues that you will ask the Court to determine and how long you anticipate that Court will need to hear the matter.
If the Court is satisfied that you have complied with all preparatory Orders than the matter will proceed to Interim Hearing and if not already done the Court will allocate Final Hearing dates. Once Final Hearing dates have been allocated it is important that you put any Experts and witnesses that you intend to call at the time of Final Hearing on notice of the dates and remind them that they must be available to attend.
Final Hearing: –
A Final Hearing is the grand finale of your Family Law matter. It is where the Judge will consider all the evidence before the Court and make Orders on a final basis with respect to the final arrangements for your parenting and/or property matter. Once your Final Hearing has ended all that is left is for the Judge to make a decision. Once that decision is made your matter is finished and you will no longer be required to attend Court.
At a Final Hearing, the evidence is usually presented as follows: –
Once the Judge has heard all of the evidence it will usually take the Judge some time to consider all of the evidence before them and make a decision. While everyone wants a decision as soon as possible it is important to be patient and to remember that you don’t want the Judge to rush a decision that could determine both yours and your children’s future.
Congratulations, you have reached an agreement! Now, how do you want to formalise it?
Once you and your former partner have reached an agreement with respect to the ongoing parenting arrangements for your children it is important that the agreement is documented to remove the likelihood of any angst or ambiguity in the future. When considering how you should document your agreement it is important to think about the outcome that you are hoping to achieve. For example, is your agreement intended to be for the long term or only short term? Do you intend for the agreement to be legally binding or is it an agreement that is based on the good faith of you and your former partner?
Parenting Plans: –
A parenting plan is an informal written document that sets out the details of the agreement reached between you and your former partner including with whom the children should live and spend time, who is to make decisions for the children and how you intend for such decisions to be made and how you will each communicate both with each other and the children moving forward. Once your agreement has been accurately documented you and your former partner attend to sign and date the document to demonstrate your acceptance of the agreement.
A parenting plan is not legally binding nor enforceable in a Court of law. This means that should either you or your former partner navigate away from the agreement you cannot seek to enforce the agreement in Court. This does not mean however that it will not be considered by the Court should you need to file an Application with the Court in the future as the Court will consider the parenting arrangements for the child both during the relationship and since separation.
Consent Orders: –
A Consent Order is a formal written document that details the agreement reached between you and your former partner including with whom the children should live and spend time, who is to make decisions for the children and how such decisions are to be made and how you intend to communicate with both each other and the children. A Consent Order can cover more than just an agreement relating to the issue of parenting and can extend to reflect an agreement reached between you and your former partner with respect to property and the division of any assets or liabilities following separation.
Once approved a Consent Order becomes a legally binding Order of the Court and is just as enforceable as an Order made by the Court after a contested Hearing. This means that you can achieve the same outcome without the stress and expense of a contested Court case.
When and how does the clock start ticking?
Separation can be a difficult and emotional time. Time limits are often the furthest thing from my client’s minds, however it is important to note that under the Family Law Act, time limits apply for bringing an application to the Court for property settlements. These time limits apply to both married and de facto couples.
How soon after separation can the parties arrange a property settlement?
You and your former spouse can begin negotiations about dividing property as soon as you have separated. Bearing in mind that separation can be a difficult and emotional time and it may take some people longer than others to be ready to discuss the nature of parenting and property arrangements following separation.
There are several ways of recording a property settlement, if you have questions about property settlements, visit our blog post ‘what does the court consider in property settlements’ or contact one of our solicitors on 1300 444 592.
What are the time limits for Married Couples?
For married couples who have separated, it is important to note that once a divorce order has taken effect, you have 12 months to file an application for a property settlement.
It is important to note that the ‘clock doesn’t start ticking’ on the 12-month time limit until the divorce order has taken effect.
What are the time limits for De Facto Couples?
If you have been in a de facto relationship and have separated, under the Family Law Act you have two years following separation to file an application for a property settlement.
In some circumstances the date for separation can be clear cut, in other circumstances it may not. For example, where parties may have had periods of time where they have reconciled, or where they have continued to live under the same roof. You should chat to your solicitor if you are unsure about when the ‘clock starts ticking’ for your property settlement.
What happens if I missed the deadline?
In all the stress and emotion of separating from your former spouse, there are times when the deadline to file an application for a property settlement are missed. Don’t stress just yet.
Under the Family Law Act the court can grant leave to file an application for a property settlement out of time, however the court must be satisfied that hardship would be caused to the party or a child of the relationship if leave were not granted.
Hardship is not strictly defined under the Family Law Act and is considered on a case by case basis. It is important to not that missing the deadline to file an application for a property settlement is not in and of itself sufficient to constitute hardship. If you have missed the deadline and would like to discuss your circumstances with one of our solicitors, please contact our office.
Reaching An Agreement – There is more than one way!
If you have recently separated from your former spouse, and are considering ways of moving forward, we’ve complied a list of the different ways of resolving your family law matter.
This is the most common and popular way that separating couples reach an agreement. Lawyer’s often refer to as the ‘kitchen table method’. By this, we mean that the parties have sat down together, discussed issues and reached an agreement in relation to those issues. Some issues commonly discussed in parenting matters include: –
If you have reached an agreement and wish to record that agreement in a parenting plan or consent orders, one of our lawyers would be happy to assist you to discuss those options with you.
Lawyer assisted negotiation
Lawyer assisted negotiation is a traditional approach to settling family law matters. This process involves your lawyer writing to your former spouses’ lawyer, and in turn your former spouses lawyer writing to your lawyer. There is generally no discussions had directly between the parties, and instead communication is in writing through lawyers.
Mediation is one of the most common processes separating couples use to resolve family issues. Mediation is a process whereby the parties meet with each other and their lawyers, and a neutral third party the mediator, to discuss issues, develop options and negotiate a resolution. The mediator will be able to assist the parties to identify issues, needs and goals to come to a resolution. Every family is different and one of the benefits of mediation is that it allows the parties to develop options that suit their unique family dynamics.
Through the collaborative process, you and your former partner both engage a lawyer who is a collaborative professional. From here, each of the parties meet with their lawyers to discuss an issues and their goals moving forward. Parties engaging in the collaborative process sign a contract, also called a participation agreement, in which they commit to constructively negotiating an outcome without resorting to litigation.
From here, a number of four way meetings are held with each of the parties and their legal representatives. The agenda for the meetings is pre-determined by you, your former spouse and the lawyers. During the meetings the parties discuss issues, goals, and possible options for settlement. After the meetings, you and your former spouse will debrief with your lawyer, and gather and exchange any information necessary to prepare for the next meeting.
One of the benefits of the collaborative process is that it is not just collaborative lawyers who can assist you and your former spouse work through issues. It may be beneficial to invite counsellors, financial planners, accountants or divorce coaches to assist in the process and to help the parties work through issues.