COURT

Custody Lawyer Divider

The following outlines the major steps which are ordinarily part of proceedings in the Court. Exactly what happens in any case depends on the particular circumstances. This is only a general guide, and is designed to provide an overview to better inform our clients.

COMMENCING PROCEEDINGS

Before commencing proceedings, alternatives such as direct negotiations or mediation should be considered. If litigation is to be commenced, it must be appreciated that it can be a lengthy and expensive process. Even if you commence proceedings you should not give up hope of negotiating a settlement. There are a number of steps before a matter reaches the final trial stage.

DOCUMENTS

The first step is to prepare a number of documents and file them with the Court. Your Application sets out the orders the Court is asked to make. These orders can be regarding financial matters, children’s matters or both.

In addition to final orders (the determination of which may take several months), “interim” orders applicable in the meantime may be sought. Your Affidavit is necessary to present evidence to the Court as to why those orders should be made. That evidence is given in written form, in an Affidavit. Your Financial Statement – Parties to financial proceedings are under a strict obligation to give full disclosure of their financial circumstances. Each party must prepare and file a detailed Financial Statement setting out this information.

DIRECTIONS HEARING

When the documents are filed the Court allocates a date for a listing known as the “Directions Hearing”. The Directions Hearing usually occurs about 4-6 weeks after the Application is filed.

At the Directions Hearing there are, broadly, 2 areas considered. Procedural Matters – The Court will make procedural orders for the further progress of the matter (such as dates by which certain steps in the proceedings are to be completed). These orders will often include a timetable for the provision of information and exchange of valuations and relevant documents.The object of the exercise is to ensure that both parties have the information they need to conduct meaningful negotiations. Interim Orders – If any interim orders have been sought, they will be considered at the Directions Hearing. They may be made at that time or any argument may be adjourned to a further date.

COUNSELLING

In proceedings concerning children it is usual for the Court to require the parties to attend Counselling (often on the same day as the Directions hearing). Either party can also request counselling at other times as the matter progresses.

CONCILIATION CONFERENCE

The next formal step after the Directions Hearing is known as the “Conciliation Conference”. The Conciliation Conference usually occurs about 16 weeks after the Directions Hearing. The functions of the Conciliation Conference include serving as a formal opportunity for the parties to negotiate; to narrow the matters in issue. Even if a full settlement of all matters cannot be achieved, it is often possible to at least negotiate agreement on some issues and to clarify what the remaining differences are; if all issues have not been settled, and the matter is therefore proceeding beyond the Conciliation Conference, further procedural directions will be made (such as dates by which certain steps in the proceedings are to be completed). To facilitate negotiations, the Conciliation Conference occurs in a private room rather than in a Court.

It is conducted by a Registrar of the Court. Preparation for Conciliation Conference. Before the Conciliation Conference, parties need to undertake a substantial amount of work, with a view to identifying and valuing all of their assets, liabilities and financial resources. In all matters, forming some view of the outcome they seek if the matter proceeds to trial and the basis of their argument to support that outcome. It is helpful to also consider an outcome they would be prepared to accept if the matter were to be settled. All of this information must be set out in a document known as “Conciliation Conference Particulars” which must be prepared in sufficient time to be filed and exchanged with the other party 2 weeks before the Conciliation Conference. In financial cases, after the Directions Hearing and before the Conciliation Conference each party is required to provide to the other copies of certain documents concerning their financial circumstances, including tax returns and financial statements.

STEPS BEFORE PRE-HEARING CONFERENCE

Discovery. One of the orders usually made at the Conciliation Conference is for each party to give what is known as “discovery”. This is a requirement to index and make available for inspection all documents relevant to matters in issue in the proceedings. This task often takes a significant time to properly complete.

Request to Answer Specific Questions. One method of reducing matters in issue is to prepare written questions which the other party must formally answer. This is permitted prior to the Pre-Hearing Conference.

Notice to Admit Facts. Another method of reducing matters in issue is to ask the other party to admit certain facts.

Evidence. The major task prior to the Pre-Hearing Conference is to prepare all evidence required for trial. Other than in particular circumstances, all evidence is presented to the Court in written form by Affidavit. Both parties and all witnesses must swear an Affidavit.

At any time: Negotiate and Settle the matter. Before commencing proceedings, it is worth considering the range of dispute resolution processes available. There are a number of providers of these services. We also have Family and Child Mediators. Even after Court proceedings have been commenced, you should regularly consider alternative methods of resolving the matter. For instance, are you prepared to make an Offer of Settlement or to engage in direct negotiations.

PRE-HEARING CONFERENCE

The next formal step after the Conciliation Conference is known as the “Pre-Hearing Conference”. The Pre-Hearing Conference usually occurs several months after the Conciliation Conference. This can vary depending on the availability of trial dates and other issues.

The functions of the Pre-Hearing Conference include: Planning for the trial such as the number of days and evidence required; ensuring that all procedural steps and documents required for the matter to proceed to trial, have been completed and off a further opportunity to negotiate.

DEFAULTS

The basic rule in Family Court proceedings is that each party bears his or her own legal costs. While there are circumstances in which an order for costs might be made against a party (particularly, for example, where that party misses time limits or is otherwise in default) the matter is always at the discretion of the individual Judge or Magistrate. While we take the view that it is important for our clients (and all parties) to comply strictly with the Rules, Directions and procedural orders of the Court, sanctions against defaulting parties (including costs orders) are generally not imposed by the Court.

THE TRIAL

The final step in proceeding is a trial. The Trial usually occurs 6-8 weeks after the Pre-Hearing Conference. Again, this can vary depending in the availability of dates.

Trials are held before a Judge. Each party gives their evidence and makes their submissions and the Judge then gives a decision. Often, the decision will be “reserved” and judgment given at a later date. The Court endeavours to ensure that reserved decisions are given within 3 months, but this is not always possible.

The length of Trial varies according to the complexity of the issues and how much the matters in dispute have been able to be narrowed during earlier stages of the proceedings.

Preparation for Trial. Much of the preparation for trial (for example the main Affidavit evidence) is usually completed by the time of the Pre-Hearing Conference. However significant amounts of further work can be necessary before the trial.

Implementation of Final Orders. Following the making of final orders (either at trial or at an earlier stage) there may be certain steps required to implement the orders; for example, the sale or transfer of properties or company changes.