Sydney Family Lawyers - Court & Disputes
Facts, Free Consult & Fees 2023
Court Disputes in Family Law, Insights and Disputes
How Do Court and Disputes Work in Family Law
Dealing and unravelling court representation or commencing proceedings under the Family Law Act, insights, facts and information with expert legal tips, from Senior Lawyer Jaswinder (Jas) Sekhon, Principal, Goldman Law.
“Guided Self Help” to start or defend court action from fixed fees. Pre-action procedures for court will start from $1,200 in lawyers’ fees. Getting to court to apply or do a defence will be from $5,000.
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Family Court Process Demystified
As legal experts specializing in Family Law and have personally run cases in almost all the Family Law Courts in Australia (including appeal courts). Capturing that experience we would like to provide you with essential, simple, and easy to read information about family and federal court representation in Australia.
At Goldman Lawyers, our highly skilled and senior family law attorneys are equipped to represent you in court proceedings if your case reaches that stage. Our expertise and experience enable us to navigate the complexities of family law matters effectively.
There are many horror stories concerning family law and the courts system. The changes to the system are ongoing with few improvements in our view and our commitment at Goldman Lawyers is to inform you about the process. Most cases settle before trail. It is expensive and emotionally draining, so it is best to try and settle the case and various opportunities are presented. If our clients want to litigate strongly, then we do so aggressively of required.
What Do the Numbers Show
Parenting cases dominate applications in court (above).
Below, 16% of cases get to judgment after the trial. Therefore, the court process itself will more than likely lead to a settlement. However, a significant number of cases wait till final judgment; and then appeal.
Only 16% of All Cases End in Court Judgments
Pre-Action Procedures
Pre-action procedures play a crucial role in family law matters. Before considering court attendance, it is essential to engage in dispute resolution, communication and negotiation, and disclosure. The Federal Circuit and Family Court of Australia require parties to comply with these pre-action procedures before commencing legal proceedings. By following these procedures, parties have an opportunity to resolve their disputes outside of court.
Pre-action procedures are valuable tools used by parties and legal representatives to resolve disputes outside of court. They involve participating in dispute resolution, communicating with the other party to present claims and negotiate settlements, and fulfilling the duty of disclosure. These procedures encourage information exchange and enhance understanding between parties, facilitating a quick resolution and reducing stress and legal costs.
Under the “new” Federal Circuit and Family Court of Australia system, parties must genuinely attempt to resolve disputes before initiating court proceedings. Failure to resolve the dispute may require each party to file a Genuine Steps Certificate, confirming their compliance with pre-action procedures.
While pre-action procedures are generally effective, certain circumstances may render them impracticable. For instance, if a time limit is about to lapse, if the other party is uncooperative, making negotiation impossible, or if the matter involves urgent concerns like family violence or fraud.
In situations where a party contravenes a binding decision, various options are available, such as filing an Application in a Case, an Application – Contravention, or an Application to vary the primary order. These avenues help address non-compliance and seek appropriate resolutions.
Applications to Court
When initiating court proceedings, several documents must be filed. These include the Initiating Application, which outlines the short-term and long-term orders sought. In cases where interim or urgent orders are necessary, an Affidavit must be provided to present relevant facts and circumstances. Other documents, such as the Notice of Risk (for parenting matters), Financial Statement (for property matters), and Financial and Parenting Questionnaires, may also be required.
Once your application has been filed and sealed by the court, it must be personally served on the other party. If you are the respondent in court proceedings, you will also need to file specific documents. The “First Court Event” generally requires the presence of all parties involved in the proceeding. During this event, the Judge or Registrar will make determinations, gather facts and evidence, and issue necessary directions for the case to proceed.
Responding to Court Proceedings
If you are named as the respondent in court proceedings, you will be served with documents from the other party or applicant. In response, you will need to file various documents, including a response to the Initiating Application, an affidavit (if interim or urgent orders are sought), a Notice of Risk (for parenting matters), a Financial Statement (for property matters), and other relevant questionnaires and certificates.
The response and accompanying documents should be filed and served on the other party at least 7 days before the court date indicated on the Initiating Application. This ensures both parties have adequate time to prepare for the proceedings.
First Court Event
The First Court Event is a crucial stage where all parties involved in the proceeding attend court. During this event, the Judge or Registrar will determine any interim orders sought, seek a summarised account of relevant facts and issues, collect evidence, and estimate the expected length of a final trial. Additionally, directions will be given to guide the proceedings. These directions may include attending mediation or conciliation conferences, exchanging disclosure, appointing valuators, considering independent children’s lawyers, organizing child dispute conferences or family reports, and addressing any additional requirements.
Trial
While resolving family law matters outside of court is preferable, sometimes trials become necessary. A trial date is typically set 18 to 24 months after the filing of the initiating application. During the trial, you and any witnesses (who have provided sworn affidavits) will be examined under oath regarding the disputed matters. Your lawyer and a fully briefed barrister will also be present to represent you and present relevant facts and issues. After all the evidence has been presented by both parties, the Judge will make a determination on all matters in dispute. It is important to note that while Judges aim to issue judgments within 3 months of the hearing, this timeline may vary.
Contravention Orders
Once court orders are made, parties are legally bound to comply with them. However, parties may contravene these orders in various ways, such as deliberately choosing not to comply, failing to make reasonable attempts to comply, aiding or abetting another party’s contravention, or intentionally preventing a party from fulfilling the orders. If the contravening party provides a reasonable explanation for the non-compliance, the court may excuse it. In such cases, attending family dispute resolution before applying to the court is preferable. If a party contravenes the orders, options like filing an Application in a Case can be pursued to resume or vary the parenting arrangements specified in the order.
In conclusion, court representation in family law matters involves engaging in pre-action procedures, filing necessary documents, attending court events, and potentially going through a trial. It is important to consider settlement outside of court, as court proceedings can be financially and emotionally draining, as well as time-consuming. Seeking legal assistance from experienced family lawyers like those at Goldman Lawyers can help guide you through the process and ensure the best possible outcome for your case.
Court & Disputes Quick Facts & Fees 2023
Goldman Law summarises the findings of the Joint Select Committee on Australia's Family Law System in these FAQ as the future reforms that are currently in play. Whether all will be activated, we do not know. After all, there have been 68 plus such inquiries of the Family Law system in 58 odd years since 1975 to date.
The Joint Select Committee on Australia's Family Law System: was appointed by resolution of the Senate on 18 September 2019 and resolution of the House of Representatives on 19 September 2019. The committee also tabled its final report on 22 November 2021 with some further recommendations on the family law system.
Recommendation 1- the Lighthouse Project
- The committee recommends that the three-year screening and triage pilot, known as the Lighthouse Project, be expanded to:
- all Federal Circuit and Family Court of Australia registries; and
- to include all parenting; and parenting and property matters.
- The committee also recommends that the expanded Lighthouse Project be appropriately resourced with additional funding for Senior Registrars and Registrars, and relevant professional and technical support staff.
Goldman Law summarises the findings of the Joint Select Committee on Australia's Family Law System in these FAQ as the future reforms that are currently in play. Whether all will be activated, we do not know. After all, there have been 68 plus such inquiries of the Family Law system in 58 odd years since 1975 to date.
Priority Property Pools under $500 000 (PPP500) pilot
- 75% of cases are disposed of by Registrars without the need for any judicial involvement;
- Cases are deal with swiftly, with usually only one court event before dispute resolution finalises the case;
- Less than 5% of PPP500 cases need a significant hearing before a Judge; and
- Even when cases are referred to Judges, they are well prepared and easier and quicker to deal with.
The Family Court outlined how PPP500 works in practice:
- The PPP500 List involves intensive work prior to the first court date, and close monitoring of compliance with orders, to ensure parties come to court as little as possible. Parties are given every opportunity to take ownership of their dispute, participate in dispute resolution and settle their case at the earliest possible stage, without expending a large proportion of their assets on litigation. Proactive case management not only leads to early settlements but reduces judicial involvement so that Judges can focus on the most complex cases.
- The Family Court put forward the benefits that this pilot could provide if the PPP500 were to be expanded:
- It is well known that litigation in the Courts can be very costly and time-consuming and can lead to long-term acrimony between the parties. Many people, particularly those who have been victims of family violence, are also very reluctant to engage in Court action due to the cost and the ongoing conflict with the perpetrator. The Pilot of the PPP500 process is currently only operating in Adelaide, Brisbane, Melbourne, and Parramatta until June 2023. Given the success of the Pilot, the increasing prevalence of family violence (including financial abuse) and the number of vulnerable litigants engaging in the court process, there is an urgent need for the PPP500 List, which has clearly proven to be effective, to be expanded to all court locations on an ongoing basis. This will mean that all vulnerable litigants with small property pools, including in remote and regional locations, can benefit from this expedited, low-cost option for resolution of their dispute.34
- The committee is supportive of programs and initiatives that reduce costs and delays for all families, and encourage timely resolution of disputes. Sometimes a timely resolution can only be achieved with the assistance of the Family Court. To date, the PPP500 has demonstrated its value in minimising the time in court whilst assisting vulnerable parties to resolve their disputes and move forward without liquidating the modest assets they share. In its second interim report—similarly to the Lighthouse Project—the committee recommended that, subject to a positive evaluation, that this pilot also be expanded.35 The final evaluation will be provided to the government in April 2022. In the meantime, these pilots have been extended until 30 June 2023. The committee is satisfied that the pilot’s extension provides certainty until the final assessment can be completed and considered.
Recommendation 2
The committee recommends that, subject to a positive evaluation, the Priority Property Pools under $500 000 pilot, also known as the PPP500, be expanded to all Federal Circuit and Family Court of Australia registries.
Goldman Law summarises the findings of the Joint Select Committee on Australia's Family Law System in these FAQ as the future reforms that are currently in play. Whether all will be activated, we do not know. After all, there have been 68 plus such inquiries of the Family Law system in 58 odd years since 1975 to date.
Federal Family Violence Orders
Minister Tehan explained the purpose of the bill:
The bill will establish federal family violence orders and provide for their criminal enforcement. This reinforces the government's recognition of family violence as not a private matter but a criminal matter of public concern. Victims of family violence who have matters before the family courts will no longer need to separately go to a state or territory court to seek enforceable protection and will be able to apply for a federal family violence order. 37
Recommendation 3
The committee recommends that if the Family Law Amendment (Federal Family Violence Orders) Bill 2021 is passed, the Australian Government continues to consult closely with the Federal Circuit and Family Court of Australia to ensure that it has sufficient resources to implement and enforce Federal Family Violence Orders.
Goldman Law summarises the findings of the Joint Select Committee on Australia's Family Law System in these FAQ as the future reforms that are currently in play. Whether all will be activated, we do not know. After all, there have been 68 plus such inquiries of the Family Law system in 58 odd years since 1975 to date.
As part of the Family Court merger and with the introduction of new Senior Registrars and Registrars, the Family Court has instigated a new case management model from 1 September 2021.
The Family Court described this new model:
- There will be a single consistent case management pathway which will [be] adopted in both Divisions of the [Family Court]. It has been designed to streamline procedures and to enable cases to be moved through the family law system as efficiently, and with as little detrimental impact on families and children, as possible. The new case management model will feature significant assistance from Registrars in the early stages of cases, in the form of triage and early case management. As far as possible, duty lists will be conducted by Judicial Registrars and interim hearings will be conducted by Senior Judicial Registrars. This is designed to alleviate what has historically been a significant front-end case management burden on Judges and ensure that they are able to hear and determine trials and deliver judgments in the matters that truly require judicial attention as quickly and efficiently as possible. This case management process will build on the significant success already experienced in pilots involving front-end registrar case management, including the Registrar Assistance Pilot and the Discrete Property List. 42
- Accordingly, the committee drafted a series of proposed amendments to the Family Law Act 1975 (Family Law Act), some of which would have the effect of authorising the Family Court to compulsorily refer matters involving parenting and property to mediation and arbitration.
- The Family Court also noted that such a power would be consistent with other courts such as the Federal Court of Australia. The Family Court confirmed that it was in support of a similar power to compel parties to arbitration.
- The committee’s proposed amendments to the Family Law Act would also provide immunities for family consultants when conducting mediation for the following reasons:
- The committee echoes its call for a number of amendments to the Family Law Act as specified in Appendix 4 of the second interim report.
Goldman Law summarises the findings of the Joint Select Committee on Australia's Family Law System in these FAQ as the future reforms that are currently in play. Whether all will be activated, we do not know. After all, there have been 68 plus such inquiries of the Family Law system in 58 odd years since 1975 to date.
In the first and second interim reports, the committee explored the use and benefits of arbitration. In its submission to the inquiry, the AGD described how arbitration is used by parties to family law matters:
- Arbitration can allow a matter to be resolved by an impartial adjudicator (usually a family lawyer), and the resulting arbitral award can be registered as if it were an order of the court on the consent of both parties. Currently, arbitration is only used in the family law system to resolve property matters and can be undertaken through private agreement between the parties or by referral from a court. While arbitration is usually cheaper than going to court, the cost of private arbitration can be prohibitive for some parties.
- At least one person must be legally aided, but both parties may be legally aided, for LAQ arbitration. The responding person may be privately represented or legally aided. Both parties must be legally represented in arbitration.
- Parties must give full consent to participate in arbitration and can withdraw their consent at any time.
Recommendation 4
- The committee recommends that the Australian Government, subject to a positive evaluation of the two-year trial of lawyer-assisted mediation by legal aid commissions, considers funding and establishing a national arbitration scheme, similar to Legal Aid Queensland's arbitration program, for property-only disputes in cases where net combined assets are valued at $500 000 or less.
- Development and implementation of this program should be in consultation with the Federal Circuit and Family Court of Australia, legal aid commissions and other relevant stakeholders.
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