This guide is intended to be general in nature, and Commins Hendriks Solicitors recommend you seek legal advice tailored to your needs and circumstances. Commins Hendriks’ team of family law professionals can help you with your questions.
This guide sets out basic information and procedures about going to Court regarding a property dispute, and issues concerning children under the Family Law Act. It does not cover matters that involve divorce, maintenance, child support or urgent matters. Please contact Commins Hendriks at any time if you have specific concerns regarding a family law matter, and we can advise you.
Matters under the Family Law Act are usually handled by the Federal Circuit Court. Complex matters are dealt with by the Family Court of Australia.
The closest Federal Circuit Court registries to Wagga Wagga are Canberra and Albury. The Court travels from Canberra to Wagga Wagga several times per year.
How can Commins Hendriks help you?
Many people are able to resolve disputes they have with their partner when their relationship breaks down themselves.
If you need help with your negotiations Commins Hendriks can provide you with guidance as to how to best resolve your negotiations, and if necessary, negotiate on your behalf.
If you can’t resolve the situation yourself, if your negotiations have failed, or if the situation is urgent, you may need to go to Court to resolve the problem.
The standard court process
Matters involving property disputes:
First mention date
When an Application is filed with the Court, the Court will allocate a first mention date. If you are legally represented you are not usually required to attend Court on that occasion. The purpose is for the Court to provide an initial assessment of what needs to happen in the matter in order for it to proceed through the Court system. For instance, have documents been filed by the other party in response to the Initiating Application? The Court will then make Orders requiring one or both parties to provide further documents, in preparation for the next Court date, which may be the Conciliation Conference.
You and your solicitor, your former partner and their solicitor, will attend this Conference with a mediator – whether privately engaged or Court appointed. The purpose of this Conference is to try to reach an agreement. The Conference usually takes several hours.
You are more likely to reach an agreement at the Conciliation Conference if you are prepared, and acquire all the relevant documents and valuations as suggested by your lawyer.
If you are able to reach agreement at the Conference, then in simple matters the Orders will be prepared, signed and finalised on the day, or in more complex matters, the Orders will be drafted and finalised at a later date.
If you cannot reach agreement your case will proceed to trial.
Matters involving parenting disputes
Compulsory Family Dispute Resolution
Except in specified exempt circumstances, parties are required to participate in Family Dispute Resolution with an accredited provider prior to making an Application to the Court.
The aim of Family Dispute Resolution is so that you and your partner can attempt to come to a resolution regarding the issues between you in terms of the parenting of your children, as opposed to a Court deciding the matter for you. Family Dispute Resolution is confidential.
If you are unable to resolve the matter at Family Dispute Resolution, you will be provided with a Certificate verifying your attempt to resolve the dispute. This Certificate will need to be attached to your Application to the Court.
First mention date
When an Application is filed with the Court, the Court will allocate a first mention date. If you are legally represented you are not usually required to attend Court on that occasion. The purpose is for the Court to provide an initial assessment of what needs to happen in the matter for it to proceed through the Court system. For instance, have documents been filed by the other party in response to the Initial Application? Or should an Independent Children’s Lawyer be appointed to represent the children?
The Court will often make an Order that parties in dispute regarding parenting arrangements attend upon a Family Consultant, employed by the Court. The Consultant will prepare what is known as a Family Report. The Report will be provided to the Court and may help to decide your matter. The Report is important evidence, as it may be the only independent evidence (i.e. not prepared by you or the other party) for the Court to consider in reaching a determination.
Your discussions with the Family Consultant, where the Consultant is to prepare a report are NOT confidential.
To prepare the report the Family Consultant will meet with each of the parties, and any other significant adults in the child’s life, for example grandparents. They will also meet with the child, and observe each of the parties with the child.
In all matters
Preparing for a Trial
Preparing for a Trial involves significant work by your lawyer and will involve significant legal costs, so it is very important to make every effort to settle before your matter reaches the Trial.
The following is an indication of the kind of work required for a trial:
- Detailed affidavits will have to be prepared setting out your evidence, as well as that of any witnesses you may wish to rely on;
- Valuations will need to be obtained in property matters with regards to the value of any property on which you and the other party do not agree;
- You may need to issue subpoenas for documents to be produced by third parties;
- You may need to instruct a barrister to represent you at trial. If so, you will need to meet with them before hand to discuss your case;
- You may need to go through what is known as ‘discovery’ where you need to provide a list of all documentation you have in your possession and make that documentation available for the other side to inspect.
On the day of the trial you will attend court with your lawyer. A Judge will hear your matter.
The person making the application (the Applicant) will go first – their lawyer will state what the case is about and the Applicant and the Applicant’s witnesses will then go into the witness box to be cross-examined by the other side (the Respondent). The Respondent and their witnesses will then do the same.
After this is finished, the lawyers for each party will make submissions to the Judge about how they feel the matter should be decided.
The Judge can either make orders on the day (which is very rare) or adjourn the case and give their judgment another time.
If you are not happy with the outcome of your case you may have the option to appeal. You can only appeal if it can be argued the Judge has made an error of law. You cannot successfully appeal simply because you are dissatisfied with the judgment.