The Family Court Process
If an agreement is not able to be reached between the parties amicably, by way of a Parenting Plan or Consent Orders, a Court application may be commenced in the Family or Federal Circuit Court of Australia. There are various rules in place governing the Family Court process.
Court proceedings should always be considered a last resort after every effort is made by the parties through their respective legal representatives, to negotiate a resolution of the matter by agreement, which can then be formalised by way of Consent Orders.
We strongly recommend that you seek legal advice and representation before commencing a Court application.
The Court process can be lengthy and take several years before a Final Hearing to resolve the matter occurs.
An Initiating Application can seek Interim Orders and Final Orders. If only Interim Orders are filed, then the Court will not make any Orders until a Final Hearing. In most parenting matters, the Applicant will seek Interim Parenting Orders. When filing a parenting application, an Affidavit and a Notice of Risk are also required to be filed with the application.
An Interim Hearing enables any urgent issues of the parties to be dealt with by way of Interim Orders, pending a Final Hearing. The Orders are meant to be of short-term nature only until the Court has the opportunity to examine all of the evidence, listen to cross-examination of the parties and conduct a Final Hearing.
Interim Hearings will normally be limited to a period of no longer than 2 hours. The decision made by a Judge at an Interim Hearing will be based on the Affidavits file by the parties and then the independent evidence that is produces by the parties to the Court (example; report or subpoena records).
Cross-examination (oral evidence) is generally not permitted at an Interim Hearing except in exceptional circumstances and for a limited purpose.
At an Interim Hearing, the Court is not in a position to make decisions (findings) about the facts of the case (that is what is true and what is not true), put simply, this means that a Court cannot make a decision as to whether party A or party B is telling the truth where party A and party B disagree as to the truth of a fact or facts in a case (this are known as ‘disputes of fact’). As is to be expected, where a matter ends up in Court, there are generally significant disputes between the parties as to the facts because of competing allegations that are made by each of them against the other. This puts a Judge in a difficult position at an Interim Hearing, because they are required to make a decision (judgement) on the evidence before them and put some temporary Orders in place before a Final Hearing (which could be for a period of 12-15 months down the track or even longer), where most of the facts are disputed. The Judges are therefore required to make a decision at an Interim Hearing based on the agreed facts and then they also have regard to any independent evidence that has been produced and attached to it such weight as they consider appropriate.
This means that in parenting matters, any allegations made by a party against the other, which if true, would give the Court cause to be concerned about the safety of the children in that party’s care, is taken very seriously by the Courts. Therefore, the Courts will always act conservatively at an Interim Hearing in the Orders it makes, where there are significant disputes of fact between the parties, to ensure the children are protected from physical and/or psychological harm, until the evidence of the parties is able to be tested at a Final Hearing. Allegations will more likely be treated seriously by the Court where there is independent evidence produced by a party to support the allegation they are making. Either way, the best interest of the child is the Court’s priority, not the interests of each of the parties. This does not mean that the Judge has predetermined the truth of an allegation made by a party, just that the Court will always air on the side of caution until it has the opportunity to examine all of the evidence in details, listen to cross-examination of the parties and make decisions in relation to the facts of the case, at a Final Hearing.
Common Order that would be made at an Interim Hearing are in relation to the children’s living arrangements, any injunctions, any orders to progress the matters for example that an Independent Children’s Lawyer be appointed, and an order for preparation of a Family Report.
Independent Children’s Lawyer
An Independent Children’s Lawyers (ICL) is a Lawyer appointed by the Court to act in the best interests of the children. An ICL is appointed if the Court deems that there are good reasons for their appointment.
The usual reasons that will result in appointment of an ICL are where there are allegations of child abuse, concerns in relation to drug and alcohol issues, concerns in relation to allegations of family violence, concerns in respect of the mental health of the parties and/or their parenting capacity, religious and cultural issues, where one of the parties is not the biological parent of the children, where there is an older sibling who is rejected one parent, where there is a proposal to separate the siblings or where the parties are in intractable conflict.
The ICL does not actually take instructions from the children but represents the theoretical best interests by performing their own investigations, independent of those performed by the parties and arranging preparation of certain reports which will assist the Court to determine what Orders are in the children’s best interest.
Family Report Process
The Family Report Process is where a psychologist or family consultant experienced in child related matters, interviews the parties, the children and significant others, and writes a detailed report wherein they draw conclusions and make recommendations based on those conclusions as to what orders are in their view, are in the children’s best interest.
The Family Report writer may be appointed by the Court or jointly appointed by the parties (a report writer will only be appointed by and paid for by the Court if the parties financial circumstances are such that the Court deems that they are not in a position to pay for the Family Report).
The Family Report is generally speaking, a very heavily weighted piece of evidence by the Court. At an Interim Hearing stages, it is often the only (or one of the only) independent pieces of evidence the Court has to guide them as to what Interim Orders are in the children’s best interest, until they have the benefit of assessing all of the evidence in details at a Final Hearing.
The weight that is given to the Family Report at a Final Hearing will vary, depending on what is said when the report writer is cross-examined by each of the parties and whether the Court accepts the findings made by the report writer or not.
The Court is not required to accept the finding of the report writer and make orders in accordance with the recommendations. After assessing all of the evidence at a Final Hearing, the Court will draw it’s own conclusions, which may or may not differ from the conclusions and recommendations contained in the Family Report.
The Final Hearing is conducted by a Judge (Federal Circuit Court) or Justice (Family Court). Prior to the Final Hearing, the parties and witnesses will have to file what is called a ‘Trial Affidavit.’ At the Final Hearing, the parties and all other witnesses, including the report writer, will give evidence and be cross-examined in relation to the evidence in their Affidavits. More often then not a Barrister will be engaged by each of the parties at the Final Hearing to conduct the hearing. The Barristers will make submissions at the conclusion of the Final Hearing, summarising the evidence, the client’s case and why the Court should make the orders sought by their client.
It is very rare that the Judge will give His/Her judgement on the day of the Final Hearing (Ex Tempore). More commonly, the Judge will reserve judgement and the decision will be handed down at a later date, usually two or three months down the track.
Only 3% of matters will reach a Final Hearing. It can sometimes take over 2 years before a matter reaches a Final Hearing stage.
At any point after a Court proceeding has been commenced, the parties can negotiate a final agreement, and have that agreement formalised by the Court. If this occurs, the Court will make Final Orders pursuant to the agreement between the parties, pending those orders being in the children’s best interest.
Length of Court Process
Most parenting proceedings will take a minimum of 18 months to reach a hearing stage. Regrettably, given the delays in having a matter listed for a Final Hearing, some matters are in the system for more than 2.5 years.
The estimated time line of 18 months to 2.5 years does not however take into account matters of complexity that may arise during the Court proceedings, causing further delays in the matter being listed for a Final Hearing. It also does not take into account the further Interim Applications filed by the parties during the Court proceedings and prior to a Final Hearing. Frequently, urgent issues will pop up in Family Court proceedings that cause the party to file and Interim Application (known as an Application in a Case) and request a further Interim Hearing in order for the Court to deal with those issues, which in their view cannot wait to be dealt with until a trial.
Factors like these may result in matters being delayed for 3 years or longer before a Final Hearing takes place.
Generally, because of the current delays in the Court system, the Courts are redescent to give parties a second Interim Hearing unless there is a very good reason to support their request and the urgency of it.
Cost of the Court Proceedings
Court Proceedings are very expensive. For the 3% of matters that reach a Final Hearing, the parties involved are looking at costs between $40,000.00 - $100,000.00. this does not include any costs order made by the Court. Sometimes costs can escalate above this amount where there are delays and complexity arise.
There are also emotional costs too. This process can be very stressful and emotionally and psychologically demanding for all parties involved and even more so for the children.
Lastly, there are time costs. As stated above, Court proceedings take an average of 2 years to resolve at a hearing. This does not include the time spent negotiating prior to a Court application being commenced.
Benefits of Mediation vs Court Proceedings
When considering the delays inherent in the Court process and the costs involved, there are many good reasons to choose the mediation pathway to resolve or at least narrow the issues in dispute: -
1. Mediation saves money,
2. Mediation resolves your issues much quicker than through the Family Courts,
3. Mediation ensures a certain and predictable resolution, that you have control and ownership of,
4. No one every “wins” in the Family Court system. There are however many losers due to the financial and the emotional costs associated with going to Court. A decision is handed down to you by a third party, not chose by you or the other party and often parties walk away with an outcome that neither of them are happy with. A successful mediation will result in an agreement that everyone can live with which eliminates the uncertainty of a Final Hearing.