Court Proceedings

The Court process is long, expensive and takes an emotional toll. It should be a last resort or an option for cases of urgency. Astor Family Law has experienced family lawyers to guide you through the court process.

Before going to Court, you are required to make genuine efforts to resolve your case, except in the case of urgency or where family violence may make negotiations unsuitable.

In parenting cases, the Court requires parents to attend at Family Dispute Resolution in an effort to agree with the help of a mediator. If this is unsuccessful, or unsuitable, or one parent refuses to participate, then you will receive a 60I Certificate. The Court requires the 60I Certificate before you start court proceedings for parenting.

In property and financial cases, you must give a written Notice of Intent that you will go to Court. The Notice of Intent should set out out the issues in dispute, the orders to be sought if Court proceedings are started, and specify a time of at least 14 days for the other party to respond. You should also make a genuine offer to resolve the issues has been made, best sent in a separate letter sent 'without prejudice save as to costs'.

In Court proceedings for property settlement, you must lodge with the Court Initiating Application (or Response to Initiating Application), the Orders you want to Court to make, your Affidavit, your Financial Statement and Genuine Steps Certificate.

In Court proceedings for parenting, you must lodge with the Court Initiating Application (or Response to Initiating Application), the Orders you want to Court to make, your Affidavit, a Genuine Steps Certificate, Parenting Questionnaire, Notice of Risk and 60I Certificate.

Upon lodging your documents with the Court, you will be allocated a first hearing date. You must then serve the court documents on your ex-partner, who must complete the same documents before the first hearing.

The first hearing is a Procedural hearing and it is conducted by a Court Registrar. The purpose of the hearing is to set a pathway for your case in Court, which is done by the Court making interim orders.

If you and your ex-partner agree on the pathway forward, then the Registrar can make interim orders on the day which set out your agreement. These may include orders about interim parenting arrangements, an order for a Child impact Report (or Family Report), orders for the exchange of documents, to prepare a valuation report for an asset and attend at a Conciliation Conference or private mediation.

The Registrar can only make orders if you and your ex-partner agree on the orders. This means that when there is a dispute, a limited amount can be achieved at the first hearing. In this case, the Court will give you a date for a second hearing before a Senior Registrar or Judge, who can determine the issues in dispute. This is called an Interim Defended Hearing.

The Court has limited resources. You may have to wait several weeks for a second hearing, which the Court allocates based on urgency and who is prepared. Sometimes, you have be required to attend a second Procedural hearing before the interim Defended Hearing, which can lead to further delay.

In all parenting cases, the Court is often faced with two different versions of what is best for a child, so it is necessary to get some independent evidence to help the Court make a decision in the best interests of the child. Sometimes known as a short-form Family Report, it is a report prepared by a child expert after meeting with both parents and the children. A shorter form report is used early in the proceedings

In all property settlement cases, the Court orders the parties to attend at a Conciliation Conference with a Court Registrar or a private mediation. Both bring the parties together for the day with an independent person as the mediator. A Conciliation Conference is offered by the Court based on the parties ability to pay. A private mediation is more expensive and it is ordered when the parties have the capacity to pay.

If your case does not resolve, then it will eventually proceed to a final hearing. Often called a Trial, the final hearing is the end point of the Court proceedings. It is conducted by a Judge. It may be between 1 to 5 days in Court, or more, depending on the issues to be covered. It often takes 12 months or more to arrive at a final hearing.

Once you get there, the Court requires you to lodge long and detailed documents before the hearing can take place. At a final hearing, the Judge listens to arguments from both sides, you and your ex-partner will answer questions in the witness box, witnesses may also give evidence to the Court. After the hearing, the Judge will write a detailed Judgement setting out their final decision and their reasons. The Judgement is sent out weeks or months after the hearing.