Oh NO! You're Going to Court!

Happens the Divorce Down Under Podcast where we talk about the video. everything and everything family law related. Welcome to another episode of Split Happens, the Divorce Down Under podcast with me, Alex, and my fellow family lawyer, Liza.

Today Liza I thought we would talk about what happens when you absolutely positively haven't got any choice but to go to court to get your family in law law matter sorted out. This is kind of a a quick and dirty overview of the court processes and what things and steps you have to go because we now have a fairly managed pathway, if I can call it that, through the court process. Let's say client comes in to see us

Can't reach any agreement. Parenting, property, maybe a combination of both, maybe maintenance, all those sorts of issues. They go right, we're getting no traction. We've reached out to the other side, and I'm going to say to my client, Hold on. There's this thing called pre action procedure. It only just I just realized then that pre action procedures. I know, right? Have you done your pap? Have you done your pap test? This is okay.

We're gonna we'll probably cover off the PAP test, so that is to say preaction procedures in a whole other episode because there's quite a lot of things involved with it. But basically, for the purposes of today's conversation.

That's the series of communications that you're supposed to have with somebody on the other side before you start a court proceeding. That means going through dispute resolution events, it means giving them offers to settle, it means genuinely trying to negotiate an outcome. before you go to court. Court should be your last resort.

That's the whole purpose of the pre action procedures. It's trying to keep people away from court. And one of the things the early court hearings will do is to test you on whether you've actually complied with those But we'll come back to those another day. Let's say that you Past your papers. You've passed your PAP test, or you're prepared to say it's sufficiently urgent that the PAP test has to be deferred for some reason. yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw.

The courts that we typically are talking about here is the Federal Circuit and Family Court of Australia, the FCFCOA.gov.au. Western Australia has its own court. Um which is fine. They use the same Family Law Act but they have their own court system. But we're gonna focus upon the Federal Circuit and Family Court of Australia, which covers everywhere apart from W So the first question is, fairly unsurprisingly. that you're gonna be considering is

Gone through your PAP test. Have you made your offers? We're gonna say that yep, okay we have. Assume that we have to do that. So then we then commence the proceeding by filing an application. It's an initiating application. All right. There are uh a myriad of forms in family law cases and these things all attract fees as well when not just do you own solicitors or or barristers preparing documents for you, but you'll also be paying court fees as you go.

an initiating application. What on earth is that? The document that you fill in to kick it all off. So it's got information about you, information about your other party. For animation. Information. I think I just said anyway, information. Inflamm inflammatory inflammation. Well look, I'll tell you what, we've we've we've kicked it off with a pap test, but anyway. Well we get to the inflammatory information we talk about affidavits, I suspect.

That's exactly right. So in terms of the initiating application, um it sets out your information, things like where you live. Whether you're working, how many kids you got, when you got married, all that sort of stuff. Because it basically needs to the court needs to be satisfied that it has during. yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n And what do you want?

Hey, I can't agree with the other side. I would like this outcome. Yep. So the outcome is the set of court orders that you want the court to make ultimately. So that's what you write in your application. In the final order. So there's a section about final orders and there's also a section about interim orders or interlocutory orders. Okay. So they're the ones that the things that you want now. Short term order.

Short term procedural orders, things like that. So you might need some evaluations, you might need You kn might need a family report. You might already know that. You might need a children's lawyer report. You you might need to compel the parties to comply with their disclosure obligation. So there are numbers you can put in those orders, but you'll have already worked that out by the time you're preparing your initiating. So that's the first form. If it's a In in all of the cases I think.

called a genuine step certificate. Yeah. Mae'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n yw'n. Or haven't. Or haven't. For for these reasons. Yep. And if you are particularly if you're ticking that box that something is urgent Remember that you also need to have a cover letter with all this material explaining the urgency. So some people, such as myself, will think it's enough to put explain the urgency in an affidavit thinking the court's going to read it.

but the court doesn't always read it. Okay, well it's within the material. An extra letter. Yes, g you know, for the benefit of the court they're dealing with thousands of applications all the time. Every single one.

If you don't flag it up as being urgent with the stuff that you're filing, then it's reasonable for the court to say it's just going to go through usual process, usual time frames and we will get to it as quickly as we can. They're much better than they were, say, two or three years ago. Definitely. Really trying to triage things through, which is great. The problem with some of that, and we'll talk about this briefly I'm sure is

Yeah, we're from the government we're trying to help you and we're gonna make this faster, we're gonna make it more efficient, we're gonna make it cheaper. So we're gonna have many more forms, many more steps in the procedure. Sorry, yes. Back to the back to the form. So we've got our application form. We've got a genuine step certificate. Yep.

Um we have a what we call a notice of It's called notice of risk, notice of child abuse and family violence. It's called something like that, but it's I call it a notice of risk. It's the notice of risk form, that's what I refer to it too as well. And that deals with only parenting cases where we're dealing with uh allegations of abuse.

particular risks of harm, whether it's psychological D V, that sort of thing. So that's an important form because where those things are completed and flagged up and filed on the court. Portal which is where you lodge all of this stuff. the court staff will forward uh and will act on those where there are inherent r you know i indicators of risk. They have various projects which we'll talk about in a bit, but um okay, so we have a notice of risk and that that's to identify

In property matters you've got to s um prepare a financial statement. So that sets out all your income, expenditure, assets and liabilities. Okay. So both parties have to Property matters? And that sets out your income, your outgoings, your property that you own, your super and the debt. It's about a fifteen page oh that's longer than that, isn't it now? It's go sort of part O, it's like twenty page form or something like that.

Trick for young players, financial statement has a little affidavit at the start, so don't think you can just put anything in your financial statement. Oh no. You may be cross examined on that financial statement later on.

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But some form some form fillers can't stop. And there's a section at the end of that financial statement that you only need to deal with and fill in, which is a very detailed weekly exposition of your in your income and expenditure. Maintenance. Only if you're running a maintenance application or dealing with one. Otherwise don't fill it in. Don't need to know. It's not necessary. It's it's um Helpful information. That's right.

But there's a little tip. All right, so we have a financial statement. And what else might we have? If we've got an interim appli if you're seeking interim orders or interlocutory orders or procedural orders. We do a lot. A lot of the time you will be doing that because

most people realise that when you get your matter into court, nothing's really gonna happen substantially for a very, very long time. So you do need uh an application or an interim application being made and the alternative of course if you don't have it from your initi initiating application

if you change your mind later on you say, Oh, actually I do think I need a family rep I family report and valuations and a whole heap of other interim orders, um, then you'll need to file So called a an application interesting. Right. So that's more c more cost, more money. So you're better off working out what you're going to need in the short term and putting forward that um those orders at the initiating application stage and then filing your affidavit.

Yeah. It's a good idea to get some early orders to try and direct the case a little bit, which usually means File an affidavit, I think ten pages is is your usual rule. Um sometimes it might be necessary to go over that, but ten pages is enough to give you a quick view as to the history of the relationship, what's being dealt with here, what's the property, what are the arrangements for the children, why are the orders that I'm seeking on an interim basis.

When you get all the your documents together and your lawyer files them for you and you know, the courts will take a fee from you for the pleasure of doing that and those fees are just going up. Um Thanks for five. The court fees are about to go up because we're very close on the new financial year. So they're not cheap. They're not cheap, but you're initiating application if you want to do both money and children. Currently the filing fee is six hundred and twenty five but that's going up.

Right. Okay. Um and even when you're responding you have to pay a filing fee. So your ex could start a court case off and they'll pay a slightly higher fee, but then you still have to pay to respond. It seems a little unfair, but there it is. Yeah, we're from the government, we'd here help you, as I will say. Um

So we were talking about the forms that they go through, you they're all prepared, you've got your fee ready, you lodge it on what's called the Commonwealth Courts Portal. If you're a self represented person listening You can register for the courts portal, just Google Commonwealth Courts Portal and there's a little pro

you through that. That will then give you access to the documents on your case as it goes through. And it's also where you go online to lodge any new documents that you might need to lodge along the way, more affidavits perhaps or updated financial statements or whatever.

Um it doesn't cost anything to register and it's a good idea so that you can keep eyes on on your own case. Your solicitors will in any event already be registered and able to use it to add documents to your case to see what orders have been made.

But we lodge all the documents on the portal, and then what happens, um, as I understand it, is that there is a national assessment team that will now have a look at. The national assessment team's job really at that stage is to say is this matter sufficiently serious that it needs to go to the higher court, which is division one of the FCFCOA. What does it go to Division two, which handles most of the cases? Most cases will not need to go to Division II.

Most cases we dealt with in division two. Uh much like Birmingham City, hopefully, for the rest of their own career. Uh or indeed l much lower than that possibly. Um anyway. So Division Two is your you know, your Common and Garden court cases. That's the the one that deals with majority of the work. Now that's not usually a very lengthy event, and it'll be dealt with by either a registrar or a judicial registrar, both of which are sort of species of judicial officers.

some of whom have different powers we've talked about those in other episodes but so before a registrar of some description and they won't make pointy, like very difficult interim orders unless they're by consent on that first event. Yeah, so not much is going to happen unless you already agree. And if you filing in a court just so you don't agree.

Yeah, it's reasonable. But by that time though, by the first court event, the other party will all ha already because we're only really talking about an applicant. Um the respondent will have filed their documents. If they are represented or if they're not.

Um there's nothing to prevent you from reaching out to them saying, Hey look, we've got this court event in a couple of weeks' time. We see the interim orders you l you want and these are the ones that we want. They're not that far apart. Maybe we could agree. Reach out to them and agree and perhaps you can save yourself You can often get some procedural orders. Yeah. At at the very least.

Get some procedural orders at that first one, which helps to bring the case moving along. And then one of the questions for the registrar and indeed the parties will be okay, at that first court event. Do I need to set this down for an interim hearing? Do I need to have a contested hearing about these short term orders I want? Because sometimes we talk about interim orders.

But these could last for six, nine, twelve months. And if you're talking about arrangements for children It's important to get it right. Yeah, they can be quite significant changes in life arrangements for children. So you might need if you can't agree them, then you might very well need to have an interim hearing. We probably won't get too far without something called a family report or a version of a family report. It could be a child.

some kind of expert view about what those arrangements might be. There could be steps along the way, as you're saying, procedural steps. I won't talk about family reports now. We're just trying to look about the pathway.

We may then go to an interim hearing and that might be it will be a contested hearing and that means both of the affidavits that were filed with the initiating application and the response to that will be read. Uh it's unlikely, isn't it, that people will be cross examined at this stage. Yeah. dealt with on the papers um in terms of not completely on the papers but in terms of submissions made.

um to the court um by both parties' legal representatives um and the court will make a decision and it's usually a decision then and there It's not often a reserve decision unless there's some some complex issues, but At an following an interim hearing, the court will make that decision following um the summary of argument the submissions that were made orally. Um, and it can be done by teams, it can be done in person, doesn't have to be By by teams we're talking Microsoft Teams.

Yeah. Anybody who doesn't you know have the joy of doing video conferencing all the time. Yeah. So um a lot of the time, depending on the matter, the interim hearing might be um it might be heard by a senior judicial registrar, it might be heard by a judge. It depends on the matter sometimes.

Sometimes um you know, more complex matters will be going obviously more to a judge. Whereas more matters that are quite simple and straightforward and within the powers of the lower um grade registrars will um be kept with uh lower grade is not disrespectful anyway. It's merely that they have a certain amount of of mandated powers under under the legislation and the regulation. Um some senior j judicial registrars are are extremely senior and really across these these matters of thinking.

Yeah, very helpful to have one of them. More about what they're powered. Yeah, that's right. That's right. But um of course not everything th that goes to the first mentioned date is going to need a contested interim hearing. Um it might be that the court identifies and indeed you might realise when you look at the other side's case in your case

there needs to be some kind of a dispute resolution event. There needs to be some kind of a mediation or something of that order. So the courts might then um send you off for that. is proud to sponsor Split Happens. You will be in safe hands with Album Legal. For all your family law needs, call us on 0700. two zero triple four or visit our website at arbanlegal.com.au. Courts unlocked to make any mediation orders though unless you've got the other bits and pieces that you're going to need.

Yeah. the other day and um the registrar was quite rightly saying, Well, I'm not going to make any orders directing parties to attend mediation until you've got the valuations organised for the real estate. And for disclosure to be completed, which is quite right. And those are the orders that we drafted up and

Kind of certain difficulty with the other side originally, but those are the orders that the registrar made because it makes sense. There's no point sending people to go and negotiate over you know who's going to keep what proportion of what house and and what other property if you don't know what that property's worth. That's right. So don't waste everybody's time. Get your ducks in a row first.

And same with the um parenting matters. It's very difficult for a and I was before um a judge in City. Um last week and When you're when you're in the waiting. for your waiting for your matter. You you hear a whole heap of other matters and Great learning time. It is, it is excellent. And um the judge was saying, Well, how on earth am I meant to be able to adjudicate on a parenting manner when we've got a he says, she says, two sets of affidavits

No opportunity to cross examine, no ability to test this evidence. Um, you know, why why aren't the parties giving me a family report? I need a family report or some independent evidence. And it does. It makes a lot of sense that before you actually have your interim hearing or before you have your mediation. It's going to be a lot easier. convince whether it be the judge or the other party. Um of a particular position. Whether it be evaluation, family report or whatever it is.

Yeah, you've you've got to have that extrinsic evidence, haven't you? Otherwise everybody's just pushing their own Yeah. All right, but let's say that we're we managed to get our ducks in a row, we do get our evaluations, stroke family reports, our exports expert reports done. So dispute resolution the courts are very keen on As a rule, um, most things don't get into the final hearing, thankfully.

Something less than ten percent of cases that are filed ever end up in a final hearing. So it's ev you have every chance of getting a case. However reluctant people may have been before court. expensive and it's emotional, it's time consuming, and of course you realise that you're disempowered. Ultimately, if you can't decide amongst yourselves, a third person called a judge will make decisions and you might not very well like

Uh you do have options through an appeal. We we have another podcast done about that. But we um we're outside of power when a judge makes a decision. Whereas if you're mediating, if you are saying, Okay, let's sit let's sit down W use a mediator who I I know you're a nationally um a qualified mediator. Yep. And I've attended countless mediations. It's very important. It's quite empowering to the persons who are involved in this to actually say, No, you've got ownership over your own disputes.

You can sort it out. You've got the facts ready. Hopefully you've both got a lawyer present, so you can draft the documents there and then to get it set. Mediation could take you a day, but it's well worth spending that time along this court pathway because if you can't sort it out then you're almost certainly going to head off to a trial and that's always best to be You go go through dispute resolution process. If you reach agreement, what do you do then?

We can file your consent order, minute of order. Whether it be a property order or a parenting order, new um Formalise that document into a what we call a minute of order. Is that guaranteed to be approved? Is that what's her? Guaranteed to be a Guaranteed, no, not necessarily. So the court still has to so they'll Look at that dog. Often um courts courts won't hesitate in granting parties liberty to approach the court when they've

an agreement. So say for example you might not have another um mention for months down the track the court to approve this document. A mention I should say in this context. Yeah. Court mentioned. It's like a little a mini hearing, but not really Yep. So when you um if you happen to reach agreement and you've got a bit of time

The courts i the court's not going to get cranky about parties um contacting the court to say, Well, here we go, we've resolved this. Can you please approve this and bringing the matter on? Um, because what the court will do is they'll look at it and if it's a parenting matter, they still have to make sure that the order that it that is the agreement that's been Is in the best interest. Yeah. And if it's a property matter, it still has to be just an extra. Before they make the order.

You might need either some submissions if you've got a court hearing that's imminent. Yeah. Then you'll probably do those submissions directly before the judge or the senior judicial registrar or the registrar, orally. Either if you're acting in person than yourself. And you're explaining why those arrangements are fair or why they're appropriate. Or sometimes if it's quite a way off. And quite often registrars will put this in their orders and encourage

to do this to send them through to the court in chambers which is code for saying email me what you propose the outcome to be and give me your reasons why you say it's fair. And if you do that and if you're doing that as it needs to be joint from both sides, then the courts might very well say, That's fine, we've made those orders, your case is all over, Rover. Yeah. Off you go into the sunset, you know, make friends with your ex again and everything's just rainbows and unicorns.

One of the other things that I one of the other things I just wanted to quickly touch on with um mediations is that there's also a court um The court often will have things like conciliation conferences and Other types of mediations that are more family what they call it? Court led events. So rather than g going off to a private mediator, it's dealt within the court's own purview. So usually run by a registrar instead of a mediator. I quite like those.

Because the registrars can make those orders there and then. They do. And and also too, um, when you're having a bit of trouble trying to convince the other party, mm, if you think that you're you're on a winner, um, often the registrar won't hold back and they'll they'll say

Well, I don't think that there's anyone that's gonna make that order any time soon. Or they'll they'll they'll say things that really can assist in trying to bring about Whether they're meant to or not, I don't know, but they do and I think it is very helpful. Do hear things from them about their take on how certain judges might decide.

They might say, Oh, I look I know which judge is going to be hearing this and I I know that he or she um is unlikely to make those orders'cause these are people that are working together frequently discussing matters. Listen to the registrar. If they're giving you a big red flag over your proposed outcome, you know you've got a difficult case to run. Yeah.

Very difficult. And then you're talking about months and tens of thousands of dollars potentially thrown And the other thing too is that um in terms of um those conciliation conferences and those family dispute resolutions The the Family Dispute Resolution Conference. Conferences, right.

Um and the only thing is that a lot of time there's a bit of a delay in it's a bit of a waiting time to try and get that. So that's why people will often run off and have a private mediation. Yeah. Because It works much quicker.

It's all it's also outside of court, which can be a slightly more relaxing experience. Yeah. Because even though those uh conciliation conferences and and F D R events tend to be by Microsoft Teams, you know, video software Rydyn ni'n gwneud unrhyw unrhyw unrhyw unrhyw unrhyw unrhyw unrhyw unrhyw

but you're physically at court or you're in front of a court officer, it's a bit more intimidating than a private mediator and a large part of what a mediator will try to do is to bring some calm to what is a You don't get many sort of shouty mediators. I don't think you get th they wouldn't succeed very well in that role. too I just thought of was when you're at a in a mediation. you can reach an agreement that is

the range of what a court may approve. So say for example You might have some sort of arrangement, you might be a property. can't sell the property because you're gonna end up with nothing. So they decide to continue They sever the tenants. They're tenants in common now, but they continue with this joint venture type thing and they enter. A binding financial agreement which the court might go, Oh, we don't really like this. Yeah. Thank you, Rory. Private media. In a private mediation.

You know, once you've obviously entered into that BFA is that the order from the court will be Thank you for solving it. Externally. very useful tool to have with a private mediation to be able to say we can come off the page

It's particularly helpful as you say where maybe there's not much equity in some particular real estate for a period of time, but both parties expect there to be and they've both had this shared venture. Maybe they've got business uh interests that are tied up, maybe there's a family trust.

Maybe there are particular arrangements for children that are difficult or you know, other family members and dependents. If you've got a complicated, you know, family law situation in terms of property and and parenting Sometimes coming off the page during a court case. that somebody has started might be a good idea. Look, your solicitor will be able to give you some good advice around that. So do if you think that actually I'm not sure that

My case is very straightforward. Have a chat with your family lawyer because you might be able to resolve it at a mediation and go into private agreement. Cảm ơn các bạn đã theo dõi và hẹn gặp lại. They do not need to be approved by a court. You need to get good advice over them and don't rush at them. But they don't have to be approved by a court. They're I mean you are able to make a bad bargain. I mean I'm not going to advise a client But legally you can do that.

Excitingly Adam. I've been tending to his flock rather more than he ought to have perhaps been, and um was very keen to hand over everything out of contrition and shame and guilt. It was trying to talk him off that particular level. Yeah, that's his ravine to jump into. That's right. Mine to advise about the you know, the downfalls. But anyway, so look, the pathway then so we've we've tried dispute resolution.

hasn't say worked. We are the unlucky ten percent or or fewer than ten percent. We're going to be heading off to what's called a compliance and readiness hearing, which is code for code for what? Oh it's just another With the court. Yet another short event with this simplified system. It's a direction. Um the court Well What they'll do though, won't they list it for a trial management hearing as well? So they won't necessarily give Yeah. That's where you're headed to.

I with a few judicial officers lately because of this whole They're wanting to have Probably still gonna be at least twelve months away before you get a trial. It's frightening, isn't it? So I've got one at the moment where the Until like about October. Readiness here. Family report. And then a whole heap of surface. Plus add another twelve. the child and yeah whatever is going on before we get to a trial.

You're already anticipating the need for an updated family report for a family report that hasn't even been written yet. That's right. It's crazy. That's my week. If I can advocate anything it's try your very best to settle cases before you end up in a final hearing because everybody So you've got yeah, so the compliance and readiness hearing'cause of course before the With your opponent. How many witnesses you've got?

Yeah. Balance sheets, areas of disputation where you can agree, commonality and all of that. And um and you've also got to file a certificate of readiness. Yeah. Uh if you've said that you're ready but you're not really ready or you're not ready at all. You're not going to be ready in the foreseeable future. I mean, why did you bring the case? Or you need to engage with the process rather more, follow the directions. It can be difficult.

'Cause often they'll have multi mentions and directions um before you even get to the compliance readers or you get hearing and then the then the judge says, Okay, you obviously you're obviously not ready. I'm going to flick it back. For another mention before a judicial registrar. And that's been happening in Maybe the reason these cases don't often go all the way to trial is because everybody dies of old age before they are. I think I'm bored of one of the challenges. Yeah, that's right.

They run out of money. They I think they run out of puff and steam money. Yeah. does run out of money to rep to have any more. they are then faced with a very imbalanced playing field. The other side have still got, you know, their lawyers and their barristers and everything coming at you on the other side, and it's just you in front of a judge. Yeah. So we've gone past our trial management hearing, we've had our compliance arrangements hearing, we've even filed Final hearing.

And that's simply the presentation of evidence, the running of arguments in front of a judge, and then ultimately I'm sorry, I'm that's your favourite bit, I know, because as the ex barrister in the That's right. This is just about the pathways. No, no, we're not going to talk about all of that now. You have your final hearing. Yep. Then there's the judgment. It's all right. Unless there's an appeal. And then you can listen to her other. And you can let us well run.

Look look that there is a a real pathway these days in the FCFCOA, the Federal Circuit and Family Court of Australia, and get some legal advice around it. Have a look at the Court's website. It's actually a very helpful website. Yeah, the light. Magellan L. The Jell and List and Div One and then the PPP five hundred for smaller property pools. There are lots and lots of little pathways and little rap runs around some of these. What we've talked about today is just a broad opening.

And some of the most important forms. There are, as you can imagine, things created by government, things where lawyers are involved, there are a raft of forms and various fees to be paid. Check out their website and and check out our website too if you'd like to. We've done a little a nice little snap. We have to do that.

A little infographic uh and we'll figure out with with our super editor as to how we get that out there onto our podcast website and onto our own website and have a look at that. It might just give you a bit of a snapshot as to how these came. Hope you've enjoyed listening and tune in again to another episode of the exciting tales from family lore with myself, Alex and Liza with Split Happens. Thanks very much. If you