Appearing at the Family Court can be daunting. Even for the most seasoned legal practitioners. This doesn’t mean you can’t prepare yourself. Here is some of what you can expect for Family Court parenting matters.
*Given the current situation with coronavirus, some of these measures may have changed. Please visit the Family Court of WA for the most up-to-date directions or read our blog entries on the impacts of coronavirus on family court matters.
Procedural guidelines for property matters
The Family Court has discretion as to how a case will run, depending on the circumstances at hand. This discretion makes it difficult to predict the exact process and trajectory that a case will follow.
The procedural guidelines set out in the Family Court of Western Australia’s Case Management Guidelines and the Family Law Rules 2004 provide the best idea of how a typical case might run.
The guidelines for case management differ, depending on which orders are being sought. For example, applications for spousal or de facto maintenance orders only take a specific route that is not otherwise aligned with the general process for property proceedings.
On a basic level, applications seeking property orders on a final basis only should follow the general process outlined below.
Procedural Hearing (also known as First Return Hearing)
After filing an application for property orders, a procedural hearing will be scheduled.
This is a litigant’s first opportunity to stand before the Family Court for property matters. The hearing will be in a Judicial Officer’s list with other cases at a similar stage of proceedings. Each matter in the list will be called up for hearing, one by one.
According to the Case Management Guidelines, the purpose of this hearing is:
- to ensure compliance with pre-action procedures;
- to ensure that parties have complied with their duty of disclosure and have provided all relevant documents to each other party;
- to ensure that the relief and issues between the parties are appropriately defined;
- to make orders to ensure that the parties are in a position to conduct meaningful negotiations, including for the filing of Conciliation Conference Particulars pursuant to the Family Law Rules 2004; and
- to allocate the matter to a Conciliation Conference (if necessary).
If the parties have already engaged in alternative dispute resolution, such as a Mediation Style Conference, the Family Court may dispense with the legislative requirement for parties to attend a Conciliation Conference.
The parties will be required to advise the Court of the issues involved, those that have been resolved, and the estimated length of final hearing (trial) if the matter cannot be resolved by agreement. Based on this information, cases dealing with property matters only will be assigned to the appropriate case management track, as follows:
- Magistrate Track – matters with an estimated final hearing time of not more than 2 days, with no complicated issues of fact, law or evidentiary material.
- Complex Track – matters with an estimated final hearing time of 6 days or more or matters involving complicated issues of fact, law or evidentiary material which would benefit from case management by a Judge.
- Standard Track – matters that do not require allocation to the Magistrate Track or Complex Track.
A Conciliation Conference is chaired by a Registrar in a private conference room at the Family Court.
Parties and their lawyers (if represented) have an opportunity to sit with the Registrar, explore solutions to the dispute and negotiate a final outcome. Parties must make a meaningful attempt to reach an agreement.
If the parties reach an agreement, final orders can be made by consent.
If the parties do not reach an agreement, the matter will be placed on the defended list and programmed toward a Readiness Hearing.
A Directions Hearing will likely be scheduled to ensure all procedural requirements have been met and determine the outstanding issues in dispute.
Parties will be allocated a Readiness Hearing date and make orders for the filing of trial material. Depending on the urgency of the matter and the capacity of the Family Court for property matters, this can be some months away but will be eight weeks at a minimum.
Filing deadlines are usually made with reference to the Readiness Hearing. For example, orders may be made for the Applicant’s trial material to be filed no less than 42 days prior to the Readiness Hearing and so on.
A Readiness Hearing is a procedural hearing to make sure a case is ready for trial. This is not an opportunity for further negotiation or argument.
According to the Case Management Guidelines, the parties should be able to satisfy the Court at the Readiness Hearing of:
- the issues of fact and law;
- whether any amendment to an application is anticipated or required;
- compliance with the Family Law Rules 2004;
- Compliance with any previous directions or orders of the Court;
- completion of all necessary interlocutory matters, including disclosure and inspection;
- which of the other party’s witnesses will not be required for cross-examination;
- the availability of counsel and of each witness;
- whether the matter requires a fixed date for trial;
- an accurate estimate of the likely length of the trial;
- whether interpreters, video or telephone facilities are required.
If the Court is satisfied that the case is ready for trial, it may be allocated a callover date (or entered into the list of matters awaiting callover). Further orders will be made to ensure that the case is ready to proceed to trial, including the filing of a callover certificate.
If a party or both parties fail to comply with previous procedural orders and the case is not ready for trial, the Court has a number of options as to how to proceed. For example, the Court may make further procedural orders to prepare the matter for trial, consider dismissal of a defaulting parties’ application or make an order as to costs.
The callover is a procedural hearing in which trial dates are allocated to those matters in the list.
Trial (also known as Final Hearing)
At a trial in the Family Court for property matters, each party presents relevant and admissible evidence to support their respective positions on the issues in dispute. Submissions are made advancing each party’s application.
The unique circumstances of each case and the discretion of the presiding Judicial Officer makes it difficult to predict the exact procedure of any given trial.
At the conclusion of a trial, the Judicial Officer should be in a position to make their decision and final orders.
It is important to remember that Family Court property proceedings are not linear. So long as legislative requirements are satisfied, Judicial Officers have great discretion as to which hearings or procedure is necessary at any given time.
Issues can arise warranting additional hearings or conferences, that were not foreseen at the outset of proceedings.
For example, a case may diverge from the above guide in circumstances of:
- Settling of a case where parties reach final orders by consent;
- Applications seeking parenting orders as well as property orders;
- Interim applications;
- Costs applications;
- Subpoenas; or
- Judicial Conference.