Family Court is a venue that most Australians prefer to avoid. However, if you are considering a divorce, it can be extremely beneficial to familiarise yourself with family law and the Family Court process in Australia.
In most cases—except for urgent parenting issues, situations involving child abuse, family violence, or instances where one party is unwilling to negotiate—it is advisable to resolve as many matters as possible outside the Family Court system. Engaging in Family Court litigation is a significant step that should not be taken lightly and is often unnecessary. It is recommended to seek legal advice or pursue family dispute resolution before proceeding to court. For expert guidance from some of Sydney’s most experienced family lawyers, please contact Owen Hodge Lawyers at 1800 770 780.
If Family Court proceedings commence, both parties will have the opportunity to negotiate their own settlement at various stages of the legal process. Resolved matters can be formalised through Consent Orders issued by the Family Court. Notably, the majority of divorcing couples—approximately 95%—settle their issues without progressing to a final hearing.
Overview:
- Preparation and filing of Family Court documents
- First Family Court Date
- Interim Hearing
- Conciliation Conference
- Child Dispute Conferences
- Family Report and/or Expert Report
- Final Hearing
- Judgement
Family Court Trial: A Complete Overview
The family court process in Australia can vary depending on the circumstances of each case and whether the matter relates to parenting matters, property matters, or both. However, most family court trials follow this process:
1. Preparation and filing of family court Australia documents
The individual initiating the action must file an Initiating Application with the Family Court, outlining the orders they seek. This application must include a sworn Affidavit detailing the applicant’s evidence. In property disputes, a Financial Statement must also be completed to disclose financial circumstances.
The responding party will file a Response to the Initiating Application, which includes their desired orders, a supporting Affidavit, and, in property matters, a Financial Statement. Both parties may request interim orders (temporary measures until a final determination) and/or final orders in their respective filings.
2. First Family Court Date
The first court date typically occurs 6 to 12 weeks after the initial filing. During this appearance, the Family Court will issue procedural orders outlining how the matter will proceed and the steps required from both parties.
3. Interim Hearing
If interim orders are sought, the Family Court may schedule a specific date for an interim hearing. At this hearing, the judge reviews the filed Affidavits and hears brief oral submissions from the parties or their lawyers regarding the requested orders. Importantly, oral evidence is not presented at this stage, which limits the court’s ability to assess credibility.
4. Conciliation Conference
In property disputes, the court may direct the parties to a Conciliation Conference, a form of mediation designed to help them negotiate a final agreement or narrow the issues in contention, with assistance from their lawyers and a court-appointed Registrar. Successful negotiations can lead to Consent Orders, which finalize the matter.
For further insights, our blog comparing Consent Orders and Parenting Plans may be useful.
If an agreement is not reached, the Family Court will issue additional procedural directions, including deadlines for the next steps.
Throughout the process, prior to the final hearing, there will be an exchange of financial documents, expert’s reports (especially if there are disputes over property values), correspondence with the other side and perhaps further attempts at mediation or a negotiated settlement.
5. Child Dispute Conferences
In parenting matters, parties are usually directed to participate in a Child Dispute Conference with a court-appointed Family Consultant. This conference aims to address disputes and work towards an agreement, potentially involving the children. Following the conference, the Family Consultant prepares a report for the judge, summarising the issues and providing recommendations, which may include the appointment of an Independent Children’s Lawyer.
6. Family Report and/or Expert Report
Before a final hearing in parenting matters, both parties and the children may be interviewed by a court-appointed Family Consultant or external Psychiatrist. A detailed report, which includes recommendations for final orders, is provided to all parties and the judge.
7. Family court process Australia: Final hearing
If parties cannot reach an agreement, a final hearing is scheduled, which may last one to three days. Each party presents their evidence through sworn Affidavits, which are reviewed by the judge beforehand. Oral evidence will also be given during the hearing, and both parties will have the opportunity for cross-examination.
After hearing the evidence, both parties or their lawyers can make oral arguments based on the presented facts and relevant law. The judge will not deliver a decision immediately but will require the parties to return on a later date for the judgment.
8. Judgement
Once the Family Court process concludes, the parties can expect to receive a judgment. Typically, within three months following the trial’s conclusion, the judge will provide a decision along with a supporting explanation. Parties will be notified of the judgment delivery date and must attend the Family Court on that day.
Frequently Asked Questions on Family Court Process
The length of family court proceedings can vary widely, typically spanning from a few months for straightforward cases to over a year for more complicated ones. In many instances, it can take up to two years to reach a final hearing. This timeline does not account for any negotiation period that occurs prior to filing an application with the court.
Under section 117(1) of the Family Law Act 1975, the standard rule regarding costs in family law cases is that each party is responsible for their own legal expenses. However, there are exceptions where the Court may order one party to cover the legal costs of another. Such an application can be made during ongoing proceedings or within 28 days of receiving a final judgment, unless otherwise directed by the Court.
The Court may order one party to cover the legal costs of another when:
- A party declines a settlement offer and ends up with a worse outcome in the final judgment.
- A party submits an application that is completely unsuccessful.
- A party repeatedly fails to follow interim orders, like disclosing information or documents
To initiate an appeal, you need to fill out a Notice of Appeal and attach a copy of the orders you are contesting. This notice must be clearly typed or printed and should include:
- If you are seeking permission to appeal, the factual basis for your request.
- Whether the appeal pertains to all or just part of the orders.
An appeal can only be filed if you have valid legal grounds, such as demonstrating that the decision was incorrect due to a significant error or improper procedural conduct.
Total court fees can amount to thousands of dollars, depending on your specific case, the division handling your proceedings, and the duration of the process. For a tailored cost estimate based on your individual situation, please contact our expert family law team.
Partner with the Best Family Lawyers
If you think you might be heading down this path in the future, speak to one of our experienced family lawyers who can help you through the difficult and sometimes trying times of separation and divorce. Our attorneys have great expertise in the Family Court NSW, the formulation of parenting arrangements, the negotiation of financial settlements and vigorous advocacy. Please call us at your earliest convenience at 1800 770 780 to schedule a consultation with our expert team.