You will need to go to court if you can not reach an agreement with your former partner.
Initiating Application and Response to Initiating Application
- An application to commence court proceedings will requires the following documents to be filed in the Federal Circuit Court of Australia (more commonly) or the Family Court of Australia (if the matter is more complex):
- An Initiating Application – sets out the orders sought on an interim (short term) and final (long-term) basis’;
- An Affidavit – sets out the relevant facts and circumstances and the basis for your application;
- A Notice of Risk (for parenting matters) – sets out out any concerns relating to the risk to any child or allegations of family violence; and
- A Financial Statement (for property matters) – sets out the relevant income, expenses, assets, liabilities and financial resources for an individual.
- Once your Initiating Application has been filed and ‘sealed’ by the court, it should be personally served on the respondent or otherwise served on the respondent’s lawyers.
- A First Court Event will be allocated (‘First Court Event’).
- Prior to the First Court Event, the other party is required to file documents including a Response to the Initiating Application and other relevant documents (as set out above).
- Once proceedings have been commenced, and each party has outlined their positions (within their initiating application and response), the applicant and respondent should attempt to negotiate an outcome. Negotiations can be in respect to interim matters or with the view of settling the matter on a final basis.
First Court Event
All parties to the proceedings will be required to attend the First Court Event. The First Court Event usually consists of:
- The Judge determining any application for interim orders sought (if time permits, or otherwise set the matter down for an interim hearing on another day), and also seek an indication of the following:
- A summary of the relevant facts and issues in dispute;
- The evidence and the witnesses who would ultimately be called to give that evidence as required in proving each party’s case; and
- The expected duration of the final trial.
- At the First Court Event, the Judge will also make directions as to how the matter will proceed. The following are example of the kind of directions made:
- The parties attend conciliation conference or private mediation;
- Whether the parties attend a child inclusive conference and/or child dispute conference;
- The parties exchange disclosure (see duty of disclosure);
- The parties appoint an independent valuer to value items of property;
- Whether it is necessary to appoint an independent children’s lawyer;
- The preparation of a family report; and
- Any specific directions sought by the parties such as drug testing, medical reports, psychiatric assessments.
Interim / Urgent Hearings
- If someone has separated and an urgent dispute arises that requires a quick short-term solution until the court can conduct a final hearing, an application to the court for an Interim Hearing can be made.
- An Interim Hearing will not be allocated for more than a maximum of two hours of court time. It is therefore an abbreviated form of a court hearing. An interim hearing can occur in many types of situations, but most commonly it is for:
- Children’s living arrangements;
- Occupation of the matrimonial home, or
- Injunctions to protect property.
- An interim hearing is based on affidavits and does not usually involve direct oral evidence from the parties.
- An affidavit is a document used in court proceedings, which provides written evidence setting out the facts of a person’s situation. It should be noted that there was a major change made at the start of 2018 to how affidavits should be prepared for interim hearings in the Federal Circuit Court.
- In the event that your matter does not resolve by direct negotiations or family dispute resolution, the matter will be set down for trial.
- The trial date is typically about 18 to 24 months after the initiating application has been filed, however in NSW it is not uncommon to have delays extending up to 36 to 48 months.
- At the time of trial, you and your witnesses (the people who have sworn affidavits on your behalf) must attend Court to be examined on oath in relation to matters in dispute.
- At the Trial, you and your lawyer will attend Court, together with a barrister who has been briefed with the full particulars on your case.
- After hearing all of the evidence, the judge will then make a decision determining all of the matters before the Court which are in dispute.
- It can take a further 6 months to 1 year for a Judge to deliver their judgment.
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Marital separation (including divorce) and de facto separation is an unfortunate reality of the world that we live in. While some manage to navigate the emotional minefield with minimal anguish, most end up embroiled in bitter legal proceedings. While financial concerns are often of great importance when separating, far more important are matters of the heart: children. When making arrangements for children in a divorce, the Court will place the greatest amount of importance on the “best interests” of the child. But do those best interests include the child’s own wishes?