From: Valerie Houghton <valeriehoughton@me.

com>
Subject: Family Court of Australia pathways
Date: February 18, 2010 8:10:02 AM PST
To: Valerie Houghton <valeriehoughton@me.com>

Family Court of Australia pathways

The most likely Court events you will attend

Resolution events
The Case Assessment Conference
Getting ready for the Case Assessment Conference
Duty of disclosure
The Procedural Hearing
Child dispute resolution
The Conciliation Conference
Getting Ready for a Conciliation Conference

Determination events
Child-related proceedings (under Division 12A of the Family Law Act)
The Less Adversarial Trial
Interim hearings
Financial and other non child-related proceedings
The Trial Notice
The Pre-Trial Conference
Listing
The Trial
Magellan

Once a case has started in the Family Court

Your case is being heard in the Family Court. The Court’s case management involves ‘events’ that aim to help you
and your former partner resolve your dispute. These events include:

resolution events - aimed at helping you and your former partner to reach agreement without the need for
judicial decision making, they will involve registrars (court lawyers) and family consultants (psychologists
and/or social workers), and
determination events – a less adversarial trial (hearing) with a judge and/or a trial before a judge.

Where both parenting and financial issues are in dispute, the financial issues may be considered by a judge as part
of a less adversarial trial, if both parties agree (consent) to this.

The events you attend will depend on what is in dispute between you and your former partner, that is, whether the
issues are about future parenting arrangements or about financial arrangements (how your property or assets and
debts are to be divided), or both.
The most likely Court events you will attend

The most likely events when your dispute is about parenting arrangements

Most likely you will attend:

a Case Assessment Conference, then a Procedural Hearing on the same day, and if you do not reach
agreement,
child dispute conferences or meetings with a family consultant.

If you do not reach agreement through these child dispute resolution conferences or meetings (there may be
several), then your case will enter the Court’s determination phase for a hearing (trial). The way your trial is
conducted may vary depending upon whether your application was filed before or after 1 July 2006. View more
information about child-related hearings, Div 12A.

The most likely events when your dispute is about your assets and debts

Most likely you will attend:

a Case Assessment Conference, then a Procedural Hearing on the same day, and if you do not reach
agreement
a Conciliation Conference (possibly more than one conference) with a registrar (court lawyer).

If you do not reach agreement through these events, your case will enter the Court’s determination phase and be
headed towards a trial before a judge. View more information about proceedings which are not conducted under
Division 12A of the Family Law Act.

If you consent, your trial may be conducted in a different (less adversarial) way, at the same time as parenting
issues are being considered, under Division 12A of the Act.

If you don’t have a lawyer, can you bring a support person to court with you?

You may choose to have a friend or support person attend court with you.

At a conference or other court appointment

At a conference or other court appointment, if you are not legally represented you may have a friend or support
person attend court with you. The extent of a support person's involvement in the conference/appointment will be at
the discretion of the registrar or family consultant conducting the conference/appointment.

At a hearing
At a hearing, if you have a friend or support person with you, they may sit at the back of the courtroom. Children
and young people under 18 are not permitted in the courtroom.

During a hearing, parties who are not legally represented will normally be allowed to have a support person sit with
them. The extent of the support person's involvement in the hearing will be at the discretion of the judge.

Resolution events in the Family Court

The Case Assessment Conference

The Case Assessment Conference is the first major event that you will attend in the Family Court if you are seeking
financial orders. It provides an opportunity for you (the parties) to reach an agreement, with the help of a registrar.
If you cannot agree, the Court will:

assess the main issues to clarify areas of disagreement and the facts of the case
where appropriate, recommend other services that might help settle the dispute (for example, further family
dispute resolution or progression to a hearing), and
explain what will happen next.

If you or the other party have lawyers, they will participate in the conference.

A Procedural Hearing will be held on the same day as the Case Assessment Conference.

Who convenes the conference?

A case assessment conference is run by a registrar (a Court lawyer).

How long does the conference take?

About one and a half hours, in these stages:

Stage 1: Assessment
The registrar will:

explain their role and the purpose of the conference

answer any questions
ask about issues of family violence (if any) or if either person is concerned about negotiating directly with the
other person, and
allow each person to outline the issues and discuss the current barriers to an agreement.

Exactly how this stage is run depends on the issues in your case. But remember, it is an opportunity for you and
your former partner to reach an agreement, if at all possible.

Stage 2: Negotiation
The conference looks at areas of disagreement. The discussions concentrate on the facts and background issues.
These are the areas that require thought when you are preparing for the Case Assessment Conference. The
registrar will help you to understand and to think about the consequences of any proposals made, guiding you and
your former partner to see if you can find a solution to your differences.

The registrar cannot give legal advice. You should get independent legal advice before the conference. At the end of
the conference, the registrar will:

summarise the progress made during the conference, and

make it clear what the next steps are and, if agreement is not reached, what needs to be done to prepare for
these next steps.

The registrar does not force a final decision on you or the other party. Agreements are reached only with the
consent of all the people involved.

If you cannot reach an agreement, there are various options about what happens next, for instance:

a Concilation Conference, or
further dispute resolution sessions, or
if it seems unlikely that you will reach an agreement, it might be proposed that the case goes towards a
decision by a judge at a trial.

Are discussions private?

The settlement negotiations during the conference may be privileged. This means that what is said cannot be used
in court later. There are some exceptions to this privilege. For example, court staff are required by law to report a
suspicion or risk of child abuse and violence or threats of violence to the relevant child welfare authority.

Interim orders

Sometimes people may seek interim (temporary) orders while waiting for a final decision.

There is no limit to what may be included in an application for interim orders. However, to apply for interim orders,
you must also apply for final orders. View information on Interim orders.

Stage 3: The Procedural Hearing

The Procedural Hearing is held either straight after the Case Assessment Conference or, if it looks like you and your
former partner may be able to reach agreement through further discussions during the day, later in the day. A
registrar conducts the Procedural Hearing, with a family consultant usually involved if there are children’s issues. At
the Procedural Hearing, the following may happen:

any agreement reached during the Case Assessment Conference may be made into legally binding orders of
the Court, and/or
orders are made for the next Court event and what has to be done to prepare for it.

The Procedural Hearing at the end of the Case Assessment Conference is not privileged and what is said can
be used in court.

What can I expect at the end of the day?

You may leave with:

a temporary (interim) or final agreement (often in the form of orders) reached through negotiation and
settlement negotiations on the day, and/or
orders about the next steps in your case.

If we haven't reached an agreement, what happens next?

You must file and serve a Financial Questionnaire within 21 days after the Case Assessment Conference. You must
also prepare wuth the other party and file a Balance Sheet.

Do you have to attend the Case Assessment Conference?

Yes. Attendance is usually compulsory for anyone involved in a case in the Family Court. If there are any family
violence concerns, please contact the Family Law Courts on 1300 352 000 or if you have been given the direct
number of a person who is looking after your case, that number. You may be able to see the registrar/family
consultant separately or it may be possible to participate in the conference or hearing via electronic
communications, including telephone or video link. To do this, you will need to seek the Court's permission in
writing, at least seven days before the conference. To find out what is involved call the Court on 1300 352 000.

Do I have to attend the Conference in person?

It may be possible to participate in the Conference or hearing via electronic communications, including telephone or
video link. You will need to seek the Court’s permission in writing, at least seven days before the conference.

Does every case go to the Case Assessment Conference?

No. Some will go straight to the Registrars’ Procedural Hearing list. These include cases where:
 only parenting issues (not financial issues) are in dispute
there has been a Case Assessment Conference in the previous six months (the exception to this can be if a
substantial new issue has been added to the case, which may mean a Case Assessment Conference is still
held)
one of the parties is overseas, or
a Case Assessment Conference cannot be allocated within a reasonable period (within 10 weeks) due to
delays or staff shortages.

Some cases with an interim application, including applications involving allegations that require an urgent decision
(for example, for the protection of a child or party or to prevent dissipation of assets) may go straight to a Senior
Registrar’s or Judicial duty list.

A party or a witness who is in prison will attend the Case Assessment Conference and Procedural Hearing by
electronic communication (video link or telephone). This is provided for under Rule 12.12(4).

If we cannot reach agreement at the Conference, how long until we see a judge?

The time a case takes to be heard before a judge varies depending upon such aspects as the number of issues in
dispute and the complexity of the case. However the range of time before a judge will make a final determination of
the case can be up to 18 months.

Getting ready for the Case Assessment Conference

What happens before the Case Assessment Conference?

Step 1: One party (the applicant) applies to the Court for orders in a family law dispute.
Most commonly, the applicant has started a case in the Family Court by filing:

an Initiating Application, and

in financial cases, a Financial Statement, and
if interim orders are sought at the same time, any affidavits (written sworn statements) supporting the
application.

The Court sets a date for the Case Assessment Conference when the application is filed.

Please note, applications can be made only if the Court’s pre-action procedures have been followed. For detailed
information about these requirements, follow the link that applies to you:

Children’s matters topic section, page titled 'If you can’t agree'
Property and money topic section, page titled 'if you can’t agree'

If you want to understand more about the principles and law related to family law, view further information under
the Family Law Principles topic section of this website.

All documents filed by the applicant must be served on the other party (the respondent) as soon as possible after
filing (the Court’s Service Kit has information on service requirements). View the Service Kit under the Forms
section of this website.

Step 2: The other party (the respondent) prepares, files at the Court and serves (on the applicant and any
other parties) a written response to the served documents by:

completing a Response to Initiating Application, and

if interim orders have been sought, a supporting affidavit, and
where there are financial issues, a Financial Statement.
This must be done as soon as possible after the respondent has been served with the original documents, and not
less than seven days before the Case Assessment Conference. The Court’s Service Kit has information about
service.

Step 3: Preparing for a Case Assessment Conference

It takes time to prepare for a Case Assessment Conference and related court events:

there are significant duty of disclosure and document exchange requirements before the conference
in some cases, you need to bring extra information to the conference, and
you need to have considered carefully what it is that you are seeking, and why.

Duty of disclosure

What is duty of disclosure?

Duty of disclosure requires all parties to provide the Court and each other party all information relevant to an issue
in the case. This includes information and documents that the other parties may not know about. This duty starts
with the pre-action procedure before the case starts and continues until the case is finalised.

As a party, you must continue to provide information and documents as circumstances change or more documents
are created or come into your possession, power or control. The Court’s brochure ‘Duty of Disclosure in family law
cases’ provides an overview of duty of disclosure obligations. It includes information about:

full and frank disclosure - and what that might mean in financial and parenting cases
written undertakings that must be given to the Court
documents to be disclosed, and
penalties for failure to disclose or for filing false undertakings.

This is a complex area of law. The information here is an overview only of the requirements. You must carefully
read Chapter 13 of the Family Law Rules to understand your full obligations.

Parties must make full and frank disclosure about their circumstances before the Case Assessment Conference.
What is required varies, depending on whether parenting issues or financial issues (or both) are in dispute.

Full and frank disclosure in financial cases

As well as the general duty of disclosure, there are specific rules about full and frank disclosure in financial cases
(see Rules 13.04 and 12.02).

Disclosure must be of the party’s total direct and indirect financial circumstances. It requires disclosing all sources of
earnings, interest, income, property (vested or contingent interests) and other financial resources. This applies
whether the property, financial resources and earnings are owned by or come to the party directly, or go to some
other person or beneficiary (for example, the party’s child or de facto spouse) or are held in corporations, trusts, or
other such structures, and that may affect, defeat or deplete a claim. Also required to be disclosed is information
about any property disposal (whether by sale, transfer, assignment or gift) that was made in the year immediately
before the separation of the parties or since the final separation. Liabilities (actual and contingent) must also be
disclosed.

Rule 12.02 provides that in a property case each party must exchange with the other parties copies of the following
documents at least two days before the first court date (Case Assessment Conference or Procedural Hearing):

the party’s three most recent taxation returns and assessments

any superannuation documents for each superannuation interest of the party,
including:

the completed Superannuation Information Form

for a self-managed superannuation fund, the trust deed and the last three financial statements
for a corporation (business), trust or partnership where the party has a duty of disclosure under Rule 13.04:
financial statements for each (including balance sheets, profit and loss accounts, depreciation schedules
and taxation returns) for the three last financial years
for the party or a corporation (business), trust or partnership where the party has a duty of disclosure under
Rule 13.04:
any Business Activity Statements for the 12 months ending immediately before the first court date

for any corporation, its most recent annual return, listing directors and shareholders; and the corporation’s
memorandum and articles of association
for any trust, the trust deed
for any partnership, the partnership agreement,
a market appraisal of any item of property in which a party has an interest.

Undertakings about disclosure

Rule 13.15 requires all parties (except for an independent children's lawyer) to file an undertaking. The brochure
'Duty of disclosure' available at the Publications section of this website has more detail on what is required.

Penalties

If you fail to disclose or file an undertaking or file a false undertaking, there are a range of penalties the Court may
impose. See the 'Duty of disclosure' brochure for more detail.

Other specific requirements for discussion about financial cases

It takes time to prepare for discussions about property and financial support (maintenance) matters. You can begin
by collecting documents about all the property, assets and debts of you and your former spouse. It may include
bringing together:

a copy of your tax return for the last financial year

a taxation assessment (from the Australian Tax Office) for the last financial year
bank, building society or credit union records for the 12 months before the date of filing the application
current pay slips
if you have any superannuation, information MUST be obtained and provided in the form of the
Superannuation Information Form, including information from the superannuation fund
receipts or statements relating to hire purchase, personal loans, mortgage, lease, rent, etc
copies (preferably copies with the original court seal) of any previous order for maintenance or property
settlement, and
any other document that may assist the Court in determining income, financial needs or resources.

You may need to have bank statements going back several years (to separation date and earlier) where:

there has been a long gap between separation and the present court event
there are issues of money being wasted in the relationship
income has not been fully disclosed,
assets have been sold and the application of the funds is an issue.

You should consider Rules 12.02, 12.05 and 13.04.

The Procedural Hearing

A Procedural Hearing is a short hearing by a registrar in a courtroom. A family consultant attends if there are
parenting issues. Its purpose is to discuss the next steps in your case and make orders for those next steps.

Commonly, the Procedural Hearing will be after your Case Assessment Conference (on the same day) but it may
also occur at other times during the proceedings. The exceptions to this are when a case does not go to a Case
Assessment Conference because:

one of the people involved is in prison (although it may be possible for them to participate by telephone)
there has been a Case Assessment Conference in the previous six months, or
one of the parties is overseas.

Procedural hearing without a Case Assessment Conference

If you are not going to a Case Assessment Conference, you will either go directly to a child dispute conference or
meeting with a family consultant. If you go to a Procedural Hearing, the registrar will:

identify and assess the factual and legal issues in dispute

discuss with you what the next steps may be, and
make orders about the next steps and what must be done to prepare for these.

Procedural Hearing after a Case Assessment Conference

At a Procedural Hearing after a Case Assessment Conference, one of the following may happen:

If you have reached an agreement, the registrar will make legally binding orders. You will not have to attend
any further court events.
If you have not reached agreement, the registrar will make orders for the next steps in your case and what
must be done to prepare for this. You will need to comply with any instructions on how to prepare for the
next event.

In most cases the next step would be as follows:

In financial cases, financial conciliation at a Conciliation Conference with a registrar.

In parenting cases, a child dispute conference or meeting with a family consultant.
In cases with both financial and parenting issues, a joint dispute resolution conference with a registrar and
a family consultant may occur. Alternatively, parenting issues may be referred to a family consultant and
property and financial issues to a registrar.

A Procedural Hearing after a Case Assessment Conference may take about 10-15 minutes. It will either:

follow immediately after the conference, or

be later in the day if it looks like you and your former partner may be able to reach agreement through
further discussions during the day.

Where there are current family violence orders or personal protection orders, or where either participant does not
want to be in the same room as the other person, then the registrar may conduct the Procedural Hearing with the
lawyers only or with the parties in separate rooms.

Legal sources

Procedural Hearings are ordered under Rules 4.03 and 12.04 of the Family Law Rules. Chapter 5.3 of the Case
Management Directions refers to the Procedural Hearing.

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Child dispute resolution

If you do not reach agreement at the Case Assessment Conference, or your other first event at the Family Court,
and your dispute is about parenting issues, you will likely attend child dispute conferences or meetings with a family
consultant. The family consultant is a trained social worker or psychologist who specialises in family and children's
matters.

Court based dispute resolution is a process in which a neutral third party helps people involved in a dispute to
communicate. A Court employed family consultant is assigned to each case involving parenting issues to assist and
advise. You may attend several conferences or meetings with the family consultant.

What happens in a dispute resolution conference?

Generally, child dispute conferences or meetings follow a process of cooperative problem solving. The family
consultant may give guidance and make suggestions for possible arrangements for the children. The consultant
cannot give legal advice. You will be encouraged to make your own decision and if necessary you will be
encouraged to seek legal advice.

The conference or meeting offers you the chance to reach an agreement yourselves. It also helps you to:

focus on your children’s needs

decide which areas are in dispute
explore each person's needs and interests
explore possible solutions, taking one problem at a time
select the most suitable solution, and
clarify your agreement.

Can I speak ‘off-the-record’ with the family consultant?

No, communication with family consultants is not confidential and may be used in court.

At the beginning of a child dispute conferences or meeting, the family consultant must tell you the conference or
meeting is not confidential. If you are still unsure what this means, ask the family consultant to explain it again,
so that you do understand.

More information about the role of family consultants view the fact sheet ‘Family consultants’ under the Publication
section of this website.

Can I ever talk to someone confidentially

A judicial officer or registrar may order that you attend an appointment with a family counsellor or family dispute
resolution practitioner. Communications with a family counsellor or family dispute resolution practitioner are
confidential and are not admissible in court. In this situation, you may have both a family counsellor or family
dispute resolution practitioner and a family consultant carrying out their role. This will not be the same person.

What happens after dispute resolution conferences?

If you reach agreement by negotiation, you may ask the Court to make orders in the terms of your agreement.
These are known as consent orders.

If you have not reached agreement, the Court will tell you your next court event, and what you must do to get
ready for it.

Are children involved in child dispute resolution?

Children may be involved in dispute resolution when special arrangements have been made with the family.
Children will not be involved until the family consultant has discussed the issues in dispute with the adults.

The Conciliation Conference

A Conciliation Conference aims, if possible, to help you reach an agreement on the financial issues arising from the
breakdown of your de facto relationship and, if there are also parenting issues, to help resolve them.

The Conciliation Conference is usually ordered at a Procedural Hearing by a registrar.

You are expected to make a genuine effort to settle at the Conciliation Conference. With that in mind, you should
go to the conference in a spirit of compromise and adopt a practical approach. Resolving the matter will save the
need for further court events, including a trial.

The conference usually takes about two hours. It is run by a registrar who is an experienced family lawyer. The
registrar may tell you the options available to you in the light of the relevant law and previous decisions of courts.

If your case involves both financial and parenting issues, a Joint Conciliation Conference may be held to help you
reach agreement. Joint Conciliation Conferences are only held if recommended by a registrar or family consultant or
by order of the Court. Both a family consultant and a registrar will attend the conference.

Do you have to attend?

Yes, attendance is usually compulsory for anyone involved in property proceedings in the Family Court. If there are
any family violence concerns, please tell the Court by calling 1300 352 000 or if you have been given the direct
number of a Court person who can help you, call that person before the conference so that alternative
arrangements may be made.

Are discussions private?

If the conference is with a registrar only, what is said in settlement negotiations in a Conciliation Conference is
covered by privilege which means that what is said can only be used in Court later if the parties agree (or waive the
privilege). There are some exceptions to this privilege. For example:

Court staff are required by law to report to a child welfare authority if certain matters about child abuse are
raised in conferences such as Conciliation Conferences,
if any agreement reached at the conference breaks down, then terms of settlement previously agreed to may
become evidence in future court hearings.

Further, if the conference is a Joint Conciliation Conference that involves a family consultant, then the discussions
are not privileged.

What are the stages of a Conciliation Conference?

Stage 1: Introduction
Usually, you, your former partner and your lawyers (if any) will be present. The registrar will explain what is to
happen and have a brief discussion about the matters in dispute. The registrar will then tell you how the settlement
discussions will proceed. The process used will consider factors such as the need for separate interviews, and the
complexity of the financial circumstances of your case.

Stage 2: Settlement discussions

The registrar will assist you and your former partner in discussing ways to settle your dispute. Your lawyer (if you
have one) may not necessarily be present with you for the whole of the settlement discussions but you may speak
to your lawyer privately at any stage if you wish - just let the registrar know.

Stage 3: Conclusion
The registrar will sum up what has happened, highlighting matters that have been agreed. Any lawyers are generally
present for this stage. What happens will depend on whether you have reached agreement or not.

What can I expect at the end of the day?

If you reach agreement

If you have reached agreement on all issues, you, your former partner and your lawyers (if any) may prepare terms
of settlement for you to sign and then seek consent orders. Before making consent orders the registrar will consider
whether:

the orders are properly drafted

the agreement results in a just and equitable outcome for each party,
any parenting orders are in the best interests of the child or children.
If you have not reached agreement

If you have not reached agreement, the registrar will make procedural orders about what is to happen next. These
may include:

an order about disclosure of documents

an order to obtain an expert's report
an order to extend the time for making a compulsory offer to settle under Rule 10.06
an order to return the matter for another conference or Procedural Hearing (this only happens if the registrar
determines the matter is close to resolution and/or for some other reason it is premature to allow it to
proceed to the determination phase of the Family Court’s case management approach),
orders leading towards listing the case for an interim hearing or trial before a judge or judicial registrar (you
may be directed to attend a Pre-trial Conference or your case may be placed in a Trial Notice Pool awaiting a
date for a Trial Notice to issue. A Trial Notice is a document setting out a timetable for preparing your matter
for trial).

Getting Ready for a Conciliation Conference

So that you and your former partner can make the best possible use of the conference, in advance of the
conference you must:

exchange information with your former partner, and

provide it to the Court.

It may take you several weeks to get the information together. If you are not ready at the conference, it will be
difficult to reach a settlement.

The Court will have given you instructions about what you must do, at the initial Procedural Hearing held after your
Case Assessment Conference.

At least seven days before the conference

Each party must, as far as practicable, exchange with each other party:

1. A Conciliation Conference Document

If you do not supply the document, the conference may not go ahead and you may be ordered to pay your former
partner's costs as a result. In the document you should include your financial circumstances at the date you started
living together, your contributions, details of paid work during your time together, your future needs and financial
resources, and your proposal to settle the case.

2. All documents containing evidence about:

the financial matters mentioned in your Financial Statement and the Conciliation Conference Document
completed by you for the conference
financial contributions made when you and your former partner began living together
any inheritances, gifts or compensation payments received after you began living together
any purchase or disposal of property in the 12 months prior to and since you parties separated
any increase or reduction of liabilities since you separated, and
the value of any superannuation interest, including the basis on which the value has been worked out and
any documents used to work out the value.

3. Any other documents ordered at the Procedural Hearing or otherwise, or agreed between the parties to
be exchanged.

Financial cases

At least two days before the Conciliation Conference date:

In a property case each party must exchange with the other parties copies of the following documents if not already
exchanged – see Rule 12.05 & 12.02:

the party's three most recent taxation returns and assessments

any superannuation documents for each superannuation interest of the party, including:
the completed Superannuation Information Form
for a self-managed superannuation fund, the trust deed and the last three financial statements
for a corporation (business), trust or partnership where the party has a duty of disclosure under Rule 13.04:
financial statements for each (including balance sheets, profit and loss accounts, depreciation schedules
and taxation returns) for the three last financial years
for the party or a corporation (business), trust or partnership where the party has a duty of disclosure under
Rule 13.04:
any Business Activity Statements for the 12 months ending immediately before the first court date
for any corporation, its most recent annual return, listing directors and shareholders; and the corporation's
constitution
for any trust, the trust deed
for any partnership, the partnership agreement,
a market appraisal of any item of property in which a party has an interest.

At least seven days before the Conciliation Conference, each party must lodge in the filing registry a copy of
the Conciliation Conference Document. At the end of the Conciliation Conference, the registrar must return this
document to each party as it contains an offer of settlement.

NOTE: At a Procedural Hearing or Conciliation Conference, the Court may make an order for specific documents to
be produced or exchanged if it is satisfied that it is required for the purposes of resolving the case - see subrule
13.20 (4).

Furniture and sentimental items: It will be a great help if, before the conference, you can agree how to divide
these items between you - this will allow you to use the conference to concentrate on sorting out your major assets
such as the house, business or other real estate.

Borrowing capacity: If you want to buy out your former partner's interest in the home or other property, it is
important to find out how much you are able to borrow (from a bank, credit union or relative, for example) and
that you are able to meet the repayments. If you do not have this information at the conference, it will make it
difficult to reach a settlement.

What happens if the Conference cannot proceed?

If, for any reason, the Conference is unable to proceed, the registrar conducting the Conference may:

adjourn the Conference and make additional procedural orders

make an order for costs
list the matter for further procedural orders, and/or
list the matter for consideration of dismissal or other appropriate orders.

Note – It is important that you make a full and frank disclosure of all facts and documents relevant to your
application. Failure to do so can delay a settlement, result in increased costs or an order for you to pay your former
partner’s costs. It may also lead to the Court making a greater order for a property settlement in favour of your
former partner.

Disclosing all the facts

It is important that you tell the Court all the facts about your financial situation. If you do not, there may be:

delays to the conference

increased costs
an order for you to pay your partner's costs,
any orders made by consent may be varied or set aside if there has been fraud or non-disclosure in reaching
that agreement.

The Family Law Rules require parties to have made full and frank disclosure about their circumstances before the
Case Assessment Conference. What is required varies, depending on whether parenting issues or financial issues (or
both) are in dispute. The Court’s brochure ‘Duty of disclosure in family law cases’ provides information about duty
of disclosure. It includes information about:

full and frank disclosure - and what that might mean in financial and parenting cases
written undertakings that must be given to the Court
documents to be disclosed, and
penalties for failure to disclose or for filing false undertakings.

To read about what the Court must consider in financial cases, view 'Before you file - Pre-action proceedings for
financial cases' in the Publications section of this website and/or 'Property and money after marriage breakdown' in
the Property and Money Matters topic section of this website.

Every case is different

It is important to realise that the way your assets will be shared between you will depend on the individual
circumstances of your case. Your settlement will probably be different from others you may have heard about.

Legal sources

The table below provides links to the relevant sections of the law which apply to Conciliation Conferences.

Source of Law Description Website

Family Law Act 1975 Section 79(9)(a) relates to Conciliation Scaleplus

Conferences

Family Law Rules Conciliation Conferences are conducted Scaleplus

2004 under Rules 12.05 and 12.06 of the Family
Law Rules
 Case Law Decisions on property matters under section Austlii
79 and 75(2) of the Family Law Act will be
relevant to the Conciliation Conference.

Case Management Chapter 5.4 of the Case Management Family Court

Directions Directions refers to the Conciliation
Conference.

Checklist for a Conciliation Conference

It may help to tick off these items as you gather them in preparation for the conference

Documents to bring to a Conciliation Conference if they are relevant to

issues in dispute.

all documents specified at the Procedural Hearing.

list of all bank accounts, details of account numbers, passbooks and bank
statements for the past 12 months

details of all credit union, building society or other such deposits books or
statements for the past 12 months

details or records of any investments including stocks and shares

income tax returns and assessments for the past 12 months

any social security pension or payment details

records or details of any overtime worked in the past 12 months

valuations or appraisals of real estate

valuations or appraisals of goods (such as cars, computer equipment,

television)

records or details of any life or disability insurance including surrender values

records or details of any of the above that relate to your children

medical or psychiatric reports

medical certificates
details of your legal costs to date and an estimate of your future costs

information/valuation documentation relating to superannuation interests

Determination events

Child-related proceedings (under Division 12A of the Family Law Act) - The Less Adversarial Trial

Your case goes into the Court’s determination phase when it is clear that your differences are not able to be
resolved by agreement. Although it is still possible to reach agreement, your case is now on track for determination
by a judge or judicial registrar.

You will need to understand the processes and the law which applies to events in the determination phase. This site
explains the processes and assists you to access legal information. You may consider getting legal advice as you
progress through this phase, see the Getting Help topic section of this website.

It is still possible to reach agreement during the determination phase, rather than for a judge or judicial registrar to
make decisions about your case.

Determination events have two main streams:

Trials (hearings in child-related proceedings), conducted under Division 12A of the Family Law Act – all
parenting cases started from 1 July 2006 that require judicial involvement will be conducted as a less
adversarial trial. If the parties have disagreements about financial issues and they both consent, these issues
may be considered in the less adversarial trial. Likewise parties in any case filed before 1 July 2006, if they
give consent and the Court gives leave, can also be conducted under Division 12A. For more information
about such trials view the less adversarial trials brochure under the Publication section of this website.
All other cases, including disputes about property (assets and debts) and cases involving parenting issues that
were already in the Court before 1 July 2006, go to a Trial.

Less Adversarial Trials

You may reach agreement using dispute resolution in a Family Relationship Centre, other community based
organisation, with the assistance of lawyers or at the Court. If you have not reached agreement with the other
party(ies) about either the future arrangements for your children or your financial arrangements, you may need a
judge to decide what is best for your children or what are the most appropriate financial arrangements.

If this is your situation, your case will be listed for a less adversarial trial in the Family Court. This section explains
what is involved with such a trial in the Family Court.

Note: This website information about less adversarial trials refers to parents. A trial can involve people other than
parents, such as grandparents, who may be included as a party to the case.

Before being referred for a less adversarial trial in the Family Court, you will have attended at least one court event,
such as a procedural hearing or possibly an interim hearing and one or more meetings with a family consultant
(known as the Child Responsive Program).

What are ‘less adversarial trials’?

The Family Court takes a less adversarial approach to trials. This means a trial:

in a parenting case is focused on the children and their future

 in a parenting case is focused on the children and their future
is flexible so that it can meet the needs of your particular situation
is anticipated to be less costly compared to traditional trials and will save you time in court
is inclusive in so far as your involvement in the process
may be less formal than is usually the case in a court.

The judge, rather than the parties or their lawyers, decides what information is put before the Court and how the
trial is run.

What you must do before the trial starts

When it is clear your case may need to go to a trial before a judge, a registrar listing your case for the first day of
the trial will make an order for you and the other party(ies) to file and serve a questionnaire.

There are two types of questionnaires:

Parenting Questionnaire – to be completed if your case is about parenting arrangements for children
Financial Questionnaire – to be completed if your case is about your financial arrangements

You will need to complete both questionnaires if your case is about both parenting arrangements for children and
financial arrangements.

Answer the questionnaire as best you can. File it at the Court and serve a copy on the other party(ies).

The front page of the questionnaire provides information about completing the questionnaire.

Remember:

Your case will not begin before the judge until this has been done, and
Try to answer the questionnaire in your own words, although you can get advice about your answers from
your lawyer if you have one.

You may not file any affidavit or issue any subpoena without an order from the judge hearing the trial.

The Less Adversarial Trial

What happens at the trial?

The trial starts when you first appear before the judge – that is when the judge begins to hear your dispute. The
judge will have read each person’s completed questionnaire and the original application and response.

The judge controls your case only addressing the relevant issues in dispute. The focus in parenting cases is on what
is best for the children.

The trial may finish on that first day, or further hearings to continue the trial may be scheduled before the same
judge.

In a parenting case the same family consultant will be available throughout the hearing. If you attended confidential
meetings with a counsellor before it was decided you should go to a trial with a judge, the family consultant will be
a different person, so that the earlier confidentiality is kept.

Things to know about a less adversarial trial

On the first day of the trial:

If your case involves parenting arrangements for children, the family consultant will attend at court to give
general expert advice and information to the judge to help identify relevant issues in dispute.
You will be ‘sworn in’. That is, you will promise the Court that everything you say will be truthful and you will
not hide anything that is relevant to the issues in dispute. From this point, everything you say will become
part of the evidence in the case.
You will be asked to adopt the facts contained in the questionnaire as part of your evidence before the Court.
The judge will ask you to talk about your case in your own words, if you want to, or your lawyer can do this
for you.

The judge will decide what happens next after identifying:

the issues to be decided

the evidence to be heard and which witnesses, if any, will need to attend
who should provide evidence in writing (in what is called an affidavit) and what it should be about
what expert reports will be required, if any, and
if your case involves parenting arrangements for children, whether a Family Report will be required. wherever
possible, this will be written by the family consultant who is in court on the first day of the trial.

Others things to know:

Continuation hearings before the judge may be by telephone.

In parenting cases, the judge may refer you to a community-based service for further help (such as
counselling or parenting education) or make orders about your children that will run for a limited time, to see
if they work.
In financial cases, the judge may refer you to a conciliation conference conducted by a registrar or other
dispute resolution through a community-based organisation.

What if I am concerned about family violence?

The Court takes violence very seriously. You will be able to raise any concerns about family violence at the start of
your case or at any point during its progress.

If family violence is raised as an issue, steps will be taken to deal with it when it is raised as quickly as possible. If
at the trial stage you are still concerned about family violence, it is important that this be raised again when you
first appear before the judge. This allows the judge to decide how the case should proceed to keep parties safe and
able to participate fully in the trial. This might involve a person being heard by video or teleconference.

In a case involving children, the Court is focused on the best arrangements for the children in the future, so where
family violence is an issue, the judge will consider the adverse effects of violence on children who experience or
witness violence.

What if I do not have a lawyer?

The Court always encourages you to be legally represented, if possible, but you do not have to have a lawyer to be
able to effectively participate in a trial. If you do not have a lawyer, you will need to familiarise yourself with the
Family Law Act and the related legislation and you will still be required to comply with any orders made by the
Court. You may however be able to bring a support person to sit with you in court. The judge will also explain the
process (for example, what is happening next and why) as the trial goes along.

How will the evidence be considered?

In cases involving parenting arrangements for children some of the technical rules of evidence will not be applied in
this less adversarial approach to trials. However, the judge may decide that rules of evidence should apply to
particular issues for special reasons. Thus all the evidence that is given to the judge, both verbally and in writing,
will be admissible and it will be for the judge to decide what weight it might be given. This allows the trial to be
less formal and less complicated than court trials usually are.
If you need more detail about what rules of evidence are affected you should seek specific legal advice.

How will the judge get more information about me or my family?

In a case involving parenting arrangements for children the judge can order a Family Report as part of the
evidence. Wherever possible it will be prepared by the family consultant who is at court on the first day of the trial,
and ordered early in the trial. The judge decides on the questions to be answered and whether to ask the children
their views on what is best for them.

All parents involved in the case will get a copy of the Family Report before the trial continues. If the judge wants
more detail, the family consultant will usually speak in court. Sometimes the judge may order a report from a
person from outside the Court who is an expert on a particular question to be answered (for example, about mental
health or drug abuse). This report will be considered in the same way as the Family Report.

If your case involves financial arrangements, the judge may order a report from a person from outside the Court
who is an expert, for example in valuation.

In either type of case the cost of a report is normally met by the parties.

Can I appeal if I am not happy with the result of the trial?

YES. You have normal rights of appeal. But you will not be able to complain about matters with which you have
agreed.

Interim hearings
An interim hearing is a short hearing where the Court makes temporary orders (interim orders) about a case while
you are waiting for a final decision.

What matters may be included in an application for interim orders?

There is no limit to what may be included in an application for interim orders. However, to apply for interim orders,
you must also apply for final orders.

Some common applications are:

applications about where a child lives, the arrangements for a child to spend time with a parent or other
person, or other parenting orders that cannot wait for a final order
urgent property matters, for example, you think your former partner may sell your property before you have
worked out your financial settlement,
urgent matters involving children.

Why apply for interim orders?

In some family law registries, it may take 12 months or more before an Initiating Application reaches a trial. You
may wish to apply for interim orders (temporary orders) if you and your former partner cannot agree about
arrangements in the meantime or if there is some urgent need to obtain orders.

How does the Court decide matters in an interim hearing on child-related issues?

In all matters about children, the Court must consider the best interests of the children. In considering interim
applications, the Court will be especially aware of the need for stability in the children's lives. The Court will usually
only change arrangements on a temporary basis if there is an urgent need to do so. See the family law principles
topic section of this site for what a court must consider.

How do you apply for interim orders?

You can only seek interim orders if you have applied for final orders. For more information about making an
application go to:

the topic section 'Children’s Matters', page titled 'If you can’t agree on arrangements'
the topic section 'Property and Money Matters', page titled 'If you don’t agree about property and money'.

Applications for interim orders are made using an Initiating Application if you are commencing a case, or are in a
Case where an Initiating Application has already been filed in the current proceedings and an affidavit. An affidavit
is a formal written statement setting out the facts of your case. The affidavit becomes evidence in your case. It
must be sworn, or affirmed, usually before a Justice of the Peace, Commissioner of Oaths or lawyer, as a true
record. Affidavits may also be sworn by other people in support of your case, for example, witnesses.

The affidavit must be in a particular form – view the Interim affidavit kit under the Publications section of this
website.

How long before your application for interim orders is heard?

The Court will usually hear your application for Interim Orders at least 28 days after filing. Most interim applications
(unless urgent) are listed for a Case Assessment Conference before there is an interim hearing. View the Case
Assessment Conference brochure under the Publications section of this website or the information earlier in this
section about the Case Assessment Conference.

What if the matter is urgent?

If you think the situation is urgent, you should ask Court staff about what is needed to get an urgent court hearing.
You need to include a letter with your application, setting out the reasons why an urgent hearing is required. The
Court may hear the matter within 24 hours. See Recovery Orders under the Childrens Matter topic section of this
website for information on urgent recovery orders.

When will the Court make a decision?

For applications for interim orders, the Court will, if possible, make a decision on the day of the interim hearing. To
assist the Court, you need to prepare your case and make sure:

your documents, including your affidavits are ready and have been filed, and
you have served your documents, following the steps for service of documents. For further information on
service, go to 'Applying to the Courts' at the In this section link at the top left of this page or to the Court's
Service Kit under the Forms section of this website.

Responding to an interim application

If you wish to oppose orders sought in an application for interim orders you need to file and serve either a
Response to Initiating Application or a Response to an Application in a Case and an affidavit, using the Court’s
particular form of affidavit under the Forms section of this website.

Legal sources

The table below provides links to the relevant sections of the law which apply to an Interim Hearing.
 Source of Law Description Website

Family Law Rules Interim Hearings (hearings of Applications in Scaleplus

2004 a Case) are listed under Chapter 5 of the
Family Law Rules. Also note Chapter 2.

Case Management Chapter 10 of the Case Management Family Court

Directions Directions refers to the Interim Hearing.

Practice Direction Practice Direction 3 of 2006 [full title when

Family Court
issued]

What happens next

After the Court has heard your application for interim orders and made a decision, you will be sent a copy of the
orders.

You or your former partner applied for final orders either at the same time or before you filed the application for
interim orders. The Court will proceed with the application for final orders and you will be told your next court event
in relation to that application.

Financial and other non child-related proceedings

(those not conducted under Division 12A of the Family Law Act)

Preparing for a trial

The determination phase for:

property cases
parenting cases started before 1 July 2006 (where the parties have chosen not to have their case conducted
in a less adversarial manner under Division 12A of the Family Law Act), and
property cases started after 1 July 2006 (where parties have chosen not to have their case conducted in a
less adversarial manner under Division 12A of the Family Law Act)

involves these key stages:

the issue of the Trial Notice

the Pre-Trial Conference,
the Trial.

For further information see the brochure ‘The Trial Notice and the Trial’ available at the Publications section of this
website.

Follow this link for information about children cases (and property cases where there is consent) filed after 1 July
2006 or children and/or property cases filed before that date but where the parties have consented to their case
being conducted under Division 12A.

The Trial Notice

Why is a Trial Notice issued?

A Trial Notice is issued in:

property cases, and

parenting cases started before 1 July 2006 where the parties have chosen not to have their case conducted in
a less adversarial manner under Division 12A of the Family Law Act,
because the case has not been resolved through conciliation and/or family dispute resolution. The matter is now on
track to be heard before a judge or judicial registrar in a courtroom.

What is in the Trial Notice?

The Trial Notice sets out various orders to get your matter ready for Trial. These orders include setting dates for the
filing of:

an amended application and response

affidavits of witnesses
financial statements (in property cases)
an undertaking as to disclosure, and
a compliance certificate.

These orders may be wide-ranging, including ordering a Family Report. The first orders will be for you (and your
lawyer, if you have one) to attend a Pre-Trial Conference.

Why an amended application or response?

Invariably many things would have changed since you filed your application or response. The amended application
or response lets the Court and the other party know about the orders you now seek.

Why do you need an affidavit?

The Family Court requires all parties to make full disclosure, in advance, of their case. The affidavit sets out all the
relevant facts to support your case. For further information see 'Preparing an affidavit' under the Publications
section of this website. For further specific information about the information you may include in affidavits for a
Trial see the brochure ‘The Trial Notice and the Trial’ under the Publications section of this website.

If you have filed an earlier affidavit and seek to rely on it, you need to repeat the earlier affidavit in your latest
affidavit. The Family Court Rules only allow one affidavit for each witness.

Why do you need another financial statement?

The Court needs to know the current financial position of each party at the Trial.

What is an undertaking as to disclosure?

Each party must confirm by filing an undertaking to the Court that they have made a full disclosure of all matters
relevant to the case before the Court. The Undertaking form is available from the nearest family law registry or
from the Forms section of this website. Also you can view the brochure 'Duty of disclosure' under the Publications
section of this website.

The Family Report

In cases involving children, the Court may order a Family Report to assist the judge at the Trial. It may be ordered
on the Trial Notice, or at another stage in the case, if one of the parties applies for it.

Before the Trial Notice is issued, you should consider carefully how a Family Report could help the Court to make a
decision. You should read Rule 15.03 of the Family Law Rules 2004.

If a Family Report is ordered, it will be written by a Court family consultant or other Court appointed expert, subject
to any specific directions from the judge or registrar. It will be used as evidence in the Trial. The family consultant
(or Court appointed expert):

will interview all parties, their children and anyone else who may be involved substantially in the lives of the
children, and
may make recommendations about where the children should live, what arrangements there should be about
the children spending time with a parent, including how much time, and about other matters concerning
parental responsibilities.

What are my rights concerning the Family Report?

You will receive a copy of the Family Report before the Trial. You will have a right at the Trial to cross-examine the
family consultant (or Court appointed expert) about the Family Report. If you wish to do this, you must inform the
Manager Child Dispute Services in writing at least 14 days before the family consultant (or Court appointed expert)
is to appear in court.

What is a Compliance Certificate?

The Compliance Certificate is a form you complete to confirm that you:

have met all the orders in the Trial Notice, and

are ready for the Pre-Trial Conference.

There are two compliance certificates: one is for lawyers, the other for self-represented litigants. View both
certificates under the Forms section of this website.

What happens if you do not comply with the Trial Notice?

The Court must be satisfied that the orders in the Trial Notice have been met. If you (or the other party) do not file
the Compliance Certificate, the Pre-Trial Conference date will be cancelled. In this situation the Court may deal with
your case in a number of ways including placing the case in the Court's Not Ready List. This list is also known as
the Defaulter's List.

You can settle at any time

Remember, you can negotiate a settlement at any time. With both you and your former partner present, the Pre-
Trial Conference offers a good opportunity to try to settle your matter before setting the date for a Trial before a
judge.

Pre-Trial Conference
A Pre-Trial Conference is conducted by a registrar and is held to decide whether your case is ready for trial and, if
it is, to set a date for the Trial - usually about four to eight weeks later. Its date is set when the Trial Notice is
issued by the Court. It involves all parties (and any lawyers). At the Pre-Trial Conference the registrar will:
 identify the issues that are and are not in dispute
explore the possibility of settlement (and, if resolved, make orders to finalise the matter) and if not resolved
make orders for the matter to go to trial, and
set a Trial date.

If not resolved, the registrar will complete the trial information. You will need to tell the registrar the:

names of all witnesses you intend to call at the Trial

the date of filing of the affidavit of each witness
the reasons for calling them (for example, to provide information about valuation) and any difficulty with the
witness availability, and
whether you will need to cross examine each witness of the other party or parties (you should have received
a copy of the affidavit of the other party’s witnesses or a notice regarding their evidence).

The registrar will ask if all relevant Rules, Directions and any previous orders have been complied with and if all
necessary steps have been completed, including obtaining information about superannuation interests.

Finally, the registrar will allocate trial dates, so it is important that you work out how many days you estimate the
case will take.

The Pre-Trial Conference will be held in a conference room in the registrars' section of the Court. It will usually take
at least one hour.

What orders might the registrar make?

The registrar may list the case for hearing and may order:

permission for the parties to file a report from their own adversarial expert witness (usually there is only one
expert report from a jointly appointed single expert)
a conference of experts and the filing of a Joint Statement by the experts
that before the Trial, the parties:
advise each other of any objections to evidence in affidavits
advise each other of any documents they intend to produce at the Trial
file:
a Joint Case Summary document, if necessary
a Summary of Argument document

the payment of the Trial fee or a waiver of that fee,

that any party wishing to have one of their witnesses give evidence by telephone or video link must file an
application and affidavit by a certain date. That application will be considered by the Trial judge before the
Trial.

If the matter is ready for trial, the registrar will fix the date or dates for the Trial before a judicial registrar or a
judge. Any further evidence (affidavits) filed after the Pre-Trial Conference cannot be relied upon at the Trial unless
the Court makes an order allowing them to be admitted.

Checklist

The checklist below lists the things you should do to prepare for the Pre-Trial Conference.

Things to do before the Pre-Trial Conference

Comply with all of the orders required of you in the Trial Notice.

File your Compliance Certificate with the Court by the date set out in
the Trial Notice. You can lodge the certificate by fax, over the
counter or by mail.

Prepare the list of documents you wish the Court to read before the
Trial. These are usually your applications or responses, affidavits you
have filed. Their dates of filing are used to identify the documents.
The list is to be provided to the registrar at the Pre-Trial Conference.

Consider how much time you think you will need to present all of the
evidence to support your case at the Trial (this will be discussed at
the Pre-Trial Conference)

Consider how much time you think you will need to cross examine
the other party's witnesses

Check the availability of all of your witnesses for the

next 3 months

In children's matters, where a Family Report was ordered, have you

read and considered the report?

Legal sources

The table below provides links to the relevant sections of the law which apply to a Pre-Trial Conference.

Source of Law Description Website

Family Law Rules Pre-Trial Conferences are detailed in Scaleplus

2004 Chapter 12 of the Family Law Rules 2004

Case Management Chapter 6.6 of the Case Management Family Court

Directions Directions refers to the Pre Trial
Conference.

Listing

What is listing?

Listing is how the Family Court allocates the trial dates for cases to be heard before a judge or judicial registrar.
Your case will be listed for a Trial when you have complied with orders made in the Trial Notice and attended a Pre-
Trial Conference.

How is listing organised?

The Court follows the directions set out in Chapter 7 of the Case Management Directions which refer to Listing. The
directions are designed so the Court is fair for everyone involved.

The Court will make special listing arrangements in some circumstances such as:
 child abduction cases
cases where there are special medical circumstances
cases where child abuse is a factor,
long cases.

What is considered in listing?

The Court will consider any factors which will affect the conduct of the Trial such as:

the need for interstate, or distant country travel

incapacitated parties or witnesses,
the need for interpreters.

In some instances video links may be an option.

What if you wish to change your listed trial dates?

If you wish to change your listed trial date, you should contact the Court as soon as you are given the date. You
will need the consent of the other party or parties if the Court can accommodate your request.

What if you cannot attend your trial on the day?

If you do not attend the Court on your listed trial dates, you may:

have orders made in your absence, or

lose your place in the Court lists, and
have to pay the costs of the other parties involved.

If you are sick on the day of the Trial and you cannot attend, you should:

contact the Court immediately and speak to your case coordinator,

obtain a medical certificate.

When are the daily court lists published?

The daily court lists are published on the Family Court website between 4pm and 6pm daily for the next day and
are published in local newspapers on the day of hearing.

The Trial
The Trial, also known as the final hearing, is a hearing before a judge or judicial registrar in the formal setting of a
courtroom.

Getting ready for the Trial

You will receive your final instructions for preparing for the Trial at the Pre-Trial Conference. These may include
both the applicant and the respondent needing to:

complete the Joint Case Summary Document, if required, and

filing a Summary of Argument.

Also, the trial (hearing) fee must be paid within the time directed (or an application made for a fee exemption or
waiver). You will be told the fee at the Pre-Trial Conference or view the Fees section of this website, including
information on exemptions and waivers. You will also be told how it is to be paid. The person who started the case
(the applicant) is usually (but not always) the one who pays the fee. If the fee is not paid within the time allowed
the Trial may be cancelled.

Joint Case Summary Document

A Joint Case Summary Document summarises the case. Its purpose is to outline the agreed facts of the case so
that the Trial focuses on issues in dispute not agreed areas.

Information to go in the Joint Case Summary Document includes:

the names of the people involved

the dates of marriage/cohabitation and separation
the names and dates of birth of the children
details of family violence orders (if any)
relevant procedural and case history
relevant financial (property cases) and parenting (parenting case) history (indicating if facts are agreed or
disputed)
affidavits,
details of current financial circumstances if the case involves property and money.

In parenting cases, the background facts should include the agreed and disputed section 60CC(2) of the Family Law
Act matters. In financial cases, the background facts should include agreed and disputed matters of contribution
and other factors.

The language used in the Joint Case Summary Document should be objective and unemotional. Any entry which is
not an agreed fact should be clearly described with the wording " the wife asserts that…" or the former partner
asserts that…" . Any entry that does not use this wording will be considered an agreed fact by both people in the
dispute.

What is the process for preparing the document?

The document must be prepared jointly by both parties and must be agreed by both. The applicant writes the first
draft using the approved form of Joint Case Summary Document. The process for preparing the document is given
in the table below.

The Court's Joint Case Summary Document form can be viewed under the Forms section of this website.

Timeframe Step

At least 14 days before The applicant prepares a draft and gives a copy to
the Trial the respondent.

Within seven days of The respondent notes any amendments (changes)

receiving the draft they think necessary on the document and returns
it to the applicant.

The applicant makes the final amendments and

returns the final document to the respondent.

Within two business The respondent signs the final document and
days of receiving the returns it to the applicant.
final document
 At least two business The applicant files the signed copy of the final
days before the Trial document with the Court.

Note: The Court may vary the process for preparing the document if you or your former partner are not
represented by a lawyer.

What is a Summary of Argument?

At the Pre-Trial Conference you will be ordered to file the Summary of Argument.
In parenting cases the summary must set out:

your proposals for the child/ren

the matters you assert are relevant under section 60CC(2) of the Family Law Act (which relates to how the
Court determines what is in a child's best interest), and
the findings you assert the Court should make about each of those matters.

In financial cases the summary must set out:

an assessment of contributions from the date cohabitation started to the date of trial, expressed as a
percentage of the net value of the assets
the contributions made under section 79(4)(a),(b) and (c) of the Family Law Act, and the findings you assert
the Court should make about each of those matters
an assessment of the adjustment which you assert the Court should make by reason of the matters referred
to in section 75(2) of the Family Law Act, expressed as a percentage of the net value of the assets (you must
also include in whose favour the adjustment should be made)
the matters referred to in section 79(4) (d), (f ) and (g) of the Family Law Act which you assert the Court
should take into account, and the findings you assert the Court should make about each of those matters, and
the effect the orders sought would have on the financial position of each party.

The summary must also set out any law relied on and the names of cases (that is, earlier family law cases that you
will be relying upon at the Trial).

The Court's Summary of Argument form can be obtained under the Forms section of this website.

How can you present your case to the Court?

At the Trial, the Court will need to know:

the final outcome you want, and

the facts you are relying on.

You will have told the Court what you wanted when you filed (or responded to) the original or amended Initiating
Application. The facts you are relying on to support your case are set out in your affidavit, and in those of your
witnesses.

See ‘What will happen in the Trial’ below for an outline of the stages in the Trial.

Hints

The following hints may help you prepare for the actual day in Court:
 make sure your witnesses know when and where to come to Court
read the Trial plan and make sure you understand what will happen
read all the affidavits from your case and the other parties case to make sure you are familiar with the
evidence
prepare questions if you want to cross-examine any of the witnesses
consider making an opening explanation (address) to the Court
if possible, visit a family law registry (office) to watch the proceedings in another case,
see the brochure ‘The Trial Notice and the Trial’ for further information on what to expect in Court, under the
Publications section of this website.

What can you do if someone won't come to court?

If you want to call someone to be a witness for your case, but that person will not agree to come to the Trial, you
may ask the Court to issue a subpoena. A subpoena can be used to get a person to give evidence (tell the facts) to
the Court, or bring documents to the Trial. To apply for a subpoena, use the Court's Subpoena form. When you act
for yourself, you need to obtain the Court’s permission for it to issue a subpoena. You do so by letter, stating why
you seek the issue of the subpoena and what relevance it has in the case. You should raise the issue of requiring a
subpoena at the Pre-Trial Conference.

See the brochure ‘Subpoena: Information for a person requesting issue of a subpoena’ under the Publications
section of this website.

Adjournment of the Trial

If you seek to adjourn a Trial you need to file an Application in a Case well before the date on which the Trial is
due to start, and an affidavit setting out the facts as to why the adjournment is sought. The documents must be
served on all parties. Generally trials will not be adjourned unless unforeseen or exceptional circumstances arise. If
an adjournment is granted the person who asked for it may be ordered to pay the other person's costs.

What will happen in the Trial

Steps in the Trial

The table outlines the basic steps of the Trial. If you are not sure, you should ask the judge what is happening.
Some of the terms are explained in the table below. The Court's brochure 'The Trial Notice and the Trial' has more
detail. It is available at the Publications section of this website.

Stage of Trial Steps

Hearing opening At the beginning of the Trial the judge will

usually take objections. This means listening
to each party as they point out any parts of
the other party's affidavits that they say are
inadmissible based on the rules of evidence.
The judge then rules whether it is acceptable
as evidence.

The applicant's evidence 1 The applicant makes a short opening explanation

(address) if required by the Trial judge.

2 The applicant gives their evidence-in-chief. No further

oral evidence is given, unless the judge agrees to it.

3 The respondent may cross-examine the applicant

(witness).
 4 The applicant may re-examine the witness.

5 Steps 2-5 are repeated for each of the applicant’s

witnesses.

The respondent's The respondent presents their case using the same
evidence process as the applicant in Steps 1-5.

Next stage (Optional) The applicant may respond to the case of

the respondent with a 'case in reply'.

Next Stage
Any single expert gives their evidence and can be cross
examined by each party.

Final stage Both the applicant and respondent make their closing
address.

Opening explanation (address)

You must limit your opening explanation to the orders you want and what your evidence will be. Where there is a
Joint Case Summary Document filed, the opening explanation is quite short. In some cases the Trial judge may ask
the respondent to give his or her opening explanation after the applicant's opening explanation. This helps to clarify
the matters in dispute (in issue) and helps the judge arrange for the fair and timely conduct of the Trial.

Evidence-in-chief
Evidence-in-chief is the main evidence of the party (person) which is contained in his/her affidavit plus any oral
(spoken) evidence the judge allows. The first witness is usually the applicant (respondent).

Oral evidence is usually only permitted to tell the judge of any relevant matters which have happened after you
filed your affidavit or if any important matter has been left out in error or if you need to correct any error in the
affidavit. You may ask 'leave' to ask your witness further questions (or give further evidence if you are the witness)
before they are cross-examined.

Cross-examination
You may want to question a person who has signed an affidavit in support of the other party's case. This process is
called 'cross-examination'.

To do this you will need to make a formal request (preferably in writing and known as 'giving notice' ) to the other
party (or their lawyer), so that they make sure the people who have sworn affidavits for them are available to
come to Court so you can question them.

You should make this request well before the hearing. If you do not make this request they may not be available to
come to the hearing. If you make this request and they do not come, you can ask the judge or judicial registrar not
to rely on the facts in their affidavits.

Case in reply
The applicant may respond to the case of the respondent with a 'case in reply'. No new evidence is permitted in this
stage.

Closing address
After all of the witnesses have been questioned, you have the opportunity to summarise all the matters you say the
Court should accept in support of your case. This is called a closing address and will include any legal matters, such
as cases that have already been decided on similar issues ('precedents') and relevant sections of the Family Law
Act. You should tie together the evidence with the law to demonstrate why the Court should make the orders you
seek.

Adjournment (a break)
At any time during your hearing the Court may allow a brief break ('adjournment') so that you and the others
involved can get together and talk about the matter to see if you can come to an agreement yourselves.

Legal sources

The table below provides links to the relevant sections of the law which apply to the Trial.

Source of Law Description Website

Family Law Rules There are many Rules relevant to Trials, Scaleplus
this link will take you to the full version of
the Family Law Rules.

Case Management Chapters 6 and 7 of the Case Management Family Court

Directions Directions refer to the Trial.

What happens next

After hearing the case, the judge or judicial registrar may stand the matter down for a short time. The judge will
then resume and give reasons for their decision and make orders about the case. You should write down the orders
- ask for the orders to be repeated if you do not understand them. If there is any obvious error, you should point
this out once the judge has finished. You are not able to reopen and argue the case. The Court will, automatically
and free of charge, send out a copy of any order made.

Alternatively, the judge or judicial registrar may reserve (hold over) the decision about your case to another day,
usually within three months. You will be told of the day and time the decision will be given so you can attend. On
that day you will receive a copy of the decision, which includes the reasons and the orders made.

If you do not hear from the Court within three months, you can write to the Court to point out the delay in the
decision being handed down. The matter will be referred to the Deputy Chief Justice for consideration.

Magellan
Cases that come to the Family Court that involve allegations of serious physical and or sexual abuse go into the
Court’s Magellan Program. Magellan is for cases involving the most vulnerable children. It aims to deal with these
cases as effectively and efficiently as possible.

Where a Notice of Child Abuse and Family Violence that has allegations of serious physical and or sexual abuse is
filed in a case involving an application for parenting orders, the application is referred to the Family Court Magellan
Registrar to consider listing to the Magellan Program.

A Magellan team of judges, registrars and family consultants at each family law registry manages the cases. One
team endeavours to work on each case from start to finish.
team endeavours to work on each case from start to finish.

Magellan is based on these principles:

it is an inter-organisational approach to cases involving allegations of serious physical, and sexual abuse
it focuses on the children in the dispute
it is judge-led and managed from the start, with a tightly managed and time limited approach
the Court orders expert investigations and assessments from the respective state/territory child protection
agency and/or the Court family consultant,
there is a Court-ordered independent children’s lawyer for every child, funded by Legal Aid. (At present, the
Legal Aid cap is lifted for parents who would otherwise qualify for Legal Aid.)

Generally, the aim is to complete Magellan cases within six months from the case being listed as a Magellan case.
Early steps in a Magellan case include:

a detailed family report, where appropriate, analysing the family dynamics and the needs of the children, and
the judge ordering early information from the respective state/territory child protection agency including
whether it intends to intervene in the Family Court proceedings, whether it has previously investigated these
or other allegations, the conclusion and the reasons for the conclusion of the investigation, and any
recommendations or other relevant information.