Contested court outcomes are inherently unpredictable and expensive in terms of legal and professional fees but perhaps the greatest and underestimated cost is the "opportunity cost" of your time spent at court and/or instructing your lawyers. The alternatives to court are a compulsory part of the court process and ought to be given serious consideration as litigation is only a process of last resort where all alternatives have been considered.

Alternatives to court include:

• counselling with a suitably qualified professional capable of guiding parents on the best arrangements for children (lawyers would not be involved);
• mediation either with or without the presence of lawyers in relation to both financial and parenting issues where trained professional mediator(s) assist with determining an outcome that both people can accept;
• collaboration where the two people to the dispute agree not to go to court and use collaboratively trained lawyers to have a series of confidential meetings to determine the best solution for their dispute; or
• informed negotiations through the exchange of offer letters via lawyers.

At any stage of a family law court process (right up until a judge delivers an order) you can agree a settlement with the other person to the dispute. That settlement can be turned into a legally binding outcome that includes finalisation of the court case.

Court applications come in a number of categories the two most important of which are "final applications" (which lead to a long term/concluded outcome) and “interim applications” (which address short term or immediate issues). There needs to be a final application in the court system before you can ask the court to decide an interim application. Generally speaking, you can only have one final application (and outcome) but during the course of the final application there could be several interim applications.

There are separate "streams" of the process in both the Family Court and Federal Circuit Court for issues concerning disputes over money and disputes over children. Many cases involve both issues concerning disputes over money and disputes over children with the processes discussed below being intertwined (as may be required).

It is usually not until the very end of the process that you would be put in a witness box and asked questions in court. The overwhelming majority of cases do not get to the end of the process as the people involved reach an out of court agreement along the way.

With the exception of telephone mentions, the courts require the people to the case to physically attend court so they can see and hear what is going on.

Family law proceedings are not reportable but are open (ie, members of the public can sit up the back of many (but not all) events that occur in a court room. However, it is an offence to publish or make public details of what occurred in the court.

Usually the registrar or judge hearing the case has a number of matters to deal with on that day so time in front of the decision maker can be precious.

You can find out more information about the general process in the following brochures from the Family Court at the following links:

Going to Court - Tips for Your Court Hearing
Legal Words Used in Court

The Family Court deals with more complex parenting matters such as the relocation of children. To "file at court" you need to lodge an Initiating Application and pay a filing fee. In the Initiating Application you set out your proposal for the care of the children.

In the Family Court the matter is managed by a Registrar (one of the Court’s lawyers) until about 1/2 way into the process. The second half of the matter is then managed by a judge who will finally determine the case.

Procedural Step 1 – Directions hearing

When your Initiating Application is lodged with the Court they will set a date for a directions hearing before a Registrar (who has a delegate form of judicial power). A directions hearing is conducted in a court room environment and the lawyers (not the people bringing the case) speak.

At the directions hearing you will be ordered to attend the Child Responsive Program. The Registrar can make other procedural or timetabling directions for the collection of information or the progress of the matter. These directions will include allocation of a telephone mention date (see step 3).

Procedural Step 2 – Intake event of the Child Responsive Program

The Child Responsive Program is a series of meetings between a Family Consultant (Court counsellor), the parents and children. Importantly, the meetings with the Family Consultant are not confidential and comments made to the Consultant will be reported to the judge determining the case. At the intake assessment the Family Consultant meets separately with each parent to discuss their proposals for the children and to articulate the matters in issue between the parents.

After the intake event the Family Consultant will also make procedural recommendations as to the next steps including the parents and/or children attending a:

• Family and Child meeting – this is where the Family Consultant meets with the parents and the children to discuss the issues (lawyers do not attend); or
• Selective Settlement meeting – this is where the Family Consultant meets with the parents and their lawyers to negotiate a settlement of matters in issue.

Following the above meeting the Family Consultant will issue the "Child Responsive Program Memorandum". This is a written document (which the judge reads) annexing a “Children and Parents assessment” setting out the Family Consultant’s summary of factual matters and the proposals for the children in issue between the parents. The Memorandum may include a preliminary view as to the best outcome for the children.

In the "Child Responsive Program Memorandum" the Family Consultant can note any agreement between the parents on long term or short term issues for the children. Further, outcomes can noted in the Memorandum can include: the appointment of an Independent Children’s Lawyer; referral to an external agency for counselling; whether a notice of risk of abuse has been filed; referral to the Magellan stream of cases (for those involving allegations of child sex abuse); and/or sending the matter to the less adversarial trials process.

You can find further information regarding disclosure at the Family Court brochure titled Child Responsive Program

You can find further information regarding the role of Family Consultants here

Procedural Step 3 – Telephone mention

At the directions hearing (step 1) the Registrar will have scheduled a telephone mention. Only the lawyers attend this and it is done by way of phone link. The purpose of the telephone mention is to decide what steps (if any) need to be taken to implement the outcomes noted in the "Child Responsive Program Memorandum".

All outcomes ultimately include referral to the less adversarial trials process, which is the beginning of a judge taking over the management of the case. There is a waiting list for allocation to this process of up to 12 months.

Procedural Step 4 – preparation for a less adversarial trial

The case will ultimately be given a date for the first day of the less adversarial trials process. 28 days before the first day of the less adversarial trials process you will be required to complete a Parenting Questionnaire. This is a document that provides a summary of the circumstances of you and your children. Here is a link to the Parenting Questionnaire

You will also be required to file an Undertaking as to disclosure. Here is a link to the Undertaking as to disclosure

Procedural Step 5 –the less adversarial trial

Matters concerning only legal issues regarding children are dealt with under the "less adversarial trial" program of the Family Court. This is a unique procedure and sometimes referred to as "the LAT".

Different judges conduct the process differently. You may be asked to speak in open Court at this stage. On the first day of the hearing you may have the oath administered to you and this is a promise to the Court that you will tell the truth. The Family Consultant will attend Court and speak to the judge. Alternatively, the judge may just direct you to the next stage of the process.

You can find further information regarding the less adversarial trial process here

Procedural Step 6 – Evidence is prepared

The Court may Order a Family Report which is a form of expert evidence being an assessment as to the dynamics in the family and what is best for the children from a social science or health perspective. The Family Report is an important document and can be prepared by the Family Consultant or an external expert (at the cost of the parents).

The parents will each have to prepare affidavits (statements) of them and any other relevant people addressing matters the parents ask the Court to take into account.

Procedural Step 7 – Compliance check

The judge will list the matter for a "mention". This is basically a short period of time before the judge where he or she checks that the people involved in the case have done all that they need to do in order to progress to the next stage. Assuming all steps have been undertaken then the matter will be listed for a final hearing.

Procedural Step Stage 8 – Final hearing

The parents sit in a witness box and are asked questions by the lawyers for the other person. The judge reads and hears all the evidence. The lawyers make "submissions" (legal arguments based on the facts).

The judge does not issue a final decision at the end of the final hearing. The judge will "reserve" his/her decision and typically that means a wait of 3 months until the judge publishes a written decision (that is confidential to the parties). 3 months is the Court’s stated guideline for the delivery of a final judgement but this process can take longer than this – say up to 6 months.

Procedural Step Stage 9 – Final Order

The judge rules and delivers the Order which is then binding on the parents.

The Family Court deals with more complex financial matters such as complex valuations of assets. To "file at court" you need to lodge an Initiating Application and pay a filing fee. In the Initiating Application you set out your proposal for financially resolving matters between two people and this includes the division of the capital assets (property settlement) and division of income (spouse maintenance).

In the Family Court the matter is managed by a Registrar (one of the Court’s lawyers) until about 1/2 way into the process. The second half of the matter is then managed by a judge who will finally determine the case.

At each step of the process below each of the people involved in the case has a duty to make a full and frank disclosure. You can find further information regarding disclosure at the Family Court brochure titled Duty of Disclosure

Procedural Step 1 – Case Assessment Conference

The Case Assessment Conference is conducted by the “docket Registrar” that will manage the matter until it is allocated to a judge. You attend the Case Assessment Conference with your lawyer and the Conference occurs in an office type environment (not a formal Court room). The Conference would usually last for no more than one hour.

The purpose of the Case Assessment Conference is to ascertain the issues in the case and the further information that the people involved will require in order to be in a position to settle or progress the case. Typically at the Case Assessment Conference the Registrar will order each person to provide certain further source documents (such as bank statements) in specified time frames so that they are in a position to negotiate a final settlement at the Conciliation Conference.

The Registrar can direct the people involved to appoint a “joint expert” to prepare a report if they cannot agree on the value of a particular item (e.g. the value of a house or the value of the superannuation).

Perhaps the most important document that the Registrar will ordered be prepared is a draft Joint Balance Sheet. This is a document that lists all of the assets of the people involved in the case. You can see an example of the Joint Balance Sheet here

You will also be directed to lodge with the Court a Financial Questionnaire which is a summary of your financial case with reference to the relevant parts of the Family Law Act. You can see an example of the Financial Questionnaire here

You can find further information regarding the Case Assessment Conference at the Family Court brochure titled The Case Assessment Conference

Procedural Step 2 –Conciliation Conference

The Court will only list the matter for a Conciliation Conference (settlement meeting) when it is ready (ie, when all of the source documents are disclosed and negotiations can be informed). This may mean that there are one or more "telephone mentions" where lawyers dial into the Court and “touch base” with the Registrar as to the progress of disclosure and any further procedural issues that arise. The parties to the case do not have to attend these mentions.

Typically most matters that start in the Court settle at a Conciliation Conference (or shortly thereafter). The Conciliation Conference is usually allocated about 2 to 3 months after the Case Assessment Conference (but only when the matter is ready).

The Conciliation Conference occurs in an office type environment and the discussions that occur are confidential from any judge that may determine the case. The Registrar works with the parties and their lawyers to negotiate a settlement.

You can find further information regarding the Conciliation Conference at the Family Court brochure titled The Conciliation Conference

Procedural Step 3 – the long wait

Assuming the matter does not settle at the Conciliation Conference, the matter will be referred to “the pool of cases awaiting allocation of a first date before a judge”. This is a Court euphemism for a long waiting list. The matter could sit in this waiting list for six to twelve months. It is unpredictable when the matter would be allocated to the next stage of the Court process.

Procedural Step 4 – first day before a judge

On a date that is difficult to predict, the matter will be allocated a first day before a judge. This is an intake/procedural hearing before the judge that will ultimately hear and finally determine the case. This event occurs in a formal court room.

Each judge has their own process for managing the case to a final hearing. Most often, the judge conducts a review on the first day before him/her and determines what needs to be done to prepare the matter for hearing. That would typically include the preparation of any valuations (if they have not already been prepared) and/or the preparation of an Affidavit (detailed sworn document setting out the history of your relationship with Ian. There may be a number of these procedural hearings until the matter is listed for a final hearing.

You can find further information regarding the first day before a judge at the Family Court brochure Financial Cases Where no Consent to Division 12A

Procedural Step 5 – Evidence is prepared

The parties will each have to prepare affidavits (statements) of them and any other relevant people addressing matters the parties ask the Court to take into account.

If any further expert evidence in the form of joint expert reports are required then this will need to be prepared.

Procedural Step 6 – the final Hearing

About 4 to 6 months after the first day before the judge the matter should be listed for a final hearing. At a final hearing the judge hears all the evidence and makes a final decision. Very few cases make it to a final hearing. At a final hearing, each of the parties is placed in a witness box and asked questions by the barrister for the other party.

The judge does not issue a final decision at the end of the final hearing. The judge will "reserve" his/her decision and typically that means a wait of 3 months until the judge publishes a written decision (that is confidential to the parties). 3 months is the Court’s stated guideline for the delivery of a final judgement but this process can take longer than this – say up to 6 months.

Procedural Step 7 – Final Order

The judge rules and delivers the Order which is then binding on the parties.

Stage 1 – First Court Event

Each matter in the Federal Circuit Court is in a "docket". This means that the judge who manages your case at a procedural level will also be the judge that determines your Application if the parties are unable to settle the matter.

You attend the first court event with your lawyer and the hearing occurs in a formal Court room. The hearing would usually last for 10 to 15 minutes but there can be significant waiting time.

At the first court event, the judge will allocate any parenting issues to a Child Dispute Conference with a Family Consultant.

At the first court event, the Judge will deal with any financial issues as follows. The judge will ascertain the issues in the case and the further information that the people involved will require in order to be in a position to settle or progress the case. Typically the judge will order each person to provide certain further source documents (such as bank statements) in specified time frames so that they are in a position to negotiate a final settlement at the Conciliation Conference.

The judge may direct the people involved to appoint a “joint expert” to prepare a report if they cannot agree on the value of a particular item (e.g. the value of a house or the value of the superannuation).

Perhaps the most important document that the judge will ordered be prepared is a draft Joint Balance Sheet. This is a document that lists all of the assets of the people involved in the case. You can see an example of the Joint Balance Sheet here

Stage 2A – Child Dispute Conference (only if parenting in issue)

The Child Dispute Conference is a meeting between a Family Consultant (Court counsellor), and the parents. Importantly, the meeting with the Family Consultant is not confidential and comments made to the Consultant will be reported to the judge determining the case. The Family Consultant meets separately with each parent to discuss their proposals for the children and to articulate the matters in issue between the parents.

Following the Child Dispute Conference the Family Consultant will issue the "Child Dispute Conference Memorandum to the Court". This is a written document (which the judge reads) setting out the Family Consultant's summary of factual matters and the proposals for the children in issue between the parents. The Memorandum is preliminary expert evidence as to the best outcome for the children. However, any views expressed or recommendations made are, of necessity, limited.

In the "Child Dispute Conference Memorandum to the Court Child" the Family Consultant can note any agreement between the parents on long term or short term issues for the children. Further, outcomes can noted in the Memorandum can include: the appointment of an Independent Children’s Lawyer; referral to an external agency for counselling; and whether a notice of risk of abuse has been filed.

You can find further information regarding the role of Family Consultants here

Stage 2B – Conciliation Conference (only if financial matters in issue)

The Court will only list the matter for a Conciliation Conference (settlement meeting) when it is ready (ie, when all of the source documents are disclosed and negotiations can be informed). This may mean that there are one or more mentions where lawyers appear before the Judge and "touch base" as to the progress of disclosure and any further procedural issues that arise. The parties to the case ought to attend these mentions.

Typically most matters that start in the Court settle at a Conciliation Conference (or shortly thereafter). The Conciliation Conference is usually allocated about 2 to 3 months after the Case Assessment Conference (but only when the matter is ready).

The Conciliation Conference occurs in an office type environment and the discussions that occur are confidential from any judge that may determine the case. The Registrar works with the parties and their lawyers to negotiate a settlement.

You can find further information regarding the Conciliation Conference at the Family Court brochure titled The Conciliation Conference

Stage 3 – Directions Hearing Following Conciliation Conference and Attendance on Family Consultant

At the first court event, the Court will have allocate a date to consider the outcome of the Conciliation Conference and the Child Dispute Conference Memorandum to the Court issued by the Family Consultant (as applicable). In the event the matters have not settled, the Court will make directions for the preparation of the matter for a hearing.

Stage 4 – Evidence is prepared

If parenting matters are in issue, the Court will Order a Family Report which is a form of expert evidence being an assessment as to the dynamics in the family and what is best for the children from a social science or health perspective. The Family Report is an important document and can be prepared by the Family Consultant, a Court appointed external psychologist or an external expert privately appointed (at the cost of the parents).

The parties will each have to prepare affidavits (statements) of them and any other relevant people addressing matters the parties ask the Court to take into account.

If any further expert evidence in the form of joint expert reports are required then this will need to be prepared.

There can be a number of “mentions” before the judge before the matter is finally listed for a hearing

Stage 5 – the final Hearing

About 12 to 18 months after the first court event the matter should be listed for a final hearing. At a final hearing the judge hears all the evidence and makes a final decision. Very few cases make it to a final hearing. At a final hearing, each of the parties is placed in a witness box and asked questions by the barrister for the other party.

The judge does not issue a final decision at the end of the final hearing. The judge will "reserve" his/her decision and typically that means a wait of 3 months until the judge publishes a written decision (that is confidential to the parties). 3 months is the Court’s stated guideline for the delivery of a final judgement but this process can take longer than this – say up to 6 months.

Stage 6 – Final Order

The judge rules and delivers the Order which is then binding on the parties.