I don’t understand what my family violence matter is listed for: the case management pathway in ACT family violence proceedings

There has been a significant streamlining of the family violence process in the ACT. Where previously a matter usually ran through a three step process: application, negotiation, hearing; there have been some changes to the pathway that require you to be familiar with, and understand where, the matter is up to.

The current pathway is broadly:

1. Application: A person files an application with the ACT Magistrates Court for a family violence order. If the application includes for immediate protection, known as an interim Family Violence Order, that part of the application is generally listed the same day it is filed. Whether or not the interim Family Violence Order is granted, the matter is then listed for what is called a preliminary conference, which is a form of negotiation. The preliminary conference is usually 4 – 6 weeks from the date of application, to enable the AFP to serve the respondent and make them aware of the proceedings.

2. Negotiation: After the AFP serve the application and interim FVO (if granted) upon the respondent, the parties are required to attend a preliminary conference at the ACT Magistrates Court. This is the respondent’s first involvement in the family violence process. For the applicant, it will be their second or third, depending on whether their interim application, if applied for, was heard on the same day it was filed. The parties will use the preliminary conference to try to negotiate a final settlement of the dispute, failing which, the matter will be listed for a pre-hearing directions. The pre-hearing directions is usually 6 – 8 weeks from the preliminary conference, to enable people to engage lawyers, get legal advice, or start preparing their case for hearing.

3. Pre-Hearing: this is a purely procedural listing, that helps the Court determine how much time and what level of resources need to be allocated to your hearing. There will be an expectation on the parties to know what may assist in resolving their dispute, what Subpoenas or witnesses need to be arranged, how much time the Court needs to allocate to the matter, and whether there is anything relevant the Court needs to be aware of. It could be there are interrelated matters, or mutual applications, that are best dealt with on the same listing date. These are things the Court should be told at the directions, as it may impact when each of the cases are listed for hearing.

4. Hearing: this is the day where the application will be determined and resolved. While the Court will have allocated time for your matter from what it knows at the pre-hearing directions, there will be time allocated to have further negotiations if they will help. You will need to come prepared to run your case. It is important that if you are thinking of engaging a lawyer, and counsel (known as a barrister), you have done so either prior to the pre-hearing or shortly after it occurred. It is not enough time to engage a lawyer the week or the day before. If you realise the day of the hearing that you need further evidence, or there is a witness who you didn’t properly inform to attend, your matter will run that day without them.

There is an expectation on participants, regardless of whether they have legal representation, or have had the benefit of legal advice, to know where their matter is up to, and what they need to do at that stage. A failure to properly prepare your family violence matter could see an order being made, or refused, against your wishes. Given the lead in time to the hearing in the current pathway, it is no longer enough to turn up to the date of hearing having only just worked out a Subpoena needs to issue, or a witness should have been called. There will be several matters listed with yours at any stage of the process, and the Registrar or Magistrate will only have a limited amount of time in which to hear your dispute. While family violence is a distressing and highly personal area of the law, it is still an element of the judicial process and needs to be respected as part of that process.

If you are concerned for your immediate safety, contact 000. If you require safety planning, or wish to discuss whether a family violence order may be breached, contact DVCS on (02) 6280 0900 or the 131 444 non-urgent ACT Police number.

Given the personal and often distressing nature of having to tell your story of family or domestic violence, you may not always be your best advocate.  If you would like to discuss your matter and how we can assist you, contact us today on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online. 

What happens at the Preliminary Conference?

Whether or not an Interim Family Violence Order (FVO) was granted, the application for a Final FVO will be listed and given a date for a Preliminary Conference. Previously known as a Return Conference, this is an opportunity for the parties to resolve their family violence matter by agreement. The Preliminary Conference is convened by a Deputy Registrar of the ACT Magistrates Court, and generally runs for a period of a few hours, though some of this may include waiting while the Deputy Registrar goes between the parties and endeavours to broker a resolution of the matter. The parties are in separate meeting rooms and are unlikely to see each other at the Preliminary Conference.

If the matter does not resolve at the Preliminary Conference, and an Interim FVO is in place, it will continue to operate until the application for a Final FVO is determined. At the conclusion of the Preliminary Conference, the parties will be given further dates to attend the Court for:

1. Pre-Hearing call-overs to allocate the matter to hearing; and / or  

2. Pre-Hearing mention the morning on the same day of the hearing of the application for a final FVO; and

3. Hearing date on the same day as the Pre-Hearing mention.

You should ensure you or your legal representation attend the Preliminary Conference. During the current Covid19 lockdown in the Australian Capital Territory, Preliminary Conferences are occurring by teleconference. In the event you do not attend the Preliminary Conference, and you do not seek the Court adjourn the Preliminary Conference, the Court may make a decision as to the matter without further notice to you. If you are the applicant, this may mean your application for a Final FVO is dismissed, along with any Interim FVO in place for your protection. Should this occur, you will then be required to restart the application again in its entirety should you wish to continue. There is also a risk that you may be liable for legal costs incurred by the respondent if they have legal representation. Should you be the respondent, this may mean a Final FVO may be made against you, in the terms as sought by the applicant, such as the inclusion of children as protected persons, without further notice to you. It is crucial if you are unable to attend the Preliminary Conference for any reason you make contact with the Court as soon as possible prior to the listing.

If you attend the Preliminary Conference without legal representation, and your matter does not resolve, it is a good idea to obtain legal advice at its conclusion. Preparing for a hearing of the Final FVO may involve the calling of witnesses, the obtaining of evidence to support your case, issuing of Subpoenas, or requests for information or disclosure from the other party. Each of these elements have certain processes and forms that must be completed correctly and in required time periods. It is unlikely the Court may allow you to adjourn the hearing on the day if you then realise you require further information or evidence to best argue your case.

In the event you feel you need to urgently address your safety; you should call 000 or DVCS on (02) 6280 0900.

While you will not see the other party at Court, negotiating a legal process about family or domestic violence is a stressful situation for anyone. If you would like to discuss your matter and how we can assist you, contact us today on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online. 

Arbitration: is it the way to resolve your family law matter?

As a result of the long delays which families are experiencing in resolving disputes in the family law courts, there has been an increased push towards alternative forms of dispute resolution, such as mediation or arbitration, to enable parties to obtain finality.

So, what is arbitration?

Arbitration is a form of dispute resolution. It has similarities to the Court process, however instead of having the dispute determined by a Judge, it would be determined by an accredited arbitrator. Each party participating in an arbitration will give evidence to the arbitrator, and make arguments in support of their application.

The arbitrator must follow the legislative pathway and case law when coming to their final decision, in the same way that a Judge or Registrar of the Court would.

What issues can be determined at arbitration?

In some cases, it may be necessary for a preliminary or a “threshold” issue to be determined at the early stages of Court proceedings, such as valuation issues or applications for partial property settlement.

Parties can agree to participate in arbitration for such interim or discrete issues, but arbitration can also be used to finally determine family law property disputes, in preference to conducting a final hearing.

Arbitration cannot be used to resolve parenting proceedings.  

Is the outcome of the arbitration enforceable?

The outcome of an arbitration is referred to as an “award”. The arbitrator will provide reasons for their decision, just as a Judge or Registrar of the Court would if the matter were determined through the Courts. When the outcome of arbitration has been determined, a party may apply to the Court to register the award, so that the award is treated as an enforceable order of the Court.

Can the arbitration award be appealed?

In the first instance, one party must seek to register the award with the Court before it becomes enforceable. If however one or more parties seek to appeal the decision, there are some limited circumstances in which the award may be set aside, such as if there was a lack of procedural fairness in the arbitration, or if the award was obtained by fraud (such as a party failing to provide disclosure in relation to their financial circumstances).

What are the benefits of arbitration?

There are many benefits to participating in arbitration. The primary benefit is significantly reducing the time that parties are involved in litigation. Some families can wait years for their matter to proceed to a final hearing, and then must also wait for the decision to be delivered. The other benefit of arbitration is to reduce the overall costs incurred by parties to resolve their family law dispute, as a flow on effect of reducing the length of litigation, or by avoiding the Court process all together.

As well as the ability to have the outcome determined quickly, an arbitration gives the parties the benefit of determining how the process is conducted. The parties will choose the arbitrator that they will jointly engage. The parties will also be able to determine whether the arbitrator makes their decision based on oral arguments, written submissions, hearing evidence of both parties, or a combination of these.

Arbitrations are also confidential, whereas family law courts are open to the public.

Is arbitration suitable for your family law matter?

You should obtain specialised advice in relation to your family law matter, tailored to your particular circumstances. For further information regarding arbitration, or your family law matter generally, contact our office for an initial appointment on info@rmfamilylaw.com.au or call us on (02) 6225 7040.

By Margot McCabe

What do I do if the other party won’t engage?

Following a separation, parties usually work together to negotiate and resolve their family law property and parenting disputes. What do you do, however, if the other party puts their head in the sand and won’t respond to your attempts to negotiate?

 Family law solicitor

Engaging a family law solicitor to write to the other party on your behalf can be a good way to get the other party’s attention and let them know you’re serious about progressing the matter. It can also help to place them on notice about the consequences of failing to properly engage, including the matter ending up in Court.

If there are aspects of your dispute that need immediate action, such as a child being at risk or a property that is about to be repossessed by the bank, you may need to make an urgent Application to the Court, rather than trying to engage with the other party through correspondence. If this applies to you, it is important that you get family law advice as soon as possible.

Application to the Court

If the other party continues to refuse to engage with you, you can then make an Application to the family law courts setting out the Orders you seek to resolve the matter, and seeking the matter proceed on an ‘undefended’ basis if the other party doesn’t engage. This means that you are asking the Court to make a final decision without the other party’s evidence or input.

You will need to satisfy the Court that the other party has been served with your Application and is on notice about the proceedings. You will also need to give evidence to the Court about your attempts to engage the other party, and their refusal to engage with you.

The Court will not want to make Orders without hearing both parties’ side of the story, and (depending on the dispute) will make sure the other party is given ample opportunity to respond and file documents setting out the Orders they seek, and why.

Final Undefended Orders

If the Court is satisfied that the other party is on notice about your Application, and that they are refusing to engage with the process, the Court will still need to be satisfied that the Final Orders you seek are in the best interests of the children (parenting matters) or just and equitable (property matters). You can’t win ‘by default’ because the other party isn’t engaging.

Failing to put all of the relevant evidence before the Court may mean the Judge is unable to be satisfied that the outcome you are seeking is fair and appropriate, and may result in further delays in reaching a final outcome. Sometimes, the Judge will require you to give oral evidence in Court as part of their consideration of the matter.

Getting detailed family law advice and assistance in filing your Application will help ensure that all of the relevant evidence, such as expert evidence about property values or about the history of the children’s care arrangements, is put before the Court and explained to the Judge.

If you would like to discuss your matter and how we can assist you, please contact us today on (02) 6225 7040 by email info@rmfamilylaw.com.au or get started now online.