First Return, Mention, Direction, Interim Hearing, Child Dispute event: What do the Court events mean in the FCFCoA?

The Federal Circuit and Family Court of Australia (FCFCoA) have been designed to be a one entry point system to support and facilitate the timely resolution of family law disputes. A downside of this, however, is that there may seem like an overwhelming number of events and Court ‘triaging’ from filing to finalisation. It is important to familiarise yourself with the types of Court events, to help you understand what can and cannot be achieved at a certain time in your matter.

Most matters will involve one or more of the following Court events:

1.  Mention / Directions: this may be before a Judge, Senior Judicial Registrar (SJR) or a Judicial Registrar (JR). Your matter is likely to be one of several, and will usually be allocated a short period of time. The Court is unable to deal with any “meaty” concerns at this time (i.e. where a child is to live, how property is to be divided), but instead looks to confirm whether your matter is ready to proceed to a type of hearing or alternative dispute resolution process, and if not, what needs to happen to get it ready. In a Mention or Directions hearing, Orders may be made for the gathering of further evidence (such as by way of Subpoena, by the production by one party or both, or by the undertaking and preparation of an expert report or valuation).

2. Hearing: this may be before a Judge or an SJR. While an SJR only has delegated power, such as to make a decision on interim arrangements, a Judge has the power to make a decision on both interim and final arrangements. Usually, your matter will have been listed for Mentions and Directions along the way, to ensure it is ready to proceed to hear. If it is an interim hearing, you may be one of a few matters listed on any given day, with a set period of time in which to run your case. If it is a final hearing, you may be the only matter, however, there are still time constraints and your matter will be allocated a set number of days or half days.

3. Conciliation Conference: this is a type of dispute resolution for property matters. This is where a JR will act as a mediator/facilitator, endeavouring to broker an agreement if possible between the parties to achieve a property settlement. The JR does not have the power to make a decision, however, can make Orders if the parties are able to reach an agreement. You may be the only matter listed before the JR in that period of time, however, it is a fixed period of time that it runs for, usually half a day.

4. Court Facilitated FDRC: this is a type of dispute resolution for parenting matters. This is where a JR will undertake an intake with each of the parties on a separate day, to see what the extent of the dispute is and whether there are any common ground/specific issues to be aware of. They will then, if they determine suitably, undertake a mediation on a separate day. While it may be that some of the mediation is held together with all parties involved, at other times, it may be the JR talks to one party (and their lawyer) and the other party has a break. The JR will then talk to the other party (and their lawyer) and see what agreement, if any, can be reached. This is often referred to as a “shuttle” conference. Like a Conciliation Conference, the JR cannot make a decision if the parties are unable to reach an agreement. If an agreement is reached, the JR can however make Orders.

It is important to know what Court event your matter is listed for, as this will constrain what you can ask the FCFCoA to do. If you are not prepared for the listing, and it needs to be listed again at another time, you may be at risk of paying some of the other party’s costs in the event it is determined that any waste or delay is your fault. For advice tailored to the stage and type of family law proceedings you may find yourself in, contact us today at (02) 6225 7040 or by email at info@rmfamilylaw.com.au or get started now online.

What To Expect On The First Return Date?

Once you have commenced proceedings in the Federal Circuit and Family Court of Australia your matter will be allocated a first return date.  In most instances, the first return date will be 4-8 weeks from the date that your application was filed and will take place before a Judicial Registrar.

The purpose of a first return date is to triage and assess matters and to put a procedural plan in place for the progression of the matter.

On the first return date, it can be expected that the Court will consider:

1.    Whether any Orders can be made by consent.  This can include procedural orders and more substantive orders in relation to both parenting and property matters;

2.    Whether the pre-action procedures have been complied with.  If you are unsure of your obligations to comply with the pre-action procedure you should click here;

3.    The issues that are in dispute and whether an alternative dispute resolution process such as mediation, or a Court based dispute resolution service will be of assistance in resolving those matters;

4.    If alternative dispute resolution is not appropriate, whether an interim hearing is required; and

5.    What Orders and directions are necessary to progress the matter.

The orders and directions that are made on the first return date will vary depending upon the issues in dispute and how much work has been carried out prior to the first return date.  It can be expected that the following Orders may be considered:

A.   In parenting cases, the Court may make orders in relation to:

a.    The production of notes and records from the Police and child welfare agencies;

b.    The appointment of an Independent Children’s Lawyer; and

c.    The preparation of an expert report if this will be of assistance to the parties and the Court in resolving the matter.  

B.   In property matters, the Court may make orders in relation to:

a.    The exchange of financial disclosure; and

b.    The preparation of valuations, including real property and business entities.

In general, Orders will not be made on the first return date for parties to attend dispute resolution until such time as the Court is satisfied that the matter is ready to progress to that stage.   However, if on the first return date the Court is satisfied that the matter is ready to progress to mediation it is open to the Court to make those Orders.  

Sometimes there is urgency attached to a matter or an issue in dispute such that the issue requires immediate determination.  In those circumstances, and should the Judicial Registrar consider it necessary, the matter can be transferred to a Senior Judicial Registrar or a Judge for interim determination.  

As family law solicitors, we at Robinson + McGuinness are able to advise you in relation to your rights and entitlements and assist you to finalize matters following separation.  We are also able to represent you in litigation before the Federal Circuit and Family Court of Australia. Please contact us today on (02) 6225 7040 or by email at info@rmfamilylaw.com.au or get started now online.

Author: Peta Sutton

Why can’t we be friends? – The necessity of judicial impartiality in family law

In the usual course, practitioners who excel in their application of the law and in advocating for their client’s interests quite often are the ones who are appointed later in their careers as judges. In what is now known as the Federal Circuit and Family Court of Australia (the Court), judges have often spent years working as barristers, requiring them to have close and positive relationships with members of the legal profession. In the highly specialised field of family law, this may mean those practitioners who were once colleagues may find themselves appearing in front of judges that are well known to them, and who they may consider to be friends.

Some practitioners may hold these friendships out as a benefit to clients. The High Court of Australia has sought to temper this, with the recent case of Charisteas v Charisteas [2021] HCA 29 strongly warning practitioners that contact with judges during proceedings is not on except in “the most exceptional of cases”.

In the long running case of Charisteas v Charisteas, the High Court set aside certain property orders made by the Trial Judge on the basis of apprehended bias. The difference of apprehended bias, versus actual bias, is an important distinction. What this means is that there were no allegations that the Judge engaged in behaviour or conduct that was prejudicial against one party over another. Rather, it means that a normal, everyday person (known as the “fair-minded lay observer”), may have perceived the judge to be biased.   

In this particular case, the circumstances involve the Trial Judge and the barrister for the Wife, who during the course of the proceedings:

1. Met for “drink or coffee” on no less than four occasions; and

2. Spoke on the telephone; and

3. Exchanged text messages during the trial, pausing for submissions, but continuing again before judgment had issued.

The barrister for the Wife failed to disclose the relationship, or the communications to the lawyers for the Husband or their barrister. Instead, the lawyers for the Husband found out through “gossip”.

It was in this context that the High Court found that the “fair-minded lay observer” would likely have thought the Trial Judge’s impartiality was compromised. The basis for this perception was the communications that were not disclosed, and the meetings on several occasions. The Husband successfully appealed to the High Court and the Wife was ordered to pay his costs along with some of the orders being set aside.

The important takeaway from Charisteas v Charisteas is that there is no excuse for communicating improperly with the Court. All communications, ideally should:

1. Include all other parties either in writing or in their presence;

2. Be agreed, down to the wording, prior to contacting the Court;

3. Be proper with all relevant parties, from the judge down to the Court registry staff;

4. Be mindful and courteous up to the time judgment issues.

At any stage of litigation, the importance of judicial impartiality cannot be understated. It is a confusing and sometimes misunderstood element of going to Court. It may help you better understand judicial impartiality, and its impact on your Court proceedings, by getting advice tailored to your circumstances. 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. 

Federal Circuit and Family Court of Australia Contravention List

A common complaint made by clients who are in the middle of a family law dispute, or have already have Court Orders in place, is that the other party is breaching, or not complying with the Orders.

When Orders are made by a Court, whether by consent, or by the Court after a defended hearing, the Orders are binding on the parties and must be complied with. There are serious consequences for a party who fails, without a reasonable excuse, to comply with Orders of the Court. Consequences include: requiring the arrangements under the previous order to resume; varying the existing order; requiring the person who has contravened the orders to pay the other parties’ costs; imposition of a fine; and, in the most extreme circumstances, a term of imprisonment.

A person is considered to have contravened an Order if they have:

1. Intentionally failed to comply with the Order;

2. Have made no reasonable attempt to comply with the Order;

3. Intentionally prevented compliance with the order by a person who is bound by it; or

4. Aided and abetted a contravention of the order, by a person who is bound by it.

In recent times however, it has been difficult to prosecute these breaches in the already overwhelmed family law system.

On 1 September 2021, with the creation of the Federal Circuit and Family Court of Australia, the National Contravention List was established. The National Contravention List will hear all contravention applications in an efficient manner, ensuring that all breaches of court orders are taken seriously, The key objectives of the National Contravention List include:

1. to ensure applications are dealt with in a timely, cost effective and safe way;

2. for applications to be listed before the Court within 14 days of filing;

3. to ensure and increase compliance with court orders; and

4. impose appropriate penalties or sanctions where a contravention has been proved and there is not a reasonable excuse;

5. to proactively facilitate the resolution of underlying issues in disputes that leads to the filing of such applications;

6. to triage appropriate matters to dispute resolution; and

7. to be responsive to a party’s wishes to resolve matters without recourse to additional litigation.

The National Contravention List also seeks to make lawyers more accountable for their role in making and/or defending contravention applications. As a result, legal practitioners appearing in the Contravention List may be subject to personal costs orders if the application or defence is determined to be frivolous, or without merit, or where non-compliance with the Rules of the Court is demonstrated.

The Court hopes that improving the way contravention applications are dealt with will ensure and improve compliance with Court Orders. If you would like advice in relation to the contravention of court orders or filing an application in the National Contravention List, contact our office on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online to make an appointment with one of our experienced family lawyers.  

Author: Ellen Russell, Associate

Can I seek the Court dismiss the other party’s application?

Generally, the Court cannot dismiss a party’s application without giving the party an opportunity for the application to be properly heard. Even if an application appears weak and unlikely to be unsuccessful, the Court is reluctant to deny parties an opportunity to prosecute their case and seek a determination of their application by the Court.

However, the Court may summarily dismiss all or part of the application (without the need for a full hearing) if:

· The applicant has no reasonable prospect of successfully prosecuting (or defending) the proceeding; or

· The proceeding is frivolous or vexatious; or

· The proceeding is an abuse of process of the court.

The application does not need to be ‘hopeless’ or ‘bound to fail’ to be summarily dismissed by the Court. Nonetheless, the Court must proceed cautiously and should not lightly use the power to summarily dismiss an application.

In considering whether or not to dismiss the application, the Court must only consider the material put forward by the party seeking to bring the application and consider it ‘at its highest’. This does not mean, however, that the party can mislead the Court and make unfounded allegations in their material to satisfy the Court that their application should proceed: the Court does not have to take the party’s evidence at its highest if their version is ‘inherently incredible or unreliable.’

In Ritter & Ritter and Anor (2020) FamCAFC 86, the husband sought to re-open the family law proceedings because he said his consent to the orders was obtained through deception. The Full Court of the Family Court found that instead of considering the husband’s case ‘at its highest’, the trial judge had been distracted by addressing what orders might ultimately be made by the Court. The Full Court also said that given the seriousness of the husband’s allegations, ‘very little evidence’ was needed to satisfy the Court that the husband should have an opportunity to pursue his application.

If a Court summarily dismisses the application, the Court can make an order for costs if it considers appropriate, such as that the applicant pay the respondents costs of the proceedings.

The respondent to the application can apply to the Court seeking an Order that the application be dismissed, or the Court can dismiss the application on its own initiative.

The Court can also, on its own initiative, dismiss all or part of the proceedings if a party has failed to progress the proceedings for a period of six months. The Court must provide the parties with 14 days’ notice if it intends to consider dismissing the proceedings and cannot do so if there is a future Court date, an interim application that has not yet been determined, or if a party satisfies the Court that the proceedings should not be dismissed.

In rare cases, the Court can also issue ‘summary judgment’, for example to make final orders about the issues in dispute.

If you would like advice in relation to your family law matter, contact our office on (02) 6225 7040 or by email on info@rmfamilylaw.com.au or get started now online to make an appointment with one of our experienced family lawyers.

Obligations to resolve disputes prior to commencing Court Proceedings

Following separation there are many decisions to be made including who will continue to live in the family home and who will move out, what arrangements will be in place for the children, what the property settlement will look like and who gets to keep the dog.

For some couples, these matters can be agreed upon quickly and without too much stress, however sometimes people require assistance from a lawyer, mediator or the Court to resolve disputes following a separation.

On 1 September 2021 the Federal Circuit and Family Court Rules 2021 came into effect.  These rules have created an overarching principle and obligation upon litigants to ensure that they use their best endeavours to negotiate an agreement before commencing Court proceedings.  This includes attendance at a dispute resolution process, such as mediation or conciliation.

These obligations are known as pre-action procedures and must be complied with before Court proceedings are commenced. The pre-action procedures require parties to attend to the following:

1. If it safe to do so, provide the other party with a copy of the pre-action procedures (found here parenting or property), make enquiries with respect to dispute resolution processes (such as mediation), and invite the other party to participate in dispute resolution;

2. Attend a dispute resolution process and make a genuine effort to resolve the dispute. If an agreement is reached at dispute resolution, steps can be taken to formalise the agreement. Parties should seek advice from a specialist family lawyer to assist them in formalising agreements to ensure that it is understood and can be implemented.

3. If an agreement cannot be reached at dispute resolution and it is intended that Court proceedings will be commenced, the first step is to place the other party on notice, in writing, of the intention to go to Court.  The notice should set out:

a. The issues in dispute;

b. The Orders that will be sought from the Court;

c. A genuine offer to resolve the issues in dispute; and

d. A timeframe in which a response is to be provided.  This should not be less than 14 days.

If the other party responds, it is expected by the Court that a reasonable attempt will be made to engage in a discussion and negotiation prior to commencing Court proceedings.  

4. Where an agreement cannot be reached, and proceedings are commenced, a Genuine Steps Certificate will need to be filed outlining that the pre-action procedures have been complied with.

A failure to comply with the pre-action procedures will be taken seriously by the Court and places litigants at risk of their application being dismissed and/or a costs order being made against them.

It is important that you have attended to the above before you commence Court proceedings, unless you meet one of the limited exemptions. There are some circumstances where it would not be appropriate to comply with the pre-action procedures, such as if it is unsafe for parties to attend dispute resolution, or if Court proceedings are required to be commenced urgently.  Advice should be sought from a specialist family law solicitor before seeking to dispense with (or ignore) the pre-action procedures.

As family law solicitors, we at Robinson + McGuinness will be able to advise you in relation to your rights and entitlements and assist you to finalise matters following separation. We will also be able to assist you to ensure that you have met your obligations to comply with the pre-action procedures prior to commencing Court proceedings.

Divorce and separation can be incredibly stressful and you should obtain expert advice early to point you in the right direction.

For advice in relation to your family law matter, contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.

Author: Peta Sutton, Associate

I need help meeting my expenses – what can I do?

It is not unusual in relationships for one person to earn more than the other, or for one person to be financially dependent on the other because they are home caring for the family instead of being in paid employment. While this dynamic can work well while a couple remains together, it can cause serious problems during a separation or when someone is thinking about separating. 

When one person holds all the purse strings, the thought of what is going to happen financially in the short term can be overwhelming and frightening for the other person. Financial inequality can also prevent people leaving relationships as it can be cripplingly difficult to make the decision to leave when you have nowhere to go, or don’t have access to enough money to pay for housing, groceries or petrol on your own.

If you find yourself in a situation where you are considering leaving a relationship, or have already left, and cannot meet your own expenses by yourself, you may be able to ask the Court to make an Order that compels your former partner to chip in funds to assist you. These kinds of Orders are called ‘spouse maintenance’ or ‘de facto spouse maintenance’ Orders and can be made regardless of whether you were married or not, and can be made on an urgent, interim or final basis.

The Court must answer two questions when determining whether or not to make a maintenance Order. Firstly, the Court must decide whether the person asking for maintenance has a need for maintenance because they cannot meet some or all of their own reasonable expenses, and secondly, whether the other person has the capacity to meet that need. The Court will consider many different factors when answering these questions, including assessing each person’s income capacity and their actual income (which can be quite different), their property and financial resources, their age and health, care of children, and what is a suitable standard of living in all the circumstances. If successful, the maintenance can be paid in different ways, including a weekly or monthly amount, or a lump sum amount. The exact amount paid depends on the specific circumstances of each case.

This is a complex area of family law and it is important that you obtain specialist family law advice if you find yourself in a situation where you think you need help meeting your own expenses or are worried about your ability to meet expenses after you separate. There is also a criteria to be met (about the nature of your relationship) and time limits to be considered.

Please call our team on (02) 6225 7040 or email info@rmfamilylaw.com.au for an obligation free discussion and fee estimate. 

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.