Family Law Legal Process

The Law and You

Matters under the Family Law Act, a Commonwealth Act which applies to all States and Territories in Australia (except W.A) deals with parenting problems, property issues, and spouse maintenance as between parties to a marriage.

Taking Legal Action

One of the key fears for anyone facing a dispute is becoming involved in expensive and lengthy litigation.

Paul & Paul Lawyers’ aim is to first attempt to resolve your dispute by negotiation, and if not, to utilise the Court’s procedures to bring about an early settlement with the other party, thereby avoiding an actual Court determination in a Final Hearing.

Pre-action procedure

The two principal courts that have jurisdiction to hear matters under the Family Law Act are the Family Court of Australia and the Federal Magistrates’ Court of Australia

Negotiate and Attempt to Resolve Your Dispute

• Under the Family Law Rules it is compulsory for you and your partner to first negotiate between yourselves and make a genuine effort to settle your Family Law dispute.
• If agreement is reached it can be documented to ensure its enforceability.

Initiating Application

• If you and your spouse cannot agree, or negotiations between you have failed, we can prepare an Application to the Court for you. The Application sets out the orders you wish the Court to make.
• If you are seeking orders such as Property Settlement or Spouse Maintenance, the Court requires your Application to be accompanied by a Financial Statement.
• This document sets out your current financial circumstances.

The Court requires full and frank disclosure by each party to proceedings. This is set out in the Family Law Rules (at Rule 13.041)

Family Law Rules, 13.04: Full and frank disclosure

• A party to a financial case must make full and frank disclosure of the party’s financial circumstances, including:
• • the party’s earnings, including income that is paid or assigned to another party, person or legal entity:
  • any vested or contingent interest in property;
  • any vested or contingent interest in property owned by a legal entity that is fully or partially owned or controlled by a party;
  • any income earned by a legal entity fully or partially owned or controlled by a party, including income that is paid or assigned to any other party, person or legal entity;
  • the party’s other financial resources;
  • any trust
    • of which the party is the appointor or trustee;
    • of which the party, the party’s child, spouse or de facto spouse is an eligible beneficiary as to capital or income;
    • of which a corporation is an eligible beneficiary as to capital or income if the party, or the party’s child, spouse or de facto spouse is a shareholder or director of the corporation;
    • over which the party has any direct or indirect power or control;
    • of which the party has the direct or indirect power to remove or appoint a trustee;
    • of which the party has the power (whether subject to the concurrence of another person or not) to amend the terms;
    • of which the party has the power to disapprove a proposed amendment of the terms or the appointment or removal of a  trustee; or
    • over which a corporation has a power mentioned in any of  subparagraphs (iv) to (vii), if the party, the party’s child, spouse or de facto spouse is a director or shareholder of the corporation;

• • any disposal of property (whether by sale, transfer, assignment or gift)made by the party, a legal entity mentioned in paragraph a corporation or a trust mentioned in paragraph (f), that may affect, defeat or deplete a claim
    • in the 12 months immediately before the separation of the parties; or
    • since the final separation of the parties;
  • liabilities and contingent liabilities

• Paragraph (1)(g) does not apply to a disposal of property made with the consent or knowledge of the other party or in the ordinary course of business.
• In this rule: legal entity means a corporation (other than a public company), trust, partnership, joint venture business or other commercial activity.

These forms can be complicated and we can assist you to complete the document.

Case Assessment Conference (“CAC”)

After we have filed your Application you and your spouse will be required to attend a CAC. This is the first court event and is held in the chambers (office) of one of the Court’s Deputy Registrars.

The purpose of the CAC provides an early opportunity for you and your spouse to reach an overall agreement. If agreement cannot be reached the Court will make directions as to the next steps of your case, and in particular what documents one party must produce to the other, and what assets may need to be valued in order that each party is aware of all relevant matters before attending the Case Conciliation Conference, which is the next Court event, also held in Chambers and again presided over by a Deputy Registrar.

See the Family Court website for further information concerning the CAC.

Resolution phase

Case Conciliation Conference

You and your spouse will be required to attend a Case Conciliation Conference.

This is a further procedural step in the Court process that endeavours to encourage you and your spouse to come to an agreement well before a hearing and to resolve the matter with the assistance of a Registrar of the Family Court.

You are required to file a Case Conciliation Document, as is the other party. This document set out the current financial circumstances of each of you, and provides a brief summary of the facts to be relied upon by you in support of your proposal to settle with your spouse.

If agreement cannot be reached in this conference your case will be referred to a Judge who will then give directions for the filing of all evidence to be relied upon at the final hearing, and the preparation of expert valuation reports (if relevant).

Determination phase

This involves the preparation for a trial (hearing) before a Judge. Depending on the nature of your matter, this might involve the appointment of accounting and valuation experts to value assets of your marriage. The preparation of evidence includes a balance sheet that sets out your assets and liabilities and the matters in contention.