The benefit of commencing proceedings is that the Court process has a number of fixed events aimed at resolving the dispute.
The Court imposes time limits to make sure matters are resolved in a timely way. The downside to commencing proceedings is the cost. Having said this, only about 1 out of every 9 matters which commence in Court actually reach a trial. Most cases settle by agreement along the way. The sooner you settle the more likely it is that you will reduce your costs.
In making your decision about commencing proceedings, it is important that you have a general understanding of what is going to occur.
The first step involves preparing an Application (setting out the orders you want the court to make), a Financial statement (setting out your current financial position) and an Affidavit (detailing the facts you say support what you are seeking). Once these documents are prepared, the documents are filed with the Court. There is a filing fee payable to the Court.
Upon filing, the Court will provide a date for the first court event. The first court event is usually scheduled about 6 – 8 weeks after the date of filing. A copy of your court documents needs to be served on the other party. They then have an opportunity to file a Response (setting out the orders they want the Court to make) a Financial Statement and an Affidavit.
Unless you require urgent orders, the first court event is usually a fairly brief appearance in the Court before the Federal Magistrate review the overall issues involved in the case. The Federal Magistrate may then make some procedural orders relating to an exchange of financial documents or valuations, so that the parties can come fully informed and ready for the next Court event.
The Federal Magistrate that is assigned to your case when the documents are filed will hear your matter throughout the process. You do not have a choice which Federal Magistrate is allocated.
To assist parties reach an agreement a Conciliation Conference can be ordered. This is a meeting held at the Court (but not in a Court room) presided over by a Registrar who acts as a mediator. The purpose of the Conference is to attempt to settle the case (or at least settle some of the issues in dispute).
Prior to attending the Conference each of you are required to exchange copies of relevant financial documents (this process is called ‘disclosure’). It is also normal for valuations or updating valuations to be obtained so that a genuine attempt can be made to settle the dispute. The Conference can last anywhere from 1 – 3 hours, however it may take longer if progress is being made.
If the case does not settle at the conference, the case is ‘put in line’ to wait for the next trial date before the Federal Magistrate.
Each case is different so you should seek independent legal advice about your situation.
If you would like further information please contact Andrew Crooke a member of our Family Law Team on 07 4616 9898.
Prepared by Andrew Crooke