6 Basic Guide to Family Law Court Hearing Types in Australia
Finding a middle ground is the best way to keep things from worsening when a divorce or separation is inevitable. People have always been told to settle disagreements about property, child custody, spousal support, and other important things outside court.
But what happens if neither party wants to settle, and what are the family court hearing types the divorcing couple must go through?
Court Hearing Types in the Federal Circuit and Family Court of Australia
The first of the court hearing types are Direction Hearings, or Mentions, which are crucial in Australia’s Family Law Court procedures.
They are primarily management hearings aimed at keeping the case on track towards resolution and ensuring that both parties take all necessary steps.
During a Direction Hearing, the Family Law Court might:
- Set a timeline for each party to follow: This includes due dates for filing affidavits, valuations, and financial documents.
- Order a Family Report: The Court may request a Family Consultant to prepare a Family Report, which is an independent assessment of the issues in the case and can help the Court make decisions regarding the child’s best interests.
- Order Mediation: The Court can direct parties to attend mediation or dispute resolution to try and resolve issues without further court intervention.
- Set the matter down for a further hearing: This could be another mention, an interim hearing, or a final hearing depending on the circumstances.
It’s important to remember that during a Direction Hearing, the parties must present only some evidence or fully argue their case. Instead, these hearings are designed to ensure that all necessary interim steps are taken before the matter proceeds to a full hearing.
Interim hearings are generally shorter and less formal than final hearings and address urgent or essential issues that must be resolved before the case can be entirely determined.
During an Interim Hearing, the Family Law Court might make temporary orders regarding the following:
Child Custody and Visitation: The Court can set interim arrangements about who the child will live with and how much time they will spend with the other parent.
Spousal Maintenance: The Court may order one party to provide financial support to the other until the case is finalised.
Property Preservation: The Court can make orders to protect the family’s assets and prevent either party from disposing of the property until the final decision.
Injunctions: The Court can issue requests or restraints to ensure the parties and their children’s safety and well-being.
In an Interim Hearing, parties usually submit affidavits stating their evidence rather than giving oral testimony. The judge decides based on the affidavits, the law, and what appears to be in the child’s best interest (for child-related matters).
Because the Court’s time is limited during these hearings, focusing on the most crucial issues is essential.
Dispute resolution refers to the process of resolving disagreements between parties, and it is often used as an alternative to traditional litigation. It includes several methods like negotiation, mediation, arbitration, conciliation, and collaborative law.
These methods can be instrumental in family law, where preserving relationships can be significant, such as when children are involved.
Here’s a brief explanation of each method:
Negotiation: The parties discuss the issues directly and attempt to agree mutually. This is typically the first step in dispute resolution and can occur with or without legal representation.
Mediation: A neutral third party, known as a mediator, helps the disputing parties communicate and negotiate with each other to reach an agreement. The mediator does not make decisions but facilitates discussions and offers creative solutions.
Arbitration: In this method, an arbitrator (a neutral third party or a panel) hears the arguments and evidence from both sides and then makes a decision. Depending on the type of arbitration, this decision may be legally binding.
Conciliation: Similar to mediation, a conciliator assists parties in identifying the disputed issues, developing options, considering alternatives and endeavours to reach an agreement. The conciliator may have a more advisors.
Trial Management Hearing
A Trial Management Hearing in the context of Australian family law, specifically within the Federal Circuit and Family Court of Australia (FCFCOA), is crucial in ensuring that all parties are adequately prepared for trial and that the trial will proceed as efficiently as possible.
During a Trial Management Hearing, the following key aspects are typically covered:
Readiness for Trial: The court will assess whether all parties are ready for trial. This entails ensuring that all necessary documents have been filed, that lists of witnesses and expert reports have been exchanged, and that all pre-trial orders and directions have been complied with.
Defining Issues in Dispute: Parties will have the opportunity to clarify which issues remain in dispute and which ones have been resolved or can be agreed upon. This process helps focus the trial on the unresolved issues, facilitating a more streamlined and efficient process.
Trial Duration: Each party will be asked to estimate how long they expect their presentation to take, including their case presentation and the examination and cross-examination of witnesses. This estimation helps the court in planning and scheduling the trial.
Trial Date and Timetable: If not already set, the court might select a date for the trial during the Trial Management Hearing. Additionally, the court might outline a timetable for the trial, including the order of presenting evidence.
Final Administrative and Procedural Matters: Any outstanding administrative or procedural issues will be addressed during the Trial Management Hearing. This can include things like the availability of witnesses, requirements for technology during the trial, and the exchange of any additional evidence.
The Final Hearing (often called a “trial”) is the last stage in the court hearing types.
It occurs when parties cannot resolve disputes through negotiation, mediation, or other alternative dispute resolution processes.
A Final Hearing is conducted to allow a judge to decide based on the evidence presented.
Here is a brief overview of what typically occurs during a Final Hearing:
Opening Statements: Each party, or their legal representative, will make an opening statement outlining the issues in dispute and what they hope to prove with their evidence.
Presentation of Evidence: Each party will then present their case, which may include documents, photographs, and witness testimonies. Evidence can also come from expert witnesses such as psychologists, social workers, or accountants. If children are involved, a family report prepared by a court-appointed family consultant may also be presented as evidence. It’s important to note that the party applying to the court generally presents their evidence first.
Cross-Examination: After a party has presented their evidence, the opposing party (or their legal representative) can cross-examine them or their witnesses. This is an opportunity to challenge the evidence or seek further clarification.
Closing Statements: After all evidence has been presented and cross-examined, each party will make closing statements. This usually involves summarising their case and arguing why the judge should decide in their favour based on the evidence.
Judge’s Decision: After the Final Hearing, the judge will decide. This may occur later, with the judge taking time to review the evidence and legal arguments before delivering a written judgment.
The judge’s decision is based on the evidence presented and the principles set out in the Family Law Act 1975, with the primary consideration being the child’s best interests in cases involving children.
What Are The Family Court Hearing Types?
Understanding court hearing types can make all the difference.
At Justice Family Lawyers, we’ll guide you through every step, from Mention and Direction Hearings to Trial Management, Compliance and Readiness, and the critical Final Hearing.
With our dedicated team, you’ll always feel safe in the process.
Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.