Pre-Action Procedures: from $990
Court proceedings: from $3,300
You may have to go to Court if you have tried all options to reach an agreement with your former partner, such as corresponding about the issues in dispute, attempted a mediation, made formal offers for settlement.
The Court process is long, expensive and exhausting. It should be considered as a last resort or in cases of urgency. An experienced family lawyer can guide you through the process with the aim of resolving your case early and getting out of Court.
Which documents must I prepare?
Generally no, you cannot. The Court requires you to make genuine efforts to resolve your case, except in the case of urgency or where family violence may make negotiations unsuitable.
In parenting cases, the Court requires parents to attend at Family Dispute Resolution in an effort to agree with the help of a mediator. If this is unsuccessful, or unsuitable, or one parent refuses to participate, then you will receive a 60I Certificate. The Court requires the 60I Certificate before you start court proceedings for parenting.
In property and financial cases, you must give a written Notice of Intent that you will go to Court. The Notice of Intent should set out out:
(1) The issues in dispute.
(2) The orders to be sought if Court proceedings are started.
(3) A genuine offer to resolve the issues has been made.
(4) Specify a time of at least 14 days for the other party to respond.
Can I go directly to Court?
What happens after I lodge my documents?
Upon lodging your documents with the Court, you will be allocated a first hearing date.
You must then serve the court documents on your ex-partner, who must complete the same documents before the first hearing.
In Court proceedings for property settlement, you must lodge with the Court Initiating Application (or Response to Initiating Application), the Orders you want to Court to make, your Affidavit, your Financial Statement, Financial Questionnaire and Genuine Steps Certificate.
In Court proceedings for parenting, you must lodge with the Court Initiating Application (or Response to Initiating Application), the Orders you want to Court to make, your Affidavit, a Genuine Steps Certificate, Parenting Questionnaire, Notice of Risk and 60I Certificate.
All the documents are available on the Court website here.
What happens at the first hearing?
What is a Child Impact Report?
The first hearing is a Procedural hearing and it is conducted by a Court Registrar. The purpose of the hearing is to set a pathway for your case in Court, which is done by the Court making interim orders.
If you and your ex-partner agree on the pathway forward, then the Registrar can make interim orders on the day which set out your agreement. These may include orders about interim parenting arrangements, an order for a Child impact Report (or Family Report), orders for the exchange of documents, to prepare a valuation report for an asset and attend at a Conciliation Conference or private mediation.
The Registrar can only make orders if you and your ex-partner agree on the orders. This means that when there is a dispute, a limited amount can be achieved at the first hearing. In this case, the Court will give you a date for a second hearing before a Senior Registrar or Judge, who can determine the issues in dispute. This is called an Interim Defended Hearing.
The Court has limited resources. You may have to wait several weeks for a second hearing, which the Court allocates based on urgency and who is prepared. Sometimes, you have be required to attend a second Procedural hearing before the interim Defended Hearing, which can lead to further delay.
The Court is often faced with two different versions of what is best for a child, so it is necessary to get some independent evidence to help the Court make a decision in the best interests of the child.
Sometimes known as a short-form Family Report, it is a report prepared by a child expert after meeting with both parents and the children. A shorter form report is used early in the proceedings.
The Court can provide an expert at no cost, but you may need to wait. A private report will cost at least $2,500 (shared equally) and can be available sooner.
If your case continues towards a final hearing, you will attend for a full Family Report. the Court can provide an expert at no cost, or a private Family Report will cost at least $4,000 (shared equally).
What is a Conciliation Conference?
In all property settlement cases, the Court orders the parties to attend at a Conciliation Conference with a Court Registrar or a private mediation.
Both bring the parties together for the day with an independent person as the mediator. A Conciliation Conference is offered by the Court based on the parties ability to pay. A private mediation is more expensive and it is ordered when the parties have the capacity to pay.
Subpoenas are a key tool in litigation to bring evidence before the court. A subpoena is a Court order for a person or organisation to produce documents to the Court, or to appear in Court.
Subpoenas to produce documents are more common, and may include the production of bank statements, police records, or medical notes. It is possible to object to a subpoena, for example if the documents sought are not relevant to the proceedings.
First prepare the Subpoena and then lodge it with the Court. You must pay $60 for each subpoena for the Court filing fee. If the Court accepts the Subpoena, then you will receive a stamped copy, which you must then serve on your ex-partner and on the person or organisation being subpoenaed.
The documents are sent to the Court, generally within 14 days. At this point, if no objection is made, then the documents can be released for viewing and copying. Remember that medical and police records cannot be copies, only viewed.
What about the final hearing?
Often called a Trial, the final hearing is the end point of the Court proceedings. It is conducted by a Judge.
It may be between 1 to 5 days in Court, or more, depending on the issues to be covered.
It often takes 12 months or more to arrive at a final hearing. Once you get there, the Court requires you to lodge long and detailed documents before the hearing can take place.
You will have a Procedural Hearing before a Registrar to make sure the case is fully prepared. At a final hearing, the Judge listens to arguments from both sides, you and your ex-partner will answer questions in the witness box, witnesses may also give evidence to the Court.
After the hearing, the Judge will write a detailed Judgement setting out their final decision and their reasons. The Judgement is sent out weeks or months after the hearing.
What does it cost to go to Court?
Your lawyer can offer a fixed price starting from $3,300 for all work until the end of the first hearing.
If your case reaches a final hearing, over the course of 1 year or more, you could expect to spend at least $30,000 in total as a conservative estimate.
Experienced family lawyers resolve cases efficiently, in Court or outside of Court. You can view the full Price List here.
