What you need to know before commencing family law property proceedings in court

​Cargill Family Law seek to resolve family law matters peacefully and strategically wherever possible, therefore commencing family law property proceedings in court is the option of last resort.

Rachel Jones discusses in this blog the reasons you shouldn't jump into the court system too soon and what you need to know before your matter appears before the courts.

There are several reasons why you should not jump into the court system. Let's unpack them:

1. The court expects that the parties have made a genuine attempt to reach a property settlement agreement out of court before commencing legal proceedings. If a party commences legal proceedings before genuinely trying to resolve their matter, they run the risk of being ordered to pay a portion of the other party’s legal costs. For a detailed summary of what pre-action procedures the court expects the parties to have followed see schedule 1 of the Family Law Rules 2004.
2. Court proceedings are expensive. Depending on the issues in dispute, you can expect to spend significant sums of money on solicitor and barristers’ fees, court fees, expert witness fees (such as property valuation fees and forensic accountants) and various other administrative costs.
   
3. You are likely to experience significant delays in the court system. As a general guide, new family law property applications typically receive a trial date within 12 – 18 months of the initiating application being filed in the absence of real urgency.
   
4. All litigation is inherently uncertain. Unexpected issues can and often arise after legal proceedings have commenced, impacting on the final outcome in a way that often cannot be foreseen at the beginning of the case. 
   
5. By asking a judge to determine your case and deliver a judgement – the parties lose control over the final outcome.

 
Not withstanding the many reasons why you should try to avoid court proceedings, there are circumstances where legal proceedings are warranted. Such circumstances include:

• Where one party refuses to provide the required financial documentation that is required for full financial disclosure; 
• Where one party refuses to jointly obtain all necessary valuation reports (such as property and business valuations); 
• Where one party refuses to provide ongoing financial support to their ex-spouse / partner in circumstances where the law expects them to do so;
• Where there are complicated issues of law that require judicial determination; or
• Where the parties simply cannot agree on a just and equitable alteration of property and financial interests despite significant efforts to do so.

 
The court process
 
The court process is commenced by one party filing an initiating application that is accompanied by a financial statement and an affidavit in support of their application. The initiating application sets out the final (long term) orders and interim (short term) orders that the applicant is asking the Court to make.
 
The respondent is required to file their Response setting out the final and interim orders that they seek, their financial statement and affidavit in support of their Response within 28 days of receiving the applicant’s initiating application.
 
Interim orders

The interim orders should contain all of the necessary steps that will enable the parties to negotiate final orders. Typically, interim orders for family law property matters will require the parties to do the following:

• Provide copies of any outstanding financial disclosure documentation that may include: bank statements, superannuation statements, tax returns, financial statements, payslips, trust deeds and trustee resolutions, payslips, record of any shares held in any public companies and documents related to any interests held in private companies / partnerships or trusts (see rules 13:01 and 13:04 of the Family Law Rules 2004).
• Obtain any necessary valuations of any assets within the asset pool where the parties have been unable to reach agreement. Typical valuation reports that are required are property valuations, business valuations, superannuation valuations (for non-accumulation funds) and Redbook valuations for motor-vehicles. Less commonly, the parties may need to obtain valuations for any other assets of significant worth such as: farm equipment and livestock, business assets, antiques, artwork, jewellery etc.
• Attend a mediation before an accredited mediator or a conciliation conference facilitated by a Registrar of the Court. The underlying purpose behind conciliation / mediation is for the parties to reach a negotiated settlement of their family law property matter to be finalised by way of final orders by consent.

 
Interims orders may also set out practical arrangements such as naming the party that will have the right to occupy any real property and the payment of ongoing expenses and liabilities of the relationship on a short-term basis. Interim orders may also require one party to pay interim spousal maintenance to the other party to enable a party in financial need to meet their reasonable living expenses.
 
Final orders

Final orders set out the orders that each of the parties are asking the Court to make to finalise their matter once and for all. In other words, orders that will set out the assets, liabilities and financial resources that each of the parties will keep.
 
Final orders may be made by consent of the parties. Failing agreement being reached by consent, the Court will determine final orders at the final hearing of the matter.
 
Important court dates

As a general rule, family law property matters will be allocated to a Judge’s list and will receive the following:

1. An interim hearing date for the determination of interim (short term) orders if agreement between the parties has not been reached;
2. A conciliation conference or mediation date; and
3. A final hearing date in the event that the parties have been unable to reach a negotiated settlement as to the terms of final orders at the conciliation conference or mediation.

 
Depending on the issues of the case, there may also need to be further interim or interlocutory hearings before the Judge to deal with any threshold or interim disputes that need to be determined before final orders can be made.
 
It is heartening to note that statistically the vast majority of family law property matters do resolve by consent before final hearing.
 
Any questions? Reach out to Rachel today for a complimentary 30-minute chat.

Author: Rachel Jones

Rachel is a skilled negotiator and litigator with 14 years experience as a multi-disciplined lawyer with a passion for family law. Rachel has two children, Harry and Jack and two fur-children (Olive & Simba) with husband Luke. With a keen interest in health and fitness, Rachel is a regular on the Lake Wendouree track which assists her to keep an even keel. She otherwise loves spending time with family, friends and finding pleasure and humour in life's simple things.