Family Law Hearings in the Federal Circuit Court
NB: This article was accurate when it was published on 27 August 2020. It is no longer accurate as on 1 September 2021, the Federal Circuit and Family Court of Australia (FCFCA) was established as the sole court dealing with family law matters in Australia.
There are two family law courts in Australia: the Family Court and the Federal Circuit Court. The vast majority of cases are heard in the Federal Circuit Court. There are four types of hearings that are likely to occur during family law proceedings in the Federal Circuit Court. These are Direction Hearings (or Mentions), Interim Hearings, Call-Over Hearings, and Final Hearings. This article outlines what is involved in each of these hearings.
Direction Hearings (or Mentions)
This is the most common type of hearing. The purpose of a Directions Hearings is for the Registrar or Judge hearing the matter to make orders to move the matter forward. These may be orders:
- to provide financial disclosure to the party,
- for valuations to be completed on property,
- for the parties to attend family therapy,
- for the parties to attend upon a Family Consultant or for the preparation for a Family Report.
For the most part, no significant orders relating to the interim or final outcome for the property or parenting proceedings will occur at Directions Hearings. The role of the Directions Hearing is not for the Registrar or Judge to decide on issues in dispute but to ensure both parties are meeting their respective obligations to ensure that all requisite information is before the court and the parties themselves, so the court is able to make a decision at a later time or to allow the parties to effectively negotiate the issues in dispute.
There will be a number of Direction Hearings before a matter is decided by a judge on final basis, which ends the proceedings.
In some cases, when family law proceedings are commenced, one party may seek for interim orders to be made. Interim orders are essentially orders made based on the initial issues and evidence in the proceedings so that these issues are resolved provisionally while the proceedings are on foot. If parties cannot agree on interim orders, after one or a number of Direction Hearings, an interim hearing will take place for the judge to decide on interim orders.
At an interim hearing, both parties present their case by way of affidavit evidence, submissions are made to the judge, and evidence like subpoena material, financial disclosure or medical reports may be tendered. There is no cross-examination of either party at the interim hearing, so the judge cannot “test” the evidence and cannot determine facts and which party is or isn’t telling the truth.
The parties can also obtain interim orders by consent. That is, they can agree to what all or some of the interim orders should be, rather than asking a judge to decide. If there is consent on all interim issues, no interim hearing needs to take place.
The purpose of a call-over hearing is to allocate a matter a final hearing date (see below about final hearings). A call-over hearing will only take place after a matter has been on foot for some time. Parties should have a clear understanding of any evidential matters that require further work so they can inform the court whether or not the matter is ready for a final hearing. For example, if there are any outstanding valuation issues, or if parties are still waiting on the preparation of a family report in parenting proceedings they are not ready to proceed to a final hearing. This is important because the court will only give matters a final hearing date when all the evidence is prepared.
A final hearing is where each party’s case is considered by the judge and a decision is made on what the final parenting and/or property orders will be based on the evidence. The proceedings end after the final hearing. Therefore, at the final hearing, you must know the final orders you want the court to consider making, and the evidence you are relying on.
A final hearing is usually conducted in the following way:
- Applicant’s evidence – the party who started the proceedings outlines their case. The Respondent may cross-examine the Applicant or the witnesses in support of the Applicant’s case. The Applicant can then re-examine their witnesses if required.
- Respondent’s evidence – the party who did not start the proceedings outlines their case. The Applicant may cross-examine the Respondent or the witnesses in support of the Respondent’s case. The Respondent can then re-examine their witnesses if required.
- Independent Children’s Lawyer – If there is an independent children’s lawyer appointed (in parenting matters only), they may also present evidence to the court and cross-examine each party and their respective witnesses.
- Expert report – If a single expert, such as a family consultant, prepared a report, each party may cross-examine the expert.
- Closing address – the court gives each party an opportunity to make any final comments in support of their case.
The length of the final hearing will depend on the facts of the case. The more contentious issues are and the more witnesses required, the longer the hearing will be. After the final hearing, the judge may make orders and give reasons for their decision. Alternatively, the judge may reserve their decision to another day. A decision may potentially take months to be delivered. The decision will include the orders made and the reasons for the decision. This then ends the proceedings before the Federal Circuit Court.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.