In the Family Court of Western Australia, there are predominantly two types of cases, property cases that deal with the division of assets following the breakdown of a relationship and parenting cases, that deal with the care arrangements for children. Here we breakdown the court process for each of these.
Property Cases
Property and Financial cases usually occur between parties that have ended their relationship and are separating their assets. In a property case, there are 2 main types of orders: orders to divide property and finances, and spousal and de facto maintenance orders.
Before making an application to Court, parties have to make an attempt to resolve their dispute.
In the event that an agreement cannot be reached and the parties decide to take the case to Court, a number of court proceedings can occur before a trial takes place.
Procedural Hearing
The first Court event to occur in a property and financial order case is a Procedural Hearing. The purpose of a procedural hearing is for the Court to identify the key issues in the case and determine the best approach to get to an agreement. Parties are to appear before a Registrar in a procedural hearing.
During a procedural hearing, the Judicial Officer will usually discuss a number of issues including the following:
- The orders and issues in dispute;
- The dispute resolution already undertaken;
- Compliance with pre-action procedures, including making sure parties have complied with their duty of disclosure;
- Any other parties to the case; and
- The estimated length of the trial if an agreement is not reached.
After assessing the above issues, the Judicial Officer will make procedural orders. These orders can include:
- Orders to produce specific documents for inspection
- Orders allowing parties to obtain an expert’s report
- Orders for a party to serve notice of the case on someone whose interests are affected by the case
- Allocating the case for a conciliation conference
- Allocating the case for an interim hearing
If an agreement to the matter is reached in the procedural conference, the Judicial Officer can make consent orders to finalise the case. If no agreement is reached, the case would usually be listed for a conciliation conference or interim hearing.
Conciliation Conference
A conciliation conference usually follows after a procedural hearing if an agreement is not reached. The conference is conducted by a Registrar that looks at the case from both sides and help parties explore options to reach an agreement. Under no circumstances are the Registrar to provide legal advice to the parties as they are not legally trained to do so. A conciliation conference usually lasts for approximately one hour, and has 3 stages.
The first stage is the introduction. The Registrar will explain the procedure of the conference and a short discussion will take place regarding the issues in dispute. The process adopted varies from case to case and depends on the complexity of the financial circumstances of the case.
The second stage is the settlement discussion. This is when the Registrar assist both parties to reach a settlement. The lawyers may not necessarily be present throughout this stage.
The third stage is the conclusion of the conference. The Registrar will sum up what has happened and highlight any matters that have been agreed. The lawyers are usually present in this stage.
If an agreement is reached, the lawyers may prepare terms of settlement for the parties to sign so that the Court can make consent orders. If no agreement is reached, the Registrar will make procedural orders for the next step of the Court proceedings. These orders can include:
- An order about the disclosure of documents
- An order to obtain an expert’s report
- An order to make compulsory offer to settle
- An order to adjourn to another conference (this will only occur if the Registrar determines that the case is close to reaching an agreement and/or it is premature to allow it to proceed further)
- Orders leading towards listing the case for a Trial, which may include an interim hearing.
Interim hearing
An interim hearing is a Court event whereby the Judicial Officer considers all evidence filed by each party and hear submissions from parties. Parties are required to file further affidavits before the hearing to support the additional Orders they are seeking. Decisions made by the Judicial Officer in an interim hearing is based on the affidavit filed by the parties.
In some cases, there can be multiple interim hearings to deal with different issues.
A Readiness Hearing may occur after an interim hearing to make sure all parties are “ready” for the Trial.
Readiness Hearing
A readiness hearing is a procedural hearing to make sure the case is ready for trial. The Court usually gives notice of the hearing date at least 2 months prior to the hearing. Parties are not allowed to negotiate in the readiness hearing. However, if an agreement is reached prior, the judicial officer can make orders by consent to finalise the case. At least 7 days prior to the readiness hearing, parties must each file and serve an Undertaking as to Disclosure (with a list of documents disclosed attached), to confirm that they have complied with their duty of disclosure.
If the Judicial Officer deems that the case is ready for trial, they will place the case in the next available Callover.
Callover
A Callover occurs so that a date can be allocated to the trial. A Callover certificate should be file prior to a Callover. Parties must attend the Callover or have someone attend on their behalf. Prior to a Callover, parties must prepare a list of dates reflecting their availability, including the witness’ availabilities. This is because the process of allocating a trial date occurs very quickly and parties are to advice the Judicial Officer on the spot whether the date suggested suits you and your witness. The assigned trial date is likely to be at least 6 weeks after the Callover.
If parties reach an agreement before or during the trial, it must be informed to the Court as soon as possible so that the court’s time is not wasted. Parties are then to file a Minute of Consent Orders, signed by each party, setting out the terms of the agreement. Consent orders will only be made if the Judicial Officer is satisfied that the agreement is appropriate.
If no agreement is made, the trial is the final stage of the case.
Trial
The Trial is the final stage of the case. Prior to the trial, parties need to comply with procedural orders given to them during the readiness hearing. The trial is managed by the Judicial Officer.
Once the preliminary administrative issues have been handed, both parties will be given the opportunity to present their case, with the Applicant going first. The usual order of proceedings goes as follows:
- Applicant makes opening address if permitted;
- Applicant calls first witness (usually the applicant themselves);
- Applicant’s witness gives evidence;
- Respondent to cross-examine witness if needed;
- Applicant may re-examine witness (only about matters arising from cross-examination)
- Applicant calls next witness;
- Process continues until all of Applicant’s witness has been called.
The Respondent will then follow the same process as the Applicant. The Respondent will then make a closing address followed by the Applicant’s closing address. By the end of the trial, the Judicial Officer will make final orders to settle the case. However, the Judicial Officer may also reserve his or her decision to a later date and parties will be informed when the judgement is ready to be delivered and whether attendance is required.
Children Cases
Parenting cases occur when two parties that are no longer in a relationship are in dispute over matters relating to the responsibilities for the child. When this occurs, parties can choose to agree on parenting arrangements. If parenting arrangements are agreed by both parties, a parenting plan or consent orders can be used to record the arrangements. If parenting arrangements are not agreed, the first step is to participate in a family dispute resolution to resolve the issues.
The legislation requires parties to make a genuine attempt to reach an arrangement before taking the case to court. If parties are unable to reach an arrangement, a parenting order can be applied to the Court. A number of court proceedings would occur before the case can go to trial. The case proceedings for a parenting matter are like that of a property matter.
First Hearing
The first event to occur is a first hearing. The hearing will take approximately 20 minutes, depending on the number of issues to be discussed. This hearing is less formal than other hearings.
During the first hearing, the Judicial Officer may ask parties several questions, invite parties to explore ways in which the dispute can be resolved, and make orders regarding the next step of the case. The Judicial Officer may also appoint an Independent Children’s Lawyer if they feel that it would be in the children’s best interest and deal with any interim orders have not been dealt with.
Some parenting orders may be finalised at the first hearing, however, most orders won’t unless the parties request the Court to make consent orders. If parties have come to an agreement, the Judicial Officer must be notified and the case can be resolved. Even if the whole dispute is not resolved, the Judicial Officer may provide assistance to resolve some issues and consent orders can be made on those issues.
The next step following a first hearing would be to file additional documents and proceed to a case assessment conference, if there are risk factors associated with the case. If there are risk factors, the case may proceed to an interim hearing, or adjourned for the parties to attempt further negotiations.
Case Assessment Conference
The purpose of a case assessment conference is to identify the issues in dispute and allow the parties to negotiate and formulate a case management plan. It is conducted by a family consultant and usually takes around 2 hours. The aim of the conference is to assess the current and potential risks of the case and determine how the Court might best assist the parties. It is also an opportunity for parties to negotiate, consider appropriate case management options, and clarify the issues in dispute.
The family consultant will then prepare a case assessment report for the Court at the end of the conference. They may also recommend another conference to be held, especially if the children involved are more mature and the parties would like the children’s view on the issues in dispute.
If parties managed to come to an agreement in the conference, a signed consent order must be submitted to the Court and parties may not have to come back to Court. If no agreement is reached, another hearing will be needed to discuss the outcome of the case assessment conference with the same Judicial Officer that conducted the first hearing. If interim issues are present in the case, an interim hearing may be scheduled.
Interim hearing
An interim hearing is a Court event whereby the Judicial Officer considers all evidence filed by each party and hear submissions from parties. Parties are required to file further affidavits before the hearing to support the additional Orders they are seeking. Decisions made by the Judicial Officer in an interim hearing is based on the affidavit evidence filed by the parties.
Dispute Resolution Conference
The Court may make orders for parties to attend a Dispute Resolution Conference (DR) at any time of the proceedings. The conference may take place during or after the interim hearing or after a Memorandum has been prepared by the family consultant, or the production of a Single Expert Witness Report. Prior to the conference, the Judicial Officer will assess the case and determine whether a DR is appropriate or whether the conference is to be conducted in a particular format.
It is a mediation, where the goal is for the parties to reach their own agreement.
If an agreement is reached and orders have been drafted, the Court may make those orders. Orders can be made on an interim or final basis and parties are not required to appear if final orders are made.
If no final agreement is reached, the next step of the proceeding is a readiness hearing.
Readiness Hearing
A readiness hearing is a procedural hearing to make sure the case is ready for trial. The Court usually gives notice of the hearing date at least 2 months prior to the hearing. Parties are not allowed to negotiate in the readiness hearing. If an agreement is reached prior to the hearing, the judicial officer can make orders by consent to finalise the case. At least 7 days prior to the hearing, parties must each file and serve an Undertaking as to Disclosure (with a list of documents disclosed attached), to confirm that they have complied with their duty of disclosure.
If the Judicial Officer deems that the case is ready for trial, they will place the case in the next available Callover.
Callover
A Callover occurs so that a date can be allocated to the trial. A Callover certificate should be file prior to a Callover. Parties must attend the Callover or have someone attend on their behalf. Prior to a Callover, parties must prepare a list of dates reflecting their availability, including the witness’ availabilities. This is because the process of allocating a trial date occurs very quickly and parties are to advice the Judicial Officer on the spot whether the date suggested suits the parties and their witness. The assigned trial date is likely to be at least 6 weeks after the Callover.
If parties reach an agreement before or during the trial, it must be informed to the Court as soon as possible so that the court’s time is not wasted. Parties are then to file a Minute of Consent Orders, signed by each party, setting out the terms of the agreement. Consent orders will only be made if the Judicial Officer is satisfied that the agreement is appropriate.
If no agreement is made, the case then proceeds to trial.
Trial
The Trial is the final proceedings of the case. Prior to the trial, parties need to comply with procedural orders given to them during the readiness hearing. The trial is managed by the Judicial Officer.
Once the preliminary administrative issues have been handed, both parties will be given the opportunity to present their case, with the Applicant going first. The usual order of proceedings goes as follows:
- Applicant makes opening address if permitted
- Applicant calls first witness (usually the applicant themselves)
- Applicant’s witness gives evidence
- Respondent to cross-examine witness if needed
- Applicant may re-examine witness (only about matters arising from cross-examination)
- Applicant calls next witness
- Process continues until all of Applicant’s witness has been called
The Respondent will then follow the same process as the Applicant. The Respondent will then make a closing address followed by the Applicant’s closing address. By the end of the trial, the Judicial Officer will make final orders to settle the case. However, the Judicial Officer may also reserve his or her decision to a later date and parties will be informed when the judgement is ready to be delivered and whether attendance is required.
