What are the courts procedures for determining property matter as between the parties?

16/07/2014

The Court puts in place a number of processes whereby a party may mediate and/or resolve their financial dispute prior to coming to a Court.

Usually at the court appearance, each party is requested by a lawyer, solicitor and as counsel depending upon the complexity of the case.

Before the case is allocated a date for hearing at which each parties attend with their respective lawyers the court process provide for opportunities to settle during process defence the hearing.

Upon the commencement of proceedings for property settlement, the Court will allocate the matter a return date. For example of, the Husband or Wife commenced proceedings say August 2010, and the matter was given a return date for the purposes of a Case Assessment Conference. At that Case Assessment Conference, the Court determines what the issues are for determination and attempts to identify, which issues may well, be in dispute and which issues may not be in dispute.

The next court-based date is a Conciliation Conference, which is a process whereby the parties attend before a Registrar of the Court for the purposes of attempting to resolve with the assistance of a Registrar their outstanding dispute. For the purposes of that Conciliation Conference, the parties would provide financial questionnaires and other documents.

In the event that the parties are unable to resolve their dispute at a Conciliation Conference, the matter will thereafter be placed into a list of cases awaiting allocation to a single judge. At this stage, the current delays in the Family Court means that a matter may well sit in that list of cases awaiting allocation to a trial judge for a period of anywhere between 12 to 15 months from the date of the Conciliation Conference.

When the matter is ultimately allocated to a trial judge, the trial judge will make directions for trial including the preparation of affidavits, the identity of issues in relation to the pool of assets that need valuation and other procedural directions. The Court would ordinarily thereafter make a series of directions for the filing of affidavits and assuming that the parties comply with those directions, it may well be that the matter is then allocated a hearing date 3 to 6 months later.

The procedure at trial, depends on the matters in issue, but ordinarily the usual procedure is that the parties file through their respective counsel an Outline of Case document approximately 3 to 4 days prior to the hearing which records the Affidavits relied upon, a Minute of Orders sought, a Chronology and the Balance Sheet as well as identifying the various issues in dispute between the parties.

On the first morning of the trial, there is usually a short opening given by each of the respective counsel, which merely elaborates or expands upon the material that has been set out in the Outline of Case document. The Court deals with objections to evidence and thereafter the Applicant will enter the witness box. It is unusual for a party to be granted leave to lead evidence in chief. The evidence in a case has been identified in the affidavit filed by each of the parties. The Applicant is then the subject of cross-examination which is designed to test propositions of fact contained both in the affidavits of the Husband and the Wife, and other witnesses, and matters relevant to the issues in the proceedings. Following the cross-examination of the Applicant, counsel for the Applicant is entitled to re-examine the Applicant as to matters arising out of the cross-examination. The balance of the Applicant’s witnesses are then called and each of them are the subject of cross-examination and if necessary re-examination. At the end of the cross-examination of the Applicant and/or the Applicant’s witnesses, that is generally regarded as the close of the Applicant’s case. Thereafter the Respondent enters into the witness box and the procedure occurs in the same fashion whereby she would be cross-examined and then re-examined, and each of her witnesses would proceed through the witness box in the same fashion.

At the end of the Respondent’s case, the Applicant may well have a case in reply whereby he would be permitted to adduce evidence generally about some new matter of which he may not have been aware that arose during the course of either his cross-examination or arose as a consequence of a statement made by the Wife.

The Court then would then hear Submissions from each of the parties and would later deliver a Judgment. Appeals can lie from that Judgment to the Full Court of the Family Court.

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