Due to the high emotion involved with family law matters, the law encourages parties to resolve disputes without having to resort to litigation. However, there may be some matters that cannot be easily resolved, therefore, necessitating in the involvement of the courts. The litigation process and the roles of all parties differ in relation to family law matters when compared to other areas, and this piece will broadly outline the process.
Before an application can be submitted, the parties must make some attempt in engaging with the various family dispute resolution methods available. Even after filing an application, the courts will still conduct procedural hearings where some of the following broad actions may be taken:
- identifying the issues between the parties;
- outlining the steps, and the dates for any court appearances as well as any compulsory actions or events that must be undertaken;
- exploring any prospects for resolving the dispute.
In the event that dispute resolution is unsuccessful, preparation for trial will commence and may involve discovery and disclosure of evidence. Upon the conclusion of the determination stage, a judgment and outline of any costs will be detailed at the conclusion of the trial.
Family law disputes that involve “child-related proceedings” require a different approach and the provisions set out in ss 69ZM-69ZX of the Family Law Act 1975 (Cth) (the Act) outline the process.
Broadly speaking, “child-related proceedings” differs in many ways when compared to other types of litigation, especially in relation to the roles of the different entities involved in the process.
The parties: in family law matters, the parties may be compelled to undertake a number of activities such as dispute resolution or attending programs as ordered by the court.
Lawyers: legal practitioners are encouraged to adhere to the principles for conducting child-related proceedings as outlined in s 69ZN of the Act. The principles encourage the court and lawyers to be non-adversarial with the section promoting active engagement by the court, while requiring lawyers to abide by the terms set out by the court in how the case is to be conducted.
The court: due to the highly sensitive nature of family law, judicial officers may play a more active role in determining the issues to be covered. In addition to going over the issues before, and during the case, the court will also issue directions about the evidence to be provided, who may be witnesses, what matters experts will report on, and any other practical information related to the case. Additionally, discussions with the parties may be conducted – and if required – and with the consent of the child, questions may also be directed to a child.
Family consultants: the role of family consultant encompasses a number of different responsibilities that may involve administrative matters related to the court process which cut across the whole spectrum of the litigation process with the aim of reducing the adversarial aspect of litigation. Family consultants can also be appointed to child-related matters and will work closely with the parties and the court. Family consultants can also provide evidence directly to the court, while also participating in discussions at the hearing. Also, family consultants may work with the parties outside of the courtroom in trying to resolve the dispute.
Case coordinators: depending on the court, case coordinators may be appointed to manage the matter. Case coordinators are based in the court registry and take on an administrative role in relation to how the case is progressing by listing the various court events. Case coordinators may also report to the court in relation to whether the time periods have been exceeded for the performance of certain actions.