November 3rd, 2021 | by newwaylawyers
So you have progressed your matter past the first court appearance and you are told that you have to attend an Interim Hearing or a Final Hearing… what does this actually mean? Legal jargon can sometimes feel like a different language and the Courts can feel like a different planet.
To help makes sense of it, the team at New Way Lawyers are going to break it down and share key information about Interim and Final Hearings.
Interim Hearing in the Federal Circuit and Family Court of Australia
An Interim Hearing usually occurs when two parties cannot agree on parenting or property arrangements. The Court makes an order before the final decision is made (an interim order). The Interim order is a temporary order and stays in place until a final decision is made by the Court or agreement reached by the parties.
What do you need to do before a family law Interim hearing?
If your matter has been listed for an Interim Hearing, the Court will most likely have told you what documents you need to file. It is important to comply with timelines for filing documents, otherwise your matter may be delayed (adjourned) or the Judge may grant the orders the other party is seeking. Failing to follow directions given by the Judge can also sometimes result in a ‘costs order’ being made, requiring you to pay money to the other party or their solicitor to cover their costs.
An interim hearing is generally heard ‘on the papers’ which means the Judge will make a decision after reading the documents that have been filed. It is rare for witnesses to be called or cross examined during interim hearings.
Final Orders in the Federal Circuit and Family Court of Australia
A Final Hearing is a formal court hearing where all documents are presented to the Court. In addition, witnesses are called and cross examined. The Court considers all of the evidence before making a final decision. There can be a significant length of time, often 1-3 years, between when court proceedings are commenced and a final hearing being set.
How can you prepare for a final hearing in the Federal Circuit and Family Court of Australia?
Preparing for final hearing is a vey involved and time intense process. Prior to the final hearing the Judge will make trial directions, which set all the steps that the parties need to take prior to the final hearing. This will include what additional documents needs to be filed, what further disclosure needs to be exchanged between the parties and arrangements for the payment of court fees. It is at this point that a barrister will often become involved in preparing the matter for final hearing.
It is important to be prepared for your final hearing by having all of your documents with you. A good tip is to remember to call the Judge, ‘Your Honour’ and present yourself appropriately as the final hearing is formal.
Can you appeal a final order?
After final orders have been made people often wonder if the orders are able to be changed.
If final orders were made by a Judge at final hearing the orders may be able to be appealed. The grounds for appealing final orders include that an error of law or an error of fact was made by a Judge who was presiding over the final hearing. An appeal must be on the basis of one of these valid grounds, it is not possible to appeal simply if the outcome is different to what a party was hoping for or not as favourable as expected.
There may be circumstances following the making of final orders where a significant change in circumstance has arisen, which was not contemplated by the final orders. This change in circumstances may give rise to the ability for an application to be made to the Court to change or vary the final orders. It is important to obtain legal advice if you wish to make an application to vary final orders as it is necessary for a threshold test to be satisfied before the Court will consider the actual application to vary. This threshold test is known as the Rice and Asplund test.
At any point after the making of final orders the parties can agree between themselves to vary or change the orders but both parties must agree, changes are not able to be unilaterally made by just one party.
Call us today on (07) 3548 5868 if you would like a free 20 minute consultation with one of our experienced family lawyers.
November 2nd, 2021 | by newwaylawyers
When you first start navigating the family law system, it can feel like trying to navigate a map in another language. The forms, process, time frames and the terminology can all feel bamboozling!
Let’s make it simple and explain some of the key steps involved in family law processes.
The Federal Circuit Court and Family Court of Australia overseas family law matters. It has two divisions, division 2 is where all applications are made and division 1 hears all referred complex cases and appeals. Proceedings can only be filed in the Court if all pre-action procedures have been adhered to including engaging in dispute resolution.
Main types of court dates in the Federal Circuit Court and Family Court of Australia
There are four main types of court dates in the FCCFCA and they are;
- First Court Event
- Direction Hearings or Mentions
- Interim Hearings
- Final Hearings
First Court Event in the Federal Circuit Court and Family Court of Australia
The first court event is a procedural hearing conducted by a Judicial Registrar 1-2 months after filing. In this hearing the Judicial Registrar hears from the parties about what steps need to be taken to prepare the matter for the next stages of the Court process and makes orders and directions regarding the same (such as attending dispute resolution, collecting valuations, export reports or disclosure, attendance to an event with a Child Court Expert or attendance to a relevant program). The Judicial Registrar can also make interim financial or parenting orders.
Direction Hearings / Mentions in the Federal Circuit Court and Family Court of Australia
Direction Hearings or Mentions are brief Court appearances where the Judge, Senior Judicial Registrar or a Judicial Registrar makes orders for the next steps that need to be taken to progress and resolve the matter. For example, dispute resolution, financial valuations, disclosure or family therapy may be ordered.
Sometimes there is more than one Direction Hearing and as these are focused on determining the next steps for progressing the matter, there generally won’t be an opportunity for the actual issues in dispute to be decided or determined.
How long after filing an application will a matter be heard in the Federal Circuit Court?
Usually, the first court date will be held 4- 8weeks after the applicant (the person making the application) has filed their application with the Court. An application can be filed either in person at the Court registry or online. If you file in-person, registry staff will write the date, time and location of your first Court date on your application. If an application is filed electronically, a range of available dates will be indicated and the Applicant will choose one of the available dates.
If you are the respondent to an application in the Federal Circuit Court, when do you find out hearing dates?
If you are the respondent (the person who has not made the application but is responding to an application), you will be notified of the date, time and location of the first Court Date when you are served with the application.
Book a free 20 minute consultation with one of our experienced family lawyers and we can help you make sense of these complex processes in light of your matter today on (07) 3548 5868.
September 27th, 2021 | by newwaylawyers
If you are separating from an Australian Defence Force (ADF) member there are avenues of support available from Defence, as you transition out of being a Defence family. Sometimes it can be hard to know what support is available if you are not familiar with ADF policy documents or if your ex partner/spouse has not shared this information with you. Our firm is experienced in Defence family separations and can help you understand the support available if you are an ex-defence partner.
You must be recognised as a dependent for the benefits to apply
Defence support for partners after separating from an Australian Defence Force Member only applies if you are recognised as a dependent. If this is the case, your partner will need to follow these guidelines and advise Defence that the relationship has ended.
If your partner is unwilling to do this you can speak with Defence Families of Australia, Defence Member Family and Support (DMFS) Branch (formally Defence Community Organisation), or a Chaplain to assist with this process.
Living in Defence Housing Australia Service Residences after Separation
Once Defence has been notified of the relationship breakdown and the member has received the recategorisation notice, the ADF member must notify DHA. Defence then gives you 28 days to vacate the property. The member can request an extension if there are children of the relationship and the member will spending time with them.. This request is considered and approved by a senior manager at Toll Transitions.
Moving costs when separating from an Australian defence force member
The Defence Pay and Conditions Manual (PACMAN), outlines in Chapter 6.5 the support to a non-serving member upon separation. Specifically it outlines the situations where a spouse or partner is entitled to moving and associated travel costs. Further information regarding partner assistance following a relationship or marriage breakdown can be found in Chapter 8.11
Toll Transitions will guide the partner through these policies directly and they can be contacted on 1800 819 167.
Open Arms offer free and confidential counselling for veterans and their families. This includes children and ex spouses or ex partners of a serving member where they are co-parenting a child under 18 years of age, or it is within 5 years of the relationship ending.
Open Arms offers a free 24 hour support service that can be accessed by calling 1800 011 046.
Family Law legal advice
Family Law covers topics such as separation, divorce, property settlement, arrangements for children, and domestic and family violence. If you need further guidance on these matters as you journey through separation, we are here to offer our expert family law knowledge in a compassionate and caring way. New Way Lawyer’s has experience representing military personnel and partners of serving members.
What about kids and ADF postings after separation?
If you need assistance during separating from an ADF member, or you are an ADF member yourself that needs family law assistance, please contact one of our expert family lawyers for a free 20 minute consultation today on (07) 3548 5890.