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Property Settlement Through the Courts

If You Cannot Resolve Your Family Law Property Dispute, Family Law Courts Can

Legal Action to Resolve Property Disputes

If you are your former partner have been unable to resolve your property settlement through negotiation or mediation, you can proceed to court to have the matter determined by a Judge.

Often when parties proceed to court, the matter is resolved before it goes to a final trial through the parties undertaking negotiation and resolving outstanding issues.  Despite this, it can require commencing court proceedings to bring about a property settlement.

The Federal Circuit and Family Court of Australia have the jurisdiction to hear and determine family law property settlement proceedings.  State and Territory Courts can also hear matters.

 

What to Do Before You Go to Court?

Before going to a family law court, unless there is an urgent issue, you should have:

  1. Attempted to resolve the dispute out of court.  This can include attending conciliation, mediation, or counselling. 

  2. You or a family lawyer should have sent a written proposal to your former partner or their family lawyer letting them know about your property settlement claim and proposing options to settle the matter. 

  3. Exchanged financial documents and information so you both fully understand all property and financial resources that need to be settled. This includes information about interests in a property even if the property is not owned directly, financial resources, income, interest in any trust, partnership or business, superannuation, inheritance, gifts or property disposed of since separation.

If the above process has broken down and the other party is refusing to negotiate or settle, or if there are urgent issues such as one party taking a large sum of money or attempting to sell a property that needs protection, you should consider court proceedings.

Property Settlement Through Court Proceedings

Federal Circuit and Family Court of Australia Court Proceedings

Most family law court proceedings are brought in Division 2 of the Federal Circuit and Family Court of Australia.  In complex family law matters where a final trial is likely to take more than 4 days, the proceedings should be commenced in Division 1.

What Happens When You Go to Court?

Court proceedings in the Federal Circuit and Family Court of Australia begin with the party meeting pre-action requirements.  Unless urgent or an exception applies, you must attempt to negotiate an outcome and disclose relevant documents.

If you still cannot resolve the dispute, then an Initiating Application should be filed to commence court proceedings. The Application must be accompanied by a sworn or affirmed statement to the court which is called an affidavit if you seek interim orders, a Genuine Steps Certificate, and usually a Financial Statement and Superannuation Form.  This information is filed with the Court and then a court stamped copy of your documents must be served in person on your former partner.  The service of the filed court documents will usually be completed by a process server.

Your former partner will then need to reply to your court proceedings by providing a Response, an affidavit if they seek interim orders and usually, Genuine Steps Certificate, a Financial Statement and Superannuation Form needs to be provided.  These documents are filed with the Court and then a court stamped copy is provided to the other party.

First Hearing or Interim Hearing

The Court will schedule a date for the matter to come before the Court for a First Hearing.  The parties are expected to come to the Court on that date and be prepared with any requests to resolve issues.  The Court will hear about any urgent or interim issues that need to be resolved and issue orders for any interim issues and usually for the management of proceedings, including future court dates.  The parties are then required to comply with the Court's orders issued on that date and the Court practice directions and rules.

Financial Conciliation Conference

In most cases, the Court will schedule the parties to attend a financial conciliation conference.  This is a form of alternative dispute resolution which allows the parties to negotiate and try to resolve the issues between them.  A requirement of financial conciliation is that the parties must provide full and frank financial disclosure of their financial circumstances to the other.  If a party fails to do so, the Court may make a cost order against a party for failing to meet their duties of financial disclosure.

Further Interim Hearings

Depending on the circumstances in the matter, the Court may require the parties to attend to further interim hearings or a party or the parties may request a further interim hearing to deal with any interim issues that could not be resolved at the first Duty List Hearing.

Final Trial

The final trial is where the matter is heard by a Judge and where each party must provide the evidence in support of their case and test the evidence provided by the other party in support of their case.  While a party can choose to represent themselves, most parties use a family solicitor and barrister for the proceedings due to the complex nature of family law, the rules of procedure and the rules of evidence.  Further, if there are allegations of family violence, a self-represented party may not cross-examine the other party to test their evidence.  This can leave the party unable to complete the cross-examination at a considerable disadvantage.

During the Final Trial, the Judge will listen to the proceedings and has a duty to ensure each party receives a fair and impartial trial, where each party can put their full and proper case to the court as per the rules of procedure and the rules of evidence.  The Judge may ask questions of any witnesses called to properly inform themselves of the matters they need to consider.

The Judge will then complete a Judgement of the proceedings.  In most cases, the judgement is provided to the parties later, which can often take several months and longer in complex cases.

Settling Family Law Court Proceedings

Once court proceedings have been commenced, the parties can usually settle those proceedings at any stage by agreement.  If the parties come to an agreement, they can provide the Court with Consent Orders as to how they propose to resolve the issues and divide any property.  Provided the Consent Orders meet the requirements of section 79 of the Family Law Act 1975, the Judge will usually issue the orders sought by the parties.  This will bring an end to the property settlement proceedings.

Our family lawyers can help you achieve the best outcome in family law court proceedings. ​

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