Financial Cases (where no consent to Division 12A)
This brochure provides information about how the court deals with financial cases which are not conducted under Division 12A of Part VII of the Family Law Act (less adversarial trials). For information about these trials see the brochure Less adversarial trials.
Division 12A of Part VII of the Family Law Act applies if you consent to that Division applying to your case.
You may reach agreement using dispute resolution with a family dispute resolution practitioner, in a Family Relationship Centre or other community-based organisation, with the assistance of lawyers, or at the court.
If you have not reached agreement with the other party(ies) about either your financial arrangements or the future arrangements for your children, you may need a judge to decide what are the most appropriate financial arrangements or what is best for your children.
If this is your situation, your case will be listed for a trial in the Family Court. If your case is in the Federal Circuit Court, you will need to obtain information from that court about their processes.
What you must do before the first day before the judge
A Financial Questionnaire is required to be filed within 21 days after the Case Assessment Conference and a joint Balance Sheet prepared by the parties is to be filed prior to any Conciliation Conference or at least 9 weeks after the Case Assessment Conference. If your case needs to go to a trial before a judge, at the end of the Conciliation Conference or if there is no Conciliation Conference, at the end of the Case Assessment Conference, a registrar will allocate a first day before the judge and make all necessary procedural orders for that purpose.
Answer the questionnaire as best you can. File it at the court and serve a copy on the other party(ies). The front page of the questionnaire provides information about completing the questionnaire.
The Balance Sheet is a document which sets out the assets, liabilities and financial resources of the parties and there is provision to identify all areas of dispute and the method by which those disputes are to be resolved, for example by the obtaining of a single expert’s valuation.
Remember: Try to answer the questionnaire in your own words, although you can get advice about your answers from your lawyer if you have one.
What happens at the first day before the judge?
The first day before the judge in a financial case is the first procedural hearing before the judge. This is when preparation for the trial starts.
The judge will have read each person’s completed questionnaire, the original application and response and the joint Balance Sheet.
The judge controls your case only addressing the relevant issues in dispute.
Further procedural hearings to continue preparation for the trial, and then the trial may be scheduled before the same judge. The trial will only take place once all the evidence, including all expert evidence, is before the Court.
The first procedural hearing before the judge
The judge will decide what happens next after identifying:
- The issues to be decided
- The evidence to be heard and which witnesses, if any, will need to attend
- Who should provide evidence in writing (in what is called an affidavit) and what it should be about
- What expert reports will be required, if any
The further procedural hearing
- Further procedural hearings before the judge may be by telephone.
- The affidavits and expert reports are considered and the issues in dispute reviewed.
- Any further evidence is identified and appropriate orders made.
- Procedural orders are made for the purposes of the trial.
- The trial is allocated.
- The evidence is presented and final submissions are made.
Some Frequently Asked Questions
Q What if I am concerned about family violence?
The Court takes violence very seriously. You will be able to raise any concerns about family violence at the start of your case or at any point during its progress.
If family violence is raised as an issue, steps will be taken to deal with it as quickly as possible. If at the trial stage you are still concerned about family violence, it is important that this be raised again when you first appear before the judge. This allows the judge to decide how the case should proceed to keep parties safe and able to participate fully in the trial. This might involve a person being heard by video or teleconference.
Q What if I do not have a lawyer?
The Court always encourages you to be legally represented, if possible, but you do not have to have a lawyer to be able to effectively participate in a trial. If you do not have a lawyer, you will need to familiarise yourself with the Family Law Act and the related legislation and you will still be required to comply with any orders made by the Court. You may however be able to bring a support person to sit with you in court. The judge will also explain the process (for example, what is happening next and why) as the trial goes along.
Q How will the judge get more information?
If your case involves financial arrangements, the judge may order a report from a person from outside the Court who is an expert, for example in valuation. The cost of a report is normally met by the parties.
Q Can I appeal if I am not happy with the result of the trial?
Yes. You have normal rights of appeal. But you will not be able to complain about matters with which you have agreed.
If you have any concerns about your safety while attending court, please call1300 352 000 before your court appointment or trial. Options for your safety at court will be discussed and arrangements put in place.
By law people must inform a court if there is an existing or pending family violence order involving themselves or their children. More detail is available in the brochure ‘Do you have fears for your safety when attending court?’ available at registry offices or visit www.familycourt.gov.au.
For more information, including access to the Family Law Act or any of the legislation, forms or publications listed in this fact sheet:
- go to www.familycourt.gov.au
- Live Chat on the website
- call 1300 352 000, or
- visit a family law registry near you.
The Family Court respect your right to privacy and the security of your information. You can read more about the Courts’ commitments and legal obligations in the fact sheet The court and your privacy. The fact sheet includes details about information protection under the privacy laws and where privacy laws do not apply.
This brochure provides general information only and is not provided as legal advice. If you have a legal issue, you should contact a lawyer before making a decision about what to do or applying to the Court. The Family Court cannot provide legal advice.
Authorised by the Principal Registrar.