The First Hearing
The Family Court process is not always straightforward or predictable.
The Family Court has the discretion to decide what procedure should be followed, given the circumstances of each case.
There are, however, procedural guidelines which set out how a typical case will run.
These guidelines are set out in the Family Law Rules 2004 and the Family Court of Western Australia’s Case Management Guidelines.
The first hearing: what to expect and how to prepare
If the financial case is a typical case, the following can be expected at the first hearing:-
- The parties will usually be required to attend in person, including when they have a lawyer appearing on their behalf. A party’s attendance at Court may be excused or permitted by audio or video link if there is a good reason.
- The presiding Judicial Officer will have many other cases to deal with. At the start of the Court session, and throughout it, the presiding Judicial Officer will decide which cases on the list should be heard first. Depending on the Judicial Officer’s decisions, a party’s case could start at the expected time, or it could start a good deal later.
- A party who has a lawyer present is not normally required to speak to the Court or address the Court.
- The Court’s focus will be on procedural or “housekeeping” matters. That is, the Court will hear arguments and make decisions about how the case will be run, who should be involved, what documents need to filed and exchanged, and when.
- Generally, the Court will not hear arguments or make a decisions about the substantial financial issues which have brought the parties to Court. If there are interim financial issues that need to be dealt with on an urgent basis, the Court will usually fix another time and date to deal with them.
Although this is the typical course contemplated by the procedural guidelines, in certain cases, the Court may take a different course.
In some circumstances, the Court will hear an urgent financial case on the first hearing date (even if the parties are not necessarily expecting it to do so) and deliver a judgment.
Accordingly, a party who is well prepared for the first hearing will attend having familiarised herself with her own case and the legal arguments supporting it, and that of the other party if known.
A case example of the Court’s flexible approach
The flexibility of the Court process on the first Court date is illustrated in the following case example. While the case is not typical, it is also not uncommon.
At the end of 2014, the other party in a case filed an application to the Court seeking urgent financial support from our client. The other party also requested that the Court hear and decide the case urgently within 14 days.
The Court did not grant an urgent listing.
Instead, the matter was given an ordinary first listing some weeks away, where only case directions would be made.
On the day of the first court hearing, when the case came before the presiding Judge, the other party’s lawyer asked the Court to hear his client’s application for urgent financial support that morning, and to make a decision that morning.
We were aware that the other party believed the case was urgent. We were not given prior notice by the other lawyer that this would be requested, as sometimes happens.
Having said that, we were not surprised when the other party’s lawyer made the request, and we were in a position to make our client’s argument if a hearing occurred that day.
After a reasonably involved argument about whether the matter was urgent and/or warranted an urgent hearing, the Court decided that it had capacity to deal with the case that day, and would do so.
The Court had other matters to complete first, and put the hearing back to a time in the mid afternoon.
The argument took place somewhat later in the day than the Court had advised, because other matters took longer than expected.
Ultimately, the argument was held late in the afternoon and took just over an hour to conclude.
In this instance, our client was aware of the flexibility of the Court process and been advised that the matter might proceed to an argument and judgment that day.
Our client had made arrangements with work and family to be available to remain at Court for the whole day.
Our client had also considered the other party’s case, and was able to assist by providing useful information throughout.
The result was that our client was not prejudiced or inconvenienced when the matter proceeded in a way that was different to what had reasonably been expected.
The matter has since been back before the Court for further argument on the same issue, and at the time of writing this article, it is still ongoing.
Your solicitor at DCH Legal Group will advise you if your matter falls into a category where there might be a departure from the “normal” Court procedure, and if so, the level of preparation required and the costs involved.
If you have any queries, please contact us.