How Long Does It Take To Get Family Law Court Orders? What To Expect If You Are Considering Commencing Court Proceedings For Family Law Matters

Whilst each matter is unique, the Court generally follows the same process and timeline.

This timeline is underpinned by the Court’s Central Practice Direction: Family Law Case Management pathway. An experienced Family Lawyer can guide you through the complicated Court process, assisting you to both minimise costs and achieve the best outcome for your case.

We break down each process required pursuant to the Central Practice Direction and the timeframes you may expect if you are considering commencing proceedings in the Federal Circuit and Family Court of Australia.

The Federal Circuit and Family Court of Australia (FC&FCOA)

The Federal Circuit and Family Court of Australia is responsible for hearing parenting, property and divorce matters in all states of Australia except for Western Australia. The Court is divided into two (2) divisions.

Division 2

Division 2 of the Federal Circuit and Family Court of Australia is the entry point for all family law matters. Division 2 has 55 specialist Family Law Judges who sit in various locations throughout the country. Division 2 is responsible for the largest caseload and benefits from varying levels of Judicial staff. These extra staff enable higher-ranking Judicial Officers such as Judges, better flexibility and availability to hear matters promptly. If your matter is in Division 2, you will likely appear in front of the following Judicial staff:

1. Deputy Registrars, also known as “DR’s”: DR’s often preside over Divorce and Consent Order Hearings.
2. Judicial Registrars, also known as “JR’s”: JR’s often preside over First Return lists, Mention and Directions Hearings, as well as Court based Dispute Resolution events, such as Family Dispute Resolution Conferences (Mediations) and Conciliation Conferences. JR’s are largely responsible for making procedural Orders. JR’s do not have the jurisdiction to make parenting or property Orders without the consent of the parties.
3. Senior Judicial Registrars, also known as “SJR’s”: In addition to the authority allocated to DR’s and JR’s, SJR’s have the authority to make interim Orders without the consent of the parties. This commonly includes presiding over Interim Hearings. In some complicated matters, SJR’s may also preside over mention and direction Hearings.
4. Judges: Judges have the highest level of authority in Division 2. Judges are responsible for making Final parenting and property Orders at Hearing. Judges will also run Compliance and Readiness Hearings, where a matter is prepared and allocated Final Hearing dates. Whilst not as common, it is possible for a Judge to preside over an Interim Hearing.

A matter will only be transferred out of Division 2 and into Division 1 if the matter is overly complex or requires a level of specialty only available in Division 1.. The Court has the ultimate discretion to decide which matters are transferred.

Division 1:

Division 1 of the Federal Circuit and Family Court of Australia is a specialty division for complicated parenting and property matters. Division 1 has 35 specialist Family Law Judges who sit in various locations throughout the country and are responsible for hearing both Trials (Final Hearings) and Appeals. Whilst a party may request that their matter be transferred to Division 1, the Court has the ultimate discretion.

The Magellan List is a specialist branch of Division 1 that handles matters involving recent and serious assaults of a child, specifically of a sexual or physical nature.  The Magellan list ensures that matters that involve the most vulnerable children are dealt with as quickly and efficiently as possible.

In Division 1, parties appear before a specialist Judge, referred to as a Justice.

Step One (1): Genuine Steps and Notice of Intention to Commence Proceedings

Prior to commencing Court proceedings, an Applicant must first attempt to take “Genuine Steps” to resolve their dispute. The Court considers Genuine Steps to include:

• Private negotiations with the other party and/ or their legal representative;
• Failing any agreement, attending a mediation with an accredited professional;
• In parenting matters, if your mediation is unsuccessful, the mediator will then issue a 60i certificate. You must produce this certificate to the Court when you file your application. Your s60i certificate must be dated within 12 months of filing your application.
• In property matters, whilst you do not need to produce a s60i certificate to the Court, you should still attempt mediation. If you do not attempt mediation, the Court will expect a valid reason for the non-attempt. If you do not have a valid reason for not attempting mediation, the Court will likely re-refer you to mediation.
• There are some exceptions to attending mediation. You may apply to the Court to be excused from attending mediation in circumstances where your application is urgent or mediation may not be appropriate due to family violence or risk of harm concerns.

Following an unsuccessful mediation attempt, and prior to commencing Court proceedings, the Applicant must serve a “Notice of Intention to Commence Proceedings” on the other party. This document must include the following:

1. The outstanding issues in dispute;
2. The Orders you will seek if you commence proceedings;
3. A genuine offer to resolve the dispute;
4. A nominated time, at least 14 days after the date of your notice, in which the other party must respond. Failing any response or agreement, you may commence proceedings in the Federal Circuit and Family Court of Australia.

Step Two (2): First Court Event/ First Return

Once you have filed your Application with the Court, you must arrange for all sealed Court documents to be personally served on the Respondent.

In non-urgent matters, you will often be allocated a first return date approximately six (6) weeks after filing. In urgent matters, you may receive a first return date within seven (7) days of filing. The first court event is often heard by a JR who will make procedural Orders.

These Orders may include;