Steps in the Family Court

The upside of issuing proceedings is that the court imposes timetabling directions that must be complied with and will ensure a resolution. The downside is the cost, delay and stress involved with any litigation process.

Proceedings begin with one party filing an application with an affidavit of the history of the relationship and an affidavit of assets and liabilities.  That party then serves those documents on the other spouse.

The other spouse has 20 working days to file a response and affidavits in reply. All evidence is by way of affidavit filed in advance, with rights of reply.  Parties cannot ambush each other with new information in court.  

The court allocates a registrar’s review to monitor the filing of all affidavits.

The registrar ensures that both parties file necessary documents and the matter is then referred to a judge for a judicial conference.

Memoranda must be filed for that conference setting out the issues in dispute.  Sometimes lawyers agree on future directions, in which case directions are made by consent, otherwise the parties appear with their lawyers before a judge.

The judge considers all preliminary matters and makes directions such as:

• Discovery (or provision) of documents;
• Expert evidence regarding, for example, valuations;
• Interim orders for the sale of the home etc.

The judge will ensure there is disclosure of all assets and liabilities.  A further conference may be necessary to check progress, to clarify the issues in dispute and make directions for any further evidence. Sometimes there can be several conferences, particularly where one side fails to disclose relevant information.

If the parties cannot agree about an important procedural matter, a judge can be asked to make a ruling.

Either party can request a settlement conference to try and resolve matters.

If settlment cannot be achieved, a hearing occurs with the parties and witnesses giving evidence. All witnesses can be cross examined by opposing counsel. After the hearing, the judge issues a written decision. The successful party is usually awarded costs but these will not cover all legal fees.

The losing party has a right of appeal to the High Court. You need special circumstances to apply to the Court of Appeal for a further appeal.