This brochure provides information about the option for a short-form expedited hearing in the Federal Circuit and Family Court of Australia for Priority Property Pool Cases (PPP Cases).
Did you know financial cases can proceed less formally than a ‘traditional’ trial?
With the consent of all parties, a PPP Case may proceed without the usual court formalities. This type of hearing is known as a 'short-form expedited hearing'.
What is a short-form expedited hearing?
A short-form expedited hearing is:
- flexible so that it can meet the needs of your particular situation
- anticipated to be less costly compared to traditional trials and will save you time in court
- inclusive, insofar as your involvement in the process
- less formal than is usually the case in court.
The Judge, rather than the parties or their lawyers, decides what information is put before the court and how the hearing is run.
What happens in a short-form expedited hearing?
The process is at the discretion of (that is, decided by) the judge, however some key principles for conducting a short-form expedited hearing include:
- the Court actively directs, controls and manages the conduct of the proceedings
- proceedings are conducted in a way that safeguards a party from being subjected to, or exposed to, abuse, neglect, or family violence, and
- the case is conducted without undue delay and with as little formality and legal technicality as possible.
In a short-form expedited hearing, the Court may also:
- decide which of the issues require full investigation and which may be disposed of quickly
- decide the order in which issues are to be addressed
- make orders or directions about the timing of steps that are to be taken in a case (and consider the costs and benefits of that step)
- make appropriate use of technology
- deal with as many aspects of the matter as it can on a single occasion, and
- deal with the matter, where appropriate, without requiring physical attendance at Court.
The Court also decides whether the rules of evidence should apply and may also make orders and directions about:
- written submissions
- oral arguments
- limiting the time for the giving of evidence
- what evidence is to be given orally or by affidavit
- what evidence in relation to a particular matter (or of a particular kind) cannot be presented by a party
- limiting, or not allowing, cross-examination of a particular witness, and
- limiting the number of witnesses.
What happens in a 'traditional' trial?
At the commencement of a ‘traditional’ trial each of the party’s lawyers will argue any ‘objections’ to evidence filed in the case, and the Judge will rule on each of those objections based on the law concerning evidence.
If material is ‘inadmissible’ it will be ‘struck out’.
Once this process is complete, cross-examination occurs as follows:
- The Applicant is sworn in, then cross-examined by the lawyer for the Respondent (or the Respondent in person if not legally represented). This cross-examination may be for many hours. Following that, the lawyer for the Applicant (if there is one) is permitted to re-examine the Applicant in relation to any issues arising during cross-examination.
- The same process then applies for each of the Applicant’s witnesses.
- Then, the Respondent is sworn in and cross-examined by the lawyer for the Applicant (or the Applicant in person if not legally represented). Following that, the lawyer for the Respondent (if there is one) is permitted to re-examine the Respondent in relation to any issues arising during cross-examination. The same process then applies for each of the Respondent’s witnesses.
- Any expert witnesses will then be sworn in and cross-examined by the Applicant or the Respondent (or their lawyer if they have one), and further questions may be permitted arising out of anything said during cross-examination.
- Each party (or their lawyer) will then make submissions (legal argument) about the findings they say should be made, and the applicable law. It is likely the judge will then reserve (that is, put off to another day) their decision after considering all the material and evidence given in cross-examination.
Only when the judgment is delivered will the Court make the appropriate findings of fact and determine the weight to be applied to particular evidence, and decide the individual issues raised during the trial.
Short-form expedited hearings and ‘traditional’ trials: the similarities
In each process, your application (or response) material will be read by the Judge, as well as other material you have filed which you ask the Judge to read, and any expert reports or memoranda filed in the case.
Both you and your former partner/spouse remain subject to a duty to the Court to make full and frank disclosure of all your financial circumstances, which continues up to and including the date of hearing.
You and your former partner/spouse must also produce all of the financial documents required by the rules of Court or ordered during the course of your case.
The Judge must apply the relevant legal principles in determining the result.
In each process, you may reach an agreement with the other party. If you do not reach an agreement, the Judge will make a decision.
Short-form expedited hearings and ‘traditional’ trials: the differences
The following table sets out some of the differences:
|Short-form expedited hearing||Traditional trial|
|Material and evidence is focused on and limited to the issues in dispute.||Each party files affidavit material covering all of the issues, even those which are not disputed.|
|The Judge decides which of the rules of evidence apply.||The rules of evidence apply.|
|The Judge decides whether or not you or your former partner/spouse/lawyer should ask any questions of the other party and, if so, for how long.||Each party (or their lawyer) cross-examines the other (and any support witnesses) and the Judge rarely intervenes.|
|The length of hearing is limited.||The trial may take many days.|
|Participation is voluntary.||Consent is not required for a 'traditional' trial. This is the process that will apply if you do not reach agreement with the other party and/or both parties do not consent to a short-form expedited hearing.|
Why choose a short-form expedited hearing?
- Your case is relatively simple.
- You want less formal rules to apply.
- You want an earlier determination of your proceeding.
- You do not want to prepare long affidavits.
- The issues in dispute are clear and most of the facts are not in contest.
- Your financial circumstances are easy to understand.
- You want your hearing to be shorter, quicker and more simple.
Why stay with a ‘traditional’ trial?
- You want the rules of evidence to apply, in order to exclude certain statements made in your former partner/spouse’s case.
- You or your lawyer want to question (cross-examine) the other party extensively and/or any witness/es they rely on.
- You question some or all of the expert evidence presented in your case.
- You wish to rely on a number of witnesses. They will need to come to Court.
How do I consent to a short-form expedited hearing?
The Court might require you to sign a document to confirm your consent, or might ask you in open Court to confirm your consent. Remember your consent must be given without coercion or influence.
Can I withdraw my consent?
With the permission (sometimes called ‘leave’) of the Court, you can withdraw your consent to a short-form expedited hearing. However, the Court has the power to make a costs order and may take into account your withdrawal of consent in determining whether you should pay some or all of the other party’s legal costs.
Can I appeal if I am not happy with the result of the short-form expedited hearing?
Yes. You have normal rights of appeal, the same as if you had a traditional trial. But you will not be able to complain about matters with which you have agreed or consented to.
Further information about PPP Cases can be found on the Court's website: www.fcfcoa.gov.au/ppp
This fact sheet provides general information only and is not provided as legal advice. The Federal Circuit and Family Court of Australia cannot provide legal advice.