Download PDF 254KB Download DOCX 101KB Download RTF 1.06MB 1 Introduction and purpose 2 Dispute Resolution (DR) 3 Commencing proceedings 4 PPP500 cases before a Judicial Registrar 5 After proceedings are filed (before the first court date) 6 The first court date 7 Legal Aid 8 Interim applications 9 The second court date 10 Final consent orders in chambers 11 Enquiries and contact information 12 Commonwealth Courts Portal 1 Introduction and purpose 1.1. This guide sets out the arrangements for the case management of family law property cases financial cases known as ‘Priority Property Pools under $500,000’ (PPP500 case). It contains procedural information giving effect to the Family Law Practice Direction – Priority Property Pools under $500,000 (FAM-PPP500). 1.2. A PPP500 case is: An application for financial orders pursuant to section 79 or 90SM of the Family Law Act 1975 (Cth) (Family Law Act), where the following applies: the net property of the parties (including superannuation interests) is, or is likely to be, $500,000 or less, and there are no entities (such as a family trust, company, or self-managed superannuation fund) owned or in the effective control of either party that might require valuation or expert investigation, and neither party in the proceedings seeks orders: for parenting or any other order pursuant to Part VII of the Family Law Act pursuant to the Child Support (Assessment) Act 1989 and/or the Child Support (Registration and Collection) Act 1988, or by way of an enforcement of an order or obligation whether a parenting or financial obligation. 1.3 Case management of a PPP500 case has two components: registrar-led resolution (limb one): where a Judicial Registrar can assist separating couples to reach agreement, in the shortest possible time, and short-form Judge-managed PPP500 lists (limb two): applying procedurally simpler processes to the determination phase. 1.4 The PPP500 case program has the following features: Intensive monitoring of compliance with orders for production of documents and valuations. Reduced delays in getting financial cases through the alternative dispute resolution process. Expanded opportunities for parties to discuss and take ownership of their dispute resolution planning at any early stage. Opportunities for settlement at an early stage. Improved dispute resolution outcomes through close involvement in the preparation and case management of the case before DR takes place. Where possible, the number of court appearances are reduced. Referral to appropriate services is made proactively. 1.5 Nothing in this guide affects the Court’s discretion to conduct the list in a manner that it considers appropriate. 1.6 Amendments will be made to this guide as required and published on the Court’s website. 1.7 There are 6 steps in a PPP500 case: Registrar-led phase Step 1: Before the first court date – preliminary orders will be made by the Judicial Registrar in chambers. Step 2: First court date before the Judicial Registrar – the balance sheet will be settled and the case will be referred to a conciliation conference, private mediation or Legal Aid conference. Step 3: Dispute Resolution (with a judicial registrar, external mediator or Legal Aid conference). Step 4: Second court date (if the case did not settle, the balance sheet will be checked and the case will be referred to a judge). Judge-led phase (only if the case has not already settled) Step 5: Procedural hearing (Judge). Step 6: Final hearing (Judge). 2 Dispute Resolution (DR) 2.1 At any stage in the case, the thoughtful and creative use of DR techniques (including family dispute resolution in a Family Relationships Centre, Legal Aid conferencing, private mediation and arbitration) for both substantive and procedural issues should be recognised by the parties as very important in resolving or streamlining the running of PPP500 cases. 2.2 DR options should be considered by the parties not only as a viable and effective means of resolving the entire dispute between them, but also as a way to limit or narrow interim issues. 2.3 DR processes will generally involve a Court-ordered conciliation conference. Parties may also attend a Legal Aid conference, private mediation or arbitration. 2.4 Orders for a DR event (such as a conciliation conference) will be made at the Judicial Registrar’s discretion, taking into account the property and financial resources of the parties. 2.5 When attending a DR event, parties and their legal representatives must act in good faith and participate meaningfully in negotiations with a view to narrowing the issues in dispute and reaching a mutually acceptable resolution between them by way of compromise. 3 Commencing proceedings 3.1 To give effect to the primary purpose of a quicker, cheaper, less formal process, parties are relieved of the requirement to file an affidavit, Financial Questionnaire and Financial Statement with an Initiating Application (Family Law) or Response to Initiating Application, unless directed by the Court to do so. 3.2 Proceedings are commenced by filing: an Initiating Application (Family Law), PPP500 Financial Summary, and a Genuine Steps Certificate, confirming the applicant’s compliance with the pre-action procedures listed in Schedule 1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Family Law Rules). 3.3 Unless the Court directs otherwise: a sealed copy of the Initiating Application and PPP500 Financial Summary must be served within seven days after filing the application, and the Response to Initiating Application and PPP500 Financial Summary must be filed and served upon the applicant within 28 days of the date of service upon the respondent. 4 PPP500 cases before a Judicial Registrar 4.1 It is expected that all parties and legal practitioners will comply strictly with the timeframes contained in the guide, noting that costs consequences may follow from any failure to comply. 4.2 Registrar-led case management processes are expected to last no more than 90 days. If the case management requirements of the case exceed that time, the case may be referred to a judge for case management. 5 After proceedings are filed (before the first court date) 5.1 After an Initiating Application is filed, but before the first Court date, the Court or a judicial registrar may make an order in chambers concerning the case management of the case. The following case management directions may be made without further notice to the parties: The filing and service of a PPP500 Financial Summary (if not already filed). Exchange of financial documents between parties and direction(s) for each party to produce copies of such documents to the Court on the first Court date. A direction to parties to liaise (if safe to do so) as to the DR process. A direction to parties to liaise (where it is safe to do so) as to an appropriate expert witness for valuation of any items of property in dispute, and where possible and safe to do so, jointly instruct an expert witness to conduct a valuation. The filing of an affidavit (or affidavits) in respect of any interim applications. 5.2 Even before a chambers order is made by a judicial registrar, each party must, as far as practicable, exchange with each other party (where it is safe to do so) a copy of all documents listed in rule 6.06(8) of the Family Law Rules prior to the first Court date. 6 The first court date 6.1 By the time of the first court date, the parties should have complied with the directions made by the Judicial Registrar in chambers. This will include exchange of documents, valuation processes and any other requirement of the Family Law Rules. 6.2 Legal representatives and all parties must be present on the first court date. The first court date may be conducted electronically. Parties and their lawyers will be notified of the method of the hearing beforehand. 6.3 At each court event, a legal practitioner should be in a position to inform the Judicial Registrar of the following, with respect to their own client: the costs incurred to date estimated costs to a conclusion of a final hearing, and the source of funding for representation. 6.4 Adjournments, including administrative adjournments, are discouraged and will rarely be granted. It is expected that if service has not occurred before the first court date, an application for substituted service will have been made with supporting evidence beforehand. The Judicial Registrar will, if possible, determine this issue on the first court date. 6.5 The case will be mentioned as early as possible and the parties (and their representatives) will be expected to discuss the extent of compliance (and any reasons for non-compliance) with the chambers order made before the first court date. 6.6 If the chambers order is not complied with in full, the case may be stood down so that the parties can: complete and file documents by leave (if necessary) negotiate any urgent applications and formalise interim consent orders, and agree on the value of certain items of property. If the value is agreed, a notation is made to the order containing the schedule. If the value is not agreed, parties can consent to a single expert (but not a panel of experts) or the Court may nominate an expert. 6.7 Orders for procedural fairness on a superannuation trustee are likely to be made requiring service of the fund with: a copy of the application or response (see rule 1.12(5) of the Family Law Rules), and a high base amount or percentage for the proposed superannuation split, noting that, provided the agreed base amount is less than that provided to the superannuation trustee, then the Court will make the orders without further procedural fairness being provided to the superannuation trustee. 6.8 If the case does not settle on the first court date, the parties should be able to make submissions about participating in a DR event suitable to the case, which may be a conciliation conference, Legal Aid conference or private mediation. 6.9 The Judicial Registrar will adjourn the case to a date for a second registrar-led court event. This event will likely occur immediately following or on the same day of the DR event, depending on the judicial registrar’s availability. 7 Legal Aid 7.1 State Legal Aid Commissions have specific funding programs for property dispute resolution for PPP500 cases. Eligibility requirements may differ from state to state. Parties are strongly encouraged to consider this option and apply for assistance through the Legal Aid Commission in the state where their proceedings are conducted. 8 Interim applications 8.1 Parties are expected to make a genuine effort to resolve all urgent or interim applications, including consideration of such orders as may be necessary to resolve issues until the completion of the DR process. 8.2 The Judicial Registrar will assist the parties to resolve interim issues if possible. The application will be referred to a senior judicial registrar or judge if necessary. Whether the senior judicial registrar or judge will hear interim applications on the same day will depend on the availability of the judicial officer and the urgency of competing cases. 9 The second court date 9.1 By the time of the second court date, it is expected that disclosure, valuations, DR processes, an agreed balance sheet, and formal offers of settlement will be complete. The precise legal and factual issues that justify the matter being listed for judicial case management should have been identified. 9.2 Where the parties attended a DR event which did not settle, the Judicial Registrar will hold the second court event as soon as practicable after the DR event. The second court date will involve the Judicial Registrar finalising the balance sheet and referring the proceeding to a senior judicial registrar or judge for case management. 9.3 This court event may take some time. The Judicial Registrar will discuss with the parties and their representatives the merits of their respective cases, reality-testing their positions and the available evidence. The case may also be stood down to facilitate negotiations between the parties with the aim of resolving as many issues as possible. 9.4 A proceeding will be referred to a senior judicial registrar or judge for judicial case management, if: there has been substantial non-compliance with orders an Application in a Proceeding has been filed which raises new interim issues an application has been filed seeking parenting or child support orders, or there are issues of jurisdiction in dispute, such as the existence of a de-facto relationship. 9.5 If the Judicial Registrar determines that a case is close to settlement, arrangements will be made for a further court date in person or via electronic means before referring to the Judge. 9.6 Where possible, the Judicial Registrar may make notations to the order, identifying the agreed facts and balance sheet. 9.7 The Judicial Registrar will then make an order for transfer to the Senior Judicial Registrar or Judge for case management. 9.8 The parties will also be provided with information about the availability of a simplified trial process with the order. The simplified trial process includes a hearing on the papers. 10 Final consent orders in chambers 10.1 The parties are at liberty to seek a final consent order at any time. 10.2 For the Judicial Registrar to make final consent orders in chambers (whether before or after the first court date), correspondence seeking orders can be sent by email to the Court, provided that the email contains the following: one scanned copy of the minute of proposed final orders, signed and dated by both parties on each page a clean, unprotected, Word version of the orders being sought, in exactly the same terms as the signed document if a superannuation split is sought, evidence of value of the fund being split, and a letter jointly signed by the legal representatives for the parties (or each party, if self-represented), containing sufficient information to ensure the Judicial Registrar is able to determine that the result is just and equitable. 10.3 Unless these requirements are met, the application will be refused. 10.4 However, consent orders will not be made in chambers, or at any court date, unless the respondent has filed a PPP500 Financial Summary or Financial Statement to ensure that the Court can be satisfied that the respondent has properly disclosed their financial circumstances on oath (or by affirmation). If agreement is reached on a court date, the case may be stood down to enable the respondent to complete a PPP500 Financial Summary or Financial Statement if they have not already done so. 11 Enquiries and contact information 11.1 Contact details for the Court registries are available on the website. 12 Commonwealth Courts Portal 12.1 Filed documents can be viewed by parties or those authorised by a party on the Commonwealth Courts Portal (CCP). The CCP provides web-based services for Court users to access information about cases before the Court. Parties may register for the CCP to gain access to documents which have been eLodged, as well as orders of the Court, judgments and information about past or future listing events. Glossary Balance Sheet – the document approved by the Court setting out the property, liabilities and superannuation of the parties. Interim or interlocutory orders – orders which are made before a final hearing. Common examples are orders for: The appointment of a single expert payment of outgoings such as rates or mortgage pending sale the sale of property, or the release of monies from a bank account or trust account. PPP500 Financial Summary – the document filed with an Initiating Application in a PPP500 case. It replaces the requirement to file an affidavit, Financial Questionnaire and Financial Statement unless interim orders are sought which cannot be supported adequately by filing the PPP500 Financial Summary. In that case, a short affidavit is permissible. Hearing on the papers – a final hearing with affidavit evidence of each of the parties, but without any questions (such as cross-examination) of either of the parties or any witnesses. Mention – a procedural hearing before a judicial registrar or judge, perhaps only for the purposes of receiving an update on the progress of the proceeding, or making orders or directions for how the proceeding will be conducted. Stood down – a case remains in a list of a judicial registrar or judge on any given day, but is allocated to be heard later in the list or at the end of the list. The case is not adjourned. It is placed ‘on hold’ until it can be heard by the Judge or Judicial Registrar. Procedural fairness – the process set out by section 90XZD of the Family Law Act 1975 (Cth). When a person is seeking a superannuation splitting order, the trustee of the superannuation fund must be notified, in writing, prior to the order being made. This gives the superannuation fund an opportunity to object (or be heard by the Court) on the proposed order.