I’ll See You In Court
Making an application to the Family Court for property settlement?
Before even reading this article, let alone heading down the road to court, first read our article titled We can’t agree on our property settlement! and consider the options available for resolving property settlement issues.
The reason is not only somewhat obvious – no one really wants to go to court if an issue can be resolved without such steps, but before you can even file an application in the Family Court for property settlement, you must first make a genuine effort to resolve the matter by family dispute resolution.
The aim of the pre-action procedures is to explore areas of resolution, and where a dispute cannot be resolved to at least narrow the issues that require a Court decision. Ultimately, this will save you both time and money.
Once you have carried out all efforts to no avail, then it is time to commence proceedings with the Family Court. It can sound intimidating, but at McLaughlin & Associates we are specialists in Family Law, fully understand all aspects and will professionally guide and advise you on each stage.
The initial step to get proceedings underway is for your application for property settlement to be filed in the Family Court and then served on your ex-partner.
An affidavit in support of your application also has to be prepared, along with a statement of financial circumstances. These are also filed and served on your ex.
Where your former partner needs to be served with papers, the service must be performed by personal service. That means an individual must give the papers directly to the person (ex) in question. Papers cannot be left with anyone else or sent via mail or courier. The process is usually carried out by a process server who then needs to complete an Affidavit of Service as proof that the papers have been ‘served’ on the person.
This stage does involve certain expenses including filing fees associated with lodging your application with the court as well as process server’s fees in serving the application upon your ex.
Setting the Date
Mmmm not a ‘date’ but a date to appear before the court! When the application is filed with the Registry a return date will be assigned to your case. That is the date when your matter first comes before the Court and both yourself and your former partner are required to appear at court on the return date.
On that date, the Court will want to know what the matter is about, the issues in dispute, the steps have already been taken to try to resolve the matter and finally, what action is required to progress the matter.
Once the Court has this information, it will then make what is known as Directions. These are basically a list of steps that the parties must follow before the matter next comes back before the Court.
One of those directions will be that Discovery and Disclosure take place. That is where both parties must ‘discover’ to the other side and to the Court all assets and financial information they have in their possession and control relating to the property of the marriage. This is known as a List of Documents. The other side can then request copies of any documents that are on that list.
The parties are also ordered to undertake conciliation/mediation to try and resolve their differences before the next stage.
The matter will then return to the Court and on this occasion, will want an update on the matter. The Court will want to know if the matter was settled at the conciliation/mediation stage and if not why not and ensure that the other Directions have been adhered to by both parties.
Ultimately, the Court will set the matter down for trial. But first a pre-trial conference must be undertaken by the parties in a last ditch attempt to resolve the matter without the need for a trial.
The Good News
We’ve provided only a very brief, condensed version of the court process for the purposes of giving you an idea of what is involved. In reality, this can be a very long, drawn out, stressful and expensive exercise. As long as two to three years and costing a significant amount of money. Usually both are very good reasons why most parties do their utmost to come to an agreement on property settlement without going to court.
And that is the good news! Only 1 in 10 property settlement cases ever reach the final stage of a court hearing. The other 9 will settle at some stage along the path. Some very shortly after proceedings have been issued and others may take right to the last minute – on the steps of court on the day of the hearing.
As Brisbane’s experts in Matrimonial Law and Estates Law, we’re here to help you on your journey.