Core Principles of Family Law Proceedings

In Australia, the Federal Circuit and Family Court (FCFCOA) hears proceedings relating to marriage, divorce, child custody, property division, and spousal support. Family law proceedings are structured to ensure just and efficient dispute resolution while safeguarding vulnerable parties. These proceedings are guided by ten core principles set out in the Central Practice Direction – Family Law Case Management. This article explores the core principles that provide a framework within which the court adjudicates family law cases.

Prioritising safety in family law cases

This court prioritises the safety of all litigants, and especially the safety of children and vulnerable parties. It is the first principle of family law principles to identify any risk both at the outset and during the proceeding and respond in an appropriate and timely manner to mitigate this risk. Risks to parties before the court may include domestic violence, child abuse, financial coercion, or emotional manipulation. The court may impose protective measures such as intervention orders, supervised visitation, or even relocation orders to safeguard vulnerable parties.

The swift and just resolution of disputes

The second principle is that all parties, including legal representatives, must act in a way that is consistent with the court’s overall purpose to justly resolve family disputes as swiftly, efficiently and inexpensively as possible. This principle aligns with case management strategies that streamline the litigation process by ensuring compliance with deadlines, discouraging unnecessary adjournments, and promoting alternative dispute resolution (ADR) methods.

Efficient use of court resources

The court’s resources, such as the judicial and court staff, must be used as effectively and efficiently as possible. To avoid backlog and inefficiency, the court carefully allocates resources amongst cases, and there is an expectation that the parties will make reasonable efforts to promote the efficient resolution of the dispute. Legal representatives and litigants must respect court resources by adhering to procedural rules and avoiding frivolous applications that waste time.

Consistency in case management and risk assessment

It is a priority for the court to provide consistent case management (so that similar matters are managed in much the same way) and risk assessment (to triage matters in terms of level of urgency and risk). 

Encouraging alternative dispute resolution

It is one of the principles promoted by all Australian courts that litigation should be a last resort. To help promote early resolution of matters, most parties are required to first attempt to resolve family disputes through pre-action procedures, including Family Dispute Resolution (FDR) mediation. The only exceptions to this mandatory requirement are in cases where there is a history of family violence, or the matter requires an urgent judicial decision, such as in cases where there are concerns about the safety of children. Even after litigation begins, the parties to a family dispute are expected to continue exploring settlement options through conciliation conferences or private mediation. In fact, the courts may even impose cost consequences on parties who unreasonably refuse to engage in ADR.

Compliance with court orders and rules

The court’s sixth core principle is the expectation that all parties will comply with court orders, the Family Law Rules and Practice Directions. If the court believes that someone has acted without legal basis or in bad faith, it may respond by allowing the compliant party to proceed on an undefended basis or by making costs orders against the non-compliant party.

Reasonable and proportionate legal costs

The seventh core principle of family law proceedings is the expectation that all parties will only incur costs that are reasonable, proportionate and fair. Legal representatives are expected to clearly and regularly inform their clients about the costs of proceedings, prepare cost notices for each court event, and adhere to cost estimates they provide to clients.

Identify and narrow disputes

The parties to family law matters are expected to clearly identify and then narrow the issues at dispute. This means making full and frank disclosure to help the court determine the matters that must be resolved. In most cases, the parties must negotiate which matters are still in dispute before proceeding to court.

Preparedness for hearings

Parties and their legal representatives must be fully prepared for hearings and trials to prevent unnecessary delays. This includes ensuring that all evidence is properly filed, witnesses are available, and legal arguments are clearly formulated. The court may penalise parties who cause delays through lack of preparation.

Timely delivery of judgments

The final principle ensures that once a case is concluded, judgments are delivered as swiftly as possible. Delayed judgments can cause uncertainty and hardship, especially in financial settlements or parenting matters. Courts aim to provide decisions promptly to facilitate closure and allow parties to move forward with their lives.

These principles ensure that family law proceedings are conducted in a manner that prioritises fairness, efficiency, and the best interests of all involved. Legal professionals and litigants alike must understand and adhere to these principles to navigate the family law system effectively. The family law specialists at Go To Court can provide further insight into the core principles of family law proceedings. For any legal advice, please call 1300 636 846.