1. Introduction and purpose
1.1 This Guide summarises the arrangements for family law cases (for applications for family law financial cases only) (the Discrete Property List) listed before a Registrar. These cases are listed before Registrars who sit in in the Federal Circuit Court of Australia.
1.2 This list is a special type of listing for cases where applications to the Court are for financial orders only. It does not include:
- cases where parenting orders are sought
- cases where parenting and property orders are sought together
- child support cases
- child maintenance cases, or
- contravention applications.
1.3 Instead of being listed before a Judge, the case is listed before a Registrar.
1.4 The arrangements set out in this Guide are designed to streamline and promote a consistent and efficient case management practice in the Registrars’ court lists and to facilitate the just resolution of disputes with a minimum of delay and expense.
1.5 Nothing in this Guide affects the Court’s discretion to conduct the list in a manner it considers appropriate.
1.6 The Discrete Property List has been created to:
- more closely monitor compliance with orders for production of documents and valuations
- reduce delays in getting financial cases through the dispute resolution process
- expand opportunities for parties to discuss and take ownership of their own dispute resolution planning at any early stage, and
- improve dispute resolution outcomes through close involvement in preparation and case management of the case before a dispute resolution process takes place.
1.7 Amendments will appear on the Guide as appropriate. Lawyers and parties should check the website for the current version of the Guide.
2. Discrete property cases before a Registrar
2.1 While the case is listed before a Registrar, it may still be referred to a Judge, ordinarily limited to where (a) there is an urgent interim issue that cannot be resolved by consent, or (b) a party (or parties) have failed to comply with rules or orders, or (c) dispute resolution processes have been undertaken unsuccessfully.
2.2 Orders for dispute resolution will not be made automatically on the first Court date.
2.3 Parties will first have to satisfy the Registrar that exchange of documents and expert valuations are completed.
2.4 Orders for dispute resolution will usually be made:
- in chambers, using the process set out in this guide (after the first Court date), or
- on a subsequent Court date.
2.5 Private mediation is the preferred form of dispute resolution. Orders will be made for a conciliation conference if, in the Registrar’s discretion, some other form of dispute resolution process is not appropriate, taking into account the property and financial resources of the parties.
3. The first Court date
3.1 Legal representatives and all parties must be present on the first Court date, unless leave is given to attend by telephone. Note that leave will rarely be given but will depend on the individual circumstances of the case.
3.2 Adjournments are discouraged. As a general proposition, rule 10.02 of the Federal Circuit Court Rules 2001 applies. It provides that, if the parties agree that because of short service or other special circumstances, it is not appropriate to proceed on the date fixed, the parties may ask a Registrar, in writing, to adjourn the first Court date to another date. The Registrar may adjourn the first Court date to the date requested by the parties or to another date that is practicable.
3.3 Requests for administrative adjournments will generally not be granted. Adjournments to serve documents are also unlikely to be granted. A failure to serve documents may be grounds to refer the case to a Judge, unless there is an application for substituted service.
3.4 Without limiting the scope of the orders that could be made, expect that orders will be made for the following:
- Filing and service of amended application(s) or response(s) within seven days if the applications for final orders lack particularity.
- Exchange of documents pursuant to rule 24.04.
- Production of specific documents sought (you need to be ready to apply for, and argue for, production of specific classes of documents).
- Appointment of a specific expert or experts to prepare valuations, or, if those valuations are underway, deeming such experts to be appointed pursuant to rule 15.09 of the Federal Circuit Court Rules.
- Filing of expert reports under cover of an affidavit.
- For the parties to make leave to make a joint application in chambers for allocation of a dispute resolution process, likely to be a private mediation, or, if appropriate, a conciliation conference (or such other process such as legal aid conferencing, or appointment of an arbitrator).
- Procedural fairness on the superannuation trustee.
- Liberty to re-list the case before a Registrar if there is any impediment
- A short adjournment period of around four to six weeks.
- If a response has not been filed, orders for filing of a response within (say) seven days and an adjournment for 14 days, with consideration given to costs.
3.5 Some types of orders are unlikely to be made unless there are facts peculiar to the case. They include the following:
- Declarations that it is appropriate, in the interests of the administration of justice, to allow the interrogatories or discovery.
- Exchange of schedules of assets and liabilities.
- Exchange of panels of mediators or experts.
- Generalised requests for production of documents or classes of documents (it is expected that such documents would be nominated on the first Court date).
- Conciliation conference or mediation, unless the parties can certify that the case is ready to proceed to dispute resolution.
3.6 Parties (and if represented, their lawyers) will be given an opportunity on the day to discuss and agree on appropriate experts and production of specific classes of documents and the form of order.
3.7 It is likely that the case will be mentioned, then stood down for negotiations, including interim consent orders.
3.8 Parties can agree on the value of certain items of property. If the value is agreed, a notation is likely made to the order containing the schedule.
3.9 Orders for lawyers (or parties) to choose a ‘panel’ of experts or valuers are highly discouraged. While such orders might be made, submissions would need to address why lawyers could not agree on an expert on the day.
3.10 Orders for procedural fairness on a superannuation trustee are likely to be made. Unlike the Family Law Rules, the Federal Circuit Court Rules 2001 provide that procedural fairness is effected if the fund is served with a copy of the application or response. Specific orders might be made to ensure a second round of procedural fairness is not required.
4. Referral to a Judge
4.1 The following cases are likely to be beyond the Registrar’s power and/or unsuitable for this list and referred to a Judge (if they cannot be resolved by consent and genuinely require urgent determination by a Judge on the day):
- Any parenting issues.
- Urgent/interim spousal maintenance.
- Interim part-property settlements.
- Interim injunctions.
- Interim lump-sum litigation funding or ‘dollar-for-dollar’ litigation funding orders
- declarations for discovery in the interests of justice.
- Subpoena objections.
- Undefended cases.
Whether the docket Judge will hear those applications on the same day will depend on the Judge’s availability and the urgency of competing cases
5. Chambers orders for dispute resolution
5.1 The expectation is that completion of valuations and exchange of documents will occur within four weeks. The parties (or their legal representatives) are at liberty to write a joint letter to the Registrar seeking consent orders in chambers.
5.2 The orders sought by consent will be:
- for the parties to attend mediation
- for the parties to attend another type of dispute resolution process (such as a Legal Aid conference, family dispute resolution at a Family Relationship Centre or arbitration). If there is an order for arbitration, a signed minute of proposed consent order must be provided to the Registrar, or
- for a conciliation conference (even if there is consent) if the Court is satisfied on the evidence that it is appropriate to utilise Court resources, and that the parties are unable to appropriately utilise another dispute resolution process.
5.3 In the joint letter to the Registrar, the parties must certify:
- all relevant documents have been exchanged between the parties
- Rules 24.03 and 24.04 of the Federal Circuit Court Rules 2001 have been complied with
- the superannuation trustee of any fund that may be the subject of a splitting order has been accorded procedural fairness
- an affidavit of procedural fairness (and containing evidence of value of the fund being split) has been filed
- affidavit(s) of all expert witnesses have been filed
- the case is ready to proceed to mediation/dispute resolution, and
- the mediator has been selected and the date of mediation has been fixed (and the details should be set out in the letter) (where mediation is appropriate).
5.4 Orders for the exchange of ‘panels’ of mediators/dispute resolution practitioners are highly discouraged, whether in chambers or in Court. Lawyers (and parties) are expected to nominate the mediator/dispute resolution practitioner.
5.5 In chambers, the Registrar will:
- make the order by consent referring the case to a dispute resolution process
- vacate the next Court date, or
- adjourn the case to a date before a Registrar to after the scheduled mediation or other dispute resolution process.
5.6 Note that unless otherwise agreed, the costs of mediation are shared equally. The costs of mediation should ordinarily be included in the consent order.
5.7 For requests for conciliation conferences, the letter must also:
- provide a schedule of assets and liabilities
- explain the funding arrangements for parties (legally aided, privately funded etc.), and
- set out precisely why it is not possible for the parties to use their own resources to pay for a mediator, and, if one party cannot pay, why the other cannot pay in the first instance with the costs to be characterised by the trial judge, or an adjustment made for the mediator’s costs in the final settlement.
5.8 If the Registrar is still not satisfied that the case is appropriate for a conciliation conference, the case will remain as listed and the parties can argue the issue on the subsequent Court date.
6. Final consent orders in chambers
6.1 The parties are at liberty to seek a final consent order at any time.
6.2 For a 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, conditional upon the email containing the following items:
- one scanned copy of the minute of proposed final orders signed and date 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, a copy of evidence of value of the fund being split (such as a recent statement or screenshot taken from an online account), and a copy of the letter from the trustee of that fund confirming there is no objection (assuming an affidavit hasn’t already been filed), and
- a letter, jointly signed by the legal representatives for the parties (or each party, if self-represented), containing the necessary information to enable the Registrar to determine that the proposed order is just and equitable.
6.3 Unless these requirements are met, the order may not be made or further information may be called for.
6.4 Final consent orders will not be made in chambers, or at any Court date, unless the Respondent has filed a financial statement. This is so the Court can be satisfied that the Respondent is on oath (or affirmation) about their financial circumstances. If agreement is reached on a Court date, the case can be stood down to enable the Respondent to complete a file a financial statement.
7. The subsequent Court date
7.1 Each party must be present on the subsequent Court date, unless leave has been given to attend by electronic communication.
7.2 If all of the previous orders made have been complied with, all of the expert evidence filed (and procedural fairness completed), and the dispute resolution process undertaken, and there is still no agreement, the case will be referred to the docket Judge for judicial case management.
7.3 Otherwise, the subsequent Court date presents one opportunity to put the case ‘back on track’.
7.4 It might be the case (for example) that disclosure and valuations have been completed just before the Court date, and the case was not previously ready for dispute resolution. If so, dispute resolution orders can then be made by consent, but the likely adjourned date is to be before the docket Judge, rather than a third date before a Registrar.
7.5 Alternatively, there may be outstanding issues concerning production of documents, and specific orders might be made.
7.6 On a rare occasion, if for some reason valuations are not complete, or other emergent circumstances arise, then a short adjournment might be granted.
7.7 If the Registrar’s orders and directions from the first Court date have not been complied with, or the case is not being effectively managed, the case will be referred to the docket Judge for judicial case management.
7.8 Unless special circumstances apply, cases will remain in the Registrar’s Discrete Property List for a targeted period of 90 days (from the first Court date). After that time, the Registrar will likely refer the case to the docket Judge for judicial case management.
8. Further practice information
8.1 This Guide applies to all Discrete Property List cases before a Registrar.
8.2 Other practice information on cases commenced in the Federal Circuit Court is available on the Court's website.
9. Communications in a Discrete Property List case
9.1 When communicating with the registry about a Registrar case, Lawyers are to put their requests in writing by eLodging the request as correspondence and sending an email to the registry, copying in each other party to the proceeding, confirming that the request has been eLodged.
9.2 When sending an email in a Registrar case, it is expected that a party will:
- address the email to the specified email address and not to the Registrar directly
- clearly state the Court's action number, parties' names and any Court dates in the subject heading
- provide a clear description of any attached documents in the body of the email, and
- copy the message to all other parties (if applicable).
10. Enquiries and contact information
10.1 Contact details for the Court's registries are available on the Court's website.
11. Commonwealth Courts Portal
11.1 Filed documents in a case 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 listing events (past or future).