Table of contents

1. Introduction and purpose
2. Alternative Dispute Resolution (ADR)
3. Commencing proceedings
4. PPP500 cases before a 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
Glossary

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 Federal Circuit Court of Australia Practice Direction No. 2 of 2020.

1.2. A PPP500 case is:

  1. An application for alteration of property interests pursuant to section 79 of the Family Law Act 1975 (Cth) (Family Law Act) or section 90SM Family Law Act (as may apply) filed after 1 March 2020, where the following applies:
    1. the net property of the parties (including superannuation interests) is, or is likely to be, $500,000 or less, and
    2. 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
    3. neither party in the proceedings seeks orders:

1.3. Case management of a PPP500 case has two components:

  1. registrar-led resolution (limb one): where a Registrar can assist separating couples to reach agreement, in the shortest possible time, and
  2. 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:

  1. Intensive monitoring of compliance with orders for production of documents and valuations.
  2. Reduced delays in getting financial cases through the alternative dispute resolution process.
  3. Expanded opportunities for parties to discuss and take ownership of their dispute resolution planning at any early stage.
  4. Opportunities for settlement at an early stage.
  5. Improved dispute resolution outcomes through close involvement in the preparation and case management of the case before ADR takes place.
  6. Where possible, unnecessary Court appearances are eliminated and the number of Court appearances reduced.
  7. 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. This Guide applies the process overview below.

Broad summary of the case management of PPP500 cases

1.8. 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 Registrar in chambers.
  • Step 2: First Court date before a 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: Alternative Dispute Resolution (with a 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 the Judge).

Judge-led phase (only if the case has not already settled)

  • Step 5: Procedural hearing (Judge).
  • Step 6: Final hearing (Judge).

2. Alternative Dispute Resolution (ADR)

2.1. At any stage in the case, the thoughtful and creative use of ADR 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. ADR options should be viewed by the parties not only as a means of possible resolution of the whole dispute, but also as a means of limiting or resolving interim issues.

2.3. ADR 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 an ADR event (such as a conciliation conference) will be made if, in the Registrar’s discretion and taking into account the property and financial resources of the parties, an ADR event is appropriate.

2.5. When attending an ADR 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, and pursuant to Rule 1.06 (2) Federal Circuit Court Rules 2001, parties are relieved ofthe requirement to file an Affidavit and Financial Statement with an Initiating Application or Response (Rule 4.05) unless directed by the Court to do so.

3.2. Proceedings are commenced by the filing of these documents:

  1. Initiating Application (Family Law) (Initiating Application) in accordance with rule 4.01 Federal Circuit Court Rules 2001 (Federal Circuit Court Rules), and
  2. PPP500 Financial Summary, to be filed at the same time as the Initiating Application (Family Law) or Response.

3.3. Unless the Court directs otherwise:

  1. A sealed copy of the Initiating Application and PPP500 Financial Summary must be served within seven days after filing the application.
  2. The Response 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 Registrar

4.1. It is expected that all parties and legal practitioners will comply strictly with the time frames contained in the Guide and 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 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:

  1. The filing and service of an PPP 500 Financial Summary (if not already filed).
  2. 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.
  3. A direction to parties to liaise (if safe to do so) as to the ADR process.
  4. 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.
  5. The filing of an affidavit (or affidavits) in respect of any interim applications.

5.2. Even if no Registrar’s chambers order is made, each party must, as far as practicable, exchange with each other party (where it is safe to do so) a copy of all of the following documents prior to the first Court date:

  1. the party's three most recent taxation returns and assessments
  2. documents about any superannuation interest of that party, including any document showing the value of that party’s superannuation interest for any fund of which that party is a member at that date, and
  3. bank statements for any account held by that party for the 12 months preceding that 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 Registrar in Chambers. This will include exchange of documents, valuation processes, any other requirement of the Federal Circuit Court Rules or Family Law Rules 2004 (Family Law Rules) (where applicable).

6.2. Legal representatives and all parties must be present on the first Court date. Leave to appear by telephone may be given in special circumstances of the case.

6.3. At each Court event, a legal practitioner should be in a position to inform a Registrar in respect his/her own client of:

  1. the costs incurred to date
  2. estimated costs to a conclusion of a final hearing, and
  3. 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 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:

  1. complete and file documents by leave (if necessary)
  2. negotiate any urgent applications and formalise interim consent orders, and
  3. 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:

  1. a copy of the application or response (Rule 24.07 of the Federal Circuit Court Rules), and
  2. 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 the use of ADR suitable to the case, which may be a conciliation conference, Legal Aid conference or private mediation.

6.9. The Registrar will adjourn the case to a date for a second Registrar Court event.  This event will likely occur immediately following or on the same day of a conciliation conference, or on a date shortly after the Legal Aid conference or private mediation.

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 ADR process.

8.2. The Registrar will assist the parties to resolve interim issues if possible. The application will be referred to a Judge if necessary. Whether the Judge will hear interim applications on the same day will depend on the Judge’s availability 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, ADR 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 conciliation conference which did not settle, the Registrar will hold the second Court event immediately (or on the same day of) the conciliation conference. The Registrar will finalise the balance sheet and refer the case to the Judge for case management.

9.3. Where the parties attended a Legal Aid conference or private mediation that did not settle, on the second Court date the Registrar will finalise the balance sheet and refer the case to the Judge for case management.

9.4. Once the case is mentioned, it may be stood down to enable negotiations to resolve as many issues as possible.

9.5. This Court event may take some time. A Registrar may discuss with the parties and their representatives the merits of their respective cases, reality-testing their positions and the available evidence.

9.6. A case will be referred to the Judge for judicial case management, if:

  1. there has been substantial non-compliance with orders
  2. an application in a case has been filed which raises new interim issues
  3. an application has been filed seeking parenting or child support orders, or
  4. issues of jurisdiction, such as the existence of a de-facto relationship are in dispute.

9.7. If the Registrar determines that a case is close to settlement, arrangements will be made for a further Court date in person or by telephone before referral to the Judge.

9.8. Where possible, the Registrar may make notations to the order, identifying the agreed facts and balance sheet.

9.9. The Registrar will then make an order for transfer to the Judge for case management. The Judge’s availability will determine whether the case is referred to a Judge on the day, or a subsequent date.

9.10. The parties will also be provided with information about the availability of a simplified trial processes with the order. The simplified trial process includes:

  1. less adversarial trial by consent, or
  2. 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 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:

  1. one scanned copy of the minute of proposed final orders, signed and dated by both parties on each page
  2. a clean, unprotected, Word version of the orders being sought, in exactly the same terms as the signed document
  3. if a superannuation split is sought, a copy of evidence of value of the fund being split, and
  4. a letter jointly signed by the legal representatives for the parties (or each party, if self-represented), containing sufficient information to ensure the 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. Consent orders will not be madein chambers, or at any Court date, unless the Respondent has filed a PPP Financial Summary or Financial Statement to ensure that the Court can be satisfied that the Respondent has disclosed their financial circumstances on oath (or by affirmation). If agreement is reached on a Court date, the case can be stood down to enable the Respondent to complete a PPP Financial Summary or Financial Statement if they have not already done so.

Informal process trial

10.5. At the conclusion of the Registrar-led resolution phase, parties are expected to be aware of the option to consent to a less adversarial trial or hearing on the papers. If the parties seek a traditional trial, they should identify the issues in dispute and evidence that will support their case.

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 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).

Glossary

Balance Sheet – the document approved by the Principal Registrar setting out the property, liabilities and superannuation of the parties.

Division 12A of Part VII Family Law Act and less adversarial trial – sections 69ZM to 69ZX inclusive of the Family Law Act 1975 (Cth) that provide a mechanism, in financial cases, for parties to consent to a hearing where the rules of evidence do not apply (unless a Court otherwise decides), and with as little formality, and legal technicality and form, as possible.

Interim orders – orders which are made before a final trial. 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 Priority Property Case. It replaces the requirement to file an Affidavit 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 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 Registrar or a Judge, perhaps only for the purposes of receiving an update on the progress of the case, or making orders or directions for how the case is conducted.

Stood down – a case remains in a list of a 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 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.