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23 January 2018

What's new in family law?

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The Federal Circuit Court of Australia has issued a new practice direction setting out arrangements for the management of interim proceedings in family law matters.

The Practice Direction commences on 1 January 2018, and can be found on the Court website here, No. 2 of 2017 Interim Family Law Proceedings (from 1 January 2018).

The Practice Direction applies for all applications seeking interim orders, including those contained in an Initiating Application (seeking both final and interim Orders) and in an Application in a Case seeking interim orders.  Applications for any interim orders must be supported by an Affidavit, and in financial matters, parties must also file a Financial Statement or an Affidavit deposing to their financial circumstances.

Unless express leave is granted by the Judge to whom the matter has been allocated, affidavit material in support of an application seeking interim orders must:-

1. Not exceed 10 pages in length for each Affidavit (noting that the relevant facts to be relied upon at the interim hearing must be set out in the Affidavit); and

2. Not contain more than 5 annexures.

The Judge will determine whether to conduct an interim hearing on the first return date or whether to deal with the Application as filed.

The interim hearing will be conducted as an abridged process.  Only those issues specifically identified by the Judge as the subject matter of the interim hearing will be heard.

If the Respondent seeks additional orders to which the Applicant does not agree; or the Applicant wishes to answer a Response, the Applicant may file a second Affidavit in answer.  That second Affidavit must comply with the directions regarding Affidavits as set out above.

If parties do not comply with the Practice Direction, the Judge may decline to hear the proceeding, make a Costs Order or the hearing may not be given priority.  If a party wishes to rely on an Affidavit that does not comply with the Practice Direction, it will be at the discretion of the Judge as to whether or that Affidavit will be read or the Judge may direct that the responsible party select 10 pages out of their non-complying material to rely on.

Lastly, documents filed less than 48 hours prior to a hearing cannot be relied upon at the hearing without the leave of the Court.  A party must seek leave to rely upon this late Affidavit at the commencement of the hearing.

In summary, the new Practice Direction significantly limits the information that can be presented to the Court in support of your Application seeking interim Orders.  It is crucial that you obtain legal advice as to how to prepare your Application so as to ensure that your case is adequately presented to the Court for determination.

If we can assist you with your Application please contact us for an appointment with one of our solicitors.

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