Day 7 on the litigation highway, and what better time to talk about timelines within the new FCFCoA and the Central Practice Direction. It’s important to appreciate from the outset, that it is a rare matter that will endure to require a final hearing.
With the increased emphasis on negotiation pre-filing, and then the need to engage in further Dispute Resolution along the case management highway, coupled with the emphasis on resolving issues by identifying them and obtaining evidence to resolve any issues in dispute, it is unlikely that the great majority of litigants will require the wigs, gowns, cross-examination and big cost that are inherent in a trial or final hearing. This is a good thing. Litigation damages co-parenting relationships, it impacts adversely on children and causes immeasurable emotional and financial stress. So whilst the prospects are good at avoiding a final hearing – what timelines can be aspired to under the new regime if we are still requiring the Court’s intervention?
With the exception of those parenting matters defined by family violence, allegations of abuse, or a limited number of other categories of matter, it is hoped that ordinary parenting and property settlement style disputes will track on the following timeline:
- The first court event or “return date” (the first day you come to court after the application is filed) will be listed where possible on a date 1-2 months from the date of filing;
- An interim hearing may or may not be heard on the first day depending upon the urgency of the subject matter of the application. If not dealt with on the first return date then the interim hearing will be listed thereafter and in all likelihood 1- 3 months after the first return date;
- A Dispute Resolution event, be it conciliation conference, private mediation or Family Dispute Resolution (court-based or otherwise) is then expressed to take place within 5 months of the initial filing date;
- If the matter remains unresolved a “Compliance and Readiness Hearing” will then follow as close to possible to 6 months after commencement of the proceedings;
- Subject to the parties then properly preparing for trial, the CMD aspires to a trial date within 12 months of the initial filing date (with some potential for the trial judge to mention the matter prior to the hearing date to ensure compliance); and
- The Court will endeavour to deliver judgment within 3 months of completion of the trial.
The above represents a dramatic improvement on the struggles of recent years where often matters could await 18 months to 2 years for a final hearing. The problem with delays of this nature is that the world can dramatically shift in a year to two, and the strength of one’s litigation position can be irretrievably altered in that time by factors like:
- Older children electing to spend more or less time with a parent;
- The needs of children can change over time;
- Some litigants will use the time to dramatically improve their case, such as dealing with the issue which previously has caused the other party or Court some concern;
- Property markets improving or dropping;
- Investment or business booms or crashes;
- Losing or securing employment;
- Illness; or
- And yes, even Natural disasters (the loss of property value in South East Qld consequent upon the 2011 floods could not have been reasonably anticipated).
The best delay is the one you don’t incur by taking control and resolving a matter by agreement as early as possible, but if that agreement cannot be secured then hopefully the promised timelines within the new Court will offer a genuine means of avoiding the uncertainty and risk of time passing in a litigation process.