Nobody likes waiting in a queue, but it’s worse if your whole life has to effectively remain on hold while you wait the outcome of your family law matter. As such, awaiting your turn in the family court queue can be excruciating—and it can take several years for you to have your family law dispute resolved by judges. In certain cases, however, it is possible to have your family court matter sped up, in a process termed expedition. In expedition, a case is hurried along by giving it priority over other waiting cases so that it is heard and resolved more quickly. Before you rush off to apply for expedition of your case, here’s what you need to know.
The laws about how to speed up family law cases are related to the court’s decision process and are found in the Family Law Rules 2004, with rule 12.10A referring to the expedition of trials. An applicant who is seeking their case to be heard sooner must file an application in a case that sets out their grounds for expedition.
Courts have to consider a number of factors when deciding whether to grant an order for expedition. These include:
- Whether the applicant has acted reasonably and without delay in the conduct of the case;
- Whether the application has been made without delay;
- Whether there is any prejudice to the respondent; and
- Whether there is a relevant circumstance in which the case should be given priority to the possible detriment of other cases.
The Family Law Rules 2004 then define what “relevant circumstances” means. Relevant circumstances can include:
- Whether the age, physical or mental health, or other circumstance (e.g. moving interstate or overseas) affecting a party or witness would affect their availability or competence;
- Whether a party has been violent, harassing or intimidating to another party, a witness or any child the subject of the case;
- Whether the applicant is suffering financial hardship that is neither caused by the applicant nor can be rectified by an interim order;
- Whether the continuation of interim orders is causing the applicant or a child hardship;
- Whether the purpose of the case will be lost if not heard quickly;
- Whether the case involves allegations of child sexual abuse or other abuse; and
- Whether an expedited trial would avoid serious emotional or psychological trauma to a party or a child who is the subject of or affected by the case.
While cases involving potential harm to a child are among those most often allowed to be expedited, it is certainly not the case that every application for expedition involving risk to a child is granted. For example, a recent case in the family court at Brisbane shows how the courts might handle an expedition case which involves disputed claims about parental risk.
In the case of Sanders & Taro (court-appointed pseudonyms), a mother wanted to expedite the hearing of her appeal from interim parenting orders that had been made last December, with a final hearing in the matter having been set down for four weeks from the date that the application for expedition was heard. The mother wanted to appeal the interim findings rather than proceed to a final hearing.
In this case, the mother’s concerns were around her disputing of issues surrounding her risk to her child that had been raised in the interim hearing. But the judge explained to the mother that her evidence in that regard would have to be tested at a trial, and simply could not have been resolved at an interim hearing, nor could they be resolved at an appeal stage. Instead, the disputed issues had to be resolved at the final hearing scheduled to commence in four weeks.
The judge pointed out that even if the mother had been successful in obtaining a listing for an appeal from interim parenting orders between now and the scheduled final hearing, that would most likely result in her entire matter being remitted for a further interim hearing by a trial judge–and this could only involve the evidence from the interim hearing “again with precisely the same constraints which [the interim hearing judge] laboured under in the first interim hearing about resolving contested issues”.
The judge told her, “This must be compared to the advantage of a trial proceeding, now only some four weeks away, at which disputed issues of fact can be resolved.” It was therefore decided that granting the mother the application to expedite her appeal would therefore likely actually disadvantage her, and her application for expedition was rejected.
How else can you speed up your family law matter?
If you don’t believe your matter could qualify for an application for expedition in the courts, you may be wondering how else you can speed it up. After all, you want the whole process completed as fast as possible, given the repercussions divorce and separation have on so many areas of our lives. There are certain things that you or your lawyer can do, so you should talk to your lawyer about how best to set up your case from the outset to assist the court in progressing your case from a procedural perspective.
Having said that, by far the quickest way to resolve your divorce, property settlement and parenting matters is to come to an agreement with your ex. It is wise to explore the Alternative Dispute Resolution processes that exist to help you avoid the protracted, expensive process of litigation. These are processes that can help you come to an agreement with your ex, with the assistance of professionals who are trained in things such as mediation, arbitration and collaboration – all of which can help resolve issues surrounding child custody, financial and property issues.
Do you need advice on whether you may be able to speed up your family law matter through an application for expedition or on the Alternative Dispute Resolution processes that could help in your case? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.
