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Mitchell is the Managing Principal of Sharrock Pitman Legal. He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:


CALL: (03) 8561 3318

Despite your best intentions and efforts, making an application to Court may be the only way to deal with your family law dispute. While often alternative dispute resolution methods are preferable, it is important to remember that every family law matter is unique. Sometimes, there are parties who are best served by having judicial involvement to resolve the dispute, even if it is for the sole purpose of imposing a strict timetable to progress matters enforced by the Court.  

We understand that the idea of going to Court can be very daunting. Often, there is also the misconception that you apply to Court, attend the Court on the first date you are given, and then the Judge will make a decision at your very first hearing (not true!). As such, we have prepared a guide below to provide you with a brief and simple overview of what to expect from the Family Court process.

What is the first step?

If you cannot reach an agreement with your partner about parenting and/or property matters, you can file an application in the Federal Circuit Court or the Family Court to initiate the Court process.

When you are applying for property orders only, you will need to file the following:

  1. Initiating Application,
  2. Affidavit, and
  3. Financial Statement.

When you are applying for parenting orders only, you will need to file the following:

  1. Initiating Application,
  2. Affidavit,
  3. Notice of Risk, and
  4. Section 60I certificate*.

When you are applying for property and parenting orders, you will need to file the following:

  1. Initiating Application,
  2. Affidavit,
  3. Financial Statement,
  4. Notice of Risk, and
  5. Section 60I certificate*.

These documents will then need to be served on your former partner, and they will subsequently be required to file corresponding Response documents, prior to the first Court hearing.

*It is a requirement for parenting matters that you attend Family Dispute Resolution to attempt to resolve your matter before making an application to Court. After you have attended FDR (or attempted to attend FDR) you will be issued with a section 60I certificate which needs to be filed with your application. There are some limited exceptions when you are not required to file a section 60I certificate, which are noted on the Court website here.

When making your application, you will file in either the Federal Circuit Court or the Family Court. In Victoria, these Courts are both located in the same physical Court building at 305 William Street, Melbourne, although the Federal Circuit Court also has a second registry in Dandenong. Generally, the Family Court is reserved for more complex matters such as international relocation, serious allegations of sexual abuse or complex questions or jurisdiction or law. You can read more about the division of work between the two Courts here.

It is also important to have regard to any relevant time limits you have for making an application to Court. While there is no time limit in applying for parenting orders (although the application needs to relate to children under 18 years of age), married couples have 12 months from the date of divorce to make an application for property orders and de facto couples have a period of 2 years from their date of separation. If you are seeking to make an application outside of those timeframes, you will need make an application seeking leave of the Court to make an application out of time (put simply, to ask the Court’s permission to do so).

The first Court hearing

After you have filed your application, your matter will usually be listed for what is known as a “Duty List Hearing” in your nominated Court. Ordinarily, the next available hearing date will be approximately three months from the date of filing, however you may need to wait longer during busier periods. This of course can and will vary for more complex or urgent matters.

Depending on the nature of your matter, your initial Court events may be managed by a Court registrar, or a judge. A registrar is a Court lawyer who has been delegated some judicial powers to make orders in relation to interim or procedural matters. It is important to note that once you have been allocated to a particular Judge, that Judge will oversee your entire matter, unless it is transferred to another Court.

There are a few key points which are important for you to know about your first Court date:

  1. The first hearing will only deal with interim or procedural matters, and no final decisions will be made. For example, for property matters this may include orders for discovery, or obtaining valuations. For parenting matters, this may include interim parenting arrangements to be in place until the next Court date, or appointment of an Independent Children’s Lawyer.
  2. You will generally be listed on the same day/time as a number of other matters. This means the judge or registrar is not allocated extensive time for your matter.
  3. Prior to going before the judge or registrar, most parties will have the opportunity to negotiate between themselves. This is encouraged by judges, with the goal to reach agreement as to some interim/procedural orders, or at a minimum reduce the number of issues which need to be put before the judge/registrar.

Further interim hearings and/or directions hearings

The next stages of the Court process are highly dependent on your individual matter. On a basic level, this will depend on whether there are parenting or property issues, or both. The level of complexity is also relevant, as is the need to obtain further independent or third party expert evidence.

Generally speaking, parenting matters will often have more interim or direction hearings, before ultimately being listed for a final hearing. Matters that are strictly related to property, if not resolved at a mediation, will often be listed straight for a final hearing.

Some examples that require interim hearings for parenting matters include:

  1. The appointment of an Independent Children’s Lawyer (if required),
  2. Subpoenaing third party evidence,
  3. Arranging for parties’ to attend upon a child psychologist to prepare a Family Report to provide recommendations to the Court, or
  4. Providing a checking point for graduated parenting arrangements. For example, if a parent has been having supervised time which has been relatively successful, discussing whether it would be appropriate to move to non-supervised time.

It is important to remember that you and your ex-partner can agree to resolve your matter by consent at any stage during the Court process. To this end, after arrangements have been implemented for some time and other extraneous issues have been resolved, parties may be in a better position to reach an agreement. Agreement can also be guided by the expert reports received, particularly any Family Reports.

Many property matters will be directed to mediation either at the first hearing, or subsequent directions hearing after parties have completed discovery and valued all necessary assets. The Court will usually order the parties to return to Court soon after mediation is scheduled, and if the parties have been unsuccessful at reaching an agreement at mediation, the matter will be listed for a final hearing.

If a matter is listed to proceed to a final hearing (whether parenting or property), you will be provided with directions from the Court for particular material you need to file before the final hearing. This includes the evidence that will be put towards the Court at trial, and will include the evidence of any supporting witnesses. The judge will also nominate how many days are to be allocated for your final hearing.

Final defended hearing (trial)

It may surprise you to know that only a very small percentage of matters filed in Court actually reach this stage of a final hearing before a judge. There is an even smaller percentage of matters who proceed to present their evidence to the judge, requiring the judge to make the decision for them, rather than resolving the matter by consent.

If your matter is required to be resolved by the Judge, a final hearing will be held in a Courtroom and the Judge will determine the issues in dispute. The Judge will hear the Applicant’s evidence and the Respondent’s evidence, and then the respective parties’ representatives will be given the opportunity to cross-examine the evidence.

After hearing the evidence, the Judge will make a decision and publish their final orders.

How can Sharrock Pitman Legal help me?

Separation is an emotional, difficult and often traumatic period of your life, with the looming prospect of litigation being an overwhelming addition. Here at Sharrock Pitman Legal, our Accredited Specialist family law team make every effort to resolve your matter without the need for litigation, however are highly skilled and experienced in navigating the Family Court system in the event that litigation is required.

While the above provides a brief guide for the usual course of proceedings, we understand every matter is unique and there is no one size fits all approach to family law proceedings, and we cater our advice and services accordingly. If you require assistance in resolving your family law matter, please contact our specialist family law team on 1300 205 506 or via email at family@sharrockpitman.com.au, and it would be our pleasure to assist you.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Written by one of our lawyers

,

.

Alana Di Paola

For further information contact

Ath Balaskas

Ath is a Senior Associate of Sharrock Pitman Legal.

She is an Accredited Specialist in Family Law (accredited by the Law Institute of Victoria). For further information, contact Ath on her direct line (03) 8561 3319.

More on

Family Law

However, in this article we will set out the factors that influence how long it will take to obtain a Grant of Probate and to administer an estate in Victoria.

The basics

First things first: what is a Grant of Probate? A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will. Without Probate, the asset holders (say a bank or share registry) cannot be satisfied as who has the correct authority to receive the deceased's assets and may refuse to pay out.

Sometimes, for smaller estates or if assets are mostly jointly owned with a surviving spouse, asset holders might agree to release payment without requiring a Grant of Probate. This is usually on the basis that the person who receives payment promises to repay (or Indemnify) the asset holder if it turns out they paid to the wrong person.

If there is no Will, then you cannot obtain a Grant of Probate. Instead you obtain Letters of Administration. This is effectively the same, in terms of authorising someone to administer the estate, and would usually be obtained by the person who is the closest next-of-kin to the deceased.

“A Grant of Probate is effectively a document issued by the Supreme Court of Victoria which formally authorises an executor to manage the estate of a deceased person in accordance with their Will.”

Timeframes for Probate in Victoria

In order to obtain a Grant of Probate, the Supreme Court needs to be given information about the assets and liabilities of the estate, the deceased person, the witnesses to the Will, the executors and the Will itself. An advertisement of your intention to apply for Probate must also be published on the Supreme Court website for at least 14 days prior to any application being lodged.

Often, making enquires to obtain all the necessary information can take a number of weeks. Also, you will need the Death Certificate for the application for Grant of Probate and possibly for making proper enquires regarding the assets and liabilities. Waiting for the Death Certificate to issue can therefore add a few more weeks to the process. Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.

The Court itself usually does not take long to process the application (maybe another 1 to 2 weeks) and this is completed using the electronic Supreme Court filing system. This means you do not have to go to a Court hearing. The timeframe for processing applications for Letters of Administration is even less, given that there is no Will document for the Court to consider. There is also a general discretion for the Court to raise a 'Requisition' asking for more information before they review the application - this can sometimes delay matters.

“Overall, if you have your application for Grant of Probate lodged within 1 to 2 months from the date of death, you are making timely progress.”

So, here we are a few months after death and you finally have a Grant of Probate or Letters of Administration. It is important to remember that this is the start of the estate administration and not the end. For a very simple estate, you might only need a further month or so to cash the assets and pay them to the correct beneficiaries. However, it can often be more complex than that. Factors that determine the timeframe to administer the estate include:-

  • Some assets will take time to cash or transfer. For example, if selling a property, final settlement might be 60/90/120 days from the day of sale.
  • There is a 6 month period for challenges to be brought against the estate and executors must wait until this period expires before distributing the estate, if there is any risk that a disgruntled family member might come forward.
  • There might need to be final tax returns for the deceased or for the estate. Failing to wait for the ATO to process these could leave the executor personally liable for a tax bill.
  • You might need to advertise for creditors to come forward and wait for a period of months while this advertising timeframe expires. This protects the executor if they are unsure of all of the deceased's financial dealings and creditors.
  • It might not always be a good time to immediately cash estate assets. For example, the shares just took a nose-dive, do you still sell regardless of available price?

There is a general rule that executors have an 'executor's year' to complete the estate administration. This means that you should be aiming to have the estate finalised and distributed within 12 months from the date of death.

The information contained in this article is intended to be of a general nature only and should not be relied upon as legal advice. Any legal matters should be discussed specifically with one of our lawyers.

Liability limited by a scheme approved under Professional Standards Legislation.

Need help with Probate?

Our expert legal team is ready to take your call!

Mitchell is the Managing Principal of Sharrock Pitman Legal. He is an Accredited Specialist in Commercial Law (accredited by the Law Institute of Victoria). He also deals with areas of Employment Law, Wills & Estate Planning and Probate and can answer all your questions related to probate.

For further information, contact Mitchell on his direct line:

DIRECT LINE: 
(03) 8561 3318

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For fifty years Sharrock Pitman Legal has made a significant and long term contribution to meeting the legal needs of business owners and residents in the City of Monash and greater Melbourne area.