Guide for practitioners and parties in Priority Property Pool Cases (PPP Cases)

1 Introduction and purpose
2 Dispute Resolution (DR)
3 Commencing proceedings
4 PPP cases before a Judicial 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

1 Introduction and purpose

1.1 This guide sets out the arrangements for the case management of family law financial cases known as ‘Priority Property Pool Cases’ (PPP Cases). It contains procedural information giving effect to the Family Law Practice Direction – Priority Property Pool Cases (FAM-PPP).

1.2 A matter will be eligible to be designated a Priority Property Pool Case (PPP Case) where:

1. it is commenced by filing an Initiating Application (Family Law); AND
2. the Initiating Application seeks only either an alteration of property interests pursuant to sections 79 or 90SM of the Family Law Act 1975 (Cth) (Family Law Act) and/or spousal maintenance orders (including urgent spousal maintenance) pursuant to sections 74/90SE/77/90SG of the Family Law Act; AND EITHER
   
   1. the net value of the property of the parties (excluding superannuation interests) is, or appears to be, under $550,000; OR
   2. the net value of the property of the parties (excluding superannuation interests) is not significantly greater than $550,000 and the Court, in its discretion, makes a declaration or notation that the proceeding is designated as a PPP Case in circumstances where:
      • having regard to the relevant assets of the parties, the Court considers it appropriate to include the matter as a PPP Case; and/or
      • due to the parties (or a party) having a particular vulnerability including having regard to the location of the parties, demographic features of the parties, or allegations of family violence including coercive control, the Court considers it appropriate to include the matter as a PPP Case; OR
3. the Court otherwise, in its discretion, makes a declaration or notation that the proceeding is designated as a PPP Case.

1.3 Cases with the following features are NOT PPP Cases and will be case managed in the usual way:

1. the asset pool includes an entity or entities (such as a family trust, company, or partnership) owned or in the effective control of either party, where the value is contested and requires valuation or expert investigation;
2. proceedings where only parenting orders are sought;
3. proceedings where both parenting and financial (property and/or spousal maintenance) orders are sought;
4. child support cases;
5. child maintenance cases;
6. contravention applications, and
7. enforcement applications.

1.4 There are two case management phases for PPP Cases:

1. registrar-led phase: where a Judicial Registrar can assist separating couples to reach agreement, in the shortest possible time; and
2. judge-led phase: where procedurally simpler processes are applied at a final hearing before a judge.

1.5 The PPP Cases program has the following features:

1. Intensive monitoring of compliance with orders to ensure that necessary documents are produced, and valuations are completed;
2. Reduced delays through the dispute resolution process;
3. Expanded opportunities for parties to have discussions and take ownership of their dispute resolution planning at an early stage;
4. Opportunities for resolution at an early stage;
5. Improved dispute resolution outcomes through close involvement in the preparation and case management of the case before dispute resolution takes place;
6. Where possible, the number of court appearances are reduced; and
7. Proactive referrals to appropriate services.

1.6 Nothing in this guide affects the Court’s discretion to case manage the matter in a manner that it considers appropriate.

1.7 Amendments will be made to this guide as required and published on the Courts’ website.

1.8 There are six steps in a PPP Case:

2 Dispute Resolution (DR)

2.1 At any stage in the case, the use of DR opportunities (including family dispute resolution in a Family Relationships Centre, Legal Aid conferencing, private mediation and arbitration) for both substantive and procedural issues, will be encouraged.

2.2 DR options should be considered by the parties not only as a viable and effective means of resolving the entire dispute between them, but also as a way to limit or narrow the issues in dispute.

2.3 The DR process for PPP Cases will generally involve a Court-ordered conciliation conference. Parties may also attend a Legal Aid conference, private mediation or arbitration.

2.4 When attending a DR conference, 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.

3 Commencing proceedings

3.1 To give effect to the primary purpose of a quicker, cheaper, less formal process, parties in PPP Cases are relieved of the requirement to file an affidavit and Financial Statement with an Initiating Application (Family Law) or Response to Initiating Application, unless directed by the Court to do so.

3.2 Cases that meet the PPP Cases criteria may be commenced by filing only:

1. an Initiating Application (Family Law);
2. a PPP Financial Summary, and
3. a Genuine Steps Certificate, confirming the applicant’s compliance with the pre-action procedures listed in Schedule 1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Family Law Rules).

3.3 Unless the Court directs otherwise:

1. a sealed copy of the Initiating Application and PPP Financial Summary must be served within seven days after filing the application, and
2. the Response to Initiating Application and PPP Financial Summary must be filed and served on the applicant within 28 days of the date of service on the respondent.

4 PPP cases before a Judicial Registrar

4.1 It is expected that all parties and legal practitioners will comply strictly with the timeframes contained in any court orders, noting that costs consequences may follow from any failure to comply.

5 After proceedings are filed (before the first court date)

5.1 After an Initiating Application is filed, but before the first Court date, a Judicial Registrar will make an order in chambers about the case management of the matter. The following case management directions may be made without further notice to the parties:

1. The filing and service of a PPP Financial Summary (if not already filed);
2. The 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 (where it is safe to do so) as to the DR 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; and/or
5. The filing of an affidavit (or affidavits) in respect of any interim applications.

5.2 Even before a chambers order is made by a Judicial Registrar, each party must, as far as practicable and where it is safe to do so, exchange with the other party a copy of all documents listed in rule 6.06(8) and of the Federal Circuit and Family Court (Family Law) Rules 2021 (Cth) prior to the first Court 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 Judicial Registrar in chambers. This will include exchange of documents, valuation processes and any other requirement of the Family Law Rules.

6.2 Legal representatives and all parties must be present on the first Court date. The first Court date may be conducted electronically. Parties and their lawyers will be notified of the method of the hearing beforehand.

6.3 At each Court event, a legal practitioner must be in a position to inform the Judicial Registrar of the following, with respect to their own client:

1. the costs incurred to date;
2. estimated costs to the conclusion of a final hearing, and
3. the source of funding for representation.

6.4 Adjournments, including administrative adjournments, are discouraged and will be granted only in exceptional circumstances. 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 Judicial 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 (see rule 1.12(5) of the Federal Circuit and Family Court (Family Law) Rules 2021 (Cth)), 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, 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 before the Judicial Registrar, the parties must be in a position to make submissions about participating in a DR conference suitable to the case, which may be a conciliation conference, Legal Aid conference or private mediation.

6.9 The Judicial Registrar will make orders for a dispute resolution conference and adjourn the case for a further mention shortly after the dispute resolution conference. That mention will be vacated in the event final consent orders are made following the dispute resolution conference.

7 Legal Aid

7.1 State Legal Aid Commissions have specific funding programs for dispute resolution for PPP Cases. Eligibility requirements may differ from state to state and the financial threshold applied may be different to the Court’s PPP Cases criteria. Parties are strongly encouraged to consider this option and apply for assistance through the Legal Aid Commission in the state or territory 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 prior to the completion of the DR process.

8.2 The Judicial Registrar will assist the parties to resolve interim issues wherever possible. The application will be referred to a Senior Judicial Registrar for early determination if necessary.

9 The second court date

9.1 By the time of the second Court date, it is expected that disclosure, valuations, DR conference options, 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 DR conference which did not result in a final resolution, the Judicial Registrar will hold the second Court event as soon as practicable after the DR conference. On this occasion the Judicial Registrar will finalise the balance sheet and list the matter before a Judge for a Compliance and Readiness Hearing (where the matter will then be listed for trial).

9.3 This Court event may take some time. The Judicial Registrar will discuss with the parties and their representatives the merits of their respective cases and the available evidence. The case may also be stood down to facilitate negotiations between the parties with the aim of resolving as many issues as possible.

9.4 A PPP Case will be referred to a Judge for a Compliance and Readiness Hearing, if:

1. the matter requires a determination,
2. there has been substantial non-compliance with orders, and/or
3. there are issues of jurisdiction in dispute, such as the existence of a de-facto relationship.

9.5 If the Judicial Registrar determines that a case is close to settlement, arrangements may be made for a further Court date in person or via electronic means before referring to the Judge.

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

9.7 The parties will also be provided with information about the availability of a simplified trial process with the order. The simplified trial process includes a hearing on the papers.

10 Final consent orders in chambers

10.1 The parties may seek final consent orders at any time.

10.2 For the Judicial Registrar to make final consent orders in chambers (whether before or after the first Court date), correspondence can be sent by email to the Court, provided that the email contains 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, 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 Judicial Registrar is able to determine that the agreed orders are just and equitable.

10.3 Unless these requirements are met, the orders cannot be made in chambers and an appearance may be required.

10.4 However, consent orders will not be made in 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 properly disclosed their financial circumstances on oath (or by affirmation). If agreement is reached on a Court date, the case may be stood down to enable the respondent to complete a PPP Financial Summary or Financial Statement if they have not already done so.

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 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 eFiled, as well as orders of the Court, judgments and information about past or future listing events.

Glossary

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

Interim or interlocutory orders – orders which are made before a final hearing. 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.

PPP Financial Summary – the document filed with an Initiating Application in a PPP Case. It replaces the requirement to file an affidavit, Financial Questionnaire and Financial Statement unless interim orders are sought which cannot be supported adequately by filing the PPP Financial Summary. In that case, a short affidavit is permissible.

Hearing on the 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 judicial registrar or judge, perhaps only for the purposes of receiving an update on the progress of the proceeding or making orders or directions for how the proceeding will be conducted.

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