Australia: How to speed up Family Law cases

Last Updated: 13 February 2019
Article by Emma Green

If you are wondering how to speed up family law cases, you are not alone.

The family law court system is often known for being exceptionally slow, in extreme cases taking up to two years to process an application and resolve a family dispute.

To make things go as smoothly as possible for yourself and your family, it is important to have your information ready, complete and file your documents on time, attend your hearings and behave in a timely manner.

But there is a legal term to answer the question of how to speed up family law cases.

It is called expedition.

Expedition: How To Speed Up Family Law Cases

To expedite a case is to hurry it along, giving it priority over other concurrent cases so that it can be heard and resolved faster.

Expedited cases are often allowed by the court in circumstances where the current court orders are causing harm, especially to a child.

Not every case can be expedited.

The applicant who wishes their case to be heard sooner must file an application in a case that sets out their grounds for expedition.

There are no criteria for reasoning that an applicant must address in any family law legislation.

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.

Family Law Rules 2004 – Rule 12.10A

When determining whether an order for expedition will be made in the applicant's favour, the court may consider the following:

  • Whether the applicant has acted reasonably and without delay in the conduct of the case
  • Whether the application has been made without delay
  • Any prejudice to the respondent
  • Whether there is a relevant circumstance in which the case should be given priority to the possible detriment of other cases

The Rules then specify what constitutes "relevant circumstances":

  • Whether the age, physical or mental health, or other circumstance (such as 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
  • 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
  • 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

These are all important in considering how to speed up family law cases.

Sandwell & Sandwell 2018

Sandwell & Sandwell 2018 is a recent case study on how to speed up family law cases.

In December 2018, the Family Court at Sydney heard this application for expedition.

The mother and father, Mr and Ms Sandwell had separated in October 2017 and had two young children, born in 2016 and 2017.

They were up to their fifth set of interim orders in 11 months.

The father sought to expedite his appeal against the most recent interim orders. These orders had substantially changed the parenting arrangements.

The mother opposed expedition.

An independent children's lawyer appointed to the case supported the appeal for expedition.

Since their parents' separation, the older child had been living with the father and spending time with the mother, while the younger child had been living with the mother and spending time with the father.

Under the new interim orders, both children were living with the mother and spending supervised time with the father.

This was a significant change for the older child, who was now living with a different primary carer.

These orders also restricted the time the children could spend with their paternal grandparents and their father's new partner.

The father maintained that the current interim orders were having a negative impact on the older child.

The judge considered the expedition legislation in the Family Law Rules 2004.

The judge believed that the applicant had acted reasonably and in a timely manner and that the application had been made without delay.

The point regarding whether the case should be given priority over other cases – and possibly to the detriment of other cases – was carefully considered.

The judge found the relevant circumstances most applicable were the hardship caused by the interim orders to the older child and avoiding psychological and emotional trauma to the child by expediting the appeal.

The applicant father emphasised that the children were very young, that their welfare was affected by the current order and that the older child had experienced a significant change in primary care.

The judge determined that this ultimately tipped the balance in favour of expedition.

The judge ordered that the hearing of the father's appeal be expedited, solving the problem of how to speed up family law cases for the applicant.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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