WHAT TO EXPECT AT YOUR FIRST COURT DATE IN THE FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (First Return Hearing)
If you have started a case, or have been served with court documents, in the Federal Circuit and Family Court of Australia (FCFCOA), the first listed court date is usually a First Return Hearing.
Understanding what to expect at a First Return Hearing can help reduce stress and allow you to approach your first court date with confidence and preparation.
This guide explains what a First Return Hearing is, what typically happens on the day, and how you can best prepare.
What is a First Return Hearing?
A First Return Hearing is usually the first time your case is mentioned in court after someone files an Initiating Application.
The application may seek interim and/or final orders relating to:
- Parenting
- Property settlement
- Spousal maintenance
- Other urgent family law issues
The hearing usually happens between 6 to 12 weeks after the case is filed, depending on how busy the court is and how urgent the situation is.
Importantly, this hearing is not the final decision in your case.
Instead, the court mainly uses this hearing to:
- confirm whether pre-action procedures and initial requirements have been complied with
- identify the main issues in dispute
- consider whether an interim hearing is needed
- encourage parties to resolve issues if possible
- make procedural directions to help move the matter forward
What you can expect at a First Return Hearing
People think the court will make major decisions about children or property at this hearing. In most cases, this does not happen.
Orders relating to children, such as time arrangements, parental decision-making, relocation, or other time-sensitive parenting issues are generally not determined at a First Return Hearing unless all parties agree and ask the court to make orders by consent.
If there is no agreement and urgent interim orders are needed, the court may instead list the matter for what is called an Interim Hearing, where disputed issues can be considered and determined on the evidence filed.
What happens during the hearing?
Appear before a Judicial Registrar
Most First Return Hearings are listed before a Judicial Registrar.
If the matter is urgent, it may instead be listed for an urgent Interim Hearing before a Judge or Senior Judicial Registrar.
A Judicial Registrar does not have the power to make orders regarding time or care arrangements for children, or orders for interim property settlement or spousal maintenance, unless those orders are made by consent of the parties.
The court checks paperwork and procedures
The court will check whether:
- The other party has been properly given the court documents (this is called service). If service has not been done properly, the First Return Hearing may be adjourned to allow for proper service, or where appropriate, substituted service, to occur.
- The other party has filed a Response. If a Response has not been filed, the court may make procedural orders giving the Respondent a further opportunity to file their material. If they fail to do so, the matter may proceed undefended.
- Both parties followed the pre-action procedures before starting court. Where a party has not complied with the pre-action procedures, the court may suspend the proceedings until compliance is completed.
The court identifies the main issues
Before the First Return Hearing, the Judicial Registrar will review documents filed by the parties and identify the main issues in dispute e.g., the time a child spends with a parent, whether a property should be sold or financial disclosure issues.
Although a Judicial Registrar generally cannot determine major disputes (unless by consent), they can make procedural directions to help progress the case.
In parenting cases
The court may order a Child Impact Report, where a court expert meets the family and provides recommendations about arrangements for the children.
In property cases
The court may order the parties to exchange financial documents, or to obtain valuations of property or other assets, so the financial situation is clear and setting steps to clarify both financial positions (including whether the sale of real property is genuinely urgent).
Consider any orders by Consent
If the parties have reached an agreement (even on a limited basis), they can ask the court to make Consent Orders.
The Judicial Registrar will usually hear brief submissions to ensure the proposed orders are appropriate in the circumstances.
Consent orders can address a range of issues, including interim time arrangements for children. However, if there is no agreement in relation to time arrangements, the Judicial Registrar does not have the power to determine those issues at the First Return Hearing.
In that situation, the matter may be listed for an Interim Hearing before a Senior Judicial Registrar or a Judge, where the disputed issues can be determined.
Depending on the urgency, the next hearing may be weeks or months later, depending on the court schedule.
The Court sets the next steps
The main role of a Judicial Registrar at this stage is case management. This means setting a plan for how the case will move forward.
This means setting a plan for how the case will move forward.
The court may order things such as:
- a Child Impact Report;
- exchange of full and frank financial disclosure;
- property and/or business valuations;
- participation in Family Dispute Resolution or mediation;
- listing the matter for an Interim Hearing and/or a further procedural hearing (such as a Directions Hearing or Mention); and
- deadlines for the filing of additional court material.
The Court operates under this structured case management pathway:
Do you give evidence at a First Return Hearing?
No.
A First Return Hearing is not a trial.
You will not give evidence and there is no cross-examination.
A First Return Hearing is the initial procedural hearing in your court proceedings. It is not a Final Hearing.
The court relies on affidavits and supporting documents filed by both parties to understand the issues in dispute and to determine what procedural directions should be made to progress the matter.
The hearing itself usually takes 15 to 30 minutes.
However, several cases are listed at the same time, so you may need to wait before your case is called.
It is usually best to allow 2 to 4 hours for the day.
Do you have to attend?
Yes. Usually, both parties must attend the hearing.
Since COVID-19, many First Return Hearings are held online, although some may still occur at a court registry.
The court will tell you in advance whether the hearing is online or in person.
If you have a lawyer, they will speak on your behalf.
If you are representing yourself, you will need to speak to the court. It is often helpful to contact the duty lawyer service beforehand for guidance.
Can the matter resolve at the First Return Hearing?
Yes.
Even after court proceedings start, the court encourages parties to resolve disputes early.
If both parties reach a final agreement, they can provide proposed Consent Orders to the court.
If the court is satisfied the orders are:
- just and equitable (in property matters), and/or
- in the best interests of the children (in parenting matters),
the court may make final orders and end the case.
What should you do?
If you are involved in a dispute about:
- parenting arrangements
- property settlement
- spousal maintenance
getting legal advice early can help you understand your options and prepare properly for court.
Contact us for legal advice and representation regarding the first return hearing,
