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Bifurcation of Proceedings

If you are facing, or have ever faced, a Family Law related matter, you are likely to be familiar with the multi-faceted nature of proceedings.

There’s existing property to deal with, management of any existing business founded during the relationship, spousal maintenance requests, child support, parenting issues, parental responsibility, and much more. There may also be questions related to the rules of evidence or accusations of family violence. In some cases, there might still be existing proceedings from a previous relationship!

If your matter goes to court and all issues remain in dispute up to a trial, the length of the trial can be days or weeks if there are multiple disputed issues.  There could even be relatives or third parties involved and many witnesses. This is can be a very costly exercise.

It is possible to split proceedings into separate hearings based upon discrete issues.

This is known as a bifurcation of proceedings. In the Family Court, the bifurcation of proceedings is pursuant to rule 10.13 and 10.14 of the Family Law Rules 2004 (Cth).

When is it possible to split proceedings into discrete matters? There are generally two situations:

Number One: When separate proceedings are commenced between the parties in different countries.

If proceedings arise in different jurisdictions you create the novel situation where both parties face the same dispute but are addressing the resolution using completely different systems. In different countries, the Courts will have different procedures, laws and remedies. As a result, both parties will find that they might be looking at completely different expected outcomes in the country they have started proceedings.

The Court can bifurcate issues for a part of proceedings to be heard in Australia and the remaining parts in another country. For instance, parenting matters may be heard in Australia where the child habitually resides, while property proceedings go ahead elsewhere. Murphy J at emphasised this in Skinner & Alfonso-Skinner [2010] FamCA 329 at [66] and stated that bifurcation may proceed assuming doing so causes no offence to international comity.

Number Two: Where the hearing of one issue might make the following hearings unnecessary.

The second situation is where the Court finds that a separated hearing may make further hearings redundant. As a result, there is the potential for significant savings by bifurcating the proceedings and having an initial hearing on the preliminary or threshold issue. This is provided by the Full Court at [21] in Lancer & Lancer [2008] FamCAFC 112.

In Wernham & Campagnola [2012] FamCAFC 137 (a matter in which there was an application for bifurcation of s 79A proceedings), Ryan J stated that the Rules allow the Court to order a discrete hearing on an issue of fact or law, or both.

It is worth noting that in considering whether or not to bifurcate proceedings, the Court will always start from a position that it is preferable to deal with all steps in one hearing, per the Full Court in Oastler & Oastler (1993) FLC 92-390.

When dealing a Family Law matter and considering whether or not bifurcating proceedings is appropriate, please do not hesitate to contact us. Nicholes Family Lawyers are familiar with the particulars of bifurcation and can assess your circumstances and provide advice.

By Nicholes Family Lawyers


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