The Discreet Property List
Recently, the Federal Circuit and Family Court of Australia in Brisbane has implemented a new model to assist parties in resolving financial (property settlement) matters. This model is called the ‘Discreet Property List’. Essentially, the Discreet Property List is a process to streamline financial matters that come before the court by guiding parties through the initial steps required to progress matters to resolution. It is focused on resolving financial disputes as quickly as possible, whilst encouraging parties to maintain control of the ultimate outcome. Its intended purpose is also to free up Judges to have more time to deal with the first mention of parenting matters.
All Initiating Applications that are filed in the Federal Circuit Court of Australia in Brisbane for property orders only will automatically be placed in the Discreet Property List. All matters in the Discreet Property List are initially heard before a Registrar and (ideally) remain with that Registrar until the parties have agreed to final orders. Some matters will be unable to stay within this model and must, therefore, be referred to a Judge.
The Discreet Property List is a model implemented for property matters only. The following are matters which are unable to be heard by the Registrar presiding over the Discreet Property List:
- Child support
- Parenting
- Jurisdictional issues
- Declarations for discovery in the interest of justice
- Undefended cases
- Interim hearings for
- spousal maintenance
- part property settlements
- injunctions
- lump sum litigation funding of dollar for dollar orders
Even if yours is a matter involving property and parenting (or some other matter) it will not go before the Registrar. The Discreet Property List is for property matters only.
What to expect at the first court date
The Court needs your matter to be progressed as quickly as possible towards dispute resolution (i.e. mediation). This means that the net pool of property available for distribution between the parties needs to be determined. The property pool is determined through the exchange of financial disclosure and the appointment of independent valuers if the parties are unable to agree on the value of any item of property. The court will want the parties to identify:
- what factual issues remain in dispute
- what (if any) items of financial disclosure need to be exchanged
- what (if any) property needs to be valued and if so, what valuer will be appointed to prepare a valuation
The Court will not:
- Simply adjourn the matter (unless the court is satisfied there is a good reason for doing so)
- Make orders for the parties to exchange panels of proposed valuers and/or mediators to select
At the start of the day, all matters before the Registrar will be called into Court and the Registrar will conduct a call over where he/she goes through the list of matters before them that day and has a brief conversation with the parties about what is happening. After the call over has finished, parties have an opportunity to talk with each other and try to reach an agreement (at least on an interim basis). If agreements are reached, then parties will sign consent orders and provide them to the Registrar to consider. If acceptable, the Registrar will make the orders and will adjourn the matter for no more than approximately 6 weeks.
In the event, the parties are unable to reach an agreement about any interim issue, or if the matter falls into any of the above categories that are unable to be heard by the Registrar, it will be referred to a Judge. Once a matter is referred to a Judge it does not normally return to the Registrar.
Between the first court date and the second court date
It is expected that parties will comply with the orders that were made on the first court date in order to ready themselves for dispute resolution. Any remaining financial documents must be exchanged and any valuations must be completed. The parties should also have reached an agreement in terms of a mediator or other dispute resolution process (i.e. conciliation conference).
If everything has been completed and the matter is ready to proceed to dispute resolution, the parties must jointly write to the court certifying:
- The exchange of disclosure is complete
- Any valuations that were required have been completed
- The matter is ready to proceed to the dispute resolution
- The name of the mediator (or other dispute resolution process) agreed between the parties together with the date it has been scheduled
If the Registrar considers the matter is indeed ready to proceed to dispute resolution, and the date of the dispute resolution is not before the second Court date then the Registrar will vacate that second Court date and administratively adjourn it to date not long after the dispute resolution has taken place.
In the event the matter is not ready to proceed to dispute resolution, then the parties will be required to attend the second Court date where the Registrar will assist the parties to resolve the remaining issues to proceed to dispute resolution. Just like the first court date, if the parties are unable to reach an agreement about any interim issues then the matter will be referred to a Judge.
Is the Discreet Property List actually helping people?
The Discreet Property List has been utilised in the Newcastle registry of the Federal Circuit Court of Australia for more than two years and of all of the matters which have proceeded through that model, there has been an impressive 65% which have reached final settlement within a short time (approximately three months from the first court date).
In a short time, the model has been implemented in the Brisbane registry, there have also been a significant number of matters which have resolved on a final basis. The Discreet Property List has fast-tracked many financial matters that otherwise may have been languishing in lengthy Court lists and this has allowed parties to achieve final orders much sooner than they may have experienced otherwise.
As stated herein, the Discreet Property List will not be appropriate for every financial matter that appears before the Court, and it is inevitable that some matters need to be judicially referred.