Going to Court

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What does this section cover?

This section covers court proceedings and procedures in the Family Courts and provides advice for self-represented litigants.

The Family Courts

In Australia, two Courts examine family law disputes. They are:

• Federal Circuit Court of Australia (FCC); and
• Family Court of Australia (FCA).

Both Courts apply the Family Law Act 1975 to determine parenting and/or property and financial disputes following separation. Each Court has its own Rules and sometimes they use different forms. The Forms for each Court are available on their websites here:

FCC
http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/forms-and-fees/court-forms/form-topics

Family Court:
http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/forms-and-fees/court-forms/form-topics

Both Courts provide ‘Do it Yourself Kits’ to assist people without lawyers.

Which Court?

Most matters are in the FCC. The FCC deals with parenting and property matters as well as applications for paternity testing, contravention of orders, location and recovery of children and spouse maintenance and a whole lot of other aspects of family law.

The FCA deals with complex parenting and property matters, for example where there are serious allegations of child abuse or very complex financial situations.

If in doubt, you should start proceedings in the FCC. The Court Registrar or the FCC can transfer those proceedings to the Family Court if that is the more appropriate court.

Self-Represented Litigants

It is quite common for people in family law to represent themselves in Court. Often people can’t afford a private lawyer, but are not eligible for representation from a Legal Aid lawyer. Judges and lawyers are aware that self-represented litigants are often unfamiliar with the law and can be intimidated by the court process.

The Courts and lawyers have duties towards self-represented litigants. These are:

• The Courts must provide reasonable information and assistance to enable a person to understand what is required to present their case or to engage in Court supervised dispute resolution;
• The Courts must ensure a self-represented litigant understands the effects of any Court Orders;
• Lawyers have a duty to the Courts and to other lawyers, and self-represented litigants, to be honest and not to make false statements;
• Lawyers have duties not to act in a way that inflames or aggravates a dispute;
• Lawyers must include a self-represented party in any communications made to the Courts.

Help for self-represented litigants

There is quite a bit of help available even if you are self-representing. You should consider getting help in any of the following ways:

• Getting legal advice. Legal Aid ACT has a Duty Lawyer at the Family Courts from 10am to 3pm each day. This is free;
• Legal Aid also has a free Helpline which you can ring for information;
• Legal Aid ACT also has an extended program called the Family Advocacy and Support Service (FASS) for family law matters where family violence is present. This service is mainly for victims of violence, but can assist people who have been violent where that will help resolve the dispute and promote safety. This service can provide assistance with negotiations, preparing documents and in some cases representation at interim hearings. You can also access a social worker in this program. You do not need to be eligible for Legal Aid to get help from this program;
• Community Legal Centres, such as the Women’s Legal Service provide advice and representation;
• The Family Courts have a lot of information on their websites and in printed booklets and brochures which you can get at the Court Registry;
• Make use of the Courts’ Do-it-Yourself Kits;
• Private lawyers will often agree to help you with discrete parts of your case. For example, you might seek initial advice, or get help from a lawyer to draft your court documents, then represent yourself in court. This way legal costs are minimised but you get help for parts of the process where you need it most.;
• Sometimes lawyers will agree to take your case ‘pro bono’ or for free. The ACT Law Society runs a scheme to link people up with lawyers who will do this.

Tips for going to Court

• Dress in neat, clean attire with appropriate footwear;
• Avoid wearing shorts, tracksuits, sunglasses or hats;
• Ensure you bring all of the relevant paperwork and that it is organised so you can find documents easily;
• Arrive at least 15 minutes before the hearing;
• Be patient, it can take time;
• Avoid unnecessary talking when in the courtroom – the Judge will direct you when it is your turn to speak;
• When your matter is called, sit at the ‘bar table’ – the big table in the middle of the courtroom. Usually applicants sit to the left and respondents to the right;
• Stand when the Judge talks to you and when you talk to the Judge;
• Refer to the Judge as ‘Your Honour’;
• Do not interrupt, use abusive language or shout at the Judge or the other side.

Making an application to the Courts

You do this by using the relevant Application form which you can get from the Courts’ webpage. In the Application you set out the Orders you want the Court to make. You may have to file additional documents with your application.

Usually the documents you need to file are:

Application for Parenting Orders:

1. Application;
2. Notice of Risk of Child Abuse or Violence;
3. An Affidavit if you are seeking urgent or interim orders.

The FCC provides useful information on applying for Parenting Orders here:
http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/how-do-i/apps-orders/parenting-orders/fcc-apply-parenting-orders

Application for Property or Financial Orders:

1. Application;
2. Financial Statement;
3. An Affidavit if you are seeking urgent or interim orders.

The FCC provides useful information on applying for financial or property orders here:
http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/how-do-i/apps-orders/property-financial-orders/

Service of documents

Whenever you file an application in the Courts you have to give copies of all the documents you have filed to the other party. This is known as service. The only exception is in extremely urgent circumstances when the Courts may agree to make Orders without the other party being notified, for example, if the other party is on their way to the airport with the children to go and live in another country.

You can’t serve documents on the other party yourself. Usually personal service is required, that is, not by post. You can personally serve someone by:

• Arranging for any person over 18 to hand the documents to the other party;
• Engaging a Process Server to serve the documents. They will charge a fee for this.

You need to provide evidence that the documents have been served. This is usually done by having the person who served the documents complete an Affidavit of Service, setting out how they knew it was the other party, the date, time and place when they served the documents.

Sometimes it is difficult to serve the other party. You should get legal advice on your options if this is the case.

Court process after you have filed an application – Mentions and Directions

The other party has a period of time, usually 28 days, to file their documents responding to your application. The other party will file a Response setting out the Orders they want the court to make. They will also have to file similar additional documents to those you filed with your application, for example, an Affidavit or a Financial Statement. If the dispute is about children they will also have to file a Notice of Risk.

The first Court date is called ‘the first return date’ when the matter is usually listed for ‘mention’ or a ‘Directions Hearing’.

The first court date is usually not about the hearing of the matter unless it is urgent. On this date the Court usually makes procedural orders or Directions such as:

• For one or both parties to file additional documents;
• For the parties to attend FDR;
• For an Independent Children’s’ Lawyer to be appointed;
• For the parties to attend a Conciliation Conference at the Courts (property and financial matters);
• For the parties to attend a Child Dispute Conference;
• For a Family Consultant or independent expert to prepare a Family Report;
• An adjournment to a later date to enable parties to attend dispute resolution, or to get legal advice.

There can be quite a number of Mentions or Directions as a case moves through the family law system.

Urgent Applications and Interim hearings

Some situations can require a party to make an urgent application. Urgent applications include:

• Recovery orders where one parent is withholding a child/children from the other parent'
• Parenting orders where there is a substantial dispute over who children live with or where there is a risk to the child;
• An order preventing a child from leaving the country;
• An order requiring the sale of a property or preventing the other party from spending the proceeds of sale of a property or from getting rid of joint assets;
• Where a party has no money and is seeking payments from the other party, e.g, spouse maintenance.

An urgent application is made by seeking Interim Orders as well as Final Orders on the Court application form. The Court Registrar determines how quickly the application will come before the Courts. This can range from the same day or the next day after the application is filed to a period of months, depending on the Registrar’s assessment of the urgency.

You will also need to file an Affidavit which tells the Court why the matter is urgent and why interim orders are necessary. This Affidavit can be no longer than ten pages. The Affidavit is the way in which your evidence is put before the Family Courts. You will rarely get a chance to add to your story by giving evidence in Court.

Child Inclusive Conference/Child Dispute Conference and Family Reports

If there is a parenting dispute, the Court might order that the parties attend a Child Inclusive Conference or a Child Dispute Conference.

These Conferences are run by a Family Consultant, who is usually a psychologist or social worker specialising in family and children’s issues after separation.

A Child Inclusive or Child Dispute Conference is a meeting for all parties with the Family Consultant at the Court. The Judge decides if a child should be included or not. The Conference is designed to help the Court to understand the main issues in a dispute, so it is not confidential.

These conferences are not confidential because the Family Consultant prepares a short memo for the Court that gives their understanding of the dispute and sometimes their recommendations. This memo can help the Court to understand what is in the best interests of the children. Anything said to the consultant, as well as their observations, can be used in that memo.

Sometimes, a Judge may order a Family Report. That report is an in-depth look at the issues in dispute, the parties and the children and may contain recommendations. The Family Consultant will decide the extent to which they talk with a child depending on the age, maturity and individual needs of the child. The Family Consultant will usually meet with all parties and other people significant to the child, for example, new partners or grandparents.

The Family Report examines:

• the disputed issues;
• how parenting arrangements worked in the past;
• how the parenting arrangement works now;
• the children’s relationship with both parents (and any siblings, step parents etc);
• the children’s views and any risks to the children.

The report is then given to the Court and the Court will release it to the parties and their lawyers. It is an offence under the Family Law Act to say anything about the contents of the report to anyone who is not a party to the proceedings.

Property and Financial matters –Conciliation Conferences

If there is a property or financial dispute, the Court may order both parties to attend a Conciliation Conference to try to reach agreement. This usually takes place at the Court and is run by the Court Registrar, although a Judge can order the parties to attend a private conciliation outside court. If you have a lawyer, they will represent you at this conference.

Many property and financial matters are heard in the Federal Circuit Court.

Prior to the conciliation conference, the Court requires both parties to have made an honest and complete financial disclosure. This is done by:

• Requiring both parties to have filed Financial Statements;
• Requiring both parties to have filed a Conciliation Conference document;
• Requiring both parties to provide valuations, bank statements, tax returns and other documents that support the value attributed to the property and that provide evidence of how much is owed.

If a party does not make proper disclosure the Court might dismiss that person’s application, order that person to pay costs or impose a fine or term of imprisonment as contempt of Court – though this last rarely happens. If a document is fraudulent, the Court might refuse to let that person use that document as part of their evidence.

A Conciliation conference is often run with both parties in one room so if there has been violence or you are afraid of the other party, make sure to let the Court know so that you can be in a separate room to the other party.

If the parties do not agree at the end of the conference, the Registrar or mediator may give both sides their view on the likely result if the dispute proceeds to a hearing. The Court may request that a mediator provides a report with their recommendations if agreement cannot be reached. See
http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/family-law-matters/about-going-to-court-and-court-processes/if-your-case-is-in-the-family-court-of-australia/conciliation-conference

Family Dispute Resolution Conference (FDRC)

In both parenting and property disputes, the Court may order both parties to attend an FDRC, even if you have attempted FDR previously, for example, before filing in Court. More information about this is in Family Dispute Resolution.

It is not uncommon for there to be several FDRCs in a complex dispute. Both parties should always attend these conferences with positive view to participate and reach agreement where possible.

Formalising agreements

If agreement is reached through any of the Court initiated dispute resolution steps, this is usually formalised in Consent Orders. See Consent Orders for more information.

Final hearing

If no agreement is reached the Court will give the parties a date and time for their final hearing. Prior to the final hearing there will likely be a further Directions Hearing where the parties will be given strict deadlines to file the material they want to use to support their position at the hearing.

Evidence

Evidence from the parties and witnesses is given by Affidavit. This means if you are relying on other people to provide evidence supporting your case, for example, valuers, counsellors, grandparents etc, you will have to file Affidavits for each of them.

Sometimes to ensure people produce documents to the Court, or to ensure they attend Court, you will need to file and serve a subpoena. The Court will give you directions and a timetable about this.

At a final hearing, the Affidavit(s) filed by the Applicant will be their main evidence, known as ‘evidence in chief’. There may be a limited opportunity for the applicant and other witnesses to add to their Affidavit evidence by giving oral evidence in Court. The applicant’s evidence (including witnesses) can be tested by the Respondent in ‘cross-examination.’ The process is repeated for the respondent’s case.

If there is an Independent Children’s Lawyer who is a party to the dispute, they will also have the opportunity to cross examine the applicant and respondent, and any other witnesses, for example, the Family Consultant.

Submissions

Finally, all parties will have the option to make their final submissions to the Court. This is the final opportunity for each party to explain their position and why the Court should make the orders they have asked for. Parties can support their positions by referring to evidence presented at the hearing. Sometimes these submissions will be given orally at the hearing and sometimes the Court might request parties make the submissions in writing.

Once the hearing has ended, the Court will make a decision. Often, the Court will not make a decision on the final day of the hearing but will ‘reserve’ the decision. This will require parties to attend Court on a later date to hear the judgment. In that case, the Court will order that interim arrangements are to continue until that date.

Once the Court makes a decision, a party has 28 days to appeal that decision.

Where to get help

Legal Aid ACT

• Anyone can seek free help from Legal Aid’s duty lawyers:
  • At the Family Courts from 10-3pm each day
  • In the Legal Aid office at 2 Allsop St Canberra City
  • By telephoning the Helpline on 1300 654 314
  • Further assistance may be available to people with family violence and family law matters through Legal Aid’s Family Advocacy and Support Service. Duty Lawyers can refer clients to this program.
  • Legal representation for people who qualify for legal assistance. Phone 62433411 for further information. Legal Aid application forms are available in the Legal Aid office or at any of the Duty Lawyer services. They are not available online.

The Women’s Legal Centre (ACT & Region) provides assistance to women in family law and family violence matters: P: 62574377

Private lawyers

There are quite a lot of private law firms and lawyers who specialise in family law. An internet search will give a comprehensive list. Some of these lawyers give free or reduced price first appointments.

Courts

Family Courts Enquiries 1300 352 000

More information about contact details and a live chat service are here:

http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/contact-us/nec/nec