Many separated couples can become stuck when negotiating arrangements for how to divide property, or what longer term arrangements will be in place for the children. It is always best to attempt to negotiate directly with your former spouse about potential options to resolve the dispute if your circumstances permit and it is safe to do so, rather than going straight to court. This is especially so when there are children involved and parents must continue to co-parent with each other. However, in some cases, the intervention of the courts becomes necessary to progress matters towards finality and to assist the parties in moving on with their lives.
The court process can seem intimidating to people who are not familiar with it, as there are a myriad of rules and regulations, as well as procedures, that must be followed by litigants and anyone else involved, including lawyers.
Read on to get a basic understanding of, how does the court process work in family law matters? This will cover how proceedings are initiated and we will address some of the more commonly encountered steps involved in litigation.
Most states and territories, including Queensland, have a Family Court and a Federal Circuit Court, both of which may hear family law matters, but knowing which court is right for your case can be difficult.
The Family Court is a superior court and has jurisdiction to hear and determine family law matters as well as appeals. The matters heard in the Family Court tend to be more complex matters, whereas the less complex matters are generally heard in the Federal Circuit Court. In any event, applications filed in the Federal Circuit Court may be transferred to the Family Court, and vice versa, if the court determines that it is necessary to do so. Changes are coming to the Court system later in 2021, but this is the state of the system for now, in a nutshell.
How to commence family law proceeding
An applicant may file an application in either the Family Court or the Federal Circuit Court to start their case. Regardless of which court you file in, the court will apply the relevant provisions of the Family Law Act and any other relevant legislation, however it is important to note that the court rules and procedures may vary.
Generally, proceedings in family law matters are initiated at the filing of an initiating application, however depending on the nature of your case, this may not be the appropriate application for you. Initiating applications set out the orders sought of the court on an interim and/or final basis. The nature of the orders sought will of course depend on whether the application relates to property settlement and/or parenting matters, and the requirements tend to vary depending on the case.
There may also be other documents that need to be filed with the initiating application, such as an affidavit, a financial statement in property matters and a notice of child abuse, family violence or risk in parenting matters.
Keep in mind that before an application for parenting matters is filed in the Court, parties are required to attempt family dispute resolution or seek an exemption from this requirement in certain circumstances.
Responding to an Application
If you happen to find yourself to be on the receiving end of an initiating application, you will be identified as the “respondent” in the case and you will often be required to file a Response to Initiating Application. Similar to the requirements for an initiating application, your Response may need to be accompanied by an affidavit, as well as the orders you wish to seek from the court, such as interim and/or final orders. The financial statement and notice of child abuse, family violence or risk may also need to be filed, depending on the circumstances.
First return date
The next step in family law proceedings is often a first mention hearing. This hearing enables parties to attend Court (usually electronically at the moment) and deal with interim matters sought in the application and/or response. At this hearing, the court may consider the material filed by both sides. The court may also make certain orders to assist parties in trying to resolve various issues in dispute in these early stages. For example, in property settlement matters, the court may order that parties exchange disclosure documents (if such documents haven’t been exchanged already) or attend a mediation or conciliation conference to try and negotiate a settlement outside of court.
In parenting matters, the court may make an order for a family report to be prepared. If this occurs, a family report writer will interview the parties, and sometimes the children, and provide a detailed report with recommendations based on their findings. The court may then consider these recommendations when making any interim and/or final parenting orders.
The final hearing, also known as a trial, is a hearing before a judicial officer who will conduct the trial and make a decision about the outcome of your case. During the trial process, the parties and other witnesses and/or experts (if applicable) may be called to give oral evidence and be cross-examined by the other side. The Judge will generally also consider the other evidence filed in the court such as affidavits, family reports and subpoenaed material, to make a final determination and issue final orders.
The trial might run for no more than 1 day in some cases, but in other cases the trial might run for 2 or 3 days or, sometimes, much longer. The time required for the trial will largely depend on the specific circumstances of each case and the issues in dispute.
It is important to remember that Courts are formal places and there is an expectation that anyone present before the court must behave in a respectful way and follow the necessary rules and procedures of the court. Failure to comply with court rules or inappropriate behaviour in court may result in a fine or even jail time.
Dress appropriately when you attend court and be sure to switch off your mobile phone and other electronic devices prior to entering the court room. You should wait in the public gallery seating area until your matter is called, and it is best to avoid speaking until you are spoken to by the judge.
See the following Family Court of Australia webpage for further tips on attending your court hearing: http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/family-law-matters/about-going-to-court-and-court-processes/tips-for-your-court-hearing/
Seek legal advice
Overall, navigating through the court process can seem daunting and intimidating for those who are not familiar with the system. Often, the requirements for commencing proceedings and the steps involved may differ depending on the circumstances of each individual case, the needs of the parties and/or children and the orders sought. This is why it is best to seek legal advice about your case and tailored advice regarding the best options that suit your individual needs and the needs of your family when it comes to litigation or your family law matter generally.
Contact us today and make an appointment with Shannon Daykin, an Accredited Family Law Specialist, to discuss your circumstances and needs. Shannon was named as one of Brisbane’s Leading Family & Divorce Lawyers (Recommended) and Leading Parenting & Children’s Matters Lawyers (Leading) 2021, Brisbane, in the prestigious Doyle’s Family Law Guide, and named on the List in previous years. We offer a reduced fixed fee initial consultation, which can be conducted in person, by phone or by video conference.
We give you expert legal advice on the most appropriate and cost-effective course of action for you and your family. Contact us on (07) 3852 5490 to make an appointment for a fixed fee initial consultation today.