Navigating through the Court process

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. 

The Courts

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.  

Final Hearing

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.  

Court etiquette

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.

In plain English: The basics of going to Court

If you’ve worked with us before, you’ll probably know that we’re advocates for Collaborative Law, and advise where possible that our clients stay out of Court when settling a family law dispute.  However, sometimes going to Court can be unavoidable when in the midst of a property dispute or an issue concerning children.  If you’ve tried alternatives to Court and still find yourself facing the inevitable, refer to our handy guide on what to expect when you’re going to Court.

 

What you need to know about going to Court

 

Matters under the Family Law Act are normally handled by the Federal Circuit Court.  More complex cases are determined by the Family Court of Australia.  In Brisbane, the Federal Circuit Court and Family Law Courts are based in Harry Gibbs Commonwealth Law Courts Building in Brisbane CBD.  

 

Going to Court can be a long and time consuming process (often between 1 to 2 years or more to progress from initiating proceedings to Judgment if settlement does not occur in the meantime).

 

For matters involving property and parenting, there are a couple of common steps that are taken:

 

  1. First Court Date

Following an application being filed with the Court, the Court will allocate what is known as a First ‘Mention’ date.  The purpose of the First Mention is to provide an initial assessment of what needs to happen for the matter to be finalised.  Often, procedural orders are made to progress the matter.  This can include disclosure, valuations and mediation for a property settlement matter, or the preparation of a Family Report for a parenting matter.

 

For more information, refer to the FFC guide here: FCC Fact Sheet: The first court event – helpful information

 

  1. Conciliation and Mediation

A Conciliation Conference is a compulsory mediation session with your lawyer, along with your former partner and their lawyer.  This occurs within the Court with a Registrar convening the Conference.  Mediation occurs outside of the Court, with a mediator engaged by the parties. 

 

The purpose of Conciliation Conferences and Mediation is to try and agree a suitable arrangement for all parties.  If you are able to come to an appropriate resolution agreed by both parties, then proposed Orders can be prepared, signed and submitted to the Court for the Judge’s consideration.  If the Court makes the Orders, then no trial will occur.

 

For matters involving parenting disputes, Compulsory Family Dispute Resolution must take place first (except in specified exempt circumstances – contact us for more information).  The aim of Family Dispute Resolution is similar to a Conciliation Conference – all parties can attempt to come to a resolution surrounding issues of parenting, instead of a Court deciding the matter for you.  If you are unable to come to a resolution, you will receive a Certificate from the accredited dispute resolution provider verifying your attempt to resolve the matter out of Court.

 

  1. Family Report (Only in parenting matters) 

The Court will often make an Order that a Family Consultant is to prepare an independent, non-confidential report, as evidence for the Court to consider in reaching a determination.  The Consultant will meet with each party, the child(ren) and any significant others in the child’s life.

 

Parties can seek a Family Consultant’s Report through the Court, or engage a private Family Report Writer/expert to prepare a Family Report.

 

Preparing for a Trial

 

Preparing for Trial is costly and involves significant work, so it is important to consider alternatives to Court and to make every effort to settle the matter before it reaches the Trial stage.  

 

The kind of work required for a trial can include:

 

    • Filing affidavits detailing your evidence and of any witnesses you intend to rely on.  Other documents are usually required to be filed, such as a Case Outline
    • Property valuations need to be obtained for a property matter
    • You might need to issue subpoenas for external documents or other information
    • You may need to instruct a barrister to represent you, instructed by your Solicitor
    • Exchange disclosure – documents relevant to your case

 

Trial

 

A trial date can be set up to 18 to 24 months or more after an application has been filed, depending on the Court’s diary and how your matter progresses.  

 

On the trial date(s), you and your lawyer will attend Court and a Judge will hear your matter. The Applicant will be heard first, along with their witnesses, led by their lawyer.  The Respondent will then do the same.  After this, the lawyers will submit to the Judge arguments about how the matter should be decided, referring to evidence and case law. The Judge will then make Orders or adjourn the case to give their judgment another time.  This can sometimes take up to a further 6 months to 1 year for a Judge to deliver their Judgment.  

 

Undeniably, therefore, there are many benefits to settling out of Court.  We pride ourselves on only a very small percentage of our matters making it to a final hearing in the Court because the advice we give is pragmatic and we explore all opportunities available to settle your matter without the high cost associated with litigation to the end.  We have published articles giving guidance on a range of issues, and you can find some articles below:

 

https://daykinfamilylaw.com.au/what-is-collaborative-law/

https://daykinfamilylaw.com.au/what-happens-to-property-before-after-divorce/

https://daykinfamilylaw.com.au/settling-out-of-court/

https://daykinfamilylaw.com.au/property-settlement/

https://daykinfamilylaw.com.au/child-custody-mediation/

 

If going to Court is the only option, then we can guide you through every step of the litigation process.  Shannon Daykin is an experienced Family and Divorce Lawyer, named as a Leading Family & Divorce Lawyer (Recommended, Brisbane) and Leading Parenting & Children’s Matters Lawyer (Recommended, Queensland) in the prestigious Doyle’s Guide 2018 and 2019.  In 2019, Daykin Family Law was named in the Doyle’s Guide as a Leading Family & Divorce Law Firm (Recommended).

 

We provide expert legal advice on the most appropriate and cost-effective course of action for you and your family.  Contact us on (07) 3338 5645 to make an appointment for a fixed fee initial consultation today.

 

The blog published by Daykin Family Law is intended as general information only and is not legal advice on any subject matter. By viewing the blog posts, the reader understands there is no solicitor-client relationship between the reader and the blog publisher. The blog should not be used as a substitute for legal advice from a legal practitioner, and readers are urged to consult Daykin Family Law on any legal queries concerning a specific situation.