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.

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