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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.

What is domestic and family violence? What is a DVO?

This article addresses the topic of domestic and family violence.  If you or a loved one is in danger or at any risk of domestic or family violence, or if you are concerned for your personal safety, we urge you to contact 000 and ask for the police immediately.    

Unfortunately, family violence can be prevalent in many matters that come before the Family Law Courts.  The Family Court of Australia and the Federal Circuit Court of Australia take family violence very seriously.  Domestic and family violence is an issue that has an impact on all members of a family, including of course on children, and can impact on the wider community.  Many find it difficult however to know for sure exactly what behaviour constitutes family violence, or just knowing what steps to take to protect yourself and your loved ones can be difficult.

Read on to find out more about domestic and family violence and what types of orders you can obtain from the Magistrates Court to protect yourself moving forward.

What is domestic and family violence?

Domestic and family violence (DFV) does not always involve physical violence.  DFV is often recognised as an ongoing pattern of behaviour by a person in a relationship which is aimed at controlling another person, and this control can come in various forms.

Some examples of DFV are:

  1. Stalking and surveillance – this may include following you, frequently dropping by your home or workplace to “check-up” on you, and lingering outside your home or workplace;
  2. Physical abuse physical violence is actual physical contact or threat of physical contact, such as hitting, punching and pushing. This may also include behaviour such as destroying property or punching walls even if there is no injury inflicted on your body as a result;
  3. Psychological & emotional abuse this includes behaviour aimed at undermining your feelings of self-worth, such as constant criticism and belittling. It may also include manipulative techniques to control you, such as the use of blackmail;
  4. Sexual abuse – this relates to any unwanted or forced sexual activity, such as forcing or coercing you to engage in sexual behaviour or deliberately causing pain during sexual intercourse;
  5. Financial abuse this may include be behaviour such as controlling your spending, withholding your pay, restricting access to joint bank accounts, and preventing you from working or furthering your education.

The above is, of course, just some examples of DFV and is not intended on being an exhaustive list.  An assessment of your individual circumstances and your family dynamics would be necessary to ascertain whether particular behaviour might constitute DFV.

What is a Domestic Violence Order?

If you or any of your family members are experiencing DFV, you might consider reporting the incident(s) to the police as soon as practicable.  Also, an application to the Magistrates Court of Queensland for a Domestic Violence Order (DVO) can be made.

A DVO is a Protection Order made by the court to stop threats or acts of domestic violence.

The DVO names the aggrieved person(s), that is, those who are experiencing the domestic violence.  It also names the person who is perpetrating the violence as the respondent.

The purpose of a DVO is to keep the aggrieved safe by restraining the respondent from committing further acts of family violence.  The DVO may also include a wide range of other conditions imposed on the respondent, such as prohibiting them from:

  1. approaching you or coming within a certain distance from your home or workplace;
  2. approaching your relatives or friends;
  3. going to a child’s school or day care centre; and
  4. contacting you in any way (including by phone or on social media).

Who can apply for a DVO?

In Queensland, to be eligible to apply for a DVO, the alleged violence must have occurred when the parties were:

  1. in an intimate personal relationship; or
  2. in a family relationship; or
  3. in an informal unpaid care relationship.

Importantly, you do not need to apply for the DVO by yourself.  The police can apply to the court for a DVO on your behalf.  In addition, a lawyer, friend, family member or any other trusted person can also apply for you.  Regardless of who applies, the Court will make an order with the conditions it considers appropriate, and the police will enforce the order accordingly.

Types of Domestic Violence Orders

The court may make the following DVOs in your matter:

  1. Temporary Protection Order; or
  2. Protection Order.

If you are in need of urgent protection, you can request a Temporary Protection Order (TPO) to be considered by the court when you file your application.  TPOs are made by the court to protect those in immediate danger until the court is able to consider whether to make a final protection order at the final hearing.

During a final hearing, the court will assess all of the evidence based on the circumstances of the alleged offending, hear any cross-examination of parties and then make a final determination of the application.  If the court considers that the circumstances warrant there being a DVO, the court may impose a Protection Order.  A Protection Order is generally made for the minimum period of 5 years, although the period may be shorter if the court is satisfied that it is appropriate to do so.  In any event, the period of the order may be extended if the circumstances of the case permit.

Seek legal advice

Domestic and family violence is a serious matter and taking steps to apply for a Domestic Violence Order may seem daunting but in some cases is necessary to protect safety.  Being on the other side of an application for a Protection Order can also be difficult to navigate without the benefit of legal advice.  Keep in mind that the application itself and any subsequent orders are legal documents and there may be consequences for making false statements or for any non-compliance with orders.

If you have concerns for your safety and/or are considering applying for a domestic violence order, contact us today to arrange an urgent 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.

How do I work out my family law property settlement entitlements?

The breakdown of a marriage or de facto relationship can provoke intense disputes as to ownership, value and distribution of property.  As such, finalising property settlement is often a major step in helping separated couples move on with their lives.

Do I have to go to Court to get a property settlement?

The first question that might come to mind is whether or not you actually have to go to Court to get a property settlement with your former spouse.  The simple answer to that is no!  In fact, most family law property matters can be resolved outside of court which can save you both money and time in avoiding potentially lengthy and emotionally taxing litigation.  Whilst the court may be involved when seeking to formalise a settlement, actual attendance in court likely will not be required when an agreement is reached.

Read on below to get an understanding about property settlement matters and how your entitlements are calculated.

What is disclosure?

Disclosure in Family Law is an essential part of any property settlement, as it allows you to understand and identify the value of the property pool and whether the value of any assets are in dispute.  Without knowing what the property pool is, it is very difficult to know what your entitlements to property settlement are and agreeing to any property settlement in such cases can be risky.

As such, both parties to the dispute have an obligation to provide full and frank disclosure to one another under the pre-action procedures set out in legislation.  Ideally, this process should start as soon as possible and will allow you to smoothly transition to the next step of engaging in negotiations to settle property matters.

Considerations to determine a party’s property interests

Whether you were married or in a de facto relationship, there are 5 steps that a Court considers when determining how a property pool should be split.  Those steps are:

  1. Whether it is just equitable to make an order in the first place. This step is generally satisfied if you and your former spouse have intermingled your finances, as an example;
  2. The next step is to identify the property pool, as we described above;
  3. The third step is to consider the contributions made by each party (more on this step below);
  4. After that, it is necessary to consider the section 75(2) and 90SF(2) factors, which are also known as the “future needs” factors (see below for more details on this step); and
  5. The final step is to consider whether the settlement is “just and equitable” given the circumstances of the case.

Undertaking disclosure will assist with the second step above, in ascertaining the property pool available for distribution.

Contributions

The third step in the property settlement process is to assess contributions.  These are direct and indirect, financial and non-financial contributions made by each party or certain contributions made on their behalf.

Financial contributions may include the income earned by you as well as any gifts or inheritances received during the relationship.  Non-financial contributions include any work such as renovations that increased the value of a property, as well as each parties’ share of homemaker and parenting duties.  This includes things such as cleaning, cooking and raising children.

Future needs

Sections 75(2) and 90SF(2) of the Family Law Act relate to the future needs of the parties which are considered when determining property settlement entitlements.  Future needs generally refer to factors such as:

  1. the age and health status of the parties;
  2. the income of each party and whether there is any income earning disparity;
  3. any factors impacting the parties’ income-earning capacities;
  4. the future parenting arrangements for the children.

Time limitation for property settlement

The Family Law Act provides that separated married couples have 12 months from the date that a divorce order takes effect to file an application for a property settlement and/or spousal maintenance.  For de facto couples, the time limitation is 2 years from the date of separation.  If you miss this time limitation, you will be required to obtain permission or “leave” from the court to proceed with any such application out of time which may or may not be granted, depending on the circumstances.

Seek legal advice

Knowing your entitlements to property settlement is an essential part of achieving the best possible outcome for you in your family law matters to enable you to make informed decisions.  However, this may not be as easy as it seems, as there is no universal or specific formula to divide the property pool.

Working out what a party is entitled to is determined on a case-by-case basis and based on an assessment of the above as an overview.  This is why it is best to seek legal advice about your case, your obligations and entitlements, as well as tailored advice regarding the best options to suit your individual needs and the needs of your family.

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.

Family Dispute Resolution: Ways to resolve your disputes faster and more cost effectively than going through court

No relationship breakup is ever easy, especially when the financial burden of separation or divorce can be so heavy on the parties involved.  On top of that, going to court to resolve your family law matters can be not only costly but also time consuming.  Sometimes, the court process can take up precious financial and resources for years.

It is always best to consider litigation as a last resort, if you have exhausted other alternatives to resolving your dispute.  It is for this reason that, in recent years, the courts have been placing greater emphasis on “Family Dispute Resolution” (FDR) processes which aim to assist parties to resolve disputes and settle matters outside of court.

Read on to get an understanding of two commonly used FDR processes for resolving disputes, namely, mediation and conciliation, and how they can assist you in your family law matter.

Mediation

Mediation is a well-regarded FDR process which aims to assist parties in family law matters to settle disputes by discussing differences and attempting to negotiate a potential outcome that would work for everyone involved.

Mediation is normally facilitated by a trained third-party known as a “mediator”.  A mediator is a trained professional whose main role is to act as an impartial third-party to facilitate discussions and negotiations and keep matters focused on resolving issues in dispute.

Mediation is usually a voluntary process parties agree to, however the court has also developed mandatory dispute resolution procedures in some cases in order to assist parties in avoiding the high costs involved with litigation.  For example, in parenting matters, the court requires compulsory mediation to be attempted by all parents seeking to obtain orders regarding children unless an exemption applies.   We consider the reason for this is because courts have recognised that mediation is, in fact, a proven and successful way of resolving many disputes.

Mediation can take place with all parties and/or their legal representatives in the same room.  Or, as an alternative, it can be conducted via “shuttle”.  This means that the respective parties will remain in separate rooms during the mediation, with the mediator moving between the rooms and having separate meetings with any legal representatives. 

Failing to reach an agreement and section 60I certificates  

It is a requirement under the Family Law Act 1975 (Cth) that separating couples seeking parenting orders of the court need to first indicate that a genuine effort to resolve the dispute by FDR has been attempted.  However, it may be the case that you find yourself dealing with another parent who is not willing to make a genuine effort in this regard, or simply the fact that an agreement cannot be reached despite a genuine effort being made.  In such circumstances, a form known as the “section 60I certificate” is necessary to be filed with the court.  Only registered FDR practitioners can issue such certificates and they allow parents to commence proceedings for parenting orders.

The following are five types of section 60I certificates that can be issued:

  1. You did not attend FDR due to the refusal or failure of the other party to attend;
  2. You did not attend FDR because the FDR practitioner did not consider it would be appropriate to conduct FDR in your circumstances;
  3. The parties attended FDR and made a genuine effort to resolve the issue(s) in dispute, but an agreement was not reached;
  4. The parties attended FDR but one or more of the parties did not make a genuine effort to resolve the issue(s) in dispute; and
  5. The FDR process commenced, but the mediator considered that it would not be appropriate to continue.

If you receive a section 60I certificate and decide to file an application in court, you will need to file it together with your initiating application.

Conciliation

Another common FDR process is conciliation.  Conciliation is similar to mediation insofar as its main purpose is to assist the parties in reaching an agreement on the various issues in dispute and, in so doing, to avoid the incursion of further legal costs.

Legal representatives are permitted to represent parties in this process and, sometimes, are court ordered to do so.

Notably though, the main difference is that the conciliation conference is conducted by a court Registrar.  A Registrar is a court lawyer that exercises certain judicial powers, such as the making of Orders.  At the conciliation conference, the Registrar will look at the case from both sides and assist in exploring options for settling your case without the need for a final hearing.  A Registrar cannot give legal advice, however they can talk with you about the legal principles that are applied when deciding cases.

As with mediation, the parties are expected to make a genuine effort to reach an agreement at conciliation.  With that in mind, you should go to conciliation in a spirit of compromise and adopt a practical approach.

Seek legal advice

Overall, it has to be said that both mediation and conciliation is more cost-effective and speedier than litigation which can often go on for years.  However, we understand that every single case in Family Law is different depending on your individual circumstances and the needs of your family.

For this reason, knowing what type of FDR process is most suitable for your case, if any, and when to consider engaging in such events, can be confusing and even daunting for many people.  This is why it is best to seek legal advice about your case, your obligations and entitlements, as well as tailored advice regarding the best options to suit your individual needs and the needs of your family.

Contact us today and make an appointment with Shannon Daykin, an Accredited Family Law Specialist, to discuss your circumstances and needs.  Shannon was recently 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.  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.