Going to Court

Contributed by Margie Rowe, Anna Theodore, Rosa Grahame and Elinor Knaggs and current to March 2022

What does this section cover?

This section covers court proceedings and procedures in the Federal Circuit and Family Court of Australia and provides advice for self-represented litigants.

The Federal Circuit and Family Court of Australia

In Australia, the Federal Circuit and Family Court of Australia (FCFC) examines family law disputes.

The FCFC applies the Family Law Act 1975 to determine parenting and/or property and financial disputes following separation. The various forms for the FCFC are available on their website.

The FCFC provides ‘Do it Yourself Kits’ to assist people without lawyers and information on general etiquette required in court and tips for preparing for attending court in-person. The FCFC provides various ‘Do it Yourself’ kits to assist people without lawyers for the following processes:

• Initiating an application seeking interim and/or final orders;
• Applying for a Consent Order;
• Serving family law documents;
• Responding to a family law initiating application;
• Serving a divorce application; and

Lodging a Financial Statement (used if you are a party to a financial proceeding including property and financial settlement, maintenance, child support and financial enforcement).

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 Federal Circuit and Family Court of Australia from 10am to 3pm each day and a Duty Lawyer at the ACT Magistrates Court (if you are seeking an ACT Family Violence Order) from 9am to 1pm on each day (afternoon is by appointment only, call 1300 654 314). 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 Centre provide advice and representation;
• The FCFC have a lot of information on their website and in printed booklets and brochures which you can get at the Court Registry;
• Make use of the Courts’ Do-it-Yourself Kits (the do it yourself kits can be found at Family Law Forms);
• 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; or
• Use the ACT Law Society’s ‘Find a Lawyer’ Referral Service if there is no free legal assistance available – lawyers may provide an initial interview at no charge and provide legal representation for a fee. Some firms may discount their free or charge on a ‘no win, no fee’ basis. This should be discussed directly with the firm.

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 FCFC 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 electronically file in the Commonwealth Courts Portal are:

Application for Parenting Orders:

1. Application for Consent Orders;
2. Notice of Child Abuse, Family Violence or Risk;
3. Terms of settlement prepared in accordance with the Application for Consent Orders – Proposed Orders template;
4. An Affidavit if you are seeking urgent or interim orders.

Application for Property or Financial Orders:

1. Initiating Application;
2. Financial Statement;
3. Terms of settlement prepared in accordance with the Application for Consent Orders – Proposed Orders template;
4. Further documentation or information will be required if you are a party to a de facto relationship, if either party has a superannuation interest and if the financial order will bind a third party (for more information on these requirements see pages D, E and F of the FCFC’s ‘Do it Yourself’ Kit for Consent Orders);
5. An Affidavit if you are seeking urgent or interim orders.

After an Application for Consent Orders is filed, you will be emailed the file number and the application will be available on the Commonwealth Courts Portal. The application will be considered by a judicial Registrar. If the judicial Registrar is satisfied that the orders should be made, sealed orders will become available on the Portal to download. If the Court declines to make the orders, you will be notified and should obtain legal advice. It may be necessary for your application to be heard in court.

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.

Filing fees

Each application has a filing fee that must be paid by the person bringing the application. Filing fees can be paid online when electronically filing applications and documents in the Commonwealth Courts Portal. For a full list of FCFC Court fees, see https://www.fcfcoa.gov.au/fl/fees/fl-fees.If you hold certain Government concession cards or can demonstrate financial hardship, you may be eligible an exemption of court fees or in the case of an application for divorce or decree of nullity, a reduced fee. The FCFC website provides guidelines on who may be entitled for exempted or reduced fees.

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 Child Abuse, Family Violence or 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;
• 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 FCFC. 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 1975 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 FCFC.

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 different kind of penalty as permitted by family law legislation. 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 reach an agreement, it can be formalised by the Registrar and made into binding court orders. If the parties do not agree at the end of the conference, the Registrar (or mediator if there is consent given by both sides for this to occur) may give both sides their view on the likely result if the dispute proceeds to a hearing. For additional information see https://www.fcfcoa.gov.au/fl/conciliation and a Conciliation Conference factsheet.

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. For further information see: https://www.fcfcoa.gov.au/forms/subpoena.

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.