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In what Court do I file my Family Law Application?

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In all States except Western Australia, there are two Courts used to adjudicate family law matters, being the Family Court of Australia and the Federal Circuit Court of Australia. Although it is common for the terms “Family Court” and “Federal Circuit Court” to be used interchangeably, as both Courts use and apply the Family Law Act 1975 (Cth) in their determination of the matters, there are differences between the two Courts.

The Family Court of Australia determines only family law matters and those that are complex in nature (such as matters that involve allegations of severe child abuse and property settlement matters that have asset pools comprised of overseas assets or that are of multi-million dollar worth).

In comparison, the Federal Circuit Court of Australia determines a higher volume of cases that have less complex facts. The Federal Circuit Court also adjudicates on matters that are not family law related but that fall under federal legislation.  

It is most common for family law matters to commence and finalise in the Federal Circuit Court of Australia. A Judge does, however, have the power to transfer the matter to the Family Court of Australia during the proceedings, should they consider the matter to be sufficiently complex.

How do I lodge my Family Law matter in Court (file a Family Law Application)?

There are two methods that you can use to file your documents. You can file:

  1. Online using the Commonwealth Courts Portal. The Commonwealth Court Portal website can be accessed via www.comcourts.gov.auOnce you have accessed the website, there are a series of prompts for you to register as a “New User”. Once you have registered, a profile will be created for you and you will be able to file a new Application or your Response to an existing application.

  2. In person at the Registry of the Federal Circuit Court of Australia or Family Court of Australia. A list of the registry locations can be found via the following websites: 
    http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/contact-us/locations 
    http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/contact-us/locations

    You need to attend the Court registry with copies of all the Court documents that you wish to file, being:
    1. the original copy of your Court documents (this will be the copy that the Court will retain); and
    2. enough photocopies of your Court documents for all parties in the matter (including a copy for you).

Sometimes a Registrar may need to look over Court documents before they are filed. In such instance, your Court documents may need to be returned to you by post.

How will I know what Court date I have been allocated?

On the top right hand corner of the Initiating Application, there will be a square box that contains information, such as your file number, the Court location and the date that your documents were filed. In the bottom of that same box it will your listed Court date and time.

What do I do once I have filed my documents?

Once you have filed your documents, you need to arrange service of those documents on all other parties in your matter.

The Court website provides guidance about requirements for serving documents. The website also provides helpful information about additional documents that you need to file to evidence to the Court that you have served all parties.
http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/how-do-i/service/serve-fl-docs/serve-fl-documents

What do I take to Court with me on my Court date?

Although there may be significant wait times between your allocated start time and when your matter is heard, we suggest that you arrive at the Court at least 15 minutes before your allocated Court time.

There are couches situated throughout building outside of the Court rooms. There are also rooms alongside the Court rooms that you can use throughout the day.

Given that Court days can be long, we recommend that you bring with you the following:

  • snacks and a drink in a plastic bottle (glass is not permitted in the Court building and will be confiscated by security);
  • a notepad and 2 pens to assist you to take notes when you are liaising with the other party or their solicitor or appearing before the Judge;
  • the points that you wish to raise with the Judge in support of your Application.

What don’t I bring with me to Court?

When you arrive at the Court, you will walk through a metal detector. Your bags will also be scanned. There are very strict rules about what you can take with you into the Court building and any non-permitted items will be confiscated by security and held for your collection on your way out of the Court. Such items include:

  1. glass bottles;
  2. knives;
  3. aerosol cans such as deodorant and hairspray; and
  4. umbrellas.

You should also be mindful of your comments as you walk through security as jokes about terrorism, bombs or guns could be perceived that you pose risk or threat. It is therefore best that you refrain from making such comments.

How will the Judge know that I am at Court?

Each Judge has Associates allocated to them. Associates can often be found outside or within the Court room wearing long black robes. They also often carry a clipboard or have a trolley full of files next to them.

One of the roles of an associate is to help the judge throughout the day to manage the list of matters that are to be heard.

When you hear an Associate call out words to the effect of “All matters appearing before Judge Smith, come to the front of Court room 3”, you must approach the Associate and be ready to provide them with responses to the following:

  1. your surname and the surname of the other party. This will help the associate locate your matter in their list. Once they have identified you, they will make a note that you are present at Court;

  2. whether you are the Applicant or the Respondent. If you commenced the proceedings, you are the Applicant. If the other party commenced the proceedings, you are the Respondent;

  3. whether you have spoken with the other party and if so, whether any agreement has been reached. If the other party in your matter is legally represented, it is likely that the Associate will encourage you to speak with the other party’s legal representative for discussions before calling your matter before the Judge. If you are unfamiliar with the other party’s solicitor, the Associate may also be able to assist you by identifying them in the crowd;

  4. know what you would like to ask of the Judge to aid the progression of your matter. It is important that you know and can articulate to the Associate what you seek to achieve from your Court appearance before the Judge. Being prepared to answer this question will help the Associate manage the list of the matters that day and find an appropriate time for your matter to be heard.

If you are unsure as to what to ask, it can be helpful to consider the following:

  1. have you and the Other party filed documents? If not, you may need an order from the Court that documents be filed by a set time and that the matter be adjourned to another date;
  1. is there an issue outstanding between you and the other party that is stopping the progression of the matter? If so, you may wish to seek that the Judge hears that issue;
  1. have you had an opportunity to discuss the matter with the other party or their solicitor? If not, you may wish to seek that the matter be stood down, so that you can negotiate with the other party.

 

How should I communicate with the other party’s lawyer?

When self representing at Court, it can be intimidating speaking with the other party’s solicitor.

Try to remember that solicitors often speak with self represented parties and that their role is to negotiate and argue on behalf of their client, with a view to progressing the matter.

Therefore, if the other party’s solicitor approaches you to negotiate some of the outstanding issues between you and the other party, it may be worthwhile hearing what they have to say.

Some helpful things to think about when negotiating include:

  1. simply because the other party has come up with the proposal, does not make it unreasonable. Therefore, do not rule out the proposal simply because it was not your idea;

  2. be clear about whether the proposed agreement is on an interim or final basis (i.e. is the proposed order temporary or final);

  3. letting your emotions get the better of you and being disrespectful in your negotiations are unhelpful. Endeavour to be firm but respectful in your responses;

  4. you do not need to resolve all issues or agree to every proposal that is put to you, however, try to remember that each issue you resolve outside of the Court room is one less issue that needs to be put before the Judge.

Are there any solicitors available to give me free advice at the Court?

There are often duty lawyers on site at the Courts funded by Legal Aid Queensland or other community legal services. If you are having difficulty locating the duty lawyers, you may wish to approach security or the court registry staff to point you in the right direction.

What happens when I appear before the Judge?

When your matter is to be heard, the Associate will call your matter from outside of the Court room. When you hear your matter’s name, you should approach the Court room immediately. The Associate will tell you whether you need to sit in the back of the Court room or proceed to the bar table.  It is important that you follow the Associate’s directions.

Before you walk into Court, you should also ensure the following:

  1. that your mobile telephone is switched off;

  2. that you do not have sunglasses or a hat on your head;

  3. that you are not eating or chewing gum;

  4. if you have children present with you at court that your children are left supervised by a third party outside of the Court room; and

  5. that you have ceased any conversations with third parties.

If the Judge is present in the Court room, it is important that you bow your head as you enter the Court room. You should do this regardless of whether the Judge appears to be aware that you are entering the Court room. If, however, the Judge is absent from the Court room you do not need to bow.

When appearing before the judge:

  1. you should announce your appearance the first time you speak to the judge. For instance, you could say, “My name is Jim Smith. I am the Applicant Father in this matter”;

  2. you should refer to the Judge as “Your Honour”;

  3. you should stand when you are speaking to the Judge. You should never address the Judge when you are seated as it can be considered disrespectful;

  4. you should be seated when the Judge is speaking with the other party;

  5. you should not talk over or interrupt the Judge or any other person when they are speaking. If you have something to raise, make a note of it in your notepad and raise it with the Court when you are given opportunity to speak;

  6. you should speak clearly and in a respectful tone always. You should never raise your voice or swear during Court proceedings.

It is important that you act reasonably and respectfully at all times during Court, as impressions count. A failure to do so, could cause the Judge to hold an impression of you that could be detrimental to your case, not only on that occasion, but throughout your entire matter, as it is common that a matter will only have one Judge presiding over the case from its start to finish.

Interim hearings

If you are intending to self represent in an interim hearing, it is important to note that a Judge cannot receive your evidence verbally. Your evidence must be contained in the Affidavits filed and served by you prior to the hearing. This includes Affidavits by you and third parties. As it is rare for an interim hearing to include cross-examination, it is imperative that your documents are prepared thoroughly, as this is the only evidence that you will be permitted to rely upon during the interim hearing.

You will often be given no more than 2 hours for the matter to be heard in its entirety. You must therefore be succinct and well prepared to present your case to the Judge.

When the Judge asks each party to “read” their materials, the Judge is asking you to tell the Court the documents that you have filed in support of your case and of which you seek to rely upon in support of your argument. For example, you could respond to the Judge by saying:

“Your Honour, I read:

  • the Initiating Application of Jim Smith filed 21 November 2017;
  • the Affidavit of Jim Smith filed 21 November 2017; and
  • the Notice of Risk of Jim Smith filed 21 November 2017.”

It is not uncommon for a Judge to stand a matter down to read the materials filed by each party.

The Judge will usually ask the Applicant to make their submissions first as to what orders they say should be made and why. The Judge will then afford the same opportunity to the Respondent.

When you are presenting your argument to the Judge, try to be persuasive and confident in your speech. It can also be helpful to reference the paragraph number, as well as the information contained in your filed documents, or the documents filed by the other party, that support your argument. Referring to paragraph numbers will not only help the Judge to follow your argument, but will demonstrate that you are across the material.

After each party has made their submissions, the Judge may:

  1. give their decision immediately; or
  2. stand the matter down for a short time; or
  3. stand the matter down and adjourn the matter to another day upon which judgement will be delivered.

Final hearings

A final hearing is the most important Court date of your matter. You will be notified by the Court before the first Court date as to the approximate number of days that you will be required to attend Court for final hearing.

If you have filed Affidavits by third parties, they must be available in person to give evidence and to be cross examined (unless otherwise agreed with the other party before Court). All witnesses in the matter (except for the Applicant and the Respondent) will be required to stay out of the Court room until they have given evidence. 

You will also be cross examined during the final hearing. Before doing so, you will be led to the witness box and given the option to “affirm” or “swear” an oath, as well as stating your name, address and occupation. The cross examination will then commence. When giving evidence:

  1. do not lie;
  2. do not argue;
  3. do listen to the question asked of you;
  4. do answer the question asked of you;
  5. only answer the question asked of you.

It will also be expected that you will cross examine the other party and their witnesses during the final hearing so it is imperative that you are well prepared. When cross examining:

  1. do not argue with the witness;
  2. keep focused on the facts;
  3. do not become emotional;
  4. highlight any inconsistencies between what the witness says and what is deposed in their Affidavit;
  5. be well prepared by having your questions ready and having a reason for your question, in case you are asked for its relevance.

After each party and their witnesses have given their evidence, the Judge will ask for closing submissions starting with the Applicant. Use this as an opportunity to:

  1. take the Judge to parts of evidence heard and how such evidence supports your argument;
  2. make submissions about how you believe the Court should conclude the evidence;
  3. the Orders that you believe the Court should make.

After each party has made their final submissions, the Judge may:

  1. give their decision immediately; or
  2. stand the matter down for a short time; or
  3. stand the matter down and adjourn the matter to another day upon which judgement will be delivered.

Once the matter has been adjourned, you are able to leave the Court building.

 

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