Going to Family Court
So you have finally worked your way through the mind field of legal documents and you are now ready to file them in the Family court, but how do you do this practically? And once you have finally filed the documents in court and are given a court date… then what? Let’s start at the beginning and give you a practical how – to guide for the Family Law Court.
What Court do I File in?
Most people will file in the Federal Circuit Court of Australia for their Family law matters. If the matter is extremely complex the matter could be filed in the Family Court of Australia but we recommend that all matters be filed in the Federal Circuit Court of Australia. If a judge determines that the matter is sufficiently complicated, then a judge has the ability to move the matter to the Family Court.
Most people use the term “Family Court” and “Federal Circuit Court” interchangeably.
How do I File Documents in Family Court?
There are 2 ways that you can file documents in court:
- Online; or
- In person
- 1. Filing Online
In order to file online, you need to go to www.comcourts.gov.au and follow the prompts. You will be required to click on New User and register. Once registered you can file a new Application or Respond to an existing Application.
- 2. Filing In Person
You will need to have the original documents, plus 1 copy for each party involved in the proceedings. Normally this will mean that you will have the original documents PLUS 2 extra copies of the document ie . 3 of the same document in total for filing. This needs to happen with every document that you file in the court.
You will need to attend at your closest Federal Circuit Court/Family Court and normally the registry will be on the ground floor. For Brisbane the registry is on the ground floor, past the elevators.
Normally you will take a ticket or number and wait to be called. The registry staff will call you to the counter and briefly check over your documents. Once checked they will stamp the documents and return 2 copies of the documents back to you. (In some circumstances they may refer the documents to a registrar and will then forward the documents back to you in the mail).
The copies of documents returned to you are for you and the other party. You will need to arrange for someone other than yourself to serve 1 copy of the documents on the other party. (See the Family court website for details regarding requirements for serving the documents.)
Where Is The Court?
In Brisbane the Family Court and Federal Circuit Court of Australia is located in the Commonwealth Law Courts also known as the Harry Gibbs Building. It is located on the corner of Tank Street and North Quay. The entrance to the building is via Tank Street. (FYI Tank Street is a 1 way street that can only be accessed via North Quay if travelling in a car).
How Do I Get There?
The court is close to public transport and as such you can travel by train, bus, or car.
If going to court by train in Brisbane you will need to get off at the Roma Street Train station and exit the station towards Roma Street or George Street. Cross the road and walk up 1 block and you will reach Tank Street (it is a very small street).
If you are travelling by bus, the bus stop is situated at George Street just around the corner from Tank Street.
If driving, there is parking available in Tank Street directly opposite the court house. Be mindful to arrive early to get a park as the carpark can fill up quickly on some days. Alternatively, there is parking at Roma Street Train Station which can be accessed from Roma Street.
What Do I Bring With Me?
We refer to the Family Court as the ‘hurry up and wait court’. What that means is that you must always get to court on time or at least 15 minutes before the time allocated for you to start. This does not however mean that you will have your matter heard at that time and you will have to wait until you are called into the court. As such you should bring with you:
– something to drink (nothing in a glass bottle) – something to read or do while waiting – a notepad – at least 2 pens (murphy’s law says 1 will run out when you need it the most) – your court documents – a list of arguments you wish to make to the judge
Please note that there are no bins located in the building which means anything you bring in with you must also be taken away with you as well.
Where in the Court Do I Go?
You will go in the entrance on Tank Street and you will need to line up to go through the metal detectors. Please note that any of the following will be confiscated from you and held until you return later to collect on your way out:
- – Pocket knives
- – Glass bottles
- – Aerosol cans (hair spray, deodorant)
- – Nail files
Please note – do not joke about bombs, terrorism or guns etc while going through the detectors as it could be seen as a safety risk.
Once through the detectors go to the elevators and go up to level 1. When you get out of the elevator, go to the board on the right. You will find a list of judges and room numbers. Look for your name or the other party’s name. This board will tell you who your judge is, which court number you are in and what floor the court number is found. Once you have found a room you simply need to take a seat until the judges associate arrives.
How Does the Court Know I Have Arrived?
If you go to the court room and take a seat outside, eventually a judges associate will arrive to open up the court. The associates are easily spotted as they will be wearing black robes with large trolleys of files.
When the Associate is ready they will call out something along the lines of “All matters appearing before Judge Jarrett in Court room 4”. This is your cue to line up and tell the associate the following:
- 1. What matter you are referring to;
- 2. Your name (and whether you are the Respondent or Applicant in the matter);
- 3. And most importantly what you are wanting to do today.
If the other party is represented they will point you out to each other in order for you to be able to have discussions regarding the matter if you wish.
When you do speak to the Associate it is really important to think about practically what it is you are hoping the court to do for you that day. This helps the judge manage his list and fit your matter in to be heard.
In order to address this ask yourself the following:
- 1. Have all the documents by both parties been filed? If not do you want an adjournment?
- 2. Do you have an agreement and want court to make orders that everyone is happy with?
- 3. Is there likely to be no agreement at all at this stage and you need court to make temporary orders?
- 4. Would you like to stand the matter down to give you time to try and negotiate with the other side?
What If I Need Legal Advice?
Legal Aid duty lawyers are available to provide you with free legal advice on the day of court if necessary. They are located on level 1, to the left as you leave the elevators. If you are having trouble locating them you can ask someone at the front counter for guidance.
Regardless of the decision the associate will then call your matter when you are ready to enter the court. Usually they will tell you to either go to the bar table or sit in the back of the court until you are then called on.
Before you enter the court make sure:
- 1. Phones are switched off;
- 2. No sunglasses on the head;
- 3. No drink bottles on the table;
- 4. No chewing gum;
- 5. Dress presentably;
- 6. No children in the court room (it is illegal for children to be in a courtroom without leave of the judge)
When you enter the court room you need to remember that the judge may already be in the middle of another matter. If you see the judge in the court room you must bow your head as you enter the court room.
If the judge is not yet in the room then you can simply sit at the bar table (or if represented in the seats just behind your representative).
The associate will go out a back door of the court and will then knock loudly on a door 3 times. Once you hear this you must stand up and bow as the judge enters the court. The associate will then tell you to be seated.
You then will stand each time the judge addresses you and sit down once finished. It is rude to speak to a judge from a seated position.
You refer to the Judge as “your honour”.
What NOT to do: – Do not disrespect the judge or other party – Do not over talk or intervene when the judge or someone else is talking – Do not swear
Family court is a serious court which deals with serious decisions. If you demonstrate you lack of respect then you are bound to give the judge an impression of yourself that will not assist you in your case going forward. Remember this may be the only judge that deals with your matter and impressions are extremely important.
Communication with the Other Party’s Lawyer
While you are sitting around waiting to have your matter heard by the Judge, it is not uncommon for the other party’s solicitor to come and ask if you would like to negotiate and try to resolve some or all of the issues. There may be a number of issues related to things such as property settlement, domestic violence or other separation matters that can be dealt with prior to entering the court room.
While it may seem intimidating to speak to a lawyer at first, however lawyers are used to speaking with self-represented people and are merely there to argue their own client’s matter and also assist the court to progress the matter along as easily as possible for the court.
You should remember that every item you get resolved outside the court, is one less issue you have to argue about inside the court. It is also ok that you don’t agree about the big issues such as in the case of Child Custody; who the children should live with. But you may be able to narrow down those smaller issues such as where changeover can occur, school interacting, telephone contact, children’s birthday’s etc.
You can also enter into a consent orders for procedural matters such as whether parties should undergo drugs tests, DNA test, or whether a Family Report should be prepared.
When negotiating with the Other Party think about the following:
- 1. Don’t simply rule out any proposed Order suggested by the other party simply because it was their proposal.
- 2. Is the proposed Order meant to be temporary or a Final Order (for eg. Final Order that the child lives with you but temporary order about how much time the child should spend with the other party is still in dispute)
- 3. Leave emotions at the door in negotiations
- 4. What is good for goose is good for the gander Eg if you are asking for the other party to be drug tested then should be stand to reason that both parties should undergo the test?
- 5. What harm is the Order to you? If an order says you are not to insult the other parent then there is no harm in not agreeing to the order (even if you don’t insult the other party already).
- 6. For children’s Orders always ask yourself “Is this really in the best interests of the child? (as opposed to being about me)” If the answer is no then you should not do it. If the answer is maybe then you should not do it. Only decisions which are in the best interest of the child should be followed.
Inside the Court Room Process
Once in the Court, the Judge will ask both parties for your appearances. If the other party is represented they will speak first and then judge will address you and you just have to simply inform them that you are representing yourself.
- 1. Interim Hearing
If you are running an Interim hearing then you are allowed no more than 2 hours for the matter to be heard as a whole. The judge cannot receive your statement from you verbally at the bar table so it is important that you have all of your Affidavits and Documents filed and served well before the court date.
- a. Reading Material
The judge will ask for the Applicant to “read” his or her material. This simply means to tell the court what documents you have filed to support your case such as Initiating Application filed on X date, Affidavit of Bob Smith filed on X date, Notice of Risk of Abuse filed on X date.
The judge will then ask the same from the Respondent.
The judge may ask basically what the matter is about to get a brief understanding of the main issues in point and then the judge will do a few things:
- b. Referencing Paragraphs
Court’s love it when you can assist them by directing them to relevant paragraphs of your Affidavit material. You can also direct them to the other side’s paragraphs if you can show it has been contradicted.
The judge may stand the matter down and go away and read the paragraphs indicated by you. Your Affidavit is your evidence and this is what the court will be relying upon so it is important to know what is in your material.
- c. Arguments
The judge will ask for the Applicant to start by pointing to the material and making submissions as to what orders and why they should be made. It is very important that you indicate what evidence is available to prove your case currently before the court and also indicate what evidence has not been forthcoming from the other party.
If the other party has remained silent about a matter then raise that as a sign of caution to the judge. This is your time to be persuasive. PRACTICE PRACTICE PRACTICE.
Once the Applicant has finished the Respondent will then get to respond and try and persuade the judge.
NOTE: Unless in exceptional circumstances, No person is cross examined at an interim hearing. Everything is solely dependent on the Affidavit material already filed so it is important you have good documents prepared.
- d. Determination
The judge will normally make a decision either immediately, or stand it down for a short time, or make a later date for judgement to be given. How long this takes is purely up to the judge presiding over the matter.
- 2. Final Hearing
This is the biggest day of your family law matter. The final hearing may take 1 day, 2 days or much longer. It will all depend on your specific facts and issues. You must prepare, prepare, prepare for this hearing. All the witnesses who have filed Affidavits can be cross examined. You will be expected to cross examine.
- a. Openings
As outlined above the Court will ask both parties to read their materials into the record. This includes all Affidavits and documents filed by you.
While the Applicant is giving evidence all other witnesses except the Respondent must stay outside the court room until they have given evidence.
- b. Giving Evidence
Once this is done the Applicant will be the first person to give evidence. They will stand in the witness box and swear on the bible or make an affirmation, state their name, address and occupation.
The Respondent or his/her representative will then start asking questions of the Applicant. The questions can be direct or ask your opinion. Whatever the question remember this about being crossed examined:
- 1. DON’T LIE;
- 2. DON’T ARGUE;
- 3. LISTEN TO THE ACTUAL QUESTION;
- 4. ANSWER ONLY THE SPECIFIC QUESTION ASKED
When you are cross examining:
- 1. DON’T ARGUE;
- 2. FOCUS ON THE FACTS NOT EMOTIONS;
- 3. POINT TO THE INCONSISTENCIES IN THEIR MATERIAL;
- 4. GIVE THEM A CHANCE TO ANSWER THE QUESTION;
- 5. BE ORGANISED ABOUT WHAT YOU ARE ASKING;
- 6. HAVE A REASON FOR THE QUESTION (if it can’t get you the Order you want then don’t do it);
- 7. PREPARE PREPARE PREPARE
- c. Re-Examination
Once the Applicant has finished being questioned the court will ask if there is any re-examination to be asked. If you are self-represented they will give you a chance to clear up something that was asked in cross examination. Note – this is rarely used and is to simply clarify minor points.
Once finished the Applicant will be advised that is the end of their evidence and they can sit down.
- d. Other Witnesses
The court will then go through the same procedure for all of the witnesses starting with the Applicant’s witnesses and then the Respondent and the Respondent’s witnesses.
- e. Conclusion
Once all the evidence is given the court will then hear closing submissions starting with the Applicant. This is your chance to point the judge to pieces of evidence that was heard and how it supports your case and you have the chance to make submissions about how you believe the court should treat the evidence and what orders it should make.
The Respondent will then get the same chance to respond with their submissions and proposals.
Once all done the judge will either give reasons for judgement there and then, or adjourn the matter for a decision at a later time. The delay in receiving the judgement can be quite lengthy depending on the issues that need to be considered.
The Associate will adjourn the court and you are free to leave.
While court can be quite intimidating, hopefully the above gives you a better understanding of what you should expect to be prepared for. If you are still concerned or nervous about what to do then please feel free to contact us on 3172 3777 in order to have your concerns dealt with.