View our videos for information about what to expect if you are going to court for a family law matter.
1. Our references below are to the Federal Circuit Court of Australia as that is where most family law matters are heard. The Family Court of Australia has a different system of managing cases.
2. Expect a long day at Court. Unless your family law case is listed for a final hearing, you will be one of many other matters (25-35 is not unusual) that the Judge will have to deal with. The most urgent matters will get priority. Bring a book, some water, food (and patience).
3. There is airport security in place at the Court so leave at home any aerosols and sharp objects
4. The Judge cannot make a final decision about your family law case unless there has been a final hearing (full trial with cross-examination). That is likely to be at least a year – likely even longer with the current delays in the Federal Circuit Court – after your case is first filed. So unless your matter is listed for a ‘final hearing’, do not expect it to be your last court date.
5. Whilst the Judge cannot decide a contested family law case without a final hearing, almost every occasion you come to court, is an opportunity to try to reach a final resolution of your matter.
If you and the other party/parties can reach agreement about your family law property settlement, spousal maintenance, child support or custody, then a ‘Consent Order’ can be signed and put before the Judge for approval, that day.
There are a few different type of family law court dates so we have set out below the most common ones, to explain what you can expect on your day in Court:
This is the first time the Federal Circuit Court Judge to whom your case has been allocated will hear your matter.If you have a property/financial matter, ‘Directions’ will be made for the progress of your matter. Often, this will include orders for disclosure and to attend a mediation then return to Court for a Mention.
If you have any ‘interim applications’ before the Court (such as dealing urgently with a property issue) then they may be heard on this date if the Court has time, or they may be allocated a date to come back and deal with them.
If you have a parenting (custody or access) case then, if there is an ‘interim application’ filed (which there usually is), then a number of things can occur:
The Judge may send you to see a Family Consultant for the purposes of what is called a s. 11F Report – basically a short form family report. It may happen that day if there is availability, or you may be given an appointment to come back in the next week or so for the report to be prepared. The Judge may decide not to make any orders until that report is available.
The Judge may hear your matter. Your lawyer will speak to the Judge and make ‘submissions’ based on what is in your affidavit. You will not be required to give evidence, except in very rare circumstances.
The Judge may adjourn your matter for you to come back on another date (this is quite common) for the purposes of:
enabling a full family report to be obtained
enabling an Independent Children’s Lawyer to become involved
enabling evidence to be obtained (e.g.: drug testing)
reviewing any arrangements that are put in place to see how they are working for your children
These are usually an opportunity for the Court to see whether or not your matter is progressing towards a resolution. If there are difficulties such as disclosure, further orders can be made.If you have a parenting matter, sometimes the Court will list the matter for a Mention but may be prepared to address requested changes to existing Orders, time permitting.
This is an administrative hearing to enable the Judge to decide if opportunities for resolution have been exhausted and your matter should be prepared for trial. ‘Directions’ will usually be made to file Affidavits and prepare for your hearing. You may or may not be told a date for your final hearing on this day – it depends on the Judge and the availability in their diary.
This is the ‘trial’ of your matter where your evidence is placed before the Judge in affidavits of you and your witnesses and tested by cross-examination by the other party’s lawyer (or them, if they are not legally represented).Expect long, stressful days.
Decide in advance if you will swear on the bible or take an affirmation.
A few important things to understand:
If you have had someone sign an affidavit for you:
they must come to court if they are required for cross-examination (assume they will be) otherwise you cannot rely on their evidence.
if your trial is listed for more than one day, make sure your witnesses are available to come to court each day. They cannot be booked into specific time slots as timing is unpredictable.
let your witnesses know as soon as you become aware of your trial date, so they can make arrangements.
if a witness has time constraints or is travelling from interstate ensure you let your lawyer know
Until a witness has given(and finished giving) their evidence:
they cannot come into the courtroom
no-one must discuss the case with them or any evidence that has been given in the case
If you are the Applicant, you will give your evidence first, followed by your witnesses.
If you are the Respondent, your evidence starts after the last witness for the Applicant.
The Judge might make a decision at the end of your final hearing, but it is more likely that the decision will be ‘reserved’. It may be some weeks, or even months before you get the final judgment (Order).