Children & Parenting
10. The Family Court
Authors: Staff Legal Eagle
Firm / Chambers:
Last updated: 30 Jun 2015
- If you are unable to reach an agreement in mediation you will most likely find yourself needing the court to make parenting arrangements for you. You case will be dealt with by the Federal Circuit Court or the Family Court if the matter is very complex.
- Each person that is allowed to speak in the court is called a ‘party’ to the case. That means you and your ex-partner. You can speak for yourself or have a lawyer speak for you.
- Your children may also have a lawyer appointed to speak for them in court. This lawyer is called an Independent Children’s Lawyer.
- Your case will be listed on a number of occasions before the final hearing date. These dates are called mentions and are mainly to make sure everyone has filed their affidavits and everything is ready before the final hearing. On these days your case will usually be dealt with quickly and there will be many other people at court who will also have their cases listed.
- It is important you come to court every time your case is listed.
- The court may make an order that a Family Consultant interview the children and parents. This is an independent expert who is concerned with the children’s best interests. After the interview they will write a report that will become evidence in the case. The report will include recommendations for the court about what parenting arrangements would be in the children’s best interest and other issues. The court will take the recommendations of the Family Consultant very seriously.
- The court will be trying to decide what is in your children’s best interests. This is not what the individual judge thinks is their best interests but what the law says. There are a lot of factors that need to be taken into account but the most important are that a child has a right to have a meaningful relationship with both parents and a child has a right to be safe. The child’s safety is the paramount consideration. This means that the child’s safety always comes first. Safety has to be prioritised above anything else.
- The court can make interim orders. These are short-term orders that are put in place whilst the matter is before the court up until the time that final orders are made. Sometimes there are interim hearings to decide what the short-term position should be. This usually happens when parties cannot agree on temporary arrangements. They can also be required because it can take many months or even years for your case to be finalised by the court.
- At the end of the final hearing the court will make final parenting orders.
- Evidence is presented to the court in an affidavit (written statement). This is a formal document with numbered paragraphs outlining the situation.
- Each party will write an affidavit to support their application and file this with the court
- Each party may also ask other people to prepare affidavits to support their case. Your lawyer is the best person to give you guidance about who is a relevant witness in your case.
- A good way to start preparing your evidence is to read your ex-partner’s affidavit. Then next to each numbered paragraph write down whether or not you agree with each of the statements. Simply write ‘agree’ or ‘disagree’ next to each number. If you ‘disagree’ also write a short sentence with your version of the facts.
- Another good way to prepare evidence is to keep a diary and note down everything that you think is important with regard to the breakdown of your relationship and your separation. You will not be able to put all of this information into your affidavit but having a clear record will help save you time and money when your lawyer is helping you decide what they court needs to know.
- It is also a good idea to collect any other written evidence you have such as reports, letters, emails and other documents. Any document that supports what you have said in your affidavit needs to be attached to it. These attachments are called annexures.
- Your affidavit will be filed in court and a copy given to your ex-partner.
- You will be given a chance to read all the affidavits that are filed in your case and to give your lawyer instructions about their content.
- If your case does not settle during the preliminary stages it will be listed for a hearing. This is when the court puts aside time to listen to each side of the story.
- Each person that writes an affidavit for your matter is called a witness. Each witness needs to also give their evidence by speaking in court. The lawyer for the party that called the witness will help the witness to tell their evidence to the court. Then the lawyer for the other party will test that evidence in a cross-examination (asking questions) of the witness.
- Your case may be listed for a day or more depending how many witnesses need to give evidence.
- The court will listen and record all the evidence of all the parties and witnesses in the case as well as the submissions that are made by the lawyers.
- The judge will then make a decision about what is best for the children and make final orders. The judge must also give reasons for their decision.
- If you do not agree with the final orders then you may be able to appeal the decision of the judge.
- The most important thing to do is to find out the deadline for filing an appeal. You will also need to know which documents need to be filed with the court registry.
- Your lawyer can give you advice about this. It is important you speak to the lawyer about it as soon as possible at the end of the hearing.
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