Last Updated 25 March 2019
Family law matters are heard in the Family Court of Australia or the Federal Circuit Court of Australia. Each court has rules and procedures, some of which are intended to help make the courts more accessible to self-represented litigants. Family law matters usually proceed through the following steps (although the procedure can vary depending on the circumstances of the case). If agreement is reached, final consent orders will end the matter.
Prior to making an application
Prior to making an application, attempted mediation is compulsory in all parenting matters, including contravention applications, unless an exemption is granted. The existence of domestic or family violence is a ground for such an exemption. There are compulsory steps in property (financial) matters to be commenced in the Family Court.
In general, the following applies:
- The parties are called into court and stand at opposite ends of the bar table and remain standing.
- When requested by the judicial officer, each party announces their appearance (e.g. ‘My name is Fred Smith and I am the applicant father’).
- The parties take it in turns to tell the court what documents they want the judicial officer to read (e.g. ‘I am relying upon the affidavit of myself filed 17 June 2018 and the application filed 12 May 2018’).
- The court will read the documents each party relies on and may ask questions to clarify the issues in dispute.
- No oral evidence is given, except in exceptional circumstances.
- Evidence is presented by affidavit and admissible subpoenaed documents.
- Hearsay evidence can be allowed.
- A self-represented litigant should alert a court officer or the court if there are any subpoenaed documents that may be relevant to the matter. All parties need permission from the court to review subpoenaed material. Inspection of documents should be completed before the interim hearing commences.
- The applicant then makes submissions to the court (see Submissions below).
- The respondent then responds to those submissions and presents their evidence.
- The court then gives a decision, or the decision may be reserved for a short period of time.
- The court makes an interim or temporary order.
Procedural and other steps
In property matters, a mediation or compulsory conference will usually take place after an interim hearing.
In parenting matters, a family report may be done, an independent children’s lawyer appointed or other information obtained (e.g. filing of affidavits, medical assessments or subpoena applications).
In all matters, there may be further interim hearings if new information comes to hand, circumstances change or urgent orders become necessary. If no final agreement can be made, the court will make trial directions (listing the trial date and the steps required before trial).
The court rules provide that all parties have an ongoing duty of disclosure to the court and the other party, up until the final hearing (trial). Trial directions are made either at an interim hearing or on another day, perhaps when a judge is holding a ‘trial callover’ and providing trial directions at procedural mentions in a list of matters. When trial directions are made, the court will determine how long the hearing will take and set the matter down for however many days are needed. The trial directions will also set out the filing dates for affidavits and other documents.
The final hearing
By the time a matter reaches a final hearing, the issues to be determined and the evidence that will be presented should be very clear. The Family Law Act 1975 (Cth) sets out various rules in relation to the giving of evidence in family law proceedings. Essentially, the intention of the rules is to permit parties to rely on evidence that is relevant to the matter without a strict application of the Evidence Act 1995 (Cth). The court will generally allow evidence that is directly relevant to determining a relevant factual issue in dispute.
At the beginning of the final hearing (trial), the parties:
- take their places at the bar table
- take it in turns to announce their names with the applicant going first
- each identify for the court those documents that have been filed and upon which they intend to rely
- raise any preliminary points for instance arguments over inadmissible evidence, arrangements for witnesses or any late requests to inspect subpoenaed material that has not previously been produced at court.
It is not common for the court to ask for a party to make an opening statement, but this has happened on occasion. Usually the process is for each party to formally read (state) the material being relied upon. If there is an Independent Children’s Lawyer appointed in the case, they may also have witnesses who are to give evidence. The Independent Children’s Lawyer’s witnesses currently give their evidence first. Then the applicant’s witnesses are called to be available for cross-examination. After the applicant’s witnesses have completed their evidence, the respondent’s witnesses are called and cross-examined. Sometimes a witness is not required for cross-examination, and in that case their evidence is put before the court unchallenged. It is important to cross-examine a witness if a party wants to make a submission to the court that the evidence the witness gave, either in their affidavit or in oral testimony, is incorrect or contrary to the evidence of another witness in the matter.
Testing the evidence
Once the parties have presented all of their witnesses, the evidence in the matter is complete. Each party will then be invited to make final submissions to the court. If there is an Independent Children’s Lawyer involved, they will normally make their submissions first, followed by the applicant and then the respondent.
The purpose of submissions is to give the parties an opportunity to summarise the evidence they say supports their case or defeats the other party’s case. It also gives the parties an opportunity to detail for the court any precedent decisions that support their case that may be persuasive to the court. Although there is no prescribed approach to submissions, the following suggestions may be helpful.
Make notes about any points that arose from the evidence or cross-examination that may be helpful to prove the case.
Prepare a written summary that can be handed up to the court.
Start with a statement and then identify the points that support that proposition for example ‘Your Honour, my position is that the children live with me. The main issues for determination by Your Honour are:
- whether the presumption of equally shared parental responsibility are rebutted
- the children’s wishes
- my parenting capacity
- the other party’s parenting capacity’.
Outline for the court evidence that supports the proposition using those issues as a framework, for example ‘Your Honour, in relation to the second issue, the children’s wishes, I rely upon the evidence of Dr Smith, the psychologist who prepared the family report’.
Make the submissions short and relevant to the issues to be determined.
If referring to previous decisions, ensure copies of those decisions are available to give to the court and the other parties.