Settling your family law matter in the court system can be stressful, expensive, and most likely, a lengthy process. Understanding the timeline of court directions and procedure will help you prepare for the process.

This article provides the most important tips to help make the court process as smooth and productive as possible.

It is important to remember that court proceedings should be relied on as a last resort after all attempts made to negotiate a settlement.

We strongly recommend that you seek legal advice from an experienced family lawyer before commencing a court application.

Understanding the timeline for court hearings

Family law matters proceed through the Federal Circuit and Family Court of Australia. There are four types of hearings that usually take place during family law proceedings in the court, these include:

• Direction Hearings or Mentions;
• Interim Hearings;
• Call overs; and
• Final Hearings.

Learning about proceedings in the FCFCA

They say knowledge is power, so we recommend you invest some time educating yourself about procedural issues and the law. If you have a family lawyer managing your matter, ask them to explain the process to you in simple language.

If your proceedings involve a property settlement, you should have a thorough understanding of the likely outcomes and property division. If your proceedings involve the care of children, you should ensure you understand the possible outcomes for orders and arrangements for your children.

If you are unable to pay for a lawyer to represent you, you can request an appointment for representation from a Legal Aid lawyer, or at the very least, seek legal advice in relation to hearings.

Identify the issues in dispute

It is imperative that you work out the legal issues you and your ex-partner cannot agree on.  Clarify what you want to achieve from the hearing, and understand the other party’s wants.

When the differences between each party are clear, make a list of the strengths and weaknesses of your case. Plan how you will respond to any arguments made by the other party in relation to weaknesses in your matter.

Ensure that you:

• have relevant documents ready to hand to the Judge or in your sworn affidavit;
• have prepared written submissions to be handed up to the Judge;
• include a chronology of events, if appropriate;
• write out the orders you are seeking.

Doing the above, even if you have legal representation, will assist your lawyer preparing your case and may even save you costs in legal fees.

Evidence

The court can only consider evidence that is relevant to your matter and ‘admissible’ (i.e., able to be used in court). Evidence is usually admissible if it supports a party’s argument, or helps to weaken the other party’s argument.

Be objective about the evidence required. The evidence must be directly linked to your argument.

Don’t use unnecessary evidence which may be distracting. At the same time, you must keep in mind your duty to disclose material relevant to the issues in dispute.

Sometimes evidence that might seem relevant can’t be used in court.

The rules surrounding evidence can be complex so we strongly recommend you seek legal advice in relation to the evidence you will be relying on.

During the hearing

The general dress code for court is business attire, you should ensure you look neat and tidy. When entering and leaving the court room, it is etiquette to bow to the Judge and always stand when the Judge speaks to you. Ensure that your mobile phone is switched off. Following good court etiquette gives the Judge an indication of your character.

Remaining calm and reasonable in court, regardless of how heated arguments become, is very important as it shows the Judge that you are generally a calm and reasonable person.

When the Judge asks you a question, ensure you directly answer that specific question. Courts are under pressure from time constraints and appreciate direct and straightforward answers to questions.

Video conferencing

The court conducts hearings both in person and electronically via video link and telephone. This is referred to as ‘video conferencing’. The court will advise if your matter is listed for a remote hearing.

Electronic hearings are conducted as proper and formal court hearings which means the usual Rules of Court, court procedures and etiquette are expected to be complied with.

You can request your hearing be conducted electronically (using the relevant form which can be found on the court website). The court may also direct that the hearing be held via video link or telephone.

How do I find out where and how my hearing will take place?

You can usually find the above information by checking court orders, if your hearing was listed when the judge or registrar made the orders, or in emails or letters about your matter from the court.  If your hearing is listed to be heard electronically, the court will send you or your lawyer an email with instructions on how to join the hearing and what documents you will need to provide the court before the hearing date.

  Conclusion

Preparing for a family court hearing involves a lot of work and is time consuming. Ensuring that you have all documentation required and a thorough understanding of court procedures is vital for a successful outcome.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Separated couples unable to resolve matters regarding parenting and finances through mutual agreement can apply for interim orders in the Federal Circuit Court (or Family Court for some more serious and complex cases).

Interim orders are “temporary orders” and usually made as a matter of urgency to determine parenting and financial matters until the final hearing.

Although interim orders are temporary, it is important to ensure you understand your rights and entitlements regarding parenting and property arrangements as a status quo is sometimes set by interim orders.

What are interim orders?

Parties have the option to apply for interim orders as there is a general waiting period of up to 12 months or longer for a final hearing where final orders are made. As such, interim orders are “temporary” orders that are required for urgent matters, mainly regarding the care of children.

For most property matters, there is no need for interim orders, unless there are urgent issues needing to be addressed, for example, which party will remain occupying the former home where the couple resided.

We strongly recommend you speak with one of our family lawyers who can provide you with advice tailored to your situation.

How do I get interim orders?

Before making an application for parenting proceedings, parties must first attempt Family Dispute Resolution (FDR) with a mediator, unless there is history of family violence or child abuse. If no agreement regarding parenting is reached during FDR, or if one of the parties does not participate, the parties will need to apply for interim orders.

When applying for interim orders regarding a parenting application, an Affidavit and a Notice of Risk is required to be filed with your application. You must also file a 60i Certificate with your application for interim parenting orders.

If you are making an application for financial interim orders, you must submit an Affidavit and a Financial Statement with your application.

A fee will need to be paid at the time an application for interim orders is lodged.

Interim hearings usually take place between 2-3 months after an Initiating Application is filed.

Even if the other party has filed an application for an interim order first, you may still file your own application through a Response. Once your Response has been submitted, you will be in the same position as the other party.

An interim hearing may also be used to obtain the following types of Orders:

• Drug testing;
• Recovery Order;
• Restraints on certain behaviours;
• Appointment of an Independent Children’s Lawyer.

There is a lot of work involved in preparing an application for interim orders. To ensure you have included all necessary documents and information for your application and that you have drafted your affidavit correctly, we strongly advise you speak with one of our experienced family lawyers.

What happens during an interim hearing?

In interim hearings, courts do not make rulings on disputed facts because the evidence presented cannot be tested by cross examination. Courts make interim orders based on respective applications, affidavits, relevant reports and/or submissions made by both parties. Interim hearings are generally heard in less than two hours unless there are special circumstances which can cause the hearing to go over 2 hours.

An interim order for parenting may include the following;

• who the children of the relationship will reside with;
• the amount of time the children will spend with each parent and other people, such as grandparents;
• details of parental responsibility;
• how children will communicate with the parent they do not live with (including other people);
• any other factors related to the care, welfare or development of children.

When determining the above, the court will consider what is in the “best interests of the children.”

An interim property settlement (also referred to as “part property settlement”) can generally be described as an “advance” on what a party is likely to receive in a final property settlement. Interim property orders usually provide for funds to be used by one of the parties after separation. These funds may be used for whatever purpose the party seeking the interim order chooses, such as purchasing a property, car, paying legal expenses or for day to day living expenses. It is important to keep in mind that the funds allocated in the interim property order will be treated as part of what that party will receive in the final property settlement, i.e. these funds will be deducted from the final property settlement.

Conclusion

Interim orders are made as a temporary, urgent solution to a separated couples’ parenting and financial situation. At the final hearing, the court will examine all evidence, listen to cross-examination of the parties, and will then make final orders.

If a party wishes to apply for parenting orders, they must attempt ADR before doing so.

Considering the lengthy delays experienced in the Family Law Court, interim orders often remain in place for a long time. This means they can sometimes have an impact upon the final orders that may be made by the court, so it is crucial to seek advice from an experienced family lawyer who can ensure that proper time, care and effort has gone into preparing and presenting your case at the interim hearing.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.

Financial abuse occurs where a person uses systematic coercion to control another family member’s access to money or assets, whether the victim of the financial abuse is currently in, or was in, an intimate relationship with the perpetrator. Financial abuse is considered a form of domestic violence.

There is recourse and assistance available for people who are experiencing financial abuse.

This information is for general purposes only and we recommend obtaining professional advice relevant to your circumstances.

What is considered financial abuse?

Financial abuse occurs usually between intimate partners, when one controls or manipulates the other person’s access to finances, assets and decision-making to create dependence and control such as:

• restricting another person’s access to bank accounts;
• completely controlling their finances and money or forbidding a partner to work or make their own money;
• not allowing a partner to use their own money or taking it away from them;
• monitoring how a partner spends money or makes financial decisions;
• using a partner’s money without their permission.

Financial abuse can be subtle or overt and is often not the only type of violence perpetuated against a partner. It can be accompanied by other types of abuse such as physical violence. Perpetrators of family violence usually use financial abuse as a means of stripping a victim of resources to leave the abusive relationship.

Examples of financial abuse

An example of financial abuse can occur where a spouse relies on the other spouse to earn an income for their family. The other spouse constantly pretends they’re searching for a job while in actual fact, they are instead at a friend’s house, or out indulging in leisurely activies.

Another example can include a husband insisting his wife provide him with every grocery receipt for his approval. If the husband doesn’t agree with any food purchases, he lectures his wife for hours. This can lead to a person not being able to choose what type of foods they want to eat.

What can I do if I’m experiencing financial abuse by my partner?

The most important thing is your safety and wellbeing. The police may either charge the violent person with assault and/or apply for an Apprehended Domestic Violence Order (ADVO) for your protection. If you prefer to remain in the house with your children, you can ask the police to remove the violent person from your house. If you need to speak to someone about advice on leaving your relationship, you can call the domestic violence hotline. The hotline can refer you to other services available for people in your situation.

If you are experiencing financial abuse, it is important to take legal action as soon as possible which may involve commencing court proceedings to prevent your financial situation worsening. This is because your assets are at a risk of being stripped or all your money being spent by your abuser.

You can apply for an urgent application in the Federal Circuit and Family Court of Australia (FCFCA) to get an injunction to prevent your assets being moved to other accounts, spent or your mutual funds disappearing. An urgent application for an injunction will usually get your matter before the court within weeks as opposed to the three months (plus) it can take to have a non-urgent proceeding heard before the court.

It is important to keep a list of documents that can confirm the existence of financial abuse, and to ensure that collecting this evidence is done safely. For example, credit card statements that can prove that a partner has money even though that partner is refusing the victim access to purchase goods they need. Credit or other financial product/service applications made in the victim’s name without their knowledge, is good evidence to retain safely, preferably in a trusted family member or friend’s home.

This area of law can be complex, especially given the urgent nature of court applications, which is why we strongly recommend you seek advice from an experienced lawyer.

Conclusion

If you are experiencing financial abuse and are worried about your health and safety, it is important to seek help from the police who can assist in applying for an ADVO.

You should also seek advice from an experienced lawyer about ways in which you can protect your wealth and assets being jeopardised and how to collect relevant evidence that can assist in you applying for an urgent injunction if you choose to go down this path.

If you or someone you know wants more information or needs help or advice, please contact us on 07 3281 6644 or email mail@powerlegal.com.au.