Often people who are going through a family law property settlement, divorce, parenting or children’s case have never been to the Federal Circuit Court or Family Court before. I frequently have questions from clients about these issues and there is no wrong question! Hopefully this information will be helpful to you or a loved one going through a family law property settlement, divorce, or child custody and parenting issues in the Federal Circuit Court or Family Court.
Do I have to attend Federal Circuit Court or Family Court hearings of my case?
We strongly recommend that you attend each hearing of your case in the Federal Circuit Court or Family Court. The Court process is an important one and court orders made at each stage of the proceedings can significantly affect your life and those of your loved ones. It’s important you attend each hearing to ensure your barrister understands what is going to be right for you. Very often negotiations take place on the day of court and it is much easier to conduct those negotiations if you are present. It also makes a much better impression on the Judge deciding your case that you are interested and committed to the process.
If you absolutely cannot attend for one reason or another (for example you cannot get time off work) then we can suggest a work around but it will require you to be available by telephone for the morning or afternoon of the Court date to provide instructions as required. This applies to an interim hearing only. You must attend each and every day of any trial of your case.
What do I wear to Federal Circuit Court or Family Court and how should I conduct myself?
Both the Federal Circuit Court and the Family Court are formal settings and you should dress respectfully. If you are going to work before or after the Court hearing you can attend in your work clothes. If you are not, then we recommend you dress in business attire or smart casual clothing. Do not wear your sunglasses and ensure your sunglasses are not sitting on your head when you walk into Court.
In terms of your conduct, we understand this is a very difficult time for you and often you are dealing with high stress and strong emotions. However, it’s very important you conduct yourself in a courteous manner at Court, which includes your conduct towards your ex-partner. If you lose your temper, swear, or shout then it will have a negative impact on your case, particularly if the Judge sees you do this.
Do I have to do any talking? What do I say if the Judge addresses me?
For most attendances at Court you will not have to talk to anyone except your barrister or solicitor. When you go into the Court room your barrister will talk to the Judge, not you. Sometimes the Judge may address you directly. If that does occur, you must stand up when the Judge speaks to you. You also must call the Judge “Your Honour” when you respond to their question. For example “Yes, Your Honour” is appropriate not simply “Yes”.
Can I bring someone to Court with me? Can they come into the Family Court or Federal Circuit Court room with me while my case is being heard by the Judge?
Yes, you are most welcome to bring a support person with you on the day. That person can enter the Court room with you and sit with you while your case is heard before the Judge. In some circumstances that person might not be able to enter the Court room with you, for example if the Judge has ordered the Court be closed, or if your case is in trial and that person is a witness. If you’re unsure, your family lawyer can help answer that question.
Who are the additional people in the Court room who sit in front of the Judge?
There is a Judge’s Associate, a Sheriff’s Officer and a Court Orderly who are in the Court room with the Judge and assist His or Her Honour on the bench. You should also treat these people with respect and be courteous at all times.
What does a first return date mean?
A first return date means the first date your case is before the Judge after court documents are filed. The Judge does not make a ruling on your case on that date and the primary purpose is to identify the interim issues in dispute between the parties and make appropriate orders to address this. For example: an order that parties exchange financial documentation, arrange valuations or attend mediation; or an order about where a child lives or goes to school, and that certain child protection or SAPOL (South Australian Police) documents be delivered to the Court.
What does an interim hearing or argument date mean?
An interim hearing or argument is a discrete hearing before a Judge to determine an interim issue, which means an issue that needs to be decided before a trial or settlement of your case. Examples of interim issues are: a decision about who will occupy the matrimonial home pending settlement; an application for a change of primary care of a child in circumstances of risk; an application for one parent to spend more time with a child or that one party pays spousal maintenance to the other party.
Why do I have a barrister and what do they do?
The barrister is your advocate in Court. Your barrister will appear in Court on the day. They will talk to the barrister appearing for the other party in negotiations and they will be your “mouth piece” before the Judge. Your solicitor will provide instructions to the barrister as to what relevant issues to bring up and ensure the barrister is aware of the things that are important to you for your hearing.
In South Australia lawyers are both barristers and solicitors which means your solicitor may attend as your barrister. Barristers are specialist advocates, which means they only do Court work each day. There are some rules about what barristers can and cannot do. A barrister cannot directly be instructed by you, they must be instructed by your solicitor. Barristers do not prepare Court documents or write letters of advice to clients. Often it is more cost effective for a client to have a barrister attend a hearing instead of a solicitor.
Where will I meet my barrister if I have never met them before? Will they know who I am?
At Northside Lawyers we have established working relationships with experienced and specialist family law barristers. We ensure we brief barristers who are specialists in their field and who are used to attending the Federal Circuit Court or Family Court each day. Depending on which Judge your case is before, we will provide you details as to where to wait at the Court building so your barrister can easily locate you. We also usually pass along your mobile phone number (with your permission) so your barrister can call you if they need to.
Will my solicitor attend Court with me? Can I ask them to attend?
You can ask your solicitor to attend Federal Circuit Court or Family Court with you. For a first return date or interim hearing, usually we do not recommend we attend to save you some legal costs. However, in some circumstances it can be appropriate, such as where the issues are particularly complex, there are lots of documents that the barrister needs assistance with, or if you would feel more comfortable with “two heads” rather than one working for you. It’s something you should feel free to discuss with your family lawyer. Usually if your case is at a trial, we do recommend you have a solicitor attend the trial on your behalf. That is something you can discuss with your solicitor further to get an individual recommendation based on your particular case.
How long can I expect to be at Court for when it’s an interim attendance or first return date?
When you attend Court for an interim hearing (any hearing that is not a trial) your case will be one of many cases the Judge is hearing that day. Therefore, you will often be in a queue behind other cases to get before the Judge. The Judge also may allocate hearing cases dependent on whether the parties have reached an agreement for interim orders – orders which will be made by consent – or if there is a dispute about particular issues that require judicial determination. It is difficult to know in advance which way your case will go, however an experienced family lawyer can generally talk through the likely outcomes for you. As a general rule, you should allow at least half a day for any court attendance. That means if you’ve got a morning court time, expect to be there until the early afternoon. If you’ve got an afternoon court time, expect to be there until 5pm that day. Court hearings don’t always go for that long, but they can frequently take longer than expected. In some cases, your Court hearing can last all day, but that is something your solicitor or barrister can speak to you about.
What is a “callover” before a Judge?
The purpose of a callover is to allow the Judge to determine the priority of each case and its issues, and how much time each case will require. It’s also an opportunity for the Judge to identify issues which should be capable of being resolved by the parties and their lawyers. Mostly a Judge will encourage discussion and negotiation on a temporary basis to at least limit the amount of issues.
What is an affidavit?
It is a document sworn on oath that contains evidence of the parties on particular issues in your case. The main purpose of the affidavit at interim stage is to identify the big issues. It’s very important to have a lawyer draw up an affidavit for you because they require great skill and care. A badly prepared affidavit can damage your case. Similarly, an experienced family lawyer can prepare an affidavit that greatly assists your case.
Can I get a friend or family member to prepare an affidavit in support of my case?
Yes, you can have another person give evidence in your support. They also need to provide sworn evidence in the form of an affidavit in support of your case. Just like your affidavit, a witness affidavit that is poorly prepared or includes irrelevant information or is not properly presented can damage your case. It might also not be helpful to the Judge at all. If you do have a person willing to give evidence in support of your case, it’s best to seek advice from an experienced family lawyer on whether that will be helpful to your case or not. Then it is advisable for that lawyer to prepare that affidavit for you.
Are there rules about affidavits?
The short answer is yes. An affidavit should not include information that is scandalous or not relevant to the proceedings. Little will be achieved by simply attacking the other party and in many instances that can damage your case.
I’m really concerned about something that’s written in my ex-partner’s affidavit. They’ve lied about me. What do I do about it?
Affidavits contain each person’s version of events for the Judge to read. If the other party interpreted an event differently that doesn’t mean they lied. Sometimes people do lie in affidavits of course and we know that it happens.
Differing versions of events in affidavits or disputes about events often form the issues in dispute in your case. A Judge does not make a decision about which version of events to believe until your case has been decided after a trial. So, for interim hearings that means the Judge does not know whether the allegations made in an affidavit are true or not, or which party is telling the truth. That is often frustrating to people because they (understandably) feel very strongly about clearing their name. It’s important to remember that Judges are very experienced and they read hundreds of affidavits each week. They do not automatically believe the content of an affidavit.
Judges can take into account allegations in an affidavit in parenting proceedings when making a determination about the risk one party may or may not pose to children. That is a particular issue that you should get legal advice from an experienced family lawyer about.
It’s important you speak to your experienced family lawyer and get advice on the content of your ex-partner’s affidavit. Depending on the particular allegation made against you your lawyer may recommend filing a responding affidavit to that issue.
If you have any other questions we have not answered here, call us for a free first interview.
The information published here contains general information of public interest only and is not intended to be, nor should be relied upon as, legal advice specific to the reader’s personal circumstances. Should you have a legal matter, please seek professional advice before acting or relying on this content.