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A bit about me! Clarissa Rayward Director Brisbane Family Law Centre Accredited Family Law Specialist Mediator & Collaborative Family Lawyer Also known as “The Happy Family Lawyer” www.thehappyfamilylawyer.com
How will this work? Please ask questions This is general information and remember you should obtain advice specific to your family
What are we going to cover? Why would you go to Court? Which Court? What do and don’t Courts do? What is the process to start proceedings in Court? How does it work once I am there? What happens at a trial? Can I still reach agreements even if I am in Court? Some tips and tricks and common misunderstandings to consider.
Why would you go to Court? Really only one reason- to get someone to make a decision on your behalf As we are talking about the Family Courts, we will focus on issues relating to finances and children
Why would you go to Court? Really only one reason- to get someone to make a decision on your behalf. Primary Reasons people find themselves in Court- Urgency Risk Lack of cooperation Significant difference of opinion about the best outcome
Which Court? When it comes to the Family Courts there are really 3- Local Magistrates Court Federal Circuit Court Family Court
What Courts can & can’t do? At the end of the day, the role of the Court is to identify the legal issues in dispute, determine the evidence that is relevant to those issues, apply the law and accordingly make a decision! (Yep it sounds like gobbly guke and that is why it is so confusing!)
Where most people get tripped up Seek the Courts assistance on things that are not legal issues or where the Court has no power Don’t provide relevant evidence but provide an overabundance of irrelevant evidence Don’t understand the law or how it is applied
So how do you start a Court Proceeding? What legal issue? Which Court? Have you complied with ‘pre action’ requirements?
The stages of a Court Proceeding? Starting Proceedings & before the first Court date The first Court date After the first Court date The Trial The decision
Starting Proceedings What documents to prepare Application, Affidavit, s60(i) certificate, Form 4, Financial Statement Where to file them How to serve them Now sit back and wait! Receive & review the Respondents material Response, Affidavit, s60(i) certificate, Form 4, Financial Statement Look for areas of agreement Identify where there are differences Prepare for the first Court date
The 1st Court date Prepare, prepare, prepare Go and watch Court prior Orders/ Directions you want Chronology of important information A plan for the Judge of where to from here On the day Dress respectfully Leave kids and cheer squads at home Be early & set aside the whole day Find the Court and Associate Be respectful at all times Seek advice (duty lawyer)
The 1st Court date 3. When you appear in Court Where to sit When to sit vs stand How to address the Judge LISTEN twice as much as you speak Focus on answering the question ‘A holding pattern’ The Judge will want to know very quickly what you are there for and what ‘interim’ plan you see could move your matter forward
The Court is looking to work out what more information they need to be able to either help you reach agreement or enable them to determine your matter? Parenting- Family report, more information some form of contact, medical or school reports, ICL Financial- Mediation/ conciliation conference- what more information will the Court need to reach a conclusion? Valuations Disclosure Subpoena AND Always comply with Orders!
After the 1st Court date This is where the windy road begins. Parenting- Likely in Qld, Family Report and then a further Court date/ series of dates Financial- Likely mediation then a further Court date Sometimes further ‘interim hearing’ Sometimes directions hearings only Sometimes mentions All trying to move you to the end being a ‘Trial’ Same process each time- Prepare, know what you need and be respectful by assisting the Court
The Trial- a time to imagine yourself on a magical Island…
The trial This is where the windy road ends! Here your Judge will have read your material and is now ready to hear you and your former partner be cross examined Applicant’s case Respondent’s case ICL Submissions Decision
The Decision A decision may be immediate or it may take some time. You will not know until the end of your trial. Interim orders will usually remain in place until a decision is made You can appeal a decision but you must have lodged a notice to appeal within 28 days of receiving the decision
A few other things to keep in mind You can reach agreement along the way & the Court will help you to do this Drafting- Orders and Affidavits Use headings Be factual Don’t exaggerate Make concessions or admissions where appropriate Don’t respond to ‘everything’
Top Tips Always comply with Court Orders (even when you don’t like them!) Be over prepared Be respectful Seek advice- community legal centers, duty lawyer Know what you want but be prepared to compromise Don’t involve your children Be patient, it can be a long process Always keep your eyes open for solutions- no matter how hard things become
Court should always be a place of last resort. You are handing over your capacity to control your own destiny when it comes to your children or finances.
Wednesday 27 August 12.30pm Wednesday 1 October 2014