Family Law Guide

Welcome to the ABF intro to Family Law.

Welcome to the ABF intro to Family Law.

This page is here to give you a basic overview of the Family Law system while providing access to brief explanations to common family law terms, forms and what you should consider if you are moving toward the courts for access orders.

The basic explanation of the process when child access becomes disputed after separation is listed here.

  1. Mediation (If there are no restrictions regarding contact with your ex or DV issues)
  2. If mediation is successful a parenting plan would be produced which outlines what both parents will do to facilitate access. (This must be ratified by the family court or it’s a waste of time)
  3. If Mediation is not successful the mediators will issues both parties with a Certificate 60i which allows you to apply to the Family court to have the access issues decided by a Judge.
  4. If  you or your ex partner have domestic violence orders in place that makes mediation unsuitable you can complete an Affidavit Non Filing of Family Dispute Resolution Certificate. (This will get you into the Family Courts).
  5. Regardless of what happens you should do what you can to come to an agreement regarding access as the courts will want to see parents focus on what’s best for children and put aside their differences. (Not always going to be easy but if you make this your focus then you are in a good position!)

Do you need a Family Lawyer?

The answer to this relates to how much money you want to spend.

Self representation allows you to reduce your spend as you seek orders and keep that money where it belongs; in your assets and bank accounts!

Paying a lawyer will generally mean you’re at their mercy financially, with plenty of parents sharing horror stories of being stripped of cash and assets in the process of seeking access to their own children via orders from the Family Courts. Hundreds of thousands spent of Lawyers and Barristers only to come out after a few years with orders that are broken or ignored by parents that have deliberately delayed the process.

The system has been setup to allow parents to self represent and we believe anyone that can self represent should do so. This will help take the money out of the system.

Below are articles from Barrister – Grace Lawson who writes for a single mothers website. Grace provides a good intro to the system. (Thanks Grace)

 

How to self represent in Family Court

Going to court without a lawyer

Part 1 – Before you go to court

Grace Lawson – Barrister-at-Law

Not only is it a foreign place, quite unlike what you see on television, but it affects your life. You know that you may be ordered to do something you do not want to do, or something that you feel is not in your, or in your children’s, best interest. You are afraid that you will not be able to express yourself, make sense to the Judge, or even be heard.

The Judges sitting in the family courts prefer that you come to court legally represented. This is because, as a lay person, you are not expected to know the law or how it applies to you. However, many people come to court unrepresented every day. Judges try to assist as much as they can, without giving legal advice, but this is not easy and takes time. So why do so many people go to court unrepresented?

The answer is simple: they cannot afford a lawyer. This may be the very reason why you are going to court unrepresented. Your Legal Aid application may have been declined. The fees quoted to you by private law firms may be unaffordable, and although the community legal services may have assisted you as much as they could, at the end of the day, you must still go to court on your own.

So what can you do to if you are going to court and cannot afford a lawyer? How can you present your case so that it is heard? And what can you do to arm yourself with information to assist you to get the best outcome possible?

Think of it in two stages. The first stage of your case deals with things you must do beforeyou go to court. The second part of your case deals with what you can do when you are incourt. This article discusses the first stage of your case, before you go to court.

Applicant or respondent?

First, determine whether you are the applicant or the respondent. If you are the one that needs to go to court to obtain orders, then you are the applicant. You will need to complete the relevant forms, file them in court, and serve them on your former partner.

If you have been served with an application filed by your former partner, then you are the respondent. You must complete forms in response, and also file them in court and serve them on your former partner. Do not ignore the application. If you do, you risk the Judge giving your former partner what they want (this is called “orders in default”).

The forms

The forms are located online. If you do not have access to the internet, try your local State Library. You will have free access to the internet, and will be able to print.

There are 3 family courts in Australia:

  1. Family Court;
  2. Federal Circuit Court; and
  3. Family Court of Western Australia.

If you live in WA, go to the Family Court of WA website. If you live anywhere else in Australia, you may go to either the Family Court website or the Federal Circuit Court website. However, first try the family law courts website, as it gives you information about both the Family Court and the Federal Circuit Court. If you are the applicant this website will help you determine which court to file your application in.

When you go to the family law courts website go to the About going to court page, which tells you, among other things, what type of forms you need to complete and how to make the application.

The website of each court has prepared information kits for self-represented parties. Use them. There is an abundance of information on the websites and they are designed to be easy to understand. You should familiarise yourself with them. Yes, it takes a lot of time. However, if you invest the time into preparing your case, you will benefit.

When you file an application or a response, there are other documents you have to attach. The main document for orders relating to property and finances is the Financial Statement. The main document for orders relating to children will be your Affidavit.

The Financial Statement

This document is self-explanatory. You need to insert figures in the relevant boxes. The document tells the Judge what assets and liabilities you currently have. Do not try to hide assets. This document is a sworn document, and if you are not truthful, it can undermine your credibility later. If the Judge decides that you were dishonest about one issue, the Judge can then decide that where there is an inconsistency between what you say and what your former partner says, then your former partner will be believed over you.

Think about every question on the document. Don’t think about it in terms of what you had when you separated. You must complete the document as of the current date, irrespective of when you separated. If you have been separated for some time, you may not want your former partner to know what you have now. However, there is nothing you can do about that. You must disclose your entire financial position, or it will come back to haunt you.

The Affidavit

This is one of the most important documents you will complete. It is also a sworn statement, and your opportunity to present your case to the court. If the application is about children, then the affidavit will be about children.

If the application is about financial matters, then the affidavit will be about financial matters. If the application is about both, then your affidavit will be about both.

You can read How to write an affidavit below.

There are important rules about what you can, and cannot put in your affidavit. These rules are contained in Part 15.2 of the Family Law Rules 2004 and Division 15.4 of the Federal Circuit Court Rules 2001. These can be accessed at http://www.comlaw.gov.au/Home.

Keep in mind that an affidavit must be formatted properly, and must deal only with issues relevant to the dispute. Things that cannot be put in an affidavit include irrelevant material (such as whether your partner was unfaithful or narcissistic), and scandalous or argumentative material.

Do not make the affidavit too long, as it can be struck out on that basis. Keep it relevant, short, and to the point.

The orders – are they about children, property, or both?

You can ask for orders dealing with both children and property, if they are relevant to the dispute with your former partner. If you are seeking orders about children, you must first try to mediate the dispute, and obtain what is called a Section 60I Certificate. If you need to obtain this certificate, then contact Relationships Australia before contacting a private Family Relationship Dispute Practitioner, as the difference in fees is significant.

When writing your orders, think about whether you need final orders, or interim orders. Interim orders are those which are temporary and don’t finalise your dispute. For example, if you need your child to be re-introduced to the other parent, you may ask for interim orders over a period of say 6 to 12 months. After all, it may be too early to tell what type of final orders are in the best interest of your child. If you need interim property orders, this may include that your former partner disclose their financial position so that you can calculate your entitlement, and then seek a division of the assets on a percentage basis in your final orders.

If you have no idea what orders to put on your application or response, and whether the court has the power to make them, then you will need to do some research. Locating precedent orders is a good start. That means that you can look at orders on a similar issue that the court has already made. Try a legal database. One that is free is the Australian Legal Information Institute, referred to as “AustLII”. You can find relevant cases by searching the relevant section of the Family Law Act, such as section 60CC, and clicking “Noteup” at the top of the page. This will give you a list of cases decided about that section. Alternatively, you may try a word search on the homepage, such as “sole parental responsibility” or “home maker contribution”. Searching through cases may be an arduous task, but if you make the time to do this, you will learn a great deal about how the family law courts decide cases such as yours.

You should now have enough information to help you prepare all of the court documents that you need before you go to court. When your court documents have been filed and served, you may start preparing for the actual court event.

 

How to self represent in Family Court

Going to court without a lawyer

Part 2 – When you are in court

Grace Lawson – Barrister-at-Law

Once you decide to go to court, or if you are the respondent, you must prepare the right documents and complete them correctly. This is not easy if you are representing yourself. The purpose of Part 1 was to assist you determine which documents you need to complete, and how to do it.

This part tells you what to do, and what to say, when you do finally arrive in court. The family court websites give some tips on what you need to do when you arrive in court. It is worthwhile looking at the websites before your court date.

Before your court date

Try and make time to go to the court before your actual court date. This will enable you to familiarise yourself with the location of the court, and if you go inside the courtroom, with the layout of the room and the formalities.

Most people who are representing themselves in court are anxious about it. Some worry about who will be there and what they will think of them. Try not to think about what others will think of you. There are dozens of cases at the same time as yours, and everyone there has their own case to worry about. They will not be waiting to see why you are there, and when inside the courtroom they are more worried about their own case then yours.

On the day of your court case

Make sure that you are in court early. Most family courts have duty lawyers, and if you are there early, take advantage of the service. Duty lawyers can give you advice, and can speak on your behalf when you have to go before the Judge.

Then, try to find your former partner. Whether they are represented or not, use this opportunity to have some discussions about resolving the dispute. You may feel that this is beyond you, especially if your former partner is there with a lawyer. However, try not to feel intimidated by your former partner or their lawyer. If you fear for your personal safety or there is a history of domestic violence, contact the court beforehand and ask about the arrangements the court can put in place for you. If you don’t have concerns about your personal safety, then try to narrow down the issues in dispute before you go inside the courtroom. If you are able to agree on some things, then when you do go inside the courtroom the Judge will only have to decide those issues on which you cannot agree.

The call over

In most family courts the Judge begins with a “call over” at 9.30am. A call over is where the Judge wants to hear very briefly what your case is about so that he/she can put the cases in order of how they will be heard throughout the day. The shorter cases are heard first. The complex cases are heard last. Therefore, if there are 15 or 20 cases listed for your Judge that morning, and if your case is complex, you may not be called until the afternoon.

At the call over the courtroom will be packed with parties and lawyers. When the Judge calls your case, stand up. Your former partner will also stand up. If your former partner has a lawyer, the lawyer will speak. Otherwise, tell the Judge if you are the applicant or the respondent. Then briefly tell the Judge why you are there, for example:

  • “Your Honour, I am the respondent. My former partner is seeking orders that the children spend majority of the time with him/her and I oppose those orders”; or
  • “Your Honour, I am the applicant. I made an application for passports for the children so that I can take them overseas for a holiday and the father/mother is opposing that application”; or
  • “Your Honour, I am the respondent. My former partner is seeking that our house be sold and the proceeds be divided between us. We disagree on how the proceeds are to be divided”.

The Judge will then decide whether to:

  1. Request a family report if your case is about children, make some interim orders about the children, and adjourn the case; or
  2. Send you to a conciliation conference or direct that you both attend mediation if your case is about property settlement, and adjourn the case;
  3. Make directions about valuations of your property or disclosure of your financial positions if your case is about property settlement, and adjourn the case.

Once you have answered the Judge’s questions at the call over the Judge will call the next case. You then sit down. Once the Judge goes through the list, the cases will be put in order. Listen for the name of your case. You will have an idea if you are at the beginning or at the end of the list. Everyone is then sent outside the courtroom and the first case is called. If at any time during the day you would like an update about when your case may be called, ask the court officer.

It is extremely unlikely that you will have final orders on your first day in court. Therefore, be prepared that whatever directions or orders the Judge makes, you will be given another date to come back to court. If your former partner does not turn up to court, it will be adjourned to another date to give them an opportunity to appear. The only way to have final orders on your first day is by consent. Therefore, while you are waiting for your case to be called, if possible, continue negotiating with your former partner.

Your case is called

When your case is called, go inside, bow to the Judge, and sit at the bar table. If you are both self represented, it doesn’t really matter which side you sit on. If your former partner is there with a lawyer, then allow them to take their seat at the bar table first, and then sit at the other end.

Have a pen and paper ready. You will need it especially when the Judge is making orders or directions. You should also use it to write down what your former partner or their lawyer is saying, and what you do not agree with. That way, you will not forget to raise it with the Judge. If you do hear something you do not agree with, do not interrupt. You will have an opportunity to be heard.

When everyone is seated at the bat table the Judge asks for “appearances”. That means that the Judge wants to know your name, any lawyer’s names, and who is the applicant or the respondent. When you are asked to do so, stand up, give your appearance, and sit down. If your former partner is there with a lawyer, they will start speaking. They will tell the Judge what the case is about in more detail. If you are both unrepresented, then wait for the Judge to ask questions. Most Judges read the court documents beforehand so they have a fair idea of what your case is about.

When the Judge asks you questions, stand up. You may be extremely nervous, but try and listed to the questions, and answer them truthfully. Then try to remember these points:

  1. Sit down when the other party is speaking;
  2. Stand up when the Judge is talking to you, or when you are talking to the Judge;
  3. Do not argue with the Judge;
  4. Do not use offensive language;
  5. Avoid anything that might be disrespectful, such as rolling your eyes, sighing, or exhibiting any body language or behaviour that may be intimidating or disrespectful to anyone in the courtroom.

These may seem like the obvious, however, everyday someone in the family courts is disrespectful. This not only disrupts the proceedings, but puts such a person at risk of being held in contempt of court.

If you need an explanation

If the Judge or the opponent is saying something that you don’t understand, wait for your turn to speak, and try this:

  • “Your Honour, the applicant/respondent/lawyer said something about lodging a caveat. I don’t understand what that is”; or
  • “Your Honour said something about a family report. I don’t understand why I need one or how to get it”; or
  • “Your Honour said something about issuing a subpoena. Could your Honour repeat what you said”.

Judges in the family courts will assist self represented parties as much as they can, without giving legal advice. So, when you are at the bar table, try and follow what is being said. If you are confused, respectfully ask for clarification.

When the Judge feels that he/she has all of the information from you and your former partner, then some directions will be made for the further conduct of your case. Some interim orders may also be made. Try and write these down. If you miss them, don’t worry, because a copy of the order will be posted to you within a few days.

If some orders are being made that you have not had the opportunity to comment on, or if you just remembered something that will make it impossible for you to comply with an order, quickly stand up and say:

  • “Your Honour, I am so sorry, but I cannot comply with that order. I can’t collect the children from their mother/father at 5pm on Friday because I have overtime at work. Could I please collect them at 6pm?”; or
  • “Your Honour, I don’t think I will be able to get a copy of all of my bank statements to the applicant/respondent within 7 days because tomorrow I am leaving on a pre-arranged holiday for a week. Could I ask the court’s indulgence and provide the documents within 14 days?”

When you are interrupting the Judge during the reading of orders, this is not your opportunity to continue to argue why they should not be made. Only use the opportunity to clarify something that has not been raised, or to vary the orders so that you can comply with them.

When the Judge finishes making the orders the next case will be called. When leaving the room, bow to the Judge.

Once the orders are made

You may not have obtained the orders you wanted, and you may be extremely disappointed with the outcome. However, try and comply with the orders. Failing to do so may have severe consequences for you.

Going to court, whether it is the family court, the magistrates court, or any other court, is extremely daunting, especially if you are going without a lawyer. However, in family court matters you and your former partner have the power to resolve your issues. Putting that power in the hands of a complete stranger, the Judge, means that you will have orders that neither of you may be happy with. It may take a lot of effort for you to have discussions with your former partner, but negotiating, and compromising, may give you a far better outcome then if you are both told what to do by the Judge. Therefore, use every opportunity to attempt to resolve your issues before you go to court.

 

How to write an Affidavit

Drafting an Affidavit in the Family Courts

Grace Lawson – Barrister-at-Law

An affidavit is a sworn or affirmed document that is filed in court together with, and in support of, your application or response. It tells the court why it should make the orders that you seek. Therefore, it is one of the most important documents you will complete.

Not all applications filed in the family courts have to be supported by an affidavit. If you are self-representing then find out if you have to file an affidavit. If you have a solicitor, your solicitor will advise you if you need to file one.

This article aims to assist self-represented parties in drafting an affidavit. If you have a solicitor representing you, use this article to prepare a draft affidavit, or dot points for your solicitor. This may save your solicitor time in drafting your affidavit, and therefore save you costs.

The affidavit must address the relevant issues in your case. If your application is about children, then the affidavit will be about children. If the application is about financial matters, then the affidavit will be about financial matters. If the application is about both, then your affidavit will be about both.

There are important rules about what you can, and cannot put in your affidavit. These rules are contained in Part 15.2 of the Family Law Rules 2004 and Division 15.4 of the Federal Circuit Court Rules 2001. These can be accessed at http://www.comlaw.gov.au/Home.

First, you must have the right format:

  1. Have enough space between the lines so that the affidavit is easy to read.
  2. Use a standard font such as Arial or Times New Roman and not a fancy font.
  3. The size of the font should be 12.
  4. The affidavit should be divided into paragraphs.
  5. The paragraphs must be numbered.
  6. Each paragraph should be short and deal with one issue only.
  7. Use subheadings that separate the issues in your affidavit.

Once you have the correct format, start working on your content. You may do that by putting your story into headings. For example:

a. Background information: include names, ages and health of the parties, the date of cohabitation, date of marriage, date of separation, date of divorce, and dates of birth of the children. For example:

  1. I am aged 28 and am in good health.
  2. My former partner is also aged 28 and is also in good health.
  3. We commenced cohabitation on 1 January 1990 and married on 1 January 1991.
  4. We separated on 1 January 2014. We are not yet divorced.

b. Financial information: include a summary of who did what at the commencement of cohabitation, who did what during the relationship, your respective incomes then and now, who made home maker contributions, whether either of you made negative contributions such as gambling, and other contributions such as gifts, winnings, or inheritances. For example:

  1. At the commencement of our relationship we were both employed full time. I worked as a child carer earning approximately $30,000 per annum, and my former partner worked as a baker earning approximately $40,000 per annum.
  2. At the commencement of our relationship we had no debts. We were renting and were pulling our finances together.
  3. After the children were born I stopped work and became a home maker. My former partner was the breadwinner.
  4. During our cohabitation, in or around 2002, we were gifted $50,000 by my parents. We used that money as a deposit on our first home.
  5. Around 2 years later my former partner inherited $50,000 from his later mother’s estate, but I don’t know what happened to that money.
  6. In the 2 years before separation my former partner loaned $10,000 to a friend. This was without my consent, and I do not know what that money was used for. This money was not repaid.
  7. I returned to work a year ago, when the children no longer needed a full time carer at home. I currently work as a child carer, earning $30,000 per annum. My former partner works as the head chef, earning $100,000 per annum.
  8. Our current assets are:
    1. Our home, valued at approximately $400,000
    2. My Mazda motor vehicle valued at approximately $15,000
    3. My former partner’s motor vehicle valued at approximately $15,000
    4. My superannuation of $50,000
    5. My former partner’s superannuation of $300,000
  9. Our current debts are:
    1. Mortgage on our home of $150,000
    2. Credit card debts in joint names of $10,000
  10. Our net assets are therefore $620,000.

c. Children: outline how the children have been taken care of before separation and since separation, whether they have any special needs, their ages, and the nature of their relationship with each parent and other family members. For example:

  1. The children had a good relationship with both myself and my former partner before our separation.
  2. My former partner is a good parent and had a strong relationship with the children.
  3. However, since separation, my former partner has spent very little time with the children. I have concerns that the younger children’s relationship with my former partner is deteriorating. Often, they refuse to spend time with my former partner and don’t want to talk on the phone when my former partner rings.
  4. I also have concerns that my former partner’s new partner does not treat the children well when they spend time with them. Often the children cry that they are called names such as “stupid”, “lazy”, or “fat”. I have raised these concerns with my former partner, but my former partner denies that this takes place.
  5. I want my children to have a strong relationship with my former partner and I am willing to do anything that is necessary to facilitate that. However, I do not want the children to be in an environment where they are bullied or harassed as this is harmful to them.

d. The orders that you want (and why they should be made): you have to justify why the orders that you seek should be made. If you seek that the children should have limited time with the other parent, then you must have evidence which would warrant that order being made. If you seek 70% of the total asset pool, then you must explain why this is fair and just in your circumstances.

The most important thing to remember is that everything in the affidavit must be relevant to the dispute between you and your former partner. One of the biggest mistakes parties make is including irrelevant material. Avoid this temptation. You risk having parts of your affidavit struck out. This includes allegations such as your former partner being unfaithful or narcissistic, or other scandalous or argumentative material that does not have any bearing on the safety or well-being of the children. For example, if you allege that your former partner’s cross dressing habits or work as an exotic dancer mean that the children should be spending limited time with that parent, then you must have evidence to show how that habit or occupation is harming them.

The type of evidence that you could consider annexing to your affidavit, which is relevant to children’s issues, would be:

  1. School reports or letters from individual teachers as to the children’s progress before the separation and after the separation, or any specific problems noted that are relevant to the separation. It may be that these letters say that the children are doing wonderfully, and this may be an indication that the current parenting arrangements are good for them.
  2. Medical reports or letters from the children’s treating practitioners as to any medical condition or necessary treatment, and how the condition or treatment impacts on the children’s routine, or the current parenting arrangements.
  3. Police file or Child Safety records will be relevant where there are serious allegations such as violence, sexual abuse, or other harm to the children, and these would be obtained by a Subpoena and delivered to the family courts.

Do not obtain letters from your children telling the court who they want to live with. Involving the children in your legal dispute is inappropriate and obtaining such letters from children could have severe consequences for you.

The type of evidence that you could consider annexing to your affidavit, which is relevant to property issues, would be:

  1. Bank statements showing significant deposits or credits.
  2. Testamentary documents showing inheritances.
  3. Documentary evidence of gambling such as casino membership records.

Any valuations that you obtain of your property should be annexed to an affidavit of the valuer, and not yourself. Do not annex large financial documents, such as bank statements, to your affidavit. Either annex the relevant part of the statement, or refer to it in your affidavit and say that it will be produced to the court when required.

A good guide of other relevant matters that you should address in your affidavit is to follow those matters listed in section 75(2) (http://www5.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s75.html) of the Family Law Act (in financial matters), or section 60B (http://www5.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s60b.html) and 60CC (http://www5.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s60cc.html) of the Family Law Act (in children matters).

Finally, do not to make your affidavit excessively long, as it can be struck out on that basis. If you keep it relevant, short, and to the point, you will be assisting the court in making the right decision for you and your children.

More resources to come…