Going to Court

This process means that the Court is being asked to make a decision for the parties.

If you commence proceedings, it begins a court process that will be decided by a Judge unless the parties reach an agreement.

Applications can be made for orders in relation to:

parenting matters;
financial matters (most commonly property settlement and spouse maintenance);
divorce.

Key Points

Going to court is a last resort in family law matters.
You can apply to the Court for procedural, interim and final orders in parenting and/or financial matters

Service

You are required to serve your Court documents on the other party.

“Service” is the legal term to describe the giving of court documents by one person to another. It means giving the other person a copy of your documents in a way that satisfies a court that the other person has received them.

When served with an application

If you are served with an application then you are most commonly “the respondent” in the case. The respondent must receive from the applicant copies of the application stamped by the Court through a process known as service.

The respondent then has the opportunity to respond if they do not agree with the orders sought in the application.

This will involve fling a documents called a Response and usually an Affidavit (which contains your evidence). For parenting matters a Notice of Risk is also required to be filed, and in financial cases, a Financial Statement is required.

The respondent will need to serve their documents upon the applicant.

Interim hearing

At an interim hearing, the Court is asked to make interim orders (i.e. Orders that will remain in place until the case goes to trial).

Interim hearings are generally very short, usually limited to no more than 2 hours. There is no cross-examination. Rather, the Court will read both parties’ evidence and receive submissions from the solicitor/barrister acting for each party. The Court will not make findings of fact at an interim hearing (this will occur later at a trial).

The Judge will make a decision either on the day or shortly after.

The trial

The trial is conducted by a Judge and is the event where the Court considers the parties’ final applications, hears the parties’ evidence in the matter and assesses that evidence in order to make a final decision.

At the trial:

parties must be present at the trial;
parties will be cross-examined by the solicitor/barrister for the other party;
witnesses who have sworn an Affidavit in the case (included experts such as family report writers or valuation experts) must be available for cross-examination;
parties will usually be represented by their solicitor and a barrister;
each barrister will provide written and oral submission to the Judge after the evidence is concluded;
for parenting matters if there is an Independent Children’s Lawyer (ICL), the ICL will also make submissions to the Court about the case.

A decision will usually be delivered by the Judge in writing within 3 months of the trial.

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Going to Court

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