Going to Court

Trying to find your way through the Australian Legal System can be confusing. Going to court can be scary and intimidating but with the right guidance and advice, your rights will be protected.

Starting an Application in Court

If mediation fails and you can’t reach a settlement with your former partner outside of court, you will have to start an application in court for the orders you want.

Choosing which court to go to – You can only file an application in the Family Court of Australia if

 

  • it is an application for annulment of marriage, for a declaration of validity of marriage or a divorce, for a special medical procedure or pursuant to the Hague Convention; or
  • the issues in the case are of a complex nature requiring the determination of the Family Court of Australia

 

Most matters will be filed in the Federal Circuit Court of Australia.

 

To start your proceedings in court, you will need to complete the following:

 

Initiating Application – a document where you complete your personal information and write the orders that you want the court to make.

 

Affidavit – A statement written by you that outlines the facts of the matter and provides detail as to why you are seeking the orders in the Initating Application.

 

Notice of Risk – This needs to be filed only if you are seeking parenting orders. It is to put the court on notice that there may be a risk to the children involved in the court proceedings.

 

Financial Statement – If you are going to court for a financial matter, you will need to file this document. You will need to fill in information about your current financial situation.

Responding to a Family Law Initiating Application

It can be quite an uncomfortable feeling when you receive court forms telling you that you need to go to court on a particular date to appear in front of a judge.

 

You should read through the Initiating Application and Affidavit carefully, then you will need to file the following:

 

Response to Initiating Application – You use this form because you disagree with the orders sought by your ex-partner and you want the court to make different orders or no orders at all.

 

Affidavit – This is a supporting statement that details your version of events and is in line with your Response. It should also respond to the affidavit that was filed with the initiating application.

 

Notice of Child Abuse, Family Violence or Risk of Family Violence – this needs to be filed only if you are seeking parenting orders. It is to put the court on notice that there may be a risk to the children involved in the court proceedings.

 

Financial Statement – If you are going to court for a financial matter, you will need to file this document. You will need to fill in information about your current financial situation.

Before going to court for a child custody matter you must ensure that you have attempted mediation

You must make sure you make a genuine effort to resolve your child custody dispute through counselling or mediation.

 

All child custody decisions are focused on ensuring the best interests of the child are made. Generally speaking, it’s often in the child’s best interests to have a  loving relationship with both parents, but arranging such relationships can be the main challenge in resolving a child custody dispute.

 

We encourage parents to go to mediation, however, there are circumstances when a court will take the view that mediation is not required before starting proceedings; this is in a minority of cases and will usually only where there is a history of physical, sexual or psychological abuse or if there is an urgent need for court orders.

 

The decisions you make now in relation to your child custody arrangement will affect your child’s development and potentially your future relationship with them. Each decision should be made carefully with the help of professionals who know and understand the consequences of every action.

Tips you should know before going to court

Everything you say, do, write, text, email or post on facebook about can become evidence in court. Do your best not to say things that may affect your case or may affect how a judge views your character.

 

Remember that the court is there to make a decision on how to divide property and how to divide the time of the children between their parents. They are not there to compensate or punish you for what occurred during your relationship.

 

Always show respect when you are in a court room. You should be prepared and not waste any of the courts time, this means turning up on time and having all of your notes and documents organised in an intuitive filing system.

 

Finally, remember that you should always follow court orders even if you don’t agree with them. Breaking them will anger the court and may cost you money or time with your children.