This brochure provides information about how judges in the Family Court of Australia conduct less adversarial trials.
You may reach agreement using dispute resolution in a Family Relationship Centre, other community-based organisation, with the assistance of lawyers, or at the Court. If you have not reached agreement with the other party(ies) about either the future arrangements for your children or your financial arrangements, you may need a judge to decide what is best for your children or what are the most appropriate financial arrangements.
If this is your situation, your case will be listed for a less adversarial trial in the Family Court. This brochure explains what is involved with such a trial in the Family Court. If your case is in the Federal Circuit Court, you will need to obtain information from that court about their processes.
Does Division 12A of Part VII of the Family Law Act apply to your case?
If you are asking the Court to make orders only about the children and you filed your original application after 1 July 2006, the Family Law Act requires the proceedings that deal with these applications to be conducted in a less adversarial way.
However, you will need to consent to the trial of your case being heard in the way described here if:
- you filed your original application before 1 July 2006 and it relates only to children
- you filed your application after 1 July 2006, and
- you are asking the Court to make orders about financial matters as well as about the children. Your consent is required to include the financial matters only.
- you are asking the Court to make orders only about financial matters.
What are less adversarial trials?
The Family Court takes a less adversarial approach to trials. This means a trial:
- is flexible so that it can meet the needs of your particular situation
- is anticipated to be less costly compared to traditional trials and will save you time in court
- is inclusive in so far as your involvement in the process
- may be less formal than is usually the case in a court.
The judge, rather than the parties or their lawyers, decides what information is put before the Court and how the trial is run.
What you must do before the trial starts
When it is clear your case may need to go to a trial before a judge, a registrar listing your case for the first day of trial will make an order for you and the other party(ies) to file and serve a Parenting Questionnaire at least 28 days before the first day before the judge. The registrar will also make all necessary procedural orders for the purposes of the first day of trial and may list a compliance check (usually conducted by telephone) 21 days before the first day of the trial.
Answer the questionnaire as best you can. The front page of the questionnaire provides information about completing the questionnaire. You must file it at the court and serve a copy on the other party(ies).
A Financial Questionnaire is required to be filed within 21 days after the Case Assessment Conference and a joint Balance Sheet prepared by the parties is to be filed prior to any Conciliation Conference or at least 9 weeks after the Case Assessment Conference. If your case needs to go to a trial before a judge, at the end of the Conciliation Conference or if there is no Conciliation Conference, at the end of the Case Assessment Conference, a registrar will allocate a first day before the judge and make all necessary procedural orders for that purpose.
Again answer the questionnaire as best you can. The front page provides information about completing the questionnaire. File it at the court and serve a copy on the other party(ies).
The Balance Sheet is a document which sets out the assets, liabilities and financial resources of the parties. There is also provision to identify all areas of dispute and the method by which those disputes are to be resolved (for example, by obtaining a single expert's valuation).
Parenting and financial cases
The Financial Questionnaire and the Balance Sheet are required to be prepared and filed as referred to above, and when it is clear that your case needs to go to a trial before a judge, a registrar will allocate a first day of trial and order the filing of parenting questionnaires at least 28 days before that date. Again, a compliance check may be ordered to be held, usually by telephone, 21 days before the first day of trial.
Remember: Try to answer the questionnaire in your own words, although you can get advice about your answers from your lawyer if you have one.
What happens at the trial?
The first day before the judge is the first day of the trial. This is when the trial starts.
The judge will have read each person's completed questionnaire, the original application and response, the joint Balance Sheet in a financial case and any children and parent's issues assessment in a parenting case.
The judge controls your case only addressing the relevant issues in dispute.
The focus in parenting cases is on what is best for the children.
The trial may finish on that first day of trial if agreement can be reached, or further hearings to continue and then conclude the trial, may be scheduled usually before the same judge. The final stage of the trial will only take place once all the evidence, including all expert evidence, is before the court.
In a parenting case, the same family consultant who prepared the assessment will be available throughout the hearing.
On the first day of trial
- If your case involves parenting arrangements for children, the family consultant will attend at court to give general expert evidence to the judge to help identify relevant issues in dispute.
- You will usually be 'sworn in'. That is, you will promise the Court that everything you say will be truthful and you will not hide anything that is relevant to the issues in dispute. From this point, everything you say will become part of the evidence in the case.
- You will be asked to adopt the facts contained in the questionnaire(s) as part of your evidence before the court.
- The judge will ask you to talk about your case in your own words, if you want to, or your lawyer can do this for you.
The judge will decide what happens next after identifying:
- the issues to be decided
- the evidence to be heard and which witnesses, if any, will need to attend
- who should provide evidence in writing (in what is called an affidavit) and what it should be about
- what expert reports will be required, if any, and
- if your case involves parenting arrangements for children, whether a Family Report will be required and if so the nature of that report. Wherever possible, this will be prepared by the family consultant who is in court on the first day of trial.
The judge may refer you to a community-based service for further help (such as counselling or parenting education) or make orders about your children that will run for a limited time, to see if they work.
The continuation hearing
- Continuation of trial hearings before the judge may be by telephone.
- The affidavits and expert reports are considered and the issues in dispute reviewed.
- Any further evidence is identified and appropriate orders made.
- Procedural orders are made for the purposes of the final stage of the trial.
- The final stage of the trial is allocated.
The final stage of the trial
- The evidence is presented and final submissions are made.
Some Frequently Asked Questions
Q What if I am concerned about family violence?
The Court takes violence very seriously. You will be able to raise any concerns about family violence at the start of your case or at any point during its progress.
If family violence is raised as an issue, when it is raised steps will be taken to deal with it as quickly as possible. If at the trial stage you are still concerned about family violence, it is important that this be raised again when you first appear before the judge. This allows the judge to decide how the case should proceed to keep parties safe and able to participate fully in the trial. This might involve a person being heard by video or teleconference. In a case involving children, the Court is focused on the best arrangements for the children in the future, so where family violence is an issue, the judge will consider the adverse effects of violence on children who experience or witness violence.
Q What if I do not have a lawyer?
The Court always encourages you to be legally represented, if possible, but you do not have to have a lawyer to be able to effectively participate in a trial. If you do not have a lawyer, you will need to familiarise yourself with the Family Law Act and the related legislation and you will still be required to comply with any orders made by the court. You may however be able to bring a support person to sit with you in court. The judge will also explain the process (for example, what is happening next and why) as the trial goes along.
Q How will the evidence be considered?
In cases involving parenting arrangements for children, some of the technical rules of evidence will not be applied in this less adversarial approach to trials. However, the judge may decide that rules of evidence should apply to particular issues for special reasons. Thus all the evidence that is given to the judge, both verbally and in writing, will be admissible and it will be for the judge to decide what weight it might be given. This allows the trial to be less formal and less complicated than court trials usually are. If you need more detail about what rules of evidence are affected you should seek specific legal advice.
Q How will the judge get more information about me or my family?
In a case involving parenting arrangements for children, the judge can order a Family Report as part of the evidence. Wherever possible it will be prepared by the family consultant who is at court on the first day of the trial and ordered early in the trial. The judge decides on the questions to be answered and whether to ask the children their views on what is best for them.
All parents involved in the case will get a copy of the Family Report before the trial continues. If the judge wants more detail, the family consultant will usually speak in court. Sometimes the judge may order a report from a person from outside the court who is an expert on a particular question to be answered (for example, about mental health or drug abuse). This report will be considered in the same way as the Family Report.
If your case involves financial arrangements, the judge may order a report from a person from outside the court who is an expert, for example in valuation.
In either type of case the cost of a report is normally met by the parties.
Q Can I appeal if I am not happy with the result of the trial?
Yes. You have normal rights of appeal. But you will not be able to complain about matters with which you have agreed.
If you have any concerns about your safety while attending court, please call 1300 352 000 before your court appointment or trial. Options for your safety at court will be discussed and arrangements put in place.
By law people must inform a court if there is an existing or pending family violence order involving themselves or their children. More detail is available in the brochure 'Do you have fears for your safety when attending court?'.
For more information, including access to the Family Law Act or any of the legislation, forms or publications listed in this fact sheet:
- go to www.familycourt.gov.au
- Live chat on the website
- call 1300 352 000, or
- visit a family law registry near you.
The Court respect your right to privacy and the security of your information. You can read more about the Courts' commitments and legal obligations in the fact sheet The courts and your privacy. The fact sheet includes details about information protection under the privacy laws and where privacy laws do not apply.
Authorised by the Principal Registrar
This brochure provides general information only and is not provided as legal advice. If you have a legal issue, you should contact a lawyer before making a decision about what to do or applying to the Court. The Family Court cannot provide legal advice.