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Court Representation

Evolve Legal - Court Representation

Court Representation

Pre action procedures include dispute resolution, communication and negotiation, and disclosure, and should be engaged in before considering attending court. Parties are required by the Federal Circuit and Family Court of Australia to comply with pre action procedures before commencing proceedings.

There are a range of documents that must be filed when making an application to commence proceedings. Once your application has been filed and ‘sealed’ by the court, it must be personally served on the other party. If you are the respondent in court proceedings, there are a range of documents you will be required to file. Usually, the First Court Event requires all parties to the proceeding to attend court. The Judge or Registrar will make a determination, seek facts and evidence, and make directions necessary to proceed. When a binding decision is contravened by a party, there are various options available, including an Application in a case, an Application – Contravention, or an Application to vary the primary order.

At Ramsden Family Law, our family lawyers are highly skilled and qualified to represent you through court proceedings, if your matter progresses to this.

Pre Action Proceedures

Pre action procedures are used by parties and legal representatives in an attempt to resolve part of whole of the dispute outside of court. Pre action procedures can include:

  1. Participating in dispute resolution (i.e. family dispute resolution / mediation);
  2. Communicating with the other party setting out your claim, providing a genuine offer to resolve the matter and negotiating settlement; and
  3. Observing the duty of disclosure.

The aim of pre action procedures is to encourage the exchange of information between the parties so that each party may understand the other’s objectives. In turn, hopefully leading the parties to quickly resolve their dispute, therefore limiting stress and legal costs.


Under the new Federal Circuit and Family Court of Australia, parties must attempt make a genuine attempt at resolving a dispute before commencing court proceedings. If the parties cannot resolve the dispute and commence proceedings, each party must confirm their compliance with pre action procedures by filing a Genuine Steps Certificate.

In some circumstances, pre action procedure will not be practicable, for example:

    1. The time limit is about to lapse;
    2. The other party is uncooperative, making negotiation impossible; and
    3. The matter is urgent, involves allegations of family violence or fraud.

Initiating court proceedings

In order to make an application to commence proceedings the Federal Circuit and Family Court of Australia, the following documents must be filed:

  1. Initiating Application setting out the short term (interim) and long term (final) orders sought;
  2. If interim or urgent Orders are sought, Affidavit setting out relevant facts, circumstances and basis for your application;
  3. Notice of Risk (parenting matters only) setting out any concerns in relation to the safety of your child or children and documenting any allegations of domestic and/or family violence;
  4. Financial Statement (property matters only) setting out any and all assets, liabilities, financial resource, expenses and income;
  5. Financial and Parenting Questionnaires (depending on what type of Orders are sought);
  6. Genuine Steps Certificate confirming the party has complied with the pre action procedures designed to help parties reach agreements (and thus avoid court) or narrow the issues;
  7. Undertaking that the party has meet their duty to disclose to the other party (and the court) all relevant information and documents.

Once filed and ‘sealed’ by the court, your application needs to be personally served on the other party or respondent or their legal representation.


Next, the court will allocate a First Court Event for your matter.

Before the First Court Event is to take place, the other party needs to file the documents listed above in response to the Initiating Application and other relevant documents.

After proceedings have commenced and the parties have described their respective positions, attempts should be made to negotiate an outcome, whether that be in relation to interim matters or on a final basis.

Under the new Federal Circuit and Family Court of Australia, parties must attempt make a genuine attempt at resolving a dispute before commencing court proceedings. If the parties cannot resolve the dispute and commence proceedings, each party must confirm their compliance with pre action procedures by filing a Genuine Steps Certificate.

In some circumstances, pre action procedure will not be practicable, for example:

  1. The time limit is about to lapse;
  2. The other party is uncooperative, making negotiation impossible; and
  3. The matter is urgent, involves allegations of family violence or fraud.

Reponding To Court Proceedings

If you are named as the respondent in court proceedings, you will be personally served documents from the other party or applicant. You will need to file the following:

a) Response to Initiating Application setting out opposition to the orders sought or other orders you seek the court to make;
b) If interim or urgent Orders are sought, Affidavit setting out relevant facts, circumstances and basis for your application if you are responding to the interim or procedural orders sought or seeking alternate interim or procedural orders;
c) Notice of Risk (parenting matters only) setting out any concerns in relation to the safety of your child or children and documenting any allegations of domestic and/or family violence;
d) Financial Statement (property matters only) setting out any and all assets, liabilities, financial resource, expenses and income;
e) Financial and Parenting Questionnaires (depending on what type of Orders are sought);
f) Genuine Steps Certificate confirming the party has complied with the pre action procedures designed to help parties reach agreements (and thus avoid court) or narrow the issues;
g) Undertaking that the party has meet their duty to disclose to the other party (and the court) all relevant information and documents.

The Response to Initiating Application and all relevant accompanying documents must be filed and served on the other party at least 7 days before the court date listed on the first page of the Initiating Application.

First Court Event

The First Court Event requires all parties to the proceeding to attend court and you can normally expect the following to occur:

  1. The Judge or Registrar will make a determination in relation to an application for interim orders sought but the parties. This will happen if time permits, otherwise the matter will be set down for an interim hearing to be scheduled by the court).
  2. The Judge or Registrar may also seek:
    1. A summarised account of relevant facts and issues in dispute;
    2. Evidence and those witnesses who will be called to give that evidence; and
    3. Expected length of a final trial.

The Judge or Registrar will also make directions pertaining to how the matter is to proceed. The directions can vary but common examples are:

    1. That the parties attend a mediation or conciliation conference;
    2. That disclosure is exchanged between the parties according to the duty of disclosure
    3. That a valuer is appointed to value property;
    4. Whether the appointment of an independent children’s lawyer is necessary;
    5. Whether a child dispute conference or child inclusive conference is to be attended by the parties;
    6. Whether a family report is to be prepared; and
    7. Any further directions that are sought by the parties, which may include directions relating to psychiatric assessment, drug tests and/or medical reports.

Trial

It is always preferable that your matter is resolved outside of court through means such as family dispute resolution and direct negotiations between parties. However, if it is the case that your matter is not resolved then your matter will move to trial.

Typically, a trial date will be set 18 – 24 months after the filing of the initiating application.

When your court date arrives, you must ensure that you and any witnesses you have (those who have sworn affidavits) attend court. You and your witnesses will be examined by the court, under oath, in relation to the matters in dispute.

Your lawyer will also attend court, as well as a barrister who will have been fully briefed with all the relevant facts and issues pertinent to your matter.

Once all of the evidence has been provided by both parties, the Judge will make a determination on all of the matters in dispute before the court.

Please note however that Judges are meant to issue judgements within 3 months of the hearing but may take longer.

There are obvious benefits to settling outside of court, so it is important to keep in mind that pursuing court proceedings will be financially and emotionally draining as well as a time consuming process.

Contravention orders

Once orders have been made by consent or by order of the court, the parties are bound by those orders. A party can contravene an order or orders in a variety of ways, including:

  1. Deliberately choosing not to comply with the orders;
  2. Failing to make reasonable attempts at complying with the orders;
  3. Aiding or abetting a party to orders in contravening them; or
  4. Intentionally preventing a party to orders from fulfilling them.

If the contravening party provides a reasonable explanation as to the non-compliance of the order or orders, they will be excused by the court.

It is preferable that in the event a party contravenes an order, you attend family dispute resolution to resolve the dispute before applying to the court.

If one party to the agreement contravenes the orders, there are various options available.

  1. Application in a Case – if the proceedings are ongoing, you may file an Application in a Case asking that the parenting arrangements contained in the order are resumed or varied.
  2. Application – Contravention – if you are seeking the implementation of orders, you can file an Application – Contravention with the court. Before filing, please consider what it is you wish to achieve as the court can make the followings orders
    1. Varying the existing order;
    2. Ordering the existing order to be resumed;
    3. Compensating a party for lost time;
    4. Requiring a party to pay a ‘bond’;
    5. Puts a party on notice that they will be punished should they continue to be non-compliant;
    6. Punishes a party by way of fines or imprisonments; or
    7. Make further specific orders.
  3. Application to vary the primary order – to vary the primary order, a party must file an initiating application with a supporting affidavit, outlining the significant change in circumstances. The primary orders will not be altered unless the change in circumstances are significant enough.

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