What to expect when you go to Court?

What to expect when you go to Court?

08 - 08 - 2018
| Joshua Peters
What to expect when you go to Court?

If you are required to appear before a Judge of the Federal Circuit or Family Courts of Australia, for a family law matter, the date and time listed on the top right corner of your court documents is referred to as ‘The first return date.’ You may note that these two Courts are soon to be merged and called the Federal Circuit Family Court of Australia (FCFCA).

On the first return date, you (and your lawyer) will be required to appear in person before the Judge.  There are exceptions for remote clients, whom with permission from the Court, may appear by telephone. The first thing that needs to be done is to go to the Court Room where your Judge is sitting, and tell the Judge’s Associate that you are present. If you have a lawyer they will do this on your behalf.

There may be as many as 30 matters listed before each Judge every day, so be prepared to wait. When the Judge is ready, the Associate will then call everybody appearing before the Judge into the Court Room. This is called a Call Over.  A Call Over is to establish the order each matter will appear before the Judge. The Judge will only want to know one of three things:

  1. Are there Consent Orders which can be ‘handed up?’ This is a term meaning that the documents are given to the Judge to be made into Orders;
  2. Are the parties still negotiating and wish to ‘stand the matter down?’ This means you wish to go outside of the Court room and continue negotiations with the view of handing up any agreement as Consent Orders to the Judge; or
  3. Can no agreement can be reached at this stage? If this is the case, the Judge will need to schedule time later in the day, if available to hear very short submissions, which is each party’s reasons, as stated in their affidavit, for the interim Orders they seek.

The Judge will then give a number to each matter and will hear the matters in that Order.  The Judge will list the matters that take the least amount of time first, and the others which will need more time going further down the list, or last in the day.

What happens next and how long will it take?
As above one of three things will occur:

1. The optimum scenario
The first and best, is that you and the other side have by that date, agreed to “interim Orders by consent”.  This means you have both signed a document setting out the “directions” or events that need to be done to gather further evidence to support each parties’ request for the final orders.  This will then need to be sent as a ‘word document’ to the Judge’s Associate within three days of the first return date.

Your matter will be heard quickly, which means you will be required to appear before the Judge and tell him or her the interim orders agreed to, the Judge may wish to add further orders, and generally you can expect to leave before 12:00 pm.

2. The second scenario
Is the matter has been “stood down for further discussion”.  At this time the Court expects the parties, or their lawyers to negotiate a short- term agreement for interim Orders.

The time you can expect to leave the Court will depend on how quickly you can resolve the issues in dispute by negotiation.  If you have not been able to hand up Orders by consent to the Judge before he or she breaks for lunch, which is usually at 1:00 pm, you will be expected to wait until after their return at 2:15 pm to hand up any Orders.

3. The third scenario
For family law matters this is the least favourable option for both parties.  This option is for any issue in dispute which cannot be settled through sensible negotiation and compromise. Various reasons could be whether supervised time for parenting is necessary or for a property matter, it could be whether interim spouse maintenance should be paid to one party by the other. The Associate will be advised to tell the Judge that time is required for his or her attention, and an estimate of how long it should take.

These matters are usually listed to be heard before the Judge after 2:15 pm, and again, depending if there are two, three or more matters that need the Judge’s attention, the shortest will be heard first, after any Orders to be made by consent are dealt with.

You could expect to not leave Court until well after 5:00 pm.  When the Judge has many matters before them on that day, they can elect to keep the Court open after 5:00 pm, to see everybody that was listed for that day. This will be at each Judge’s discretion.

In addition to the interim Orders, the Judge will then “set down” the matter, which means they will schedule a date on the interim Order, called a “mention” date.  This date, can be three to six months from the first return date. This appearance brings the parties back before the Judge to ensure that the interim Orders have been complied with, and to make further interim Orders, if necessary, or final Orders should the parties have consented to an agreement since the first return date.

At the mention date, you can repeat any of the three scenarios mentioned above.  It is not until all avenues for compromise are exhausted and all documents for evidence are subpoenaed, that the matter will be listed for Trial.  This is usually 18 months to 2 years from the first time you entered the Court room.  If you are unfortunate enough to have your matter listed for a Trial, you will be very familiar with the Court layout and where the best coffee can be purchased.

If you need further advice which is specific to your matter, please don’t hesitate to call us on (07) 5679 8016 for a free 15 minute telephone consult with one of our experienced family lawyers.

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