How to run your family law case a do it yourself kit to help you prepare a family law case and represent yourself in court




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How to run your family law case

A do it yourself kit to help you prepare a family law case and represent yourself in court

June 2013

First published: May 2002

Fifth edition: June 2013

© 2016 Victoria Legal Aid. Reproduction without express written permission is prohibited. Written requests should be directed to Victoria Legal Aid, Research and Communications, 350 Queen Street, Melbourne Vic 3000.

Disclaimer. The material in this publication is intended as a general guide only. The information contained should not be relied upon as legal advice, and should be checked carefully before being relied upon in any context. Victoria Legal Aid expressly disclaims any liability howsoever caused to any person in respect of any legal advice given or any action taken in reliance on the contents of the publication.



Contents

About this kit 1

What do these words mean? 1

Other references 1

Changes to the law 1

Human Rights Charter 2

What do these words mean? 3

Chapter one – Alternatives to going to court 5

Family dispute resolution 5

Family dispute resolution and parenting orders 6

Consent orders 7

Parenting plans 7

Binding financial agreements 8

Pre-action procedures 8

Family dispute resolution 9

Duty of disclosure and exchange of documents 9

Chapter two – Where there is family violence or child abuse 10

How the Family Law Act defines family violence and child abuse 10

How to tell the court 11

What the court must do 11

Family violence intervention orders 11

Family violence and parenting orders 12

Family violence and family dispute resolution 12

Magellan Program 12



Chapter three – Applying to a court 13

Choosing the right court 13

Where you live 13

The complexity of the case 13

Costs 13

Procedural issues 14

Making an application 14

Responding to an application 14

Court documents 14

Forms 14


Documents to hand in with an application 15

Where to file your application 15

Court fees 15

Fee costs 16

Arranging service of court documents 16

Responding to an application 17

Family Court 17

Federal Circuit Court 17

Division 12A 17

The court process 18

Family Court 18

Children’s cases 18

Property cases 19

Joint children’s and property cases 19

The trial 19

Federal Circuit Court 20



Chapter four – Children 21

Preparing your case 22

Applying for parenting orders 22

Parenting orders and dispute resolution 23

Interim (short) orders 24

Family and expert reports 24

Independent children’s lawyer 24

Family consultants and family counsellors 24

Will the court ask to speak to the children? 25

Costs 25


Chapter five – Property 26

Time limits 26

Interim orders 27

Caveats 27

Third parties 27

Bankruptcy 27

Steps in a property case 28

Step 1 – Is it just and equitable to make an order? 28

Step 2 – Identify and value the property of the parties 28

Superannuation 28

Step 3 – Contributions towards the property 29

Step 4 – Apply the law to your case 30

Spousal maintenance 30

Costs 30


Chapter six – Preparing for a trial or hearing 31

Work out the issues in dispute 31

Gather evidence in support of your case 31

Division 12A cases 31

How to get evidence 32

What if there is no independent evidence available? 32

What if someone else has the evidence I need? 33

Some important rules about evidence 33

Hearsay evidence 33

Opinion evidence 33

Character evidence 33

Past behaviour 33

Legally privileged information 34

Expert witnesses 34

Keep records 34

What information to keep 34



Chapter seven – Affidavits 36

How an affidavit is used 36

How to prepare an affidavit 37

Facts you know about 37

The statement must be true 37

Your statement must be relevant to the issues in dispute 37

Structure of an affidavit 37

Annexures 38

Contents of an affidavit 39

Children’s issues 39

Writing your affidavit 39

Pre-separation history 40

Separation and current arrangements 40

Facts that link to the relevant law 41

Parental responsibility 41

Parenting time arrangements 41

Changing a parenting order, communicating and handling disagreements 42

Proposed arrangements 42

Property issues 43

Chapter eight – Disclosure and subpoenas 44

Duty of disclosure 44

Disclosure in the Family Court 44

Asking to see a document 45

Disclosure in the Federal Circuit Court 45

Subpoenas 45

Documents and records 46

Tips 46


Serving a subpoena 46

Witnesses 47



Chapter nine – The trial or final hearing 48

Before the trial or final hearing 48

What happens at a trial? 48

Opening address 48

Evidence in chief 49

Cross examination 49

Preparing your cross examination 49

Example of cross examination 50

Re examination 50

Closing address 50



Chapter ten – On the day 52

Before you go into court 52

Going into court 52

At the end 52



Chapter eleven – Once an order is made 54

Changing court orders 54

Using a parenting plan 54

Challenging a decision 54

Decisions that can be reviewed 54

How do I find out the time limits for review? 55

Decisions that can be appealed 55

Time limits 55

Can the order be enforced if there is an appeal? 55

Enforcing court orders and contravention orders 56

How do I enforce an order? 56

Enforcing financial orders 56

Who hears my application to enforce a financial order? 56

Enforcing orders about children 57

Contempt proceedings 58

Where to get help 59

Do you need an interpreter? 59

Telephone Interpreter Service 59

Victoria Legal Aid publications 59

Courts 60

Contact centres 60

Family dispute resolution and other education services 61

Family mediation centres 61

Centacare Catholic Family Services 61

Family violence and support services 62

Websites 62

Appendix one 64

Commonly used forms 64



Appendix two 66

Family Law Rules 2004 66

Schedule 1 – Pre-action procedures 66

1. General 66

2. Compliance 68

3. Pre-action procedures 68

4. [Financial] Disclosure and exchange of correspondence 69

4. [Parenting] Disclosure and exchange of correspondence 71

5. Expert witnesses 71

6. Lawyers’ obligations 72



Appendix three 73

Family Law Act 1975 – Children 73

Section 60B – The purpose and principles of Part 60B 73

Section 65C – Who may apply for a parenting order 74

Section 60CA – Child's best interests paramount consideration in making a parenting order 74

Appendix four 75

Parenting order examples – where the child lives and who the child will spend time or communicate with 75

Other orders 76

Interim orders 76



Appendix five 78

Family Law Act 1975 – Property and spousal maintenance (for married couples) s.80 – General powers of court 78

Section 72 – Right of spouse to maintenance 78

Section 75(2) – Matters to be taken into account in relation to spousal maintenance 79



Appendix six 81

Family Law Act 1975 – Property and spousal maintenance (for de facto couples) 81

Section 90SS – General powers of court 81

Sections 90SE and 90SF(1) – Right of defacto spouse to maintenance 81

Section 90SF(3) – Matters to be taken into account in relation to defacto spousal maintenance 82

Appendix seven 84

Examples of general property orders 84

Examples of general spousal maintenance orders 85

Examples of interim property orders 85



Victoria Legal Aid

Our vision

Victoria Legal Aid is a leading and responsible force for community access to the legal system and for social justice.

Our values

Victoria Legal Aid is committed to: serving our clients and community professionally and ethically; acting with integrity, fairness and transparency at all times; respecting and valuing diversity, and pursuing continuous improvement across the organisation.

Our services

We can help you with legal problems about criminal matters, family breakdown, family violence, child support, immigration, social security, mental health, discrimination, guardianship and administration, tenancy, debt and traffic offences.

Our free legal services include:



If you want ongoing help from a lawyer, you can apply for a grant of legal assistance. Getting a grant will depend on your financial situation and your legal problem. You can use a grant to:

  • pay a lawyer to help reach agreement or speak for you in court

  • go to our family dispute resolution service.

Call us to find out how we can help you on 9269 0120 or 1800 677 402 (country callers).
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