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 © 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
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
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
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
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
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
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
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:
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