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.
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