For People Attending a Final Hearing in the Family Law Courts without a lawyer

Transcription

1 Court Network COURT NETWORK A Resource Booklet For People Attending a Final Hearing in the Family Law Courts without a lawyer September 2014

2 CONTENTS Published by Court Network, Ground floor, 565 Lonsdale Street, Melbourne VIC 3000 Court Network 2014 This Resource Booklet is produced by Court Network with the generous support of the Legal Services Board. September 2014 A Summary of this Booklet 5 Court Network at the Family Law Courts 7 About this Booklet 9 A few words to encourage you 11 Getting information from the internet 13 Being prepared 15 Documents 18 How to behave in Court 20 What happens at Court 22 The Judge s decision 27 A few tips about staying focussed when you are in Court 29 Feeling safe at Court 30 How the Court is set out 31 Words and what they mean, and people and what they do 34 Checklist 45 Some contacts and resources 46

3 A SUMMARY OF THIS BOOKLET Being at Court for the Final Hearing of your family law case can feel overwhelming. This Resource Booklet gives you some of the basic information you need to know about how the day is likely to proceed and what you need to do. Here is a brief summary of what the Booklet says. Be prepared (For more information see page 15) Bring all your documents with you. Make sure you get to Court early. Remember to organise childcare and time off work. Think about having friends to call on if you need some emotional support at court or afterwards. Make sure you have all your documents sorted (For more information see page 18) Most documents need to be filed with the Court well ahead of time. You will need the permission of the Court to bring new documents into the case during the Hearing. If this happens, you should have extra copies for the other parties and for the Judge. Make sure you know how to behave in Court (For more information see page 20) Dress comfortably but neatly. Address the Judge as Your Honour. Stand whenever you are talking to the Judge or the Judge is talking to you. Familiarise yourself with Court procedure (For more information see page 22) The Judge will decide how the case is run, but usually the applicant presents their case first, followed by the respondent. You summarise your case first, then go into the witness box to answer questions from the Judge and from the other party. If there are any witnesses, both you and your ex-partner can ask questions of them. If there is an Independent Children s Lawyer, they can also ask the witness questions. Listen to the Judge s decision (For more information see page 27) After everyone has put forward their argument and asked the questions they want to ask of all the witnesses, the Judge will make a decision. The Judge might make this decision immediately, or reserve their decision and make it later. You will receive a copy of the Judge s decision in writing, but you should take also notes while the decision is being read out in Court. If you are not clear about something the Judge has said, you can ask the Judge to repeat it for you, or ask the Judge`s Associate after the Hearing is over. Try to stay focussed during the Hearing (For more information see page 29) Take notes when the Judge or other parties are talking. Take your time. Ask for a break if you need one. Tell the Court staff or someone from Court Network if you do not feel safe at Court! (For more information see page 30) 5 Court Network 6

4 COURT NETWORK AT THE FAMILY LAW COURTS Court Network provides information, support and referral services to people when they are at Court. This service is provided by trained volunteers across Victoria and Queensland. It is not a legal service rather, it is there to provide you with information about what happens at Court, support to help you feel more at ease, and referral to other people and organisations. This Booklet has been written by Court Network as part of a new service it is providing to people at the Family Law Courts. This new service is for people who are attending a Final Hearing of a family law dispute, but who don t have a lawyer. The new service provides more intensive support and provides it for longer than the regular Court Network service does. At present, this new service is being provided only on a trial basis and only to a limited extent. This means that not everyone will be able to get access to this new service but even if you are not able to get access to the new service, the regular support from Court Network might still be available for you. The amount of support that Court Network can provide for you will depend on how busy things are at Court when you re there, as well as how many Court Networkers are available that day. Each morning at the Family Law Courts, the Court Networkers will meet to work out how best to support the people who are at Court, and how best to divide their time among everyone who might need help. After they have had this meeting, the Court Networkers will be able to tell you how much support they will be able to give you and for how long. Even though Court Networkers may be able to provide you with some support, there may still be some times when you will have to go through some parts of the process without them. Whatever support the Court Networkers are able to provide for you, this Booklet will help you prepare for the day and to know a little bit about what to expect. If you have any questions about what s in this Booklet, there is a list on page 46 of places you can contact for more information. 7 Court Network 8

5 ABOUT THIS BOOKLET Note: If a word appears in bold in this Booklet, there will be an explanation of what it means in the Words and what they mean section on page 34. This Booklet explains some of what happens at the Family Court and the Federal Circuit Court. Together, these courts are sometimes referred to as the Family Law Courts. This is the term we will use throughout this Booklet. This Booklet is written for you because you are appearing at the Family Law Courts without a lawyer, and your matter is concerned about the ongoing care and development of children from your relationship with your ex-partner. It will help you prepare yourself for a Final Hearing. This will be the last stage of your contact with the Family Law Courts, but it might be the first time you have had to go to Court without a lawyer. Whether you have had a lawyer with you before or not, this Booklet will explain to you some of what happens at a Final Hearing, and what you need to be ready for. It also includes space for you to write down things that are important for you to remember for your case in particular. Some of the things this Booklet will tell you will include: A bit about what to expect the things that are likely to happen when you are at Court. Some of the words you are likely to hear throughout the day. Where to go for different sorts of information and help. A bit about what the people at the Court will expect you to do, such as where you should sit how to talk to the Judge and a little bit about Court etiquette. A few things to keep in mind so you can be sure that you are as prepared as possible for everything that will happen at Court. The sorts of the things your Court Networker can help you with. Some of the things this Booklet cannot do will include: Give you advice about how to run your case that is something that only a lawyer can do. Explain the law to you this Booklet will explain what happens at Court, but cannot explain how Family Law works, or how Family Court Judges make their decisions. 9 Court Network 10

6 A FEW WORDS TO ENCOURAGE YOU Everyone who goes to the Family Law Courts feels stressed. Appearing without a lawyer can be even more stressful for you. The Judge will understand this. The Judge will have seen many people who do not have lawyers, and so will run things in a way to make it as easy as possible for you to follow what s going on, and to say what you need to say. The stress of being at Court can sometimes feel worse when a breakup of a relationship is involved. Remember, though, that the Court can only deal with the legal aspects of your relationship breakup. It is sometimes difficult to separate the legal issues from other aspects of the breakup, such as how you feel emotionally. Everyone goes through this, and everyone feels frustrated by it. But the people at the Court, including your Court Networker, understand how confusing and frustrating this can be for you. They will be able to help you feel more at ease and more in control of what s happening. Remember, too, that the Judge is very experienced in hearing these sorts of cases. It can be a very frightening process for you, but try to remember that the Hearing is being run by someone who is very skilled in dealing with these issues. Judges in the Family Law Courts are very experienced in making decisions about what is in the best interests of children whose parents are breaking up, as well as what is fair for people in situations such as the one that you are in now. Make sure you take advantage of the support that Court Network can provide for you. Court Networkers are trained to provide extra support to people in exactly your situation. They will be able to help you with information about what happens at Court, about where everything is, and about where to go for more help if you need it. Court Networkers will also be able to help you feel a bit more at ease, so don t hesitate to let your Court Networker know if you are worried about something. Chances are that any question you ask will be something they have dealt with before. Remember though that Court Networkers cannot provide you with legal advice. Only lawyers can do this. Use this Booklet, too, as a way of helping you feel more in control of things. It will help you understand what s going on, and it also provides lots of reminders as well as space to jot down things you want to remember. All of this will help your time at Court feel a little less stressful. If there is anything in this Booklet that you do not understand, or that you would like more information about, your Court Networker may be able to help you. My Court Networker s name is: 11 Court Network 12

7 GETTING INFORMATION FROM THE INTERNET The Family Law Courts provide a lot of information about cases through the internet. The Commonwealth Courts Portal is the main way you can have access to this information. The irefer VIC App is also a useful source of information about some of the services and agencies that can help you. Commonwealth Courts Portal: The Commonwealth Courts Portal allows you to have access to information about your case, such as how it is progressing, what documents have been filed, any orders that have been made, and any dates that have been set. You can also file documents there that are part of your case, by uploading them yourself. If you have trouble printing documents from the Commonwealth Courts Portal, you might find it easier to save them to a separate device, such as a USB stick, and print them from there. To use the Commonwealth Courts Portal, you must first register through the website and then request access to your file. To do this you will need your client number and the file number. If you are looking for a document for your case and cannot find it through the Commonwealth Courts Portal, the Court Networker may be able to help you with this. The Judge s Associate might be able to tell you how to locate it. The Commonwealth Courts Portal is at irefer VIC App: The irefer VIC App is available for iphones, ipads and Android devices. It provides you with information about different family law services, such as family counselling services, support for people experiencing family violence, income support, and legal advice. It also gives you up-to-date information about things such as fees and waiting times. 13 Court Network 14

8 BEING PREPARED Your time at the Family Law Courts will be a lot less stressful if you are well prepared and remember to bring along a few things. Here are a few things to keep in mind before you go to Court: Make sure you bring all your documents with you. Almost always these will be affidavits that have already been sworn and filed with the Court ahead of time. You cannot file any further documents at the Final Hearing unless the Judge gives you permission to do this, but in most cases Judges are reluctant to allow this because it does not give the other parties long enough to read and consider what s in the documents. If you are going to have any additional needs when you are at Court such as disability access, or an interpreter make sure you let the Court know about this well ahead of time, ideally when you first file your application or response. The Registry staff will be able to help you with this. Make sure that you allow yourself plenty of time. Remember you will go through a security check when you enter the building. This can take quite a bit of time, especially in the morning when there are a lot of people arriving at the same time. Make sure you organise childcare if your children are going to need this while you are at Court. Children are not allowed in the courtroom, and the Court does NOT provide childcare. The Court Networkers and the Court staff are not permitted to mind your children when you are in Court. It s therefore important that you organise this ahead of time, and that you are ready for the possibility that your case might take longer than you expect. Remember to bring all your papers copies of documents you have filed, copies of documents that have been served on you by other parties, copies of any affidavits that have already been submitted (see also the section on Documents on page 18). Bring a pen and paper with you, so that you can write down things that are said during the Court case. It can be surprising how many things you forget that are said while the case is happening. Think about bringing along a trusted friend for support. It can be especially important to have someone to keep you company while you are waiting for your case to be called, as well as someone to talk with afterwards. Sometimes a friend can also be an extra pair of ears. This can be helpful if something is said in Court, or during negotiations between you and your ex-partner, that you don t remember or that isn t clear to you. If you are taking a friend to provide this extra help, make sure it is someone who will respect the rules of the Court, such as not speaking on your behalf or interrupting proceedings. They should just be someone who is there to listen, and remind you afterwards what was said. They should NOT take notes during the hearing. If they do take notes, the Judge might ask them to leave. Try to plan your whole day. Remember, your case might be heard much later than you expect and certainly much later than the time listed on your notice. Make sure you have made arrangements for such things as childcare and time off work in the event of you needing to spend the full day at Court. Be ready, too, that your case may go for longer than a single day, especially if it is complicated or if it has to be adjourned for some reason. Plan ahead about how you will get to Court. If you are going to drive, make sure you check ahead about parking, especially if your case is in the Melbourne Courts, where parking can be very difficult and expensive. If you are coming by train, check out where the nearest train station is ahead of time. 15 Court Network 16

9 DOCUMENTS It is also a good idea to think about what you will do after your case has been heard. Many people feel drained after Court. You might want to plan ahead for this such as organising to spend time with a friend, or to do something that you enjoy. Before you go to Court, you might want to take time to jot down any questions you have about what happens at Court, or about what you are expected to do. You could raise these questions with your Court Networker. If your Court Networker is not able to answer your questions, they will probably be able to tell you who can. You could write your questions here ahead of time: Questions for my Court Networker: Make sure you bring along all of the documents that you want to use during your court case. This will include copies of documents you have already filed, plus any extras that you want to refer to. You don t want to be getting flustered during the Hearing, trying to find documents in a rush so make sure you have your documents organised in a way that will help you to find each one quickly when you need it. Organising them in date order might be one way of doing this. If you want to bring any extra documents to the Hearing that have not yet been filed, you will have to first ask the Judge for permission to do this. Usually you would do this at the beginning of the Hearing, but it is likely that the Judge will not allow you to present any extra documents to the Court that have not been filed well before the Hearing. In most circumstances, Judges expect documents to have been filed ahead of time so everyone has had a chance to read them and think about them. Also, any witness you wish to have present evidence during the Hearing should have sworn an affidavit, outlining their evidence, and you should have submitted these to the Court before the Hearing. If the Judge does allow you to bring further documents to the case that have not been filed ahead of time, you should have three copies of these one for the Judge, one for your ex-partner, and one for yourself. If there is an Independent Children s Lawyer, or any other additional parties, you will need to make copies for them too. Any documents for the Judge should be given to the Judge s Associate. Usually, you will do this at the start of the Hearing, if the documents have not already been filed ahead of time. If you haven t already done so, you should find out before the Hearing starts if there are any documents that have been 17 Court Network 18

10 HOW TO BEHAVE IN COURT subpoenaed for the case and, if there are, how you can access these. The Judge s Associate or the Registry office should be able to help you with this. You may be able to photocopy some of these documents. Some of them you might only be able to look at, but not photocopy. Remember to bring along money for the photocopier! Documents that I must remember to take with me to Court are: Documents: Copies: Courts can feel very intimidating when you are not used to them. But if you keep a few simple rules in mind about what is expected of you, then the whole setting will be a little less overwhelming. What to wear: There are no rules about what to wear, but it is worth remembering that courts are formal places, and so dressing neatly is important. But you should also dress in a way that will help you to feel comfortable. Acknowledging the Judge: Whenever you go into the courtroom, and whenever you leave, it is polite to acknowledge the Judge by pausing in the doorway and nodding towards them. What to call the Judge: You should call the Judge Your Honour. When to stand, when to sit, when to speak: Sometimes the rules about when to sit and when to stand can seem confusing. Here are the main things to keep in mind: You should stand when the Judge enters the courtroom and when they leave. You should also stand whenever you are talking to the Judge or whenever the Judge is talking to you. You should generally only speak when you are asked a question or when the Judge asks you to speak. You should never interrupt the Judge when they are speaking. Other things to remember: There are a few other things to keep in mind: Remember to turn your phone off before you go into the courtroom. 19 Court Network 20

11 WHAT HAPPENS AT COURT Don t bring any food or drink into the courtroom with you, and do not chew gum during the Hearing. Unless you have to wear a head covering for religious reasons, you should remove any hats or head scarves before you go into Court. You should not wear sunglasses in Court, unless you need to wear them because of issues with your eyesight. Do not put bags on the bar table. The bar table should only be used for documents and paper for taking notes. When you arrive at Court, you should first tell one of the Registry staff that you have arrived, and that you do not have a lawyer. They will be able to tell you which courtroom your case will be heard in and the name of the Judge who will be hearing it. This information is also available on the Court notice board. In most courtrooms this will be near the entrance. It is important to go into the courtroom a little bit before AM and introduce yourself to the Judge s Associate, and again explain that you do not have a lawyer. You should then wait in the courtroom while the Judge arrives and plans what order the day s cases will be heard in. This way the Judge will know that you are there. If you don t want to stay in the courtroom and watch other cases before yours is heard, you should stay near the courtroom so that you are there and ready to go in when your case is heard. If you want to stay, you can sit in the public gallery to watch other cases that are on before yours. You should only do this if you think it will be helpful for you in knowing how things work in the courtroom. You should not do it if you think it will make you feel more stressed and anxious. Remember - everyone is different and every case is different, but the general process that the Court goes through is much the same from one case to the next. Final Hearings are usually listed for AM. When the Judge arrives in the courtroom, they will work out which cases to hear first. This decision is made on the basis of a whole range of things, such as: How complex the case seems. How long the case is likely to take. Who is ready to go into Court. Whether or not it seems likely that the parties might be able to come to their own agreement by talking with each other first. 21 Court Network 22

12 If you do need to leave the Court building for some reason, make sure you let the Judge s Associate know during a break in one of the hearings. When your case is ready to be heard, a court officer will call your name. You should then go into the Court and stand at the bar table. If you have a McKenzie Friend or a Court Networker, and you want them to sit with you at the bar table, you should ask the Judge for permission for this to happen. Whenever the Judge is speaking to you, you should stand. Whenever the Judge is speaking to your ex-partner or to another party, you should sit. The Judge will decide how the case will be run, and in what order the different parties will present their side of the case. As you do not have a lawyer, the Judge will explain to you how the case will be run before it starts. Usually the first person to present their side of the case is the applicant, followed by the respondent. Always listen to what the Judge is saying. Sometimes Judges will tell you how they are thinking about your case, such as what disagreements they think need to be resolved, or what questions they think need to be answered. The Judge might not be thinking about the case in the same way you are thinking about it. Try to take your direction from how the Judge is thinking, and from what the Judge is saying. When it is your turn to present your case, this will usually happen in the following order: The Judge will ask you to briefly explain what issues you and your ex-partner are still disagreeing about. You will go through this while you are standing at the bar table. The Judge will ask you to go into the witness box and, after you have been sworn in, will then ask you if all of your affidavits are true and correct. The Judge will then ask you if you have anything to add to what you have already said in your affidavits. The other parties can cross-examine you that is, they can ask you questions about your evidence. You can then clarify any of your evidence that is unclear or incomplete. If you have any witnesses who have sworn and filed an affidavit they must also come to Court on the day of the Hearing so they are available if the other party wishes to cross-examine them. If the other party does wish to cross-examine a witness, that witness will then go into the witness box and be sworn in. The Judge will ask them if their affidavit is true and correct. You can then ask them any questions if you need to bring more evidence to the Court beyond what is already covered in any affidavits, but only if the Judge gives you permission to do this. There is space to write down your questions at the end of this section, as well as space to write down their answers. This might help you focus, and remember what is being said. The other parties can then cross-examine the witness. You can then ask them to clarify any of their evidence that is unclear or incomplete. This same process is followed for all of the parties until everyone has presented all their evidence and has had the chance to cross-examine the evidence of the other parties. Remember, if you are the respondent, then it is most likely that your ex-partner will present their side of the case before you present yours. This means you will ask them questions about their evidence before you get to present your own side of the case. Remember neither you nor the other party can rely on anything that has been written in an affidavit unless the 23 Court Network 24

13 person who swore the affidavit is there in the court and available to be cross-examined by the other party. When all of the parties have been through this process, the Judge will ask each of you to summarise your main points. Asking questions of your ex-partner while you are cross-examining them in Court can feel very daunting, especially if there has been abuse or violence, or other types of stress in your relationship. If you think it will be too stressful to ask questions directly to your ex-partner, you can instead look at the Judge while you ask the questions. Judges and Registrars are used to this, and will understand why you are doing it. Sometimes through the Hearing the Judge might ask you and your ex-partner to leave the courtroom and talk something through together. This can happen if the Judge starts to get the impression that there is a chance of you and your ex-partner coming to an agreement. Many cases end up being resolved in this way, rather than by the Judge making the final decision. Some questions I want to ask in Court are: Who: Question: Answer: 25 Court Network 26

14 THE JUDGE S DECISION When the Judge is giving their decision it is important that you listen very carefully. There may be a lot of important details about the sorts of arrangements that need to be set up regarding your children and your property. You will get a copy of the decision in writing. It is still a good idea to note down as many of the points as you can while you are at Court. There may be important details about things such as times and places for your children moving between yourself and your expartner, for example. Some of these decisions might come into effect immediately, so it is important that you know the details. If there is anything the Judge says that you don t understand, you can ask them to repeat or clarify it. But remember that you cannot argue with the Judge, even though you might not be completely happy with the decision that has been made. Sometimes at the end of the Hearing the Judge will not give their decision on that day but will reserve their decision so they can consider all of the evidence in more detail, and over more time. When the Judge is ready to make their decision (or hand down the judgment ), the Court will advise you of the date so you can come back to hear the Judge s decision. After the Judge has left the Court, it is likely that the Judge s Associate will stay in the courtroom for a while. This will be another opportunity for you to go and ask for anything to be clarified, or repeated, if you have missed it. You can use this Booklet for noting some of the main details of the Judge s decision. If you have a friend with you, make sure you ask them ahead of time to listen carefully to what the Judge says. They may notice things that you missed. But you should also tell them NOT to take notes during the hearing. Judges sometimes do not like people, other than actual parties, taking notes. Sometimes people taking notes in the public gallery are asked to leave. When you receive a copy of the order in the mail, you might find some of the wording or details are difficult to understand. If this happens, it is best to ask someone with legal training to explain it to you. Someone at a Community Legal Centre or at the Victoria Legal Aid Telephone Line may be able to help you with this. The contact details for these services are at the back of this Booklet. Important points to remember from the Judge s decision: 27 Court Network 28

15 A FEW TIPS ABOUT STAYING FOCUSSED WHEN YOU ARE IN COURT Everyone feels stressed when they are in Court, and especially if they are in Court without a lawyer. The Judge will know that you are feeling stressed, and will try to run things in a way that makes it easier for you to follow what is happening and to be genuinely involved in the Hearing. The Judge will want the best and fairest outcome and will know that the only way to achieve this is by everyone participating meaningfully. Here are a few tips and reminders that can help you stay focussed when you are in Court: Try to put your energy into listening to what the Judge is saying: this can sometimes help you move your focus away from your own stress. Take notes of what people say it can be very easy to forget important points if you don t take notes. Take your time. If you need a break, tell the Judge. If the Judge says something you don t understand, it is okay to politely ask them to explain it to you. If you are cross-examining or re-examining someone, it s generally a good idea to write your questions down ahead of time, or when you think of them. If you need some extra time to do this, you should ask the Judge for a break. There is space to write down your questions on page 26 of this Booklet. It is also a good idea to write down the answers of anyone who you are cross-examining or re-examining, as you go. Again, ask the Judge if you need extra time to do this. There is space to write down people s answers to your questions on page 26 of this Booklet. FEELING SAFE AT COURT You have a right to feel safe when you are at Court. No one should feel that they might be harmed or intimated by their ex-partner, or by anyone else, when they are at Court. If you are concerned about your safety, you can discuss this with your Court Networker or with the Court staff. Arrangements will be able to be made to help ensure that you are safe. If possible, you should raise any possible concerns with the Court before your hearing. You can do this by calling the National Enquiry Centre on If concerns arise when you are at Court, talk to one of the Court staff. Your Court Networker can help you with this if you are not sure who to talk with, or what to say. 29 Court Network 30