Conducting Your Case
Family Law and Child Support
This section explains the procedure that will be adopted prior to and at the first court
date of applications commenced in the Federal Magistrates Court of Australia in relation to Family Law matters.
The conduct of proceedings in the Federal Magistrates Court is controlled by Federal
Magistrates Court Rules 2001. The Federal Magistrates Court has settled Rules for the Court, which will be operational from the 30th of July 2001.
The Federal Magistrates Court will apply the rules of court flexibly and
with the objective of simplifying procedure to the greatest possible extent.
Information for applicants
Proceedings in the Federal Magistrates Court are commenced by application supported by
an affidavit. Part 4 Rule 4.01 outlines the requirements for commencing a proceeding. The person filing the application whether seeking final, interim or procedural orders must file an affidavit stating the facts relied on.
The application will be given a first court date when you and your legal
representatives, if represented, will be required to attend court.
The objective of the Federal Magistrates Court is to have your case heard
as quickly and cost effectively as possible. On the first court date you should be prepared to advise the Court in brief of the nature of the application, witnesses to be called and the expected duration
of the final hearing.
Information for respondents
You will be served with an application and in most instances and affidavit in support of
the applicant's claim against you.
The application will indicate that a first court date has been set. You and your legal
representatives, if represented, will be required to attend court on this day. If you wish to oppose the application you are required to file a response and a supporting affidavit pursuant to Rules 4.03 and 4.04. A response must be filed and served within 14 days of service of
the application.
The objective of the Federal Magistrates Court is to have your case heard as quickly and
cost effectively as possible. On the first court date you should be prepared to indicate to the Court whether the claim is contested, witnesses to be called and the expected duration of the final hearing.
What happens on the first court date?
The Federal Magistrates Court operates what is known as a docket system which means that
the application will usually remain before the same federal magistrate from first court date to final hearing. The conduct of proceedings on the first court date is fully detailed in Rules 10.1 to 10.03.
At the first court date the Court may give directions, order the parties to family
dispute resolution, fix a date of hearing, conduct an interim hearing or finally determine the application. Rule 10.01 details the manner in which the Court may conduct proceedings on the first court date. The parties and their legal representatives, if represented, are required to attend Court and must have a good knowledge of the case.
Applications that relate to property may be sent to a conciliation conference prior to
the date fixed for the hearing of the application.
Applications that relate to children's matters may be ordered to family dispute
resolution at either the Family Court or a community based organisation prior to the date fixed for the hearing of the application.
The Court will generally fix a date for the final hearing of the application at the
first court date. The Federal Magistrates Court aims to hear all cases within six months of filing.
Directions
The Court has the power to make directions orders. These orders will guide the conduct
of the application by ensuring parties undertake certain tasks that will facilitate the finalisation of the matter. See Rule 10 .01(3).
Interim hearings
The Court may conduct an interim hearing that deals with all or part of an application
and make orders that are effective until the matter can be finally determined. Interim orders generally allow liberty to apply which allows the matter to be brought back before the court prior to the
final hearing if necessary.
An interim hearing can be heard on the first court date if the matter is urgent and the
court has the time to hear it on the day. If the Court cannot hear the interim matter on the first court date then a date of hearing for the interim matter will be fixed.
The Federal Magistrates Court aims to limit the number of interim hearings in preference
to giving a matter an early final hearing.
Consent Orders
The Court may receive consent orders in respect to applications filed in the Federal
Magistrates Court. Proposed consent orders can be filed with the Court on and prior to the first court date or at any time leading up to the final hearing.
Subpoenas
Part 15 Division 15.3 deals with subpoenas. A subpoena issued should be in the form prescribed as set out in Schedule 2 Part 1.
A party wishing to issue a subpoena seeking the production of documents or the
attendance of a witness will need to have the permission of the Court. A party may request the issue of a subpoena on the first court date to ensure matters are properly before the Court for the final
hearing.
A subpoena requiring the production of documents can be made returnable at any time
fixed by the Court. Rule 15.13
A subpoena requiring the attendance of a person must be made returnable on a day the
proceeding is listed for hearing. Rule 15.14
A party is limited to issuing five subpoenas in a proceeding unless the Court directs
otherwise. Rule 15.13.
Part 15 of the Rules outlines further detail in respect to subpoenas.
See:
Subpoena - information for a person requesting issue of subpoena (Family Court web site)
Urgent applications
Part 5, Rules 5.01 to 5.03 deals with urgent applications and the manner in which they can be brought before the court.
An urgent application must be by way of application unless the Court orders otherwise.
An application to deal with an urgent matter is to be accompanied with a draft of the
order sought.
In an urgent case where service on the respondent is not possible, on application the
Court may make an order until a specified time or until further order.
Evidence on urgent applications shall be by way of affidavit or orally with the leave of
the court. Rule 5.03 details the information that is required by the Court in dealing with urgent applications.
How to end a proceeding early.
Pursuant to Rule 13.01 a party may discontinue an application or a response by filing a notice of discontinuance in accordance with the prescribed form.
A party discontinuing an application or part of an application may be liable for costs. Rule 13.02
What happens if Court directions are not complied with?
It will always be possible for a party to bring a matter back to the Court after the
first court date if there is non compliance with procedural matters or Court directions. Parties are encouraged to ensure that compliance occurs to minimise the number of times that the parties need to
attend court.
Final Hearing
The final hearing is the hearing that will finally determine the application. This
hearing will normally have been booked in with the Court some time prior, usually at the first court date. It is important that the parties have attended to all procedural matters and complied with all
Court directions prior to this date.
Can I get assistance from the court?
The Federal Magistrates Court can provide information about court procedures to
litigants, so that cases can be resolved as speedily as possible. The Court cannot give you legal advice, as the Court cannot be seen to act in the interests of one person against another. |
