Family Law Courts - Going to Court

Where a Family Law Matter Cannot Be Resolved, Then Family Law Courts Can Resolve Them

Family Law Court Proceedings

When people separate or issues occur with parents and children, the law has many options to help people settle these issues including through family dispute resolution and mediation.  You should always try to resolve your dispute out of court if possible through dispute resolution.

If you cannot resolve a dispute, you have a legal right to bring proceedings before a court and have the court determine the matter.  The reality is that at times, going to court can be important to bring an end to an ongoing, complex or difficult dispute.

The Nature of Court Proceedings

When court proceedings are commenced, the initiating party must have a proper ground to bring proceedings.  In family law, there are many grounds that allow court proceedings to be brought. These grounds include divorce, nullity of marriage, property settlement, parenting issues, child change of name, spousal maintenance, de facto maintenance, child support and more.

When court proceedings are commenced, the parties are bound to follow procedural rules and evidentiary rules.  In family law, most of the procedural rules are simplified, although there are many rules and there are other rules that originate from common law (decisions made by courts in past cases).  The rules are in place to provide a fair trial process and just outcomes.

In family law matters, we use the adversarial system to resolve legal disputes. This means each party is empowered to and responsible for making and bringing their case before a court.  Courts are not responsible for making enquiries, asking for information, obtaining documents or helping a party to make their case. This is the responsibility of each party. If a party fails to bring evidence in support of their case inline with the rules of procedure and evidence, the court will not be able to consider the information.

When you commence court proceedings, to ensure the matter is resolved in a timely manner, the court will make orders setting dates for events and deadlines.  It is each party's responsibility to comply with these orders.  If you fail to comply with the orders, the court may make a cost award against you in the other party's favour, you may lose the right to provide information or your case in limited circumstances could be dismissed. It is important that you comply with court orders at all times.

Proceedings usually begin with one or several interim hearings to deal with any interim issues and to set dates for the management of the proceeding. The matter will proceed until either the parties are able to resolve the matter or if the parties cannot resolve the matter, it will then go to a final trial.

At a final trial, the matter is heard by a Judge.  Each party must present the facts of their case and the evidence that supports their case.  This is done through a sworn or affirmed statement called an affidavit.  Each witness in the case should provide an affidavit.  Supporting documents and evidence for the case need to be prepared and provided.  Each party calls their witness who will have to swear or affirm to the court that they will tell the truth.  Each witness is then questioned following special rules.  The witnesses will be asked questions by the other party or their lawyers and at times the Judge may ask reasonable questions too.

If there are allegations of family violence, a self-represented party who has had family violence allegations made against them, will not be able to question the witness who made the allegations.

Each party will need to prepare and make submissions to the Judge as to why he/she should follow the outcome the party is seeking under the law. There is a heavy reliance in submissions on statute law, interpretation of statute law and common law decisions (previous decisions of courts in similar factual circumstances).

The Judge has a duty to ensure each party receives a fair and impartial trial, where each party can put their full and proper case to the court as per the rules of procedure and the rules of evidence.

The Judge will then decide on the matter. In most cases, a written judgement is provided to the parties which can take several months or longer after the final trial.

Court proceedings are complex and should be approached with great care and preparation to ensure your case can be put properly to a court.

Carefully consider if court proceedings are the right approach in your family law dispute. Contact our family lawyers for legal expertise and experience in family law court proceedings.​

Judge Writing