NSW How did your family law court experience pan out

[Aimee11]

Hi - I am just at the beginning of this process, and have no idea what to expect. I was wondering if anyone would be willing to share their stories and experiences of the court process, it would be so greatly appreciated.

I'm interested to know the following kind of things:

1. What happened after you first filed the Initiating Application? How long did you have to wait for your first court date?
2. Step by step - what kinds of processes did you then have to go through, and what happened at each respective court date? What happened at your first, second, third. . . court dates?
3. How long did it take before reaching an Interim hearing?
4. Any curve balls? Completely unexpected things?
5. Did anyone get a barrister? For which particular court appearances (surely not every time)?
6. Anything else from your experience, any terrible experiences? Nightmares?
7. Any words of wisdom, pitfalls or pearls?

From someone who is just beginning this process it would be so great to hear from people who've been there!

Many thanks

 

[sammy01]

Hey I've been posting here for a few years and read lots. Eventually me and the ex came to agreement so avoided court... BUT the biggest thing missing here is you telling us what you are in court for? money /assets? kids? Both? and what do you think is gonna happen.... See maybe if you give us your story you'll get some good advice about whether or not you should even bother at court. But I'll get to that later.
So I'll do my best to give you an indication of what to expect
1. 3 mths to first court date
2. More mediation
3. 4-6 months
4. Family report is the curve ball. You can't like it or leave it... What happens in that report is hugely important.
5. If you can afford $1000 an hour then go for the barrister.

6 and 7. Avoid it. Unless you are Angelina Jolli and he is Brad Pitt and he is stashing away millions while you have evidence he is trying to sell the kids on Ebay - THEN AVOID IT...

Best thing to do is come to a compromise and avoid court. BTW only 5% of cases ever end in a final hearing. Most cases never even get to court. But even those that do, overwhelmingly the parties come to an agreement somewhere along the way. So why not tell us your story and maybe you'll get some good advice on what you're doing well and what you're doing wrong.

 

[GlassHalfFull]

What kind of processes you have to go through will depend so much on the details of your case. It may be psych reports, it may be supervised access to the children (for one of the two parents), a Family Report etc. As Sammy said, the Family Report is huge, and will largely dictate the direction the case will go.

I don't think the details of my case will necessarily help you or be representative of most cases though, but I've had 3 interim hearings so far over the last 18 months or so, and have another one coming up in the next few months. I've had a barrister in all but one and my ex has had a barrister in all of hers. It's hard to say whether they're 'worth it'. In my case, my barrister wasn't actually more expensive than my lawyer so my lawyer gave the barrister a brief and the total cost to me was similar to if they were representing me in court for the day instead.

One thing I will say though, and this is something that has taken me by surprise... I expected that if my ex and I were unable to come to an agreement prior to the court hearing, that the judge would make decisions for us. And while that may be technically true, the reality is that your lawyer/barrister will spend a considerable amount of time on the day negotiating with the other side's lawyer/barrister to try to come up with a list of consent orders that you can both agree with. In all 3 of my interim hearings so far, all of the orders we've had were consent orders.

There's been a little bit of discussion in court but largely the judge/registrar has simply rubber stamped the consent orders and set a date for the next hearing. So if you turn up in court and expect to have a big back and forth discussion with the judge about the case, you will get a surprise. In the last 3 hearings and 18 months of litigation, I haven't spoken a single word in court and my representation have not had to say much either. Until you get to a trial, hearings are often very formal, paperwork-driven processes largely based around affidavits and reports and no facts or claims are actually tested.

 

[Tremaine]

1. What happened after you first filed the Initiating Application? How long did you have to wait for your first court date?

We waited about six weeks for our first court date after filing the initiating application. The lead time was shorter because we filed the application at a circuit court, rather than the main registry in our capital city.

Our initial application was a mess. We were self-represented and had no idea where to begin or what the court was looking for in evidence, so the judge slammed us at the first hearing, but still imposed the parenting plan as interim orders (which was for every second weekend - three nights a fortnight less than the pattern of care that had endured for two years prior). Dad had reluctantly agreed to the parenting plan at mediation only because if he hadn't, mum would have continued withholding the child indefinitely, so when that plan became interim orders, dad felt defeated. I could see why the judge did it, though - it was proof enough that the parents could agree, at some level, and with a few firm words, he was basically telling them to try harder for their kid's sake.

So, after that, we consulted with two lawyers. The first was through a private firm, the second was through Legal Aid. Both helped us immensely, familiarising us with the judge assigned to our case, and showing us how to frame our argument so it was consistent with the legislation. I also re-commenced my law degree, which gave us a big leg up, too, and we moved forward with a lot more confidence in what we were doing.

2. Step by step - what kinds of processes did you then have to go through, and what happened at each respective court date? What happened at your first, second, third. . . court dates?

The process at each court hearing was the same - we were added to a duty list as one of many families having interim hearings that day, and when our name was called, we went in for our hearing. Just being there with all the other matters going through was a great learning opportunity - we observed how the judge addressed different cases, how people tried to negotiate consent orders in the waiting area, etc. It was very informative.

One of the conditions set by the judge at the first hearing was that both parents had to complete a parenting orders program through Relationships Australia. We did it, but have no idea if mum did, as well. The court never really checked, but that was fine, it helped us, even if mum didn't complete it, because we learned some coping strategies and changed us from being court-focused to being really child-focused. In my experience, a lot of people get bogged down in doing what they think the court wants them to do, instead of just doing what's best for the kids, and we had far more success in court if we were doing the latter rather than the former.

We filed an application in a case in between because mum was making holiday time into an unwinnable obstacle course, and we wanted the court to nail down some dates that we'd requested and clarify whether proposed holiday time was just advising mum of the plan, or if it actually required her agreement. The application in a case was heard concurrently with the second hearing, and from that, we garnered two outcomes: we had to attend mediation again before the next court date, and we had definite dates for holiday time. On that occasion, it was mum who received the verbal beating for being controlling.

We attempted mediation just before the third court date, while they agreed about some menial things, mum refused to budge or even negotiate about the 'time spent with' component of the application, which was the whole reason we were even in court to begin with. Nothing was signed, so the judge set down a trial date at the next hearing, which had a lead time of about four months, if memory serves (again, much faster because we were on circuit, not at the registry).

3. How long did it take before reaching an Interim hearing?

I'm not sure what you're asking here, since pretty much every hearing between filing and trial could be considered an 'interim hearing'. Some people make the mistake of not requesting interim orders for care of the kids, so I guess that's a problem that you should avoid, if you can. But if you're asking how long it took to get interim orders, we were granted interim orders at the first hearing, which I believe is fairly commonplace, though the circumstances for each case usually dictate what those interim orders look like. For example, if someone has made allegations of violence, the court will probably make interim orders for supervised time between parent and child. For us, even though there were concurrent proceedings on foot for domestic violence orders, the fact that a parenting plan was made after the DVO proceedings commenced, and the fact that neither parent was seeking supervised time in their application for parenting orders, demonstrated to the judge that neither parent felt there was any real risk of violence to the child, so supervised time wasn't necessary. I think the parenting plan being only eight or ten weeks old was also a fairly compelling reason for the judge to implement that plan as interim orders.

4. Any curve balls? Completely unexpected things?

We weren't expecting to be drilled by the judge about our situation. That came as a shock and at first, it felt incredibly damning and incredibly unjust (and honestly, I'll never forget the arrogant spring in mum's step and smirk on her face as she walked out of that first hearing with her stupid parenting plan as interim orders - I'm a pretty level-headed person, ordinarily, but in that moment, I could totally relate to those who brawl it out in front of the courthouse), but as time went on, it dawned on us that the judge wasn't really against us, he was just against the parents even being there, and he delivered harsh words to drive the point home that a lot of the stuff they were arguing about, was trivial, better sorted out between them than by the court. Sometimes, he gave dad a dressing down, sometimes he gave mum a dressing down, but when we pushed aside the emotional clutter of anger, or unfairness, or embarrassment, we could see that what the judge had said or done was a) based on the evidence we submitted, and b) fundamentally fair to both parties and the child.

The other completely unexpected thing was receiving an offer from mum to settle on consent orders nearly identical to what we were seeking, about two weeks before the trial date.

Mum had been an immovable object for the entire duration of the proceedings - she was adamant that the interim orders would be made into final orders and we'd end up with two nights a fortnight. Court outcomes are unpredictable, and she played on our fears and doubts extremely well, to the point where we first offered to settle for one extra night a fortnight (three in total), and then two extra nights a fortnight (four in total), both of which she rejected. We knew she didn't want to go to court, we knew it was sending her broke, we knew she didn't want to be cross-examined about all the crazy things she'd done in front of their kid since their marriage breakdown, but rather than negotiate with us, her strategy until that point was to scare us into submission, like she was daring us to go ahead with the trial, confident in her own promise that we would lose. And it very nearly worked, we nearly called it quits several times during the process.

So, you can imagine our surprise when we received an offer to settle on what would eventually be a 50/50 care arrangement like what we had been seeking all along. After four or five days of ironing out details, we ended up with consent orders, sealed by the court, for an equal care arrangement, implemented over the course of 18 months. Given when I knew of mum, it was not an outcome I expected at all.

 

[Tremaine]

5. Did anyone get a barrister? For which particular court appearances (surely not every time)?

We looked into getting a barrister who we could instruct ourselves just prior to trial, but such a thing is as rare as hen's teeth, presumably because most barristers don't want to take instructions from those who are lay in the field of law. We only ever considered representation at trial, never for the interim hearings, and the only reason we were considering representation for trial was because dad would have to fly solo for that part, without any of the help that I'd provided beforehand. He is a gentle soul, so he wasn't confident about cross-examining his ex (and I don't blame him, it's near on impossible to stay objective about an ex in a system that necessitates mud-slinging).

6. Anything else from your experience, any terrible experiences? Nightmares?

Actually, the worst thing for us was navigating the concurrent proceedings for domestic violence orders.

The event that triggered the whole court process was the commencement of my relationship with my partner, at a time when mum was still hoping, or I guess aiming, for reconciliation (even though they'd been separated for several years, by this time), so she was hurt, and as a consequence, she was very, very angry, which led her to do some crazy things, including filing for a domestic violence order that would make it a crime for my partner to even say hello to his kid at the shopping centre. We had a lot of difficulty working out how to deal with that situation. Even though mum was seeking an order for literally no contact, which implies she thinks he poses a grave risk to both her and their child, she continued to text, e-mail or call several hundred times a day (not an exaggeration), invite him to her house or on dates, contact members of his family or his workplace, etc. Eventually, we ended up filing a cross-application for domestic violence orders. After several adjournments and again, just a few weeks out from trial, both parties discontinued proceedings to focus on the parenting matter, but the whole thing while it was happening felt like injustice in action. It was so abundantly clear that such proceedings were being misused to punish my partner and to influence parenting matters, but nobody is allowed to say that out loud, are they?

Ironically, we ended up filing for a second DVO about a year after the parenting matter was finalised because damn, mama just didn't quit. Every, single changeover was marked by aggression, hostility, yelling, swearing, denigration. We took to dropping the child at the front gate and letting her walk to the door on her own in an attempt to minimise the risk of conflict, but even that didn't help. She was relentless. But anyway, the second DVO was much smoother, and it was settled by agreement to alter the parenting order and accept untertakings, rather than impose a DVO, but the magistrate still put some comments on the record about mum's behaviour, based not just on our affidavits, but on her own affidavit, as well.

I think that DVO hearing was a sort of wake-up call, and things just very, very - like VERY - slowly, got better, bit by bit, after that. Now, five years on, mum and I can have meaningful conversations about their child, we can all attend upcoming events and make small talk or have a laugh together, they're very flexible about how the parenting orders are applied (such that they're hardly followed at all, anymore), and they can make decisions about things like schooling and medical needs without it needing court intervention. We still have to maintain boundaries because the track record shows that getting too complacent usually results in a setback somewhere down the line, but I'm actually very proud of them both for reaching this point, at last.

7. Any words of wisdom, pitfalls or pearls?

Our first mistake was not doing our homework. Learn the relevant sections of the Family Law Act (s 60CC, s 60B, etc.) and familiarise yourself with both its intent and the lingo. For example, don't say "my rights" or "parents' rights". Parents don't have rights, only kids do. And don't say "custody". That term was abandoned many years ago on the premise that children aren't property - now, it's "parenting responsibility" for the legal component, and "time spent with" for the custodial component.

Read lots, and lots, and lots of court decisions on parenting matters, so you can understand the process they follow and how they apply the legislation. Family law is mostly governed by statute, so it doesn't rely greatly on precedents (except in a few circumstances, like Rice & Asplund, etc.), but even so, it'll give you a really good understanding of what's important to the court and why the judges make decisions in the way they do. I'd even say that case law has been the most valuable source of information for me. If you have the time, you could even attend a couple of hearings in the flesh, so you can get a good idea of how they run and what to expect.

Even if you decide to represent yourself, speak to a lawyer, even if it's just a lawyer at Legal Aid. If you can get one local to where your matter is being heard, even better - they're usually familiar with the judge assigned to your case.

And finally:

• Do what's best for the kids, not what you think the court wants you do.
• Do your utmost to reduce conflict by reducing the opportunities for conflict to arise, even if that means moving changeovers to a public place or limiting communication with the other parent to a communication book, or parenting app, rather than in-person.
• Acknowledge whatever reasons the other parent has for not wanting to grant more time (if that's what you're after), even if you are confident they're just nonsense or trivial. Acknowledging them and addressing them in some way shows that you're willing to cooperate when problems arise.
• Learn to be assertive, in place of aggressive or passive.
• Pick your battles, and get really, really good at picking your battles, with the other parent.
• If you can, try to parent without relying on the other parent to fill in the spaces. A good example is school events - rather than wait for the other parent to tell you about upcoming parent/teacher interviews, sign up to the school newsletter yourself and keep an eye on the calendar, then call the school and book a spot for the interview yourself. Too often, I hear parents arguing about what information the other parent does or doesn't disclose, when realistically, both are perfectly capable of getting that information for themselves and avoiding the argument all together.

And talk to people. Get yourself connected to a good support network, and make sure at least some of those people are people who aren't just going to say what you want to hear. I see a lot of people head into court confident of what's going to happen because they've enjoyed rally cries of 'you go, girl!!' or similar from people who don't have to deal with the consequences of the process, and they often come away shell-shocked by the fact that the social narrative rarely ever lines up with the narrative that actually dominates the courtroom. It is very much a place of reason, not emotion, so make sure you've got at least one or two people who are going to be very, very real with you about whether the decision you're making is a good idea or not.

 

[Aimee11]

Thanks so much guys, they are really, really helpful answers. Tremaine your advice is amazing, and it's really interesting to hear how different the court process can end up being for each individual.

Sammy in terms of my situation, I posted here earlier a little while back when I was in a quandary prior to my first mediation. My ex and I have now had two mediations, both of which came to nothing. Basically, ex and I have a 9 month old son, and I was his primary carer for his first five months. I experienced pretty bad post natal depression after his birth, and when our son was five months old, dad ended our relationship, threw me out of the house, and demanded I seek professional mental health support, which I did. Dad has since been completely controlling our parenting arrangement, using the mental health card against me. He also threatened to call my employer to tell them I had 'mental health issues'. I know this might have been a controlling and vindictive threat, but it really terrified me as I thought he had it in him to follow through on this threat.

We are now in the situation that our son is spending four nights per week with me, and three nights with dad.

However I feel this situation is unsustainable and untenable as:
1. dad claims he wants to take me to court to 'demand proof' I am getting ongoing mental health support in case I experience another episode of depression. He wants access to my medical records and letters from my doctors to prove I am staying well.
2. More significantly, he also 'chops and changes' the informal schedule we have, to suit himself on a whim, for instance he texted me the other day saying he wants to 'go on a holiday', so I need to look after our son for the next two weeks. Of course I want to look after our son, and am happy to do that but it's the total unpredictability and lack of structure for our son which concerns me.
3. He also uses the 'mental health card' over me, saying he will take me to court and subpoena my medical records to prove I am an unfit parent.

I just don't know what to do, I am really just so worn out, anxious, stressed and defeated by the whole thing.

I have seen a solicitor who advised me to initiate the court process, as mediation was getting nowhere. I am seeking interim orders that our son live with me and spend time with dad for three nights per fortnight, working up to 50/50 as our son gets older and is able to tolerate the transitions better. At the moment he is just an infant, and all these changeovers seem to be highly distressing for him. I am not breastfeeding. I am sad about this, but breastfeeding just didn't work out.

My solicitor stated she thought that our son should not spend any overnights with dad, and only frequent day time visits - such as a few hours every second day, but I felt that overnights with dad were better. I must acknowledge he is a good dad, even though he was a jerk to me, I think our son would benefit from overnights with both of us.

I guess what I am hoping to achieve from this whole process is:
- some formal structure for our parenting arrangement ('live with' and 'spend time with') one that dad can't change around as is convenient for him
- a parenting plan we can agree on (he threw out my initial parenting proposal onto the floor in the mediation)
- to stop him demanding to see my medical records and letters from my doctors, as 'proof' I am not currently mentally ill, because I think that is just simply invasive and ridiculous and I don't agree to that

I have made very specific and detailed interim orders which I am submitting with my initiating application, and I guess I was just hoping to know how long I would honestly have to wait until they might be implemented (provided they are accepted by the judge/registrar) as I want some structure. I don't really want to go to trial, I just want to come to some reasonable agreement with dad, whom I can't seem to reason with by myself.

Any advice on the above, whether my thoughts might be off the mark or implausible, or a bad idea, would be appreciated. Many thanks

 

[sammy01]

Simple answer from about the third last line of your last post

"I just want to come to some reasonable agreement with dad, whom I can't seem to reason with by myself."

Stick with that objective and you'll be fine.

Dad wont be entitled to your medical records moving forward... Oh and he has blown the whole mental health argument out the window by insisting you have the kid for 2 weeks. If you're not well enough to be primary carer, then you're not well enough, just because he wants a holiday.

So my advice is to smile and nod when he plays the mental health card. Ain't gonna work. We live in a compassionate society where folks with mental health are included not lock up in institutions.

Just get yourself into court asap. Once he's confronted with the realities of court, a solicitor will have to advise him that he is being a twit

 

[Jake Matherson]

I pretty much agree with Sammy's advice.
You're expectations seem entirely reasonable which is more than can be said for other couples.

My ex suffered post natal depression, drug use, suicide attempts, domestic violence and hospital stays and even this long list wasn't enough at the time to make drastic sudden changes in court for where a 1 year old child spend his primary time.
If a bit of mental health issues that you have/are seeking help for is the only thing you have to worry about you will be fine.
Most importantly given the young age of the child. The longer the amount of time you build up as being the primary carer the easier getting what you want will be.

If you have 6 months+ of 4 nights 3 nights it's not a stretch to expect that Registrar/Judge will be okay formalising that into Consent Orders if mum and dad agree.
To be honest they would probably be happy with even less time for dad in my opinion given the young age of the child and what they were initially offering me.
Court would likely be happy with dad getting one or two days. But it's nice to see you're trying for 50/50 down the line.

The only this I will add to Sammy's comments is whilst your ex wont be entitled to your mental health records the first thing he/his lawyer or an ICL will do is Subpoena that information.
It will be up to the Registrar/Judge to decide if it's allowed. I dare say it will be.
You have the option to inspect the material before the other parties and object to them being seen. I suspect you would need a valid reason outside of i just don't want them to see it. But cross that bridge when you get there.
I'm just saying once the court process kicks off you would expect that this Subpoena is coming one way or another.

I do agree that he has blown his chances with the two week holiday also. Be handy if this information is in writing and not just verbal conversation.

You're on the right track.
Good luck.

 

[Rosscoe]

Thanks so much guys, they are really, really helpful answers. Tremaine your advice is amazing, and it's really interesting to hear how different the court process can end up being for each individual.

Sammy in terms of my situation, I posted here earlier a little while back when I was in a quandary prior to my first mediation. My ex and I have now had two mediations, both of which came to nothing. Basically, ex and I have a 9 month old son, and I was his primary carer for his first five months. I experienced pretty bad post natal depression after his birth, and when our son was five months old, dad ended our relationship, threw me out of the house, and demanded I seek professional mental health support, which I did. Dad has since been completely controlling our parenting arrangement, using the mental health card against me. He also threatened to call my employer to tell them I had 'mental health issues'. I know this might have been a controlling and vindictive threat, but it really terrified me as I thought he had it in him to follow through on this threat.

We are now in the situation that our son is spending four nights per week with me, and three nights with dad.

However I feel this situation is unsustainable and untenable as:
1. dad claims he wants to take me to court to 'demand proof' I am getting ongoing mental health support in case I experience another episode of depression. He wants access to my medical records and letters from my doctors to prove I am staying well.
2. More significantly, he also 'chops and changes' the informal schedule we have, to suit himself on a whim, for instance he texted me the other day saying he wants to 'go on a holiday', so I need to look after our son for the next two weeks. Of course I want to look after our son, and am happy to do that but it's the total unpredictability and lack of structure for our son which concerns me.
3. He also uses the 'mental health card' over me, saying he will take me to court and subpoena my medical records to prove I am an unfit parent.

I just don't know what to do, I am really just so worn out, anxious, stressed and defeated by the whole thing.

I have seen a solicitor who advised me to initiate the court process, as mediation was getting nowhere. I am seeking interim orders that our son live with me and spend time with dad for three nights per fortnight, working up to 50/50 as our son gets older and is able to tolerate the transitions better. At the moment he is just an infant, and all these changeovers seem to be highly distressing for him. I am not breastfeeding. I am sad about this, but breastfeeding just didn't work out.

My solicitor stated she thought that our son should not spend any overnights with dad, and only frequent day time visits - such as a few hours every second day, but I felt that overnights with dad were better. I must acknowledge he is a good dad, even though he was a jerk to me, I think our son would benefit from overnights with both of us.

I guess what I am hoping to achieve from this whole process is:
- some formal structure for our parenting arrangement ('live with' and 'spend time with') one that dad can't change around as is convenient for him
- a parenting plan we can agree on (he threw out my initial parenting proposal onto the floor in the mediation)
- to stop him demanding to see my medical records and letters from my doctors, as 'proof' I am not currently mentally ill, because I think that is just simply invasive and ridiculous and I don't agree to that

I have made very specific and detailed interim orders which I am submitting with my initiating application, and I guess I was just hoping to know how long I would honestly have to wait until they might be implemented (provided they are accepted by the judge/registrar) as I want some structure. I don't really want to go to trial, I just want to come to some reasonable agreement with dad, whom I can't seem to reason with by myself.

Any advice on the above, whether my thoughts might be off the mark or implausible, or a bad idea, would be appreciated. Many thanks

Hi Aimee

I don't think you are far off the mark in your expectations.

Your ex may be able to subpoena your records should this get to final hearing stage, so in the meantime it would be prudent to ensure you are actively managing your health and mental health and keeping records of this. A good pro-active step is getting a letter from your doctor that states you pose no risk in caring for your child. If you are on top of it, shouldn't be an issue.

Regarding the "time spent with" issues of what you are proposing. Here are some things I think you should consider / give some thought to:
- there is considerable literature on overnight care of a child under 3/4 years old and the risks of separation from the primary carer (even when the non-resident parent is amazing etc etc - The fact that you are saying there are signs of distress due to handovers I believe should have the alarm bells ringing. You may have the best intentions of wanting a care arrangement that involves both parents to the extent you have, but at the end of the day is that care arrangement best for the kid? Frankly - it is rare that when separation happens in the child's first year of life that overnights are ordered before turning 2 (sometimes 3/4 yrs old where there is ongoing conflict, denigration etc between parents)
- What is communication with your ex like? sounds frosty, right? will he communicate with you if the child is stressed / needs to be soothed by you?
- there is also a lot of literature on schedules being conservative when the child is young. In my view I don't believe judges rush into ordering 50/50 when the child is so young as each case is seen according to the particular circumstances.

 

[GlassHalfFull]

Rosscoe, for the record though, I got overnights just before my youngest turned 2, and there's a lot of conflict between my ex and I and she was fighting tooth and nail to prevent me having overnights (or even progression from supervision until reports supported that which forced her hand). Not to mention some pretty serious accusations which have been mostly refuted (as much as you can ever refute them prior to a trial anyway). So it can happen. But certainly it's an uphill battle and you're right that judges tend to err on the side of conservative caution. Often at the expense of the relationship with the other parent IMO.

I know it gets complicated and messy when children are distressed, but mine have been absolutely fine with all increases in time. They love spending time with me and my eldest (4) often asks why she can't spend more time with me and why mummy and I decided on the arrangements we have. Hard to answer questions like that when you know the real reason is that your ex is making any progression difficult and it wasn't a joint decision at all, but you don't want to denigrate them in front of your kids.