What to do and what to say
when you do finally arrive in court…
Once you decide to go to court, or if you are the respondent, you must prepare the right documents and complete them correctly. This is not easy if you are representing yourself. The purpose of Part 1 of this article, How to self represent in Family Court Part 1 – Before you go to court was to assist you determine which documents you need to complete, and how to do it.
This part of the article tells you what to do, and what to say, when you do finally arrive in court. The family court websites referred to in Part 1 of this article give some tips on what you need to do when you arrive in court. It is worthwhile looking at the websites before your court date.
Before your court date
Try and make time to go to the court before your actual court date. This will enable you to familiarise yourself with the location of the court, and if you go inside the courtroom, with the layout of the room and the formalities.
Most people who are representing themselves in court are anxious about it. Some worry about who will be there and what they will think of them. Try not to think about what others will think of you. There are dozens of cases at the same time as yours, and everyone there has their own case to worry about. They will not be waiting to see why you are there, and when inside the courtroom they are more worried about their own case then yours.
On the day of your court case
Make sure that you are in court early. Most family courts have duty lawyers, and if you are there early, take advantage of the service. Duty lawyers can give you advice, and can speak on your behalf when you have to go before the Judge.
Then, try to find your former partner. Whether they are represented or not, use this opportunity to have some discussions about resolving the dispute. You may feel that this is beyond you, especially if your former partner is there with a lawyer. However, try not to feel intimidated by your former partner or their lawyer. If you fear for your personal safety or there is a history of domestic violence, contact the court beforehand and ask about the arrangements the court can put in place for you. If you don’t have concerns about your personal safety, then try to narrow down the issues in dispute before you go inside the courtroom. If you are able to agree on some things, then when you do go inside the courtroom the Judge will only have to decide those issues on which you cannot agree.
The call over
In most family courts the Judge begins with a “call over” at 9.30am. A call over is where the Judge wants to hear very briefly what your case is about so that he/she can put the cases in order of how they will be heard throughout the day. The shorter cases are heard first. The complex cases are heard last. Therefore, if there are 15 or 20 cases listed for your Judge that morning, and if your case is complex, you may not be called until the afternoon.
At the call over the courtroom will be packed with parties and lawyers. When the Judge calls your case, stand up. Your former partner will also stand up. If your former partner has a lawyer, the lawyer will speak. Otherwise, tell the Judge if you are the applicant or the respondent. Then briefly tell the Judge why you are there, for example:
- “Your Honour, I am the respondent. My former partner is seeking orders that the children spend majority of the time with him/her and I oppose those orders”; or
- “Your Honour, I am the applicant. I made an application for passports for the children so that I can take them overseas for a holiday and the father/mother is opposing that application”; or
- “Your Honour, I am the respondent. My former partner is seeking that our house be sold and the proceeds be divided between us. We disagree on how the proceeds are to be divided”.
The Judge will then decide whether to:
- Request a family report if your case is about children, make some interim orders about the children, and adjourn the case; or
- Send you to a conciliation conference or direct that you both attend mediation if your case is about property settlement, and adjourn the case;
- Make directions about valuations of your property or disclosure of your financial positions if your case is about property settlement, and adjourn the case.
Once you have answered the Judge’s questions at the call over the Judge will call the next case. You then sit down. Once the Judge goes through the list, the cases will be put in order. Listen for the name of your case. You will have an idea if you are at the beginning or at the end of the list. Everyone is then sent outside the courtroom and the first case is called. If at any time during the day you would like an update about when your case may be called, ask the court officer.
It is extremely unlikely that you will have final orders on your first day in court. Therefore, be prepared that whatever directions or orders the Judge makes, you will be given another date to come back to court. If your former partner does not turn up to court, it will be adjourned to another date to give them an opportunity to appear. The only way to have final orders on your first day is by consent. Therefore, while you are waiting for your case to be called, if possible, continue negotiating with your former partner.
Your case is called
When your case is called, go inside, bow to the Judge, and sit at the bar table. If you are both self represented, it doesn’t really matter which side you sit on. If your former partner is there with a lawyer, then allow them to take their seat at the bar table first, and then sit at the other end.
Have a pen and paper ready. You will need it especially when the Judge is making orders or directions. You should also use it to write down what your former partner or their lawyer is saying, and what you do not agree with. That way, you will not forget to raise it with the Judge. If you do hear something you do not agree with, do not interrupt. You will have an opportunity to be heard.
When everyone is seated at the bat table the Judge asks for “appearances”. That means that the Judge wants to know your name, any lawyer’s names, and who is the applicant or the respondent. When you are asked to do so, stand up, give your appearance, and sit down. If your former partner is there with a lawyer, they will start speaking. They will tell the Judge what the case is about in more detail. If you are both unrepresented, then wait for the Judge to ask questions. Most Judges read the court documents beforehand so they have a fair idea of what your case is about.
When the Judge asks you questions, stand up. You may be extremely nervous, but try and listed to the questions, and answer them truthfully. Then try to remember these points:
- Sit down when the other party is speaking;
- Stand up when the Judge is talking to you, or when you are talking to the Judge;
- Do not argue with the Judge;
- Do not use offensive language;
- Avoid anything that might be disrespectful, such as rolling your eyes, sighing, or exhibiting any body language or behaviour that may be intimidating or disrespectful to anyone in the courtroom.
These may seem like the obvious, however, everyday someone in the family courts is disrespectful. This not only disrupts the proceedings, but puts such a person at risk of being held in contempt of court.
If you need an explanation
If the Judge or the opponent is saying something that you don’t understand, wait for your turn to speak, and try this:
- “Your Honour, the applicant/respondent/lawyer said something about lodging a caveat. I don’t understand what that is”; or
- “Your Honour said something about a family report. I don’t understand why I need one or how to get it”; or
- “Your Honour said something about issuing a subpoena. Could your Honour repeat what you said”.
Judges in the family courts will assist self represented parties as much as they can, without giving legal advice. So, when you are at the bar table, try and follow what is being said. If you are confused, respectfully ask for clarification.
When the Judge feels that he/she has all of the information from you and your former partner, then some directions will be made for the further conduct of your case. Some interim orders may also be made. Try and write these down. If you miss them, don’t worry, because a copy of the order will be posted to you within a few days.
If some orders are being made that you have not had the opportunity to comment on, or if you just remembered something that will make it impossible for you to comply with an order, quickly stand up and say:
- “Your Honour, I am so sorry, but I cannot comply with that order. I can’t collect the children from their mother/father at 5pm on Friday because I have overtime at work. Could I please collect them at 6pm?”; or
- “Your Honour, I don’t think I will be able to get a copy of all of my bank statements to the applicant/respondent within 7 days because tomorrow I am leaving on a pre-arranged holiday for a week. Could I ask the court’s indulgence and provide the documents within 14 days?”
When you are interrupting the Judge during the reading of orders, this is not your opportunity to continue to argue why they should not be made. Only use the opportunity to clarify something that has not been raised, or to vary the orders so that you can comply with them.
When the Judge finishes making the orders the next case will be called. When leaving the room, bow to the Judge.
Once the orders are made
You may not have obtained the orders you wanted, and you may be extremely disappointed with the outcome. However, try and comply with the orders. Failing to do so may have severe consequences for you.
Going to court, whether it is the family court, the magistrates court, or any other court, is extremely daunting, especially if you are going without a lawyer. However, in family court matters you and your former partner have the power to resolve your issues. Putting that power in the hands of a complete stranger, the Judge, means that you will have orders that neither of you may be happy with. It may take a lot of effort for you to have discussions with your former partner, but negotiating, and compromising, may give you a far better outcome then if you are both told what to do by the Judge. Therefore, use every opportunity to attempt to resolve your issues before you go to court.