What a Divorce Case in the Family Court Might Look Like
Disclaimer: this is in no way legal advice; this is simply a recounting of my experience with the family court of Australia which might help you get a clearer picture of what the months ahead might hold.
Thankfully, before I got a divorce I had no other real experience with the legal system or the courts. This may be the case for you, too. You feel like you’re in the dark about what’s happening and rely on your lawyer to explain to you what each next step might look like.
Sometimes the challenge with getting this information from your lawyer is that they have been through so many of these cases and everything feels normal to them, but to you it seems like such a big deal, and you want to know as much as possible.
So, I thought I’d give you a rundown of the procedural highlights of my case to get a sense of why things take so long and what you might expect.
Keep in mind, every divorce is different. We had two children, I was trying to request relocation to another country, and my ex-partner owned his own business. These are all things that complicated matters.
Presumably, for example, two people with very separate established careers and no children would get through this process faster.
And with all this being said, the process takes however long it takes. Don’t be in a hurry to get it over with, your concern would best be focused on obtaining a fair solution.
Here is what my family court case looked like in Queensland, Australia. From what I understand (again, this is not legal advice and I’m not a lawyer) countries that practice English Common Law may have similar procedures.
WHY IS THE FAMILY COURT NEEDED?
The family court deals with matters such as divorce, custody, family violence, property settlement, and other related issues.
One thing you need to know about the family court is that if at all possible, they want you to reconcile your problems outside of the court.
You understand why when you hear about a lot of the other family law cases that are being heard in front of a judge. Unfortunately, so many include some form of domestic violence or abuse, drug use, and other actions that endanger the lives of the children or spouses.
I recall, early on, one of the judges sizing my ex and I up from our respective sides of the courtroom and asking something along the lines of, ‘why are you two here?’
This was a totally valid question since we didn’t have any obvious hallmarks of a case that needs to be seen by a judge as mentioned above.
The thing is though, that no matter how reasonable you are, you can only settle your matter out of court if the other person is also willing to be reasonable. So, you may be dragged through the court process, get slightly reprimanded by various judges throughout the course of your appearances, but eventually if you are in the right it will all come out in the wash at the end.
A GREAT FAMILY LAW ATTORNEY MAKES ALL THE DIFFERENCE
This scrutiny you are under at every appearance is another reason why choosing your lawyer is so important. Someone who is skilled at reading the room and reading the judges will tell you if whether you do have a workable case.
An ethical lawyer will not allow you to spend more money than you need to. I know, it sounds impossible but there really are some like this.
From the outset your lawyer should let you know what you can expect and the order and timeline of events that will likely happen.
FIRST COURT APPEARANCE
This is the court’s introduction to your case where all of the related matters are brought up and the judge tries to get an idea of how complex the situation is. Depending on if there are children, tricky financial matters, and property disputes they might deem other procedures might need to occur first, such as a family report or a company audit. More on those later.
I was shocked at how swift this appearance was for how much I felt like I needed to prepare for it and also how long I waited around the court house with my lawyer to be seen.
We were told that we would need to go to mediation, have a family report drawn up, and given a date for our next appearance.
MEDIATION
If you require that the court sees your divorce matter, you are required to go through the process of mediation. The idea being that you give your best effort to resolve the issues out of court.
It is a very expensive exercise, and you are required to do it.
I supposed the idea is that if you are willing to pay $10,000-$20,000 to go through a one-day mediation you are serious about your matter. The court doesn’t want people taking up time if they aren’t totally invested in the process.
And this activity takes the whole day. A set of dedicated meeting rooms is rented for the day and a professional mediator is chosen as agreed to by both parties.
You and your lawyer are in one room and your ex and their lawyer are in another room. A mediator goes back and forth between rooms to see if they can settle any disputes with regard to custody, property, whatever is keeping the case in court. The ideal outcome is that everything is resolved and there is no need to return to the family court system.
Cone of Silence
I will mention that everything that happens in mediation is treated with what is called the ‘cone of silence.’ This means that anything that is discussed or brought up as an offer or negotiation is not admissible in the court, unlike other types of written communication that might be sent from one party’s lawyer to another via email.
Theoretically, this helps both parties share more freely what they are willing to compromise on without being held to it in the future.
Any Agreement Made During Mediation Still Needs to Be Reviewed by the Judge
This was a very emotionally taxing day, as I recall. At the end of the day, you may get an offer that you are possibly willing to take simply because you are so worn down. This is where it is important to have legal representation that you really trust and who is looking out for your best interest.
One thing I was repeatedly reminded of by my lawyer was that even if I took a deal for the sake of getting the process over with (which thankfully I never did) that wasn’t the be all and end all. If a judge had a look at it the agreement made during mediation and determined that it was grossly unfair in the eyes of the court or to the wellbeing of the children she would not sign off on the agreement.
POST-MEDIATION FAMILY COURT APPEARANCE
After you have spent the money on mediation and failed to reach an agreement, you get another court date in front of your judge where they decide what the next steps for you are and when to book a family court trial.
Again, I cannot reiterate this enough, they do not want to see you unless you have very serious matters. And I’m aware you may very well be in this group, I’m so sorry.
I keep harping on this point for anyone who is having trouble with letting go of the idea of getting some sort of retribution against their partner for other personal grievances. Maybe they left you for someone else and they really are not a good person. In the eyes of the court that doesn’t usually warrant punishment and it certainly doesn’t mean the kids are kept away from your ex-partner.
If you have a good lawyer, she will genuinely tell you what a grievance in the eyes of the court is and not allow you to waste your time otherwise there. It hurts your credibility in the long run to go after things that the court deems frivolous.
Our judge required a family report obtained by a recognized psychologist as well as a company audit for the family business to be completed before certain dates.
We were then also assigned a trial date which was about 6 months away. They try to fit it into the schedule depending on how many days you will likely need to present evidence.
FAMILY REPORT
If there are issues dealing with the children, custody disputes, or relocation matters a psychologist will be asked to perform a family report. This involves a day of visiting their office. Each parent comes in individually and with the children to see the interaction and dynamics of the family.
There isn’t a way to prepare for this other than NOT to discuss it with your kids and make it sound like you are coaching them.
If you’re doing the right things, and you’re honest there isn’t anything to worry about.
Speaking poorly of your spouse will not win you points in front of the psychologist, and honestly, if you have a habit of doing that in everyday life around the children you are probably harming them in the long run.
The court is child-centric to an extreme degree. You may be totally within your right to be upset about past events, but what effect is this having on the kids?
What I’m getting at here is what you should do for the family report is what should be done in real-life even when you’re not being scrutinized.
Keep the kids first in your concerns is the general rule.
TRIAL
For most of the proceedings it was me and my lawyer going to appearances and doing the strategic work. When it came time to preparing for a trial I was told we would need a barrister. This is the person who would conduct the cross-examination of my ex-partner during the trial.
I was so fortunate that my lawyer linked up with a brilliant barrister who became an expert in my case so quickly.
My family court trial lasted 2 days.
You will have to testify and be cross-examined by the other barrister. However, since I trust you’re keeping everything on the up and up you will breeze through this. It’s intimidating to be up on the stand but if you are being honest and frank and everything leading up to that period is something you can justify it will be so much easier.
JUDGEMENT
I was told it would take at least 6 months to get a judgement back after trial occurred, and that was a quick estimate. It could take longer.
Mine came back almost 6 months to the date of our trial and that was it.
It was surreal that all that time, expense, and heartache were poured into this 75-page document written by the judge who oversaw our trial. In it, were all of the issues brought up and a full explanation of her opinions and why she made the decisions that she did in the judgement.
To say this was the end of the matter isn’t entirely true because there were the practical matters of carrying out what was ordered in the judgement. However, this felt like the closing of that chapter.
Parting Thoughts About the My Experience in the Family Court
BE MENTALLY PREPARED FOR DELAYS
I cannot tell you the number of times I was disappointed, distraught, felt like I wasn’t being properly heard throughout this entire process. And yet, because I had to also raise a couple of children and make sure they were okay I also needed to not fall apart. Hence, why I said before if therapy is an option for you, I encourage you to look at that avenue.
Our case went was handed from one judge to another for different reasons. There were so many delays and additional discovery periods. It took three years to finally sit in family court trial.
Take each day as it comes.
DOING WHAT’S RIGHT IS THE EASIEST WAY TO GET THROUGH THIS DIFFICULT PROCCESS
You will constantly tested and presented with situations that seem wholly unfair. Don’t let that change the good person you are. While it may not feel it at the time, your actions and patience are being noticed.
One of the things that my lawyer said that helped get me through the hardest period at the end when I was especially frustrated was, ‘don’t worry, your halo is showing’ in reference to the way that I had conducted my life during the process and had been very child- centric.
If you are needing a little encouragement and guidance on how to do this, you can always check out the very first blog post I wrote about my three most important pieces of advice for divorce.