The Family Court advocates for the less adversarial trial (LAT) process in its proceedings which is an alternative to the traditional and purely adversarial litigation model. This article provides details regarding how judges in the Family Court of Australia conduct less adversarial trials.
Q. When do people need a less adversarial trial?
If ex-partners or spouses cannot reach an agreement regarding parental or financial arrangements, a judge may need to decide what is appropriate for all parties involved. In these situations, the trial that follows will be denoted as less adversarial.
A less adversarial trial is one that is more flexible and less costly than a comparable, more traditional trial. The main difference between these proceedings and normal trials is that it’s the job of the judge, and not the plaintiffs or lawyers, to determine what evidence will be reviewed by the court.
In Cases Involving Parenting Arrangements: When it’s clear that a case requires a trial, a registrar will issue an order for all parties involved to submit a Parenting Questionnaire. Parties must answer all questions honestly and can reference the front page of the questionnaire for additional instructions. This document must be completed and entered into the court record at least 28 days before the start of the trial. The registrar will also inform all parties of any relevant procedural orders surrounding testimony, evidence, and parental arrangements.
In Cases Involving Financial Disputes: If money is involved, all parties must complete both a financial questionnaire and an accurate balance sheet. This latter document sets out the liabilities, financial resources, and assets of all parties involved. This is the document in which to identify all matters of financial dispute. Just like with the parenting questionnaire above, it’s key that all financial information provided is both accurate and comprehensive. The registrar will then make all necessary pre-trial procedural orders regarding financial disputes.
In Cases Involving Both Financial and Parental Disputes: All parties must complete the finance and parenting questionnaires as outlined above. The registrar will call at least 21 days before the start of the trial to assure mutual compliance.
The trtrailtarts on the day parties first appear before the judge. At that point, the judge will have read any questionnaires, balance sheets, or applications submitted. The judge will only address matters relevant to your dispute. Please note that the trial will not reach its final stage until all evidence has been presented to the court.
First Day of the Trial: For cases involving children, the family consultant will be introduced and provide expert evidence to the judge regarding all items in dispute. No matter what is in dispute, however, the trial will proceed pretty much the same from that point onward. All parties will be sworn in and promise to be truthful and open about all matters brought before the court. Once that’s completed, all statements are admissible as court evidence. The judge will then ask the parties involved, or their selected legal representatives, to explain the case in their own words. After identifying the issues in dispute, the judge will decide what happens next. This can include requesting a family report, recommending parties to a community-based service, or making orders regarding short-term parenting arrangements.
The Continuation Hearing: This stage of the trial may take place over the telephone. The judge now considers all expert reports and affidavits. If any further evidence is identified, appropriate arrangements will be made to bring it before the court. Once all matters up for dispute are reviewed, the judge will issue procedural orders that will dictate the last stage of the trial.
The Final Stage: Final submissions are made, and all evidence brought before the court. The judge ends by making his or her final ruling.
The court, and all its employees take reports of violence very seriously. If an individual has such a concern, they may bring it up at the beginning of the trial or at any other point during the trial process. If parties are in danger of acts of violence, steps will be quickly taken to mitigate the risks. If you’re still concerned about this matter by the time the trial starts, such matters should be brought to the judge’s attention.
Doing so allows the judge to make the best decisions regarding the format and continuation of the trial. In some cases, this might involve continuing proceedings through a teleconferencing or video conferencing service. If a case involving parenting arrangement, the judge in charge of the trial will carefully consider how such violence may affect the wellbeing of the children involved.
While the court encourages all parties to be legally represented, this is not mandatory. A lack of legal counsel does not alter an individual’s ability to effectively participate in a trial. Those choosing to proceed without a lawyer, however, must familiarize themselves with the Family Law Act and all other related legislation. These parties are also eligible to bring a person to help support their knowledge of the law and assist in the matters of the court. Regardless of the level of legal representation involved, judges typically explain the process of the court, such as the next steps involved, as the less adversarial trial goes on.
All evidence given to the court, verbal or otherwise, will be admissible to the court. However, it’s the responsibility of the judge to decide the weight and validity of the materials provided. This allows the less adversarial trial to be much less formal and less complicated than other types of trials. In cases involving parenting arrangements, the judge may also decide to waive the more technical rules of evidence. Anyone needing more specific detail about this matter should reach out to a legal professional.
In cases involving parenting arrangements, a judge can order that a family report be submitted as evidence. If possible, this document will be completed by an assigned family consultant and requested during the initial stages of a trial. It’s up to the judge to decide what questions will be asked and if the children involved need to be interviewed. Before the trial can continue, all parties must receive a copy of the family report. In cases where more information is desired, the family consultant will testify on behalf of those involved. In cases involving matters such as drug abuse, mental health issues, or finances an outside consultant may be asked to provide additional information.
Yes, parties retain all rights of appeal during a less adversarial trial. However, parties cannot change or complain about matters which have already been agreed upon in the previous trial.