A practice direction is a notice from a court, in this case the Federal Circuit Court of Australia, to Litigants, including self-represented litigants, and legal practitioners.
The purpose is to give an update from the court for people who are using the court. This one is the No. 2 of 2017 Interim Family Law Proceedings (From 1 January 2018) published on the 7th December 2017.
It’s purpose is to put people on notice that they need to be clear and concise in what they go to court and request from the judge. Point 4 says.
4. It is expected that parties and their representatives will assist the Court to ensure that proceedings are conducted expeditiously and consistently with the objectives of early identification of the issues in dispute requiry adjudication and the efficient use of judicial resources.
In plain english the court is requesting people who have made an application and their lawyers and barristers to help the court to speed up the court process by being very clear about what the issues are that they can’t work out themselves and need a judge to make a judgement on.
Points 5 and 6 say that you have to support an Initiating application with an Affidavit (written statement supporting your application and proposed orders)
That you can ask for interim orders (temporary orders that relate to things that are urgent) at the same time you start the case. Applications for Interim Orders must also be supported by an Affidavit.
If it relates to a financial matter they must also be supported by a financial statement or an affidavit of financial circumstances e.g if you spouse won’t disclose the financial position meaning you are unable to provide a financial statement you would need to provide an affidavit explaining the situation.
Unless the judge hearing your matter gives leave (allows you) the affidavit material to support an interim application must not be more than 10 pages long for each affidavit and there should not be more than 5 annexures (attached pieces of evidence)
Points 7 to 10 say that the Judge decides whether or not to conduct an interim hearing on the first return date (the first time you go to court after your application is lodged) of an Initiating Application or an Application in a Case (an application in a case is an application you make during a case because circumstances have changed and you want to change what you are asking the judge to order)
It is up to the judge whether they hear part or all of the application and/or response that has been filed. (filed means provided to the court in the proper way not brought along to the court hearing without providing the information to the court in advance)
These interim hearings are meant to be short and of limited scope. The judge will decide which issues they will consider in the interim hearing based on what you have presented in your affidavit material.
If the respondent wants different interim orders to those that the applicant wants then the applicant may submit an additional affidavit (no more than 10 pages and 5 annexures) saying any additional orders they want and any additional facts that they want to rely on in opposing what the respondent is asking for.
Failure to Comply
Points 11 to 14 warn that if the Practice Notice is not complied with it could result in a loss of hearing priority (you lose your place in the queue) or have your interim hearing adjourned with a costs order.
A costs order means that you may be ordered to pay the other persons legal expenses for turning up to court when you were not ready for the judge to consider your application.
Affidavits that are not compliant with this Practice notice
If you submit an affidavit that is too long or has too many annexures the judge can ignore it or punish you with a costs order.
You run the risk that:
a) the judge will not read it or you might have to select 10 pages that you will rely on in the hearing and the rest will be ignored
b) the judge may make a costs order against you
Documents filed less than 48 hours before the hearing (electronic filing is OK) is considered a “late document” and can’t be relied upon at the hearing unless the judge gives you permission.
If you want to use evidence in a document that is submitted late you MUST seek permission to tender (provide to the judge and the other party) a copy at the start of the hearing.
Once again here is the full Practice Notice in the original language – http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/about/news/022017
Clear as mud?
The information provided here is an attempt to clarify what is required for self-represented litigants or those that want to understand why your lawyer is not allowing you to have everything you think is important included in your interim application or application in a case affidavits.
If you do not have representation consider booking an hour with a lawyer to discuss your case and strategy moving forward to avoid doing the wrong thing and making a costly mistake.
Interact Support has a small panel of lawyers who have agreed to provide low cost fixed fee legal advice and strategy sessions – Find a Lawyer
They may also be able to assist you with your Affidavits for a fixed fee.