The Law Handbook 2024

260 Section 4: Relationships, families and young people 7 The scale of witness fees and allowances is tied to the Supreme Court scale in the particular state or territory. Hearing of divorce and nullity applications The following points are important for the court hearing: 1 Parties may appear personally or can be represented by a legal practitioner. 2 In undefended divorces where there are no children under 18 years, neither party has to attend court, provided the proper request has been filed. 3 A decree nisi (initial decree for dissolution of marriage) will not become absolute unless the court is satisfied that proper arrangements have been made for the children, so the application should set out these details. 4 Evidence in all cases must be given by affidavit unless the court otherwise directs. In most cases no oral evidence is given. How is an application defended? An application is defended by the respondent filing a response. The response is a document in which the respondent gives details of any points in the application with which he or she disagrees and then gives details of the orders sought from the court. 1 A response in proceedings for dissolution and nullity must be verified by affidavit. The time allowed for filing a response after the service of the application is 28 days if the respondent is served in Australia and 42 days if outside Australia. 2 If the response is filed late, the proceedings shall continue as if the response had not been filed unless the applicant consents in writing to the late filing or the court otherwise directs. The written consent to the late filing may be endorsed on the document. In practice, the court will allow a respondent to be heard at any time in the interest of justice. There may, however, be a penalty by way of costs, particularly if the proceedings are required to be adjourned. Injunctions Types of injunctions An injunction is an order given by a court that requires a person to do or not do a particular thing. Under the FL Act, a court can grant an injunction: • protecting a spouse, parent, child, or someone who has a parental responsibility order; • protecting a marital relationship; • relating to property; • relating to the use/ occupancy of the family home; • restraining a person from entering or remaining in a house or a specified area (e.g. outside or close to the family home); • restraining a person from entering a workplace or school; or • relieving a person in the marriage from any obligation to performmarital services or to render conjugal rights. Situations that may need family law injunctions include: • where children are being adversely affected by others’ behaviour (even if there is no violence); • where a spouse or partner threatens to take the children away; • where a spouse or partner is trying to adversely affect the occupancy of the family home of the other spouse, partner or children. Which courts can hear injunctions? FCFCOA and the state Magistrates’ Court have jurisdiction to grant injunctions under the FL Act. In practice, most injunctions are dealt with by the superior court. Although the Magistrates’ Court has a limited jurisdiction in disputes over property, this does not prevent it granting injunctions depriving parties of the right to the use and occupancy of a home. This is because an injunction does not affect property interests; it only suspends enjoyment of the property. In urgent matters, a Magistrates’ Court may be the logical starting point, particularly in country areas. The only disadvantage is that many magistrates do not like, and have less experience in, handling family law matters.