Going to Court

The information in this resource is for general information purposes only and should not be relied on as legal advice. If you need legal advice, please contact LawRight or another lawyer. LawRight can only give advice to people who are eligible for our services.

Hearings in the Federal Courts

This factsheet is designed to give you some basic information to assist you to prepare for a court hearing in a civil case in the Federal Court or Federal Circuit Court. This is general information only and legal advice should be sought for information relevant to your particular area of law.

Know what your hearing is about.

• If the other party has brought the application, read through their material carefully.
• Is it a trial, the hearing of an interlocutory application or a directions hearing?
• If you have received an originating application, is it the first hearing?

What outcome do you want from the hearing?

• An application should list the orders that the other party is asking the court to make. You should read these carefully.
• If you agree with the orders they seek, then you may be able to come to an agreement with the other party so that “consent orders” can be made. This saves the court time, can save the parties’ costs, and can relieve the stress of appearing in court.

Can you attend the hearing?

• The application will state which courthouse the hearing will be held in.
• The court expects the parties to proceedings to progress their case.
• If you’ve been properly served with the application but you do not turn up to the hearing, the court may still deal with the matter and make orders against you.
• In some cases, you can approach the court registry to make arrangements to appear by telephone. You can check the court website for the contact details of the registry where your matter is being heard.
• Since March 2020, most courts in Australia have changing rules about whether hearings are occurring remotely or in person. The registry can provide more information about the current restrictions in place.

Applying for an adjournment?

• If you have to apply for an adjournment, you should approach the other side first and see if they will consent to an adjournment.
• You may be exposing yourself to the risk of an adverse costs order.
• Adjournments can be especially difficult to obtain for trials and final hearings, especially if they have been set down for some time.

You should make an application for an adjournment as strong as possible.

• If you are asking for an adjournment on health grounds, you should have an affidavit or at least a detailed medical certificate from your doctor setting out why you cannot attend or participate in the hearing, what treatment you are receiving and when you will be able to participate in a hearing.
• Never assume that an adjournment will be granted if you simply fax or write to the court. If you can’t get the other side’s consent you will need to go to the hearing and convince the judge that the hearing of the application should be adjourned.

Filing a response.

• If you are going to be filing anything in response to the application, make sure you file and serve a sealed copy (that is, a copy stamped by the court) of your material on the other party as early as possible before the hearing.

Getting organised.

• You should make sure you obtain a copy of all the court documents for the proceedings, which will include those documents you have filed and those that the other side has filed. You may like to organise these in a ring-binder folder by date and put tabs on each one so you can find them quickly.
• If there are any documents you have only filed in the 2 or 3 days before the hearing, it is a good idea to take extra copies of these documents along with you to the hearing in case the other side or the judge have not received a copy yet.
• You will also need at least 4 copies of any documents you are giving to the court during the hearing, like submissions: one for you, one for the judge, one for the other side and one for the court file. If there is more than one respondent, you will need extra copies for them too.

Consider taking a support person to the hearing.

• Being in court is a stressful experience for many people and it can be helpful to have someone to attend the hearing with you.
• While only a lawyer can represent a party in court, the court can give leave to allow a non-lawyer, called a “McKenzie friend” to assist you in the court. This person will not be able to speak for you but may be allowed to sit with you and take notes.

Get to know the courtroom.

• Familiarise yourself with the court room and where you need to sit before the date of your hearing.
• The Federal Circuit Court has a Virtual Court Tour you can watch online.
• You could also go and watch some court hearings at the court before your own case.

Things that might happen on the day.

• Sometimes, when you arrive at a hearing, the other party’s lawyer might approach you with a “consent order” or with submissions that they have drafted.
• While this can be intimidating for many self-represented parties, it is often how court matters are conducted by lawyers.
• If you need time to read through the documents, tell the judge, and your matter may be able to be dealt with later in the day.

Before you leave a hearing make sure that you know:

1. What orders were made?
2. What is your next step, and when do you have to take it?
3. What is the other party required to do and when?
4. Take notes. If you’re uncertain about what orders have been made, ask the judge to explain.

After the hearing

• After the hearing, the court usually prepares a final version of any orders.
• These will be available for you to access through your eLodgment portal once they are available.

More information

You can also read our factsheets on Court etiquette and Hearings in court – commonly used words.

The information in this resource is for general information purposes only and should not be relied on as legal advice. If you need legal advice, please contact LawRight or another lawyer. LawRight can only give advice to people who are eligible for our services.

Fee waiver guide – Federal Circuit Court

This factsheet explains when fees are not payable for Federal Circuit Court proceedings and the process for getting fees that are payable waived or deferred.

Applicable fees

The applicable fees are set out in Schedule 1 of the Federal Court and Federal Circuit Court Regulation 2012 (Cth) (the Regulation). They include:

• Filing fees
• Setting down fees
• Hearing fees

Current fees are set out on the Federal Circuit Court’s website.

Fees not payable and exemption from fees

The circumstances in which a fee is not payable (“exempted”) are set out in the Federal Court and Federal Circuit Court Regulation 2012 (Cth). The relevant regulations are:

• Reg 2.05: Persons exempt from paying fee – general
• Reg 2.06: Persons exempt from paying fee – financial hardship
• Reg 2.09: Fee not payable in Federal Circuit Court proceeding
• Reg 2.10: When only filing fee is payable
• Reg 2.11: When filing fee is not payable
• Reg 2.12: When setting down fee is not payable
• Reg 2.13: When hearing fee is not payable
• Reg 2.15: Deferral of payment of fees

Fees not payable (Reg 2.09 and 2.10 – 2.13)

Fees are not payable for:

• an application for an extension of time within which a proceeding may be commenced;
• a proceeding for which a Convention to which Australia is a party provides that a fee is not payable;
• an application to set aside a subpoena;
• a proceeding under the Child Support (Assessment) Act 1989 or the Child Support (Registration and Collection) Act 1988;

Filing Fees (Reg 2.11)

If fees in general are not payable as set out above, then filing fees are not payable.

In addition, filing fees are not payable if:

• the matter:
  • was remitted by the High Court to the Federal Court under section 44 of the Judiciary Act 1903; and
  • was subsequently transferred by the Federal Court to the Federal Circuit Court under section 32AB of the Federal Court of Australia Act 1976; or
• the matter was remitted by the High Court to the Federal Circuit Court under section 44 of the Judiciary Act 1903.

Setting down fees (Reg 2.10 and 2.12)

If fees in general are not payable as set out above, then setting down fees are not payable.

In addition, setting down fees are not payable:

• if the matter:
  • was remitted by the High Court, in the exercise of its appellate jurisdiction, for re-hearing by the Federal Court under section 44 of the Judiciary Act 1903; and
  • was subsequently transferred by the Federal Court to the Federal Magistrates Court under section 32AB of the Federal Court of Australia Act 1976;
• if the matter was remitted by the High Court, in the exercise of its appellate jurisdiction, for re-hearing by the Federal Magistrates Court under section 44 of the Judiciary Act 1903;
• for an application under s 46PO or 46PP of the Australian Human Rights and Equal Opportunity Commission Act 1986; or
• for an application under s 539 of the Fair Work Act 2009 where the applicant has been dismissed from employment in alleged contravention of Part 3-1 or s 772 of that Act or where the applicant alleges a breach of s 351 of that Act.

Hearing fees (Reg 2.10 and 2.13)

If fees in general are not payable as set out above, then hearing fees are not payable.

In addition, hearing fees are not payable:

• if the matter:
  • was remitted by the High Court, in the exercise of its appellate jurisdiction, for re-hearing by the Federal Court under section 44 of the Judiciary Act 1903; and
  • was subsequently transferred by the Federal Court to the Federal Magistrates Court under section 32AB of the Federal Court of Australia Act 1976;
• if the matter was remitted by the High Court, in the exercise of its appellate jurisdiction, for re-hearing by the Federal Magistrates Court under section 44 of the Judiciary Act 1903;
• for an application under s 46PO or 46PP of the Australian Human Rights and Equal Opportunity Commission Act 1986; or
• for an application under s 539 of the Fair Work Act 2009 where the applicant has been dismissed from employment in alleged contravention of Part 3-1 or s 772 of that Act or where the applicant alleges a breach of s 351 of that Act.

Exemption from fees (Reg 2.05 and 2.06)

A fee exemption (essentially a waiver) is available if:

• The person is granted legal aid for the proceeding to which the fee relates;
• The person is:
  • The holder of a health care card, a pensioner concession card or a seniors health card; or
  • The holder of any other card issued that certifies entitlement to Commonwealth health concessions; or
  • an inmate of a prison or otherwise lawfully detained in a public institution; or
  • a child under the age of 18 years; or
  • receiving youth allowance or an Austudy payment; or
  • receiving ABSTUDY benefits;
  • has been granted assistance under the Native Title Act 1993 in certain specified circumstances OR

• A Registrar (or an authorised officer), having regard to the income, day-to-day living expenses, liabilities and assets of the person, forms the opinion that payment of the fee would cause financial hardship to the person.

Fee deferral (Reg 2.15)

Certain fees can be deferred if:

• in the opinion of the Registrar:
  • In the case of a filing fee – the need to file the document is so urgent as to override the requirement to pay the filing fee at the time of filing; or
  • Otherwise – it would, having regard to the financial circumstances of the person liable to pay the fee, be oppressive or otherwise unreasonable to require payment within the normal timeframes; or
• the person liable to pay the fee is represented by a practitioner who is acting pro bono.

If payment is deferred, the fee must be paid within 28 days or other period as specified by the Registrar in writing.

Procedure

The forms to be used to apply for an exemption or deferral of fees are those on the Federal Circuit Court website.

The following forms are available:

• Application for exemption from paying court fees – general
• Application for exemption from paying court fees – financial hardship
• Application – deferral of payment of court fees

Application for exemption

Detailed information regarding application for exemption and waiver for an individual or a corporation is provided in the Guidelines for exemption of court fees on the Federal Circuit Court’s website, including instructions on how to fill out the form.

Proof of entitlement to an exemption must accompany the application. For example, if exemption is claimed due to the applicant having been granted legal aid, the letter of confirmation must be provided. The application form clearly sets out what is required.

If an application for waiver is refused, then written reasons for the decision will be given. An appeal to the Administrative Appeals Tribunal can be made within 28 days.

Application for deferral

When applying for fee deferral on the basis that the need to file the document overrides the requirement to pay the fee at the time of the filing, a statement setting out the reasons is also required.

When applying for a fee deferral on the basis of financial hardship it is also necessary to complete a statement of financial position and provide as much relevant information about the financial situation of the applicant as possible.

When applying for fee deferral on the basis that the person is represented by a practitioner acting pro bono, the statement by the practitioner at the back of the form must be completed.

The information in this resource is for general information purposes only and should not be relied on as legal advice. If you need legal advice, please contact LawRight or another lawyer. LawRight can only give advice to people who are eligible for our services.

QCAT review of a decision made by Child Safety

The Childrens Court can make a “child protection order” that requires the Department of Children, Youth Justice and Multicultural Affairs (Child Safety) to supervise a child’s protection, or that gives Child Safety custody or guardianship of a child.

Once a child protection order has been made, Child Safety may be able to make decisions about the child’s daily care, including with whom the child lives (Placement Decisions), and who can have contact with the child (Contact Decisions).

Some of the decisions made by Child Safety, including Placement and Contact decisions, can be reviewed by the Queensland Civil and Administrative Tribunal (QCAT).

This factsheet outlines the process for parents and carers to apply to QCAT for review of a decision made by Child Safety. There are some references to legislation in this factsheet. A reference to the ‘CP Act’ is a reference to the Child Protection Act 1999 (Qld). A reference to the ‘QCAT Act’ is a reference to the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

Who can apply to QCAT for review of a decision of Child Safety?

Only some of the decisions made by Child Safety can be reviewed by QCAT (‘reviewable decisions’). Also, to apply for a review of a decision of Child Safety, you must be affected by the decision (an ‘aggrieved person’).

The definition of “reviewable decision” and “aggrieved person” is in Schedule 2 of the CP Act. If Child Safety makes a “reviewable decision” and you are an “aggrieved person”, then you can apply to QCAT for a review of that decision. For example:

• A child or the parents of a child may be aggrieved persons and so able to apply for review of a decision that is made to place the child in the care of another person (s 86(2) CP Act);
• A child or the carer of a child may be aggrieved persons and so able to apply for a review of a decision that is made to remove the child from the carer (s 89 CP Act);
• A child or the parents, carer or a family member of a child may be aggrieved persons and so able to apply for a review of a decision to refuse, restrict or place conditions on their contact with the child (s 87(2) CP Act).

The Office of the Public Guardian (OPG) is also able to apply to QCAT for a review of certain decisions made by Child Safety.

After a review application has been made, QCAT will give notice of the application to other aggrieved persons who would also have been able to apply for a review of a decision (for example the child or another family member). Those parties can then apply to be joined to the review proceedings, if they want to.

Concurrent proceedings in the Childrens Court

If you have applied to QCAT for review of a Contact Decision, then QCAT must suspend those review proceedings if you are also a party to child protection proceedings relating to the same child in the Childrens Court (s 99MA CP Act).

This provision does not apply to applications for review of Placement Decisions, and only applies to review proceedings started in QCAT after 25 May 2016 (s 272 CP Act).

The Childrens Court can deal with the contact arrangements by:

• Adjourning the child protection proceedings and making an interim contact order;
• Ordering that the matter be dealt with by QCAT; or
• Not dealing with the matter prior to making its final decision in the child protection proceedings. The matter will then be dealt with by QCAT.

If the Childrens Court makes an interim contact order, then the review proceedings in QCAT will be dismissed.

Notice and reasons for decision

Child Safety must give you written reasons when it makes a reviewable decision that affects you.

You can ask Child Safety for written reasons if they do not give them to you. Your request for written reasons must be made in writing to Child Safety within 14 days of the date that you were notified of, or found out about, the decision. Child Safety must then give you written reasons within 28 days after the request is made (s 158 QCAT Act).

Time limits

If you want QCAT to review a decision made by Child Safety, you must apply to QCAT for a review within 28 days after you are notified about the decision (s 33(3) QCAT Act).

If you have requested written reasons for the decision from Child Safety, then you will have a further 28 days from the date that you receive the written reasons to apply to QCAT for a review of the decision (s 33(4) QCAT Act).

You should use Form 17, available here, to apply for a review of a decision of Child Safety.

Child Safety’s statement of reasons and other documents

After you have applied for a review of a decision, QCAT will tell Child Safety about your application. Child Safety will then have 28 days to give QCAT a written statement of reasons for its decision, and any other documents that it has that may be relevant to the review of the decision (s 21 QCAT Act).

You can contact Child Safety to request a copy of the written statement of reasons and other documents given to QCAT. This is recommended because you may not otherwise know about all of the documents and information that Child Safety used to make its decision.

Applying for a stay of the decision

An application for review of a decision made by Child Safety will not affect the operation of the decision. So, for example, if you are reviewing a Contact Decision, the new contact arrangements set by Child Safety will remain in place until the QCAT review is finalised.

However, QCAT may make an order to “stay’” the operation of a decision (put it on hold) (s 22 QCAT Act). QCAT can make this order on its own, or in response to an application made by one of the parties in the review proceedings. This can be done in the same QCAT form when applying to review the decision.

When deciding whether to make an order to stay the operation of the decision, QCAT will look at things like:

• The interests of any person who may be affected by the stay;
• Any submission made to QCAT by Child Safety; and
• The public interest, having in mind that the child’s safety, well being and best interests are the most important considerations.

Compulsory conferences

As part of the review process, you will be required to attend one or more compulsory conferences with Child Safety, and any other parties to the review proceedings. The compulsory conferences are chaired by a QCAT member.

The purpose of a compulsory conference is for the parties to talk about the issues in dispute, and try to reach an agreement to resolve the dispute. Before going into a compulsory conference, you should think about what you want to achieve at the conference, and what compromises you are willing to make. Any agreement reached must be in the best interests of the child.

If the dispute is resolved at a compulsory conference, then the QCAT member may record any agreement that was reached. If the dispute is not resolved, then the QCAT member will make directions about the process going forward. You may be required to attend another compulsory conference.

Hearings

If the review proceedings do not resolve at a compulsory conference, then the dispute will go to a hearing before three QCAT members. At the hearing, the most important consideration for QCAT will be the best interests of the child.

You will need to attend the hearing, and you may need to give evidence. The hearing will usually be held in private, and you are able to bring a support person to the hearing.

QCAT is able to:

• Confirm or change the decision;
• Set aside the decision and substitute its own decision;
• Tell Child Safety to reconsider the decision.

(s 20, 24 QCAT Act).

QCAT cannot change the existing child protection order made by the Childrens Court.

For more information about the process for hearings in QCAT, see our factsheet available here.

Legal representation

You need permission from QCAT to have legal representation (s 43 QCAT Act). If you want to be represented by a lawyer in QCAT, you need to make an application to QCAT using Form 56, available here.

For more information about legal representation in QCAT, see our factsheet available here.

Contact us

The information in this resource is for general information purposes only. If you would like help with a legal problem, you may be eligible for assistance from a LawRight service or clinic.

For more information about the help available, and the process for applying for help, please contact LawRight by:

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