What is the first return date?
The first court date for family law applications will usually be about 6 weeks after the filing of the application, however this can vary. The first court date is also known as the first return date, or the first mention date. As this is the first time that your matter will be listed before the court, it is a very important event.
Do I need to go to court on the first return date?
If you are represented by your lawyer, then you do not need to attend in person, however you may still choose to attend, especially if you think there is a good chance to negotiate with the other side. If you are not represented by a lawyer, you definitely need to be there, otherwise there could be serious adverse consequences against you (such as the matter being heard and orders being made without you, or the matter being dismissed, for example).
The judges sitting in the family law court prefers that you come to court legally represented. This is because, as a lay person, you are not expected to know the law or how it applies to you.
The exact procedure that will occur on the day depends on which court (Federal Circuit Court or Family Court) and which registry the matter was filed in. It will also depend on whether the matter involves a parenting dispute, property dispute, or both.
What happens in the Federal Circuit Court on the first return date?
In the Federal Circuit Court, your matter is allocated to what is known as a ‘duty list’. A duty list is a list of matters (usually between 15–20 matters) that are all listed before the court on the same date and generally at the same time. The judge will decide in what order matters are called in the list and you need to be ready to proceed at any moment.
Standing your matter in the list
While you are waiting for your matter to be called, if there is an opportunity to negotiate with the other side, the matter can be “stood in the list” so that negotiations can take place. If you are able to reach an agreement with the other party on the day of your first return date, you should prepare terms of settlement or a minute of orders sought which once signed by each party and a solicitor will be handed to the judge, who may make the orders by consent. The orders may be interim or final orders and may be procedural or substantive orders. You need to be able to explain the orders, particularly if they are substantive financial orders as the orders probably won’t disclose the underlying logic and the judge has a duty not simply to ‘make’ the orders but to understand and approve them.
If you are unable to reach agreement, your matter will be called in the list for a hearing.
First return date court hearing
On the first return date the judge will likely seek to address the following matters:
Whether all relevant documents have been served and filed by both parties.
A brief outline of the issues in the case, i.e. is it a property or parenting matter and what the dispute concerns.
Directions will usually be made for the future conduct of the case. This may include the following:
adjourning the matter to a later date. For example, to allow negotiations between the parties to continue or for the respondent to file responding documents;
directing the parties to attend a conciliation conference or private mediation in matters involving financial issues;
directing the parties to attend a child dispute conference (CDC) with a family consultant of the court for parenting matters;
other directions in relation to investigations which need to be carried out such as those for specific questions to be asked of the other party;
subpoena to be issued, discovery, disclosure and valuations which may need to obtained in financial matters.
Depending on the urgency of the matter and judicial availability, the judge may hear your matter on an interim basis, and make interim orders, on the first return date.
Do I need a lawyer for the first return date?
Yes. As you can see the first return date or first court date is a very important event as it is the first time that your matter will come before the judge. Depending on what exactly you are seeking to achieve, it is recommended that your lawyer is instructed to attend the hearing and in some cases you may even need to brief counsel (a barrister) to appear.