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Less advarsarial hearing

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What does a less advarsarial hearing mean in practical terms. How does it differ from a, I guess, an advarsarial hearing?

Is it a sign that the other party is being more mediative and I should be more oprimisitic or is this a ruse to put me off guard. I guess there's still cross-examinmation and the affidvadits are tested the same way always?

A further question, is there another affidavit expected for the final hearing?

Less advarsarial hearing

Less advarsarial hearing - what does this mean in practical terms?

Is it a indication that the other party is being more mediative or is it a ruse to my me off guard?

LAT - Less Adersarial Trial

LAT = Less Adversarial Trial. This is a relatively new (recent years since 2007) move by the courts to move away from the traditional common law adversarial trail to a LESS adversarial system. It was developed by the Court in an effort to a long recognition to provide better ways for the decide disputes between separating parents when , after all, it is the best interests of the children that is of their concern.

In 2006 the amendments (Which the SPCA had input into this section) made in Division 12A of part vii of the Family Law Act 1975 allowed for a change in "style" within the Familiy Courts system.

The key thing about LAT is the JUDGE (And I mean any Judicial Officer) controls the proceedings. In fact many people will not know that the CCP (Children's Cases Program) from which this evolved started under Alistair Nicholson the previous Chief Justice. The restrictive rules of evidence are "less strict" and material can be brought to attention in a  less formal and procedural way than before. Family Consultants have taken a bigger role and both legal practitioners are expected to "broker" a deal where possible. It does NOT enable the Court to dispense with the Evidence Act 1995 (Cth) but does not prevent it from adopting and operating a less adversarial approach either.

The LAT is to get to the bottom of things quickly and the Judicial Officer / Judge / Federal Magistrate takes a much more "hands on" role to deal with the case. It is not about all just about mediation but mostly the parties are ordered out to go and sort out any items that may not have been agreed. The Judicial Officer may conduct a number of matters contemporaneously and thus you might be back in and out during the day in between other cases. It is one means to avoid protracted cross examination about who left the toilet seat up and who didn't during the partnership/marriage as the Judicial Officer will stop all that non-essential extraneous material and will look to getting something in place in an expedient manner.

It works very well and gets to the bottom of what the real issues are very quickly and is a no nonsense approach by the courts to deal with protracted litigation.

The key principals are:

Principle 1

The Court is to consider the needs of the child concerned and the impact that the conduct of proceedings may have on the child in determining the conduct of the proceedings

Principle 2
The Court is to ACTIVELY (bolded by me) direct , control and manage the conduct of the proceedings

Principle 3
The proceedings are to be conducted in a way that will safeguard:
(a) the child concerned against family violence , child abuse and child neglect and
(b) the parties to teh proceeding against family violence

Principle 4
The proceedings are as far as possible , to be conducted in a way that will promote cooperative and child-focussed parenting by the parties.

Principle 5
The proceedings are to be conducted without undue delay and with as little formality and legal technicality and form , as possible

The Court's Practice Direction #2 describes in great detail how cases involving child-related proceedings must be managed. Consent of the parties is not required unlike in the proof of concept trialling. LAT procedures may apply to matters under s79 of the Act (Property matters)

Other features of LAT:

Children involvement - May be heard in Court
Family Consultant - Much more important and hands on role
More informal environment - Some Courts have been rebuilt/designed to change the seating arrangements
Discontinuous Trial - The LAT begins when the parties first attend Court and the process continues not just one climatic event
Evidentiary changes - Parties , when directed talk DIRECTLY to the Judge. An emphasis on oral evidence except expert witnesses
Powers to Presiding Judge - Increased so he or she decides what is going to be done
Family Violence - Very early consideration of this area of allegation and or factual matter. Safety is paramount. Violence issues can be determined separately from and most likely in advance of other matters. You do not have to re-establish previous material at ever hearing. DON't forget if there is family violence you must use a form 4 which is to clearly alert the Court to events.

This is an on going evolutionary change in the Court system and is one we most heavily support and will participate in assisting the Courts to make any legislative change to support the LAT activities if requested.

In relation to a 2nd affidavit most people seem to file a response and then the other party files a response to that and then you file a response to the response etc. etc. etc. The approach that we have found works well is file a proper affidavit with the Interim Orders application and this may well include a time line of events either built in or annexed. If a further amended affidavit is required you can submit that or provide an amended affidavit for finals. It does vary a little from case to case but factual, well worded and complete affidavits are better than many amended affidavits because the key pieces may well be overlooked. Remember the Judicial Officers are extremely busy and so if you make it easy for them to see all the information in one place that will aide your case and ensure important issues are not overlooked.

Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 
Thanks for the reply.

This might sound a little crazy but I do not want to agree anything out of Court.  As a father, I want the court to get to the bottom of the case. I do not want my ex-partner to act as she has been for long time. I have waited patiently a long time to finally be able to confront with her own behaviour. I want the Court to see this and ensure she does not do it again. Essentially I want the court to give her a good telling off so that the children can move on with their lives and not have conflict relentlessly perpepuated in their lives. So then we can all move on.

I just want this sorted once and for all. Then started acting like adults should act.

If the trial is less advarsarial is this a possible outcome or will I be encouraged to settle which by the sounds of things on this site is usually more detrimental to the father, and so the children, than proceeding through to the end of the trial?
Sorry but I am confused here.

I have already filed three affidavits. I am supposed to file another affidavit for the LAT? If so, is there something that is expressly to be included. I cant think of anything else expect for some emails since the last filing a month ago. I guess it could include a response to the upcoming family assessment?

This is the list I received from the Court:

        A statement of the issues in contention; - how is this presented and filed?
        Details of affidavits/witnesses that are proposed for the final
        hearing;
        Details of any subpoenas sought to be issued;
        Assessment of the hearing time required.

as well as parenting questionnaire and chronolgy.

Please can I have some assistance.
What are you planning for? An interim hearing or final hearing?

Have you been to a directions hearing yet? At what stage of the process are you at?

What court are you in ?

Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
 
Final hearing with interim hearing skipped and had directions hearing as well as two other brief hearings. Definitely final hearing next with case management hearing to prepare for it.
...Family Court in Sydney
Guest said
Sorry but I am confused here.

I have already filed three affidavits. I am supposed to file another affidavit for the LAT? If so, is there something that is expressly to be included. I cant think of anything else expect for some emails since the last filing a month ago. I guess it could include a response to the upcoming family assessment?

This is the list I received from the Court:

        A statement of the issues in contention; - how is this presented and filed?
        Details of affidavits/witnesses that are proposed for the final
        hearing;
        Details of any subpoenas sought to be issued;
        Assessment of the hearing time required.

as well as parenting questionnaire and chronolgy.

Please can I have some assistance.
  Now this has confused me.

All I have is the parenting questionnaire to fill in. I have not received anything from the court to say all these other things need to be completed too. :/
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