On this website references to “Family Law Courts” are intended to comprise the Family Court of Australia and the Federal Magistrates Court of Australia.

The Family Court of Australia is a superior court of record and deals with more complex matters. These may include, for example

·          Parenting cases including those that involve a child welfare agency and/or allegations of sexual abuse or serious physical abuse of a child (Magellan cases), family violence and/or mental health issues with other complexities, multiple parties, complex cases where orders sought having the effect of preventing a parent from communicating with or spending time with a child, multiple expert witnesses, complex questions of law and/or special jurisdictional issues, international child abduction under the Hague Convention, special medical procedures and international relocation.

·           Financial cases that involve multiple parties, valuation of complex interests in trust or corporate structures, including minority interests, multiple expert witnesses, complex questions of law and/or jurisdictional issues (including accrued jurisdiction) or complex issues concerning superannuation (such as complex valuations of defined benefit superannuation schemes).

All other applications should be filed in the Federal Magistrates Court of Australia. The Federal Magistrates Court of Australia is a court of record and deals with less complex matters.

You may prefer to seek legal advice before choosing the court in which to file your application.

What orders can you apply for?

To find out what orders you can apply for in family law, go to the homepage and follow either of these links:

• in the section titled 'Children’s matters' - 'If you can’t agree'
• in the section titled 'Property and money' - 'If you can’t agree'

Section 60K of the Family Law Act requires a court to take ‘prompt action’ in cases where a person applies for parenting orders and files a Form 4 (Notice of Child Abuse or Family Violence) alleging ‘as a consideration that is relevant to whether the court should grant or refuse the application’ that there has been abuse of the child by one of the parties or risk of such abuse if there were to be a delay in applying for the order or that there has been or is a risk of family violence by one of the parties.

In considering the application, a court must consider what interim or procedural orders (if any) should be made:

• to have evidence provided about the allegations
• to protect the child or any of the parties to the proceedings,
• and make orders, as the Court considers appropriate.

Do you have to pay a filing fee?

Yes. Generally, you will be required to pay the filing fee, unless you qualify for an exemption or waiver.

For further information go to the Fees section of this website.

Can the Courts help you complete the forms?

The Courts’ staff can:

• tell you which forms you may need to file
• check your papers for completeness (for example, check for signatures and that attachments are present and signed by an authorised person within your state)
• give you (blank) court forms and brochures,
• briefly explain and answer questions about how the Courts work, their practices and procedures.

The Courts’ staff cannot:

• tell you what words to use in your court papers or whether you have given enough information
• tell you what to say in court
• give you legal advice
• help you with the wording of your application
• tell you whether or not you should bring your case to the Courts,
• recommend a certain lawyer to act on your behalf.

For more on what registry staff can and cannot do to help you, go to the Publications section of this website and follow the link to ‘What the Family Law Courts staff can and cannot do for clients’.

If you need more help with your application (for example, how to obtain legal advice), go to the Getting Help section of this website.

Affidavit

If you are applying to one of the Courts, you may be required to file an affidavit.

What is an affidavit?

An affidavit is a written statement prepared by a party or witness. It is the main way you present evidence (facts of the case) to a court.

Any affidavit you file in court to support your case must be served on all parties, including the independent children’s lawyer (if appointed).

When do you file an affidavit?

In the Family Court, you need to file an affidavit with an interim application, response or when directed by the Court. The Family Court has affidavit kits for applicants and respondents. They include a blank affidavit form.

In the Federal Magistrates Court, you need to file an affidavit with your application or response, for both interim and final orders, and when directed by the Court. The Federal Magistrates Court has a blank affidavit form which can be used by applicants and respondents.

You should use the form that is relevant to the Court handling your matter. For further information go to the Forms section of this website.

Can I prepare my own affidavit?

Although you can prepare your own affidavit, it is often not easy. If you prepare your own affidavit, the document should be typed or printed clearly on only one side of the page.

How do I structure an affidavit?

The affidavit should be typed (double line spaced and 12 point font) or printed clearly on only one side of the page. The content of an affidavit should be divided into paragraphs that are numbered. It is a good idea to divide an affidavit into sections under separate headings; for example, the heading might be ‘Arrangements for the children after separation’ or ‘Property accrued during the marriage’. Each paragraph should, if possible, cover one topic or subject matter.

If you need help preparing your affidavit, you should get legal advice. Court staff can help you with questions about court forms and the court process, but cannot give you legal advice.

Affidavits by other witnesses

If you are relying on evidence from a third party to support your case, such as a family member, friend or professional, you will need to file a separate affidavit on their behalf. You should only file an affidavit by a witness if the evidence is relevant and cannot be provided by you.

Unless the Court orders otherwise, a child (under the age of 18 years) should not prepare an affidavit to support your case.

What can I say in an affidavit?

An affidavit is a statement of facts. Therefore, you should include all the facts that are relevant in your case. Importantly, your affidavit should support the orders you have asked the Court to make in your application or response. The length of your affidavit will depend on the complexity of your case. Your affidavit does not need to be lengthy, so long as you include all the facts that you are relying on as evidence. Try not to leave out any relevant information as you may not get a chance to add it in later.

Can I give my evidence in court instead?

There is limited opportunity to give a personal account of your evidence in court. Most evidence is provided by affidavit. This allows a case to run more quickly and efficiently as all parties know what evidence is before the Court.

What should not be included in an affidavit?

Generally, an affidavit should not set out the opinion of the person making the affidavit; that is, it must be based on facts not your beliefs or views. The exception is where the person is giving evidence as an expert; for instance, a psychologist or licensed valuer. Where possible you should avoid referring to facts that are based on information received from others (known as hearsay evidence). There are, however, a number of exceptions to the hearsay rule. If you need to rely on hearsay evidence in your affidavit, get legal advice to see whether it would be admissible in court. You should not refer to anything said or documents produced in connection with an attempt to negotiate a settlement of your dispute, as these are not admissible as evidence in Court. There are some exceptions (for example, if a Family Consultant is present during the settlement negotiations, then the information is admissible) and if you want to refer to these, you should read section 131 of the Evidence Act 1995 (Cth).

Attaching documents

If you refer to a document in your affidavit, you must attach a copy of it to the back of your affidavit (known as an annexure). Examples of annexures are a contract of sale or a child’s school report. If there is more than one annexure, you need to refer to each one by a number or letter, for example, Annexure 1 or Annexure A. Each annexure must have a statement signed by the authorised person identifying the annexure as the document referred to in the affidavit. The wording of the statement is:

This is the document referred to as Annexure [insert reference number] in the affidavit of [insert deponent’s name], sworn/affirmed at [insert place] on [insert date] before me [authorised person to sign and provide name and qualification].

The statement must be signed at the same time as the affidavit and by the same authorised person.

The Courts have different requirements about affidavits. For further information go to the Forms section of this website to view affidavits of the Courts.

Signing an affidavit

The person making an affidavit (the deponent) must sign the bottom of each page in the presence of an authorised person, such as a lawyer or Justice of the Peace. On the last page of the affidavit the following details must be set out (known as a jurat):

• the full name of the person making the affidavit, and their signature
• whether the affidavit is sworn or affirmed
• the day and place the person signs the affidavit, and
• the full name and occupation of the authorised person, and their signature.

If any alterations (such as corrections, cross-outs or additions) are made to the affidavit, the person making the affidavit and the witness must initial each alteration.

What is service?

Service is the legal term to describe the giving of court documents by one person to another. It means giving the other person a copy of your documents in a way that satisfies a court that the other person has received them.

As the service requirements of the Family Court and Federal Magistrates Court may vary, go to the Forms section of this website for both Courts service forms, and a service kit from the Family Court.

How do you respond to an application? 

The respondent must receive from the applicant copies of the application stamped by the Court through a process known as service. The respondent then has the opportunity to respond if they do not agree with the orders sought in the application.

What is a subpoena?

A subpoena is issued by a court generally at the request of a party, requiring a person to produce documents or give evidence to the Court.

For more information go to the Publications section of this website.