Applying to the courts
Reaching an agreement with the other party offers many advantages:
- you make your own decisions
- you greatly reduce the financial and emotional costs of legal proceedings
- your continuing relationship as parents, if you have children, is likely to work better
- you are able to move forward and make a new life for yourself, and
- you may improve communication with your former partner and be better able to resolve disputes in the future.
If you cannot reach an agreement, you may consider applying to a court for orders. Sometimes this may be the only way to deal with a dispute.
There are steps you must take before applying to a court. For more information follow the left link above at 'In this section' to the page titled 'Family dispute resolution'.
The laws involved
The Family Law Act 1975 (Commonwealth)
The Family Law Act 1975 is the main law in on matters involving divorce, property settlement after marriage breakdown or de facto relationship breakdown, spouse maintenance for a party to a marriage, de facto partner maintenance for a party to a de facto relationship that has broken down and issues relating to parenting arrangements after separation. The courts that exercise the jurisdiction under the Family Law Act are the:
- Family Court of Australia,
- Federal Circuit Court of Australia.
For further information go to the family law principles section of this website.
If you reside in Western Australia and/or your case may occur in Western Australia, the main law is found in the Family Court Act 1997 (Western Australia) and the Family Legislation Amendment Act 2006 (Western Australia). The court set up under that Act is the Family Court of Western Australia. For more information about the law and practices and procedures in Western Australia go to:
- www.familycourt.wa.gov.au, or
- your local family court registry in Western Australia.
Family Law Rules, Practice Directions and Guidelines
In the Family Law Act, the Parliament delegated authority to the Chief Justice of the Family Court to make rules, regulations and by-laws connected with the Act. These are known as the Family Law Rules 2004. The Rules deal with the practice and procedure of the Court and apply to all proceedings under the Family Law Act in the Family Court.
The Chief Justice of the Family Court also has the authority to make practice directions and guidelines about the procedures of the Family Court. These are intended to inform everyone who uses the Court about the way cases move through the Court.
If your case will take place in Western Australia, for more information about the Rules, Practice Directions and Guidelines that will apply go to:
- Family Court of Western Australia, or
- your local family court registry in Western Australia.
Child Support Acts 1988-89 (Commonwealth)
The Child Support (Registration and Collection) Act 1988 and the Child Support (Assessment) Act 1989 established the Child Support Agency. These Acts cover child support for:
- children who were born on or after 1 October 1989, and
- children whose parents separated after 1 October 1989, and
- children who had a sibling (brother or sister) born after 1 October 1989.
Under these Acts, financial support for children is called child support. You apply to the Child Support Agency for child support. For information on how to change the child support assessment, contact the Child Support Agency.
Case law refers to previous decisions, or judgments, made about family law by judicial officers. In the legal profession, these are known as precedents. These decisions become part of the family law which applies in Australia.
Australia is part of an international agreement called the Hague Convention, which is an agreement about international child abduction. One of the main aims of the Hague Convention is to promptly return children wrongly removed from another convention country. Australia is a convention country but not all countries are. A complete list of convention countries can be found in Schedule 2 of the Family Law (Child Abduction Convention) Regulations 1986.
If you believe the convention may affect your family situation, you can obtain more information from the Commonwealth Attorney General’s International Child Abduction website located under website links.
You can obtain information about the services and support offered from the International Social Service (ISS) website located under website links.
What does it mean to file an application?
You file an application at a court when you cannot reach your own agreement. If you file, it begins a court process that may result in a hearing before a judge. You will need to follow the procedures of the court you have filed in.
Protocol for the division of work between the Family Court of Australia and the Federal Circuit Court of Australia
The Chief Justice and the Chief Judge have published this Protocol for the guidance of the legal profession and litigants, so as to enable matters to be directed properly to the court appropriate to hear them. The Protocol may on occasions give way to the imperatives of where a case can best be heard and is not intended to constrain the discretion of a judicial officer having regard to the applicable legislation and the facts and circumstances of the case before him or her.
If any one of the following criteria applies, then the application for final orders ordinarily should be filed and/or heard in the Family Court of Australia (FCoA), if judicial resources permit, otherwise the matter should be filed and/or heard in the Federal Circuit Court of Australia (FCC).
1. International child abduction.
2. International relocation
3. Disputes as to whether a case should be heard in Australia.
4. Special medical procedures (of the type such as gender reassignment and sterilisation).
5. Contravention and related applications in parenting cases relating to orders which have been made in FCoA proceedings; which have reached a final stage of hearing or a judicial determination and which have been made within 12 months prior to filing.
6. Serious allegations of sexual abuse of a child warranting transfer to the Magellan list or similar list where applicable, and serious allegations of physical abuse of a child or serious controlling family violence warranting the attention of a superior court.
7. Complex questions of jurisdiction or law.
8. If the matter proceeds to a final hearing, it is likely it would take in excess of four days of hearing time.
Note: The FCoA has exclusive jurisdiction in relation to adoption and the validity of marriages and divorces.
1. Either court on its own motion or on application of a party can transfer a matter to the other court.
2. There is no right of appeal from a decision as to transfer.
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. You will be required to pay a filing fee. You may qualify for fee reduction if you meet certain criteria.
For further information go to the Fees section of this website.
Can court staff help you complete the forms?
Court 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.
Court 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.
If you are applying to the Federal Circuit Court, 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 a blank affidavit form which can be used by applicants and respondents.
In the Federal Circuit 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 Circuit 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?
In the Family Court the affidavit should be typed. In the Federal Circuit Court, the affidavit may be typed or printed clearly on one side of the page. It is preferable that affidavits are typed.
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/de facto relationship'. 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).
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 Circuit 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.