Family Courts and processes
Structure of the Court
Where do I file my initiating application?
The Federal Circuit and Family Court of Australia (FCFCOA) hears all family law matters, including applications for divorce.
The Court is divided into two (2) divisions, namely:
- Division 1; and
- Division 2.
All Applications are filed in Division 2, which acts as a single point of entry into the FCFCOA System. Division 2 of the Court also hears general federal law matters (e.g. employment and immigration matters) as well as Family Law matters.
When matters are filed in Division 2, a Judicial Registrar will consider the matter and depending on the issues in dispute, including issues of risk and/or depending on the urgency of the matter, they will either remain in Division 2 or be transferred into Division 1.
Division 1 of the Court hears only family law matters, specifically those matters deemed to have particularly complex elements, in addition to hearing appeals of decisions made either in Division 2 or by one judge sitting alone in Division 1.
The difference between the Children’s Court and the Federal Circuit and Family Court of Australia
The Children’s Court of NSW is a Court that specialises in dealing with legal matters involving children and young people under the age of 18 years.
The Children’s Court has jurisdiction to hear and determine legal matters relating to:
- the care and protection of a child or young person
- any traffic matters where the defendant is not old enough to hold a valid driver’s licence or permit
- any criminal offences involving a child or young person
- breaches of, or eligibility of, parole or the eligibility of a child or young person
- applications for Compulsory Schooling Orders or Apprehended Violence Orders.
The paramount concern of the Children’s Court is the best interests of the child or young person.
Conversely the Federal Circuit and Family Court of Australia is a commonwealth Court with registries in the ACT, NSW, Northern Territory, Queensland, South Australia, Tasmania, Victoria. Western Australia has its own Family Court.
The FCFCOA deals with any legal matters involving matters of separation, divorce, property, parenting and child support.
Children are specifically impacted by parenting matters dealt with by the FCFCOA, including where determinations are made as to the care, welfare and wellbeing of children and the Court can determine where a child lives or which parent (or non-parent) a child spends time with.
Important time limitations for family law proceedings
Application for Divorce | 12 months from the date of separation (married couples only) |
Divorce Order | Becomes final one month and one day after the Court grants Divorce at the Court hearing. |
Response to Divorce (Australia) | Application must be filed within 28 days from the date of service. |
Response to Divorce (overseas) | Application must be filed within 42 days from the date of service. |
Special Service | As soon as practicable, but no longer than 12 months from the date of filing. |
Property Settlement | An application for property settlement must be filed: |
– | · De facto couples: within two years from the date of separation in a de facto relationship, or |
– | · Married couples: within 12 months from the date upon which your divorce becomes final. |
Spouse Maintenance | An application for spousal maintenance must be filed: |
– | · De facto couples: within two years from the date of separation in a de facto relationship, or |
– | · Married couples: within 12 months from the date upon which your divorce becomes final. |
Parenting Matters | Proceedings can be commenced at any time. If final Orders have been made in parenting matters, then proceedings can only be recommenced if there is a significant change in circumstances. |
Application for Leave | If you fail to commence proceedings within the time limitations, then you must apply to the Court for permission to commence proceedings out of time. To do so, you will have to provide an explanation to the Court about why you failed to commence the proceedings within the required time and show that the failure of the Court to make an Order would cause you hardship. |
Forms to use for Court proceedings
Divorce Applications: How to file for a divorce
In order to initiate a Divorce Application, you need to file the following documents in the Federal Circuit and Family Court of Australia when 12 months have passed since the date of final separation:
Application for Divorce
You can file an application on your own (sole divorce application) or together with your former spouse (joint application). The same application form is used for both sole and joint applications. The application should include all relevant details of you and your former spouse, along with any details of any children of the marriage (such as living and care arrangements for children under the age of 18 years). It should also specify when the marriage broke down to satisfy the 12-month separation rule.
If you make a sole application, your former spouse can file a Response to the Divorce Application in certain circumstances (such as if he or she disagrees with specific facts you have set out in your Application, an example of such a fact might be the date of separation).
Marriage certificate
You must file a copy of your marriage certificate with your Divorce Application. If the marriage certificate is in another language, you will need to have it translated into English by a recognised translator. The translator will need to sign an Affidavit attaching both the original copy of the marriage certificate and the translated version.
This Affidavit prepared for or by the interpreter and thereafter sworn or affirmed by them in the presence of a recognised witness, will also need to be filed with the Divorce Application.
In circumstances where the marriage certificate is not available to the parties, and where all attempts have been made to obtain a copy of the marriage certificate, the Court may, upon the consideration of the facts surrounding why the marriage certificate could not be made available (properly drafted in an Affidavit filed with the Divorce Application) proceed to make the Divorce Order.
Citizenship certificate
In order to apply for a Divorce in Australia, certain jurisdictional requirements need to be met.
As per s39(3) of the Family Law Act 1975, the Court has jurisdiction to hear a Divorce matter, provided one of the parties are either:
- an Australian Citizen by birth, descent, or by a grant of Australian citizenship; or
- ordinarily, live in Australia and have done so for 12 months immediately before filing for divorce; or
- regard Australia as their home and intend to live in Australia indefinitely.
Where proof of citizenship is required, usually where neither of the parties is an Australian Citizen by birth, then a copy of the Citizenship Certificate is required to be filed with the Divorce Application.
Other documents that may be required
Depending on the nature of the Divorce Application you file (Joint Application or Sole Application), and/or the circumstances surrounding your separation, you may be required to file other documents as part of your application, these documents could include, but are not limited to:
- An affidavit of Service;
- Acknowledgement of Service;
- Affidavit providing Signature;
- Affidavit for substituted service;
- Affidavit relating to separation under one roof.
For example, joint applications for divorce are not required to be served on the other party. As such, an Affidavit of Service or Acknowledgement of Service would not be required.
The Court will also require the payment of a filing fee prior to accepting an Application for Divorce for filing. As at 1 July 2023, the FCFCOA filing fee for Divorce matters is $1,060. The fee is usually reviewed by the Court at the end of each financial year.
If you have a government issued concession card, this may reduce the filing fee payable by you.
Once the application has been filed with the Court, the application will be listed for hearing within 4 – 6 weeks of filing. The hearing may, depending on the circumstances, be conducted without the need for any of the parties to attend.
In circumstances where attendances are required, Divorce Hearings are conducted by telephone conferencing and a phone number will be provided to the parties, either at the time of filing, or once the Application has been considered by the Court and allocated to a Judicial officer.
Parenting matters
How to initiate proceedings in parenting matters
When commencing Court proceedings in parenting matters, the following Court forms need to be completed and filed with the Federal Circuit and Family Court of Australia:
Initiating Application
This form sets out each parties’ personal information and the factual details surrounding the relationship. Importantly, it also incorporates the Orders that the Application is asking the Court to make. In parenting matters, this will include orders relating to:
- Parental responsibility;
- Who the child or children live with;
- Who the child or children can spend time with;
- How the child is to communicate with their parents or other third parties;
- Restraints being placed on parents (if required), including to do with contacting the child or children’s education providers, or travel with the child; and
- Authorities allowing parents or third parties to access information to do with the child or children.
Notice of Child Abuse, Family Violence and Risk
This form assists the Court in identifying if the child is, or has been, exposed to any harm or abuse (such as family or domestic violence, child abuse or sexual abuse).
Even in circumstances where there has been no exposure to risk, the form must be completed to allow the Court to make its own determination as to risk.
Affidavit
This form is a statement that sets out your written evidence, including reasons why the Court should make the Orders you are seeking.
- Parenting Questionnaire
In circumstances where an Affidavit is not filed initially with the Initiating Application, then a parenting questionnaire is required to be completed and filed.
Section 60I Certificate
This certificate, which is issued by a Family Dispute Resolution Practitioner (“FDRP”), is required to be filed with your Initiating Application. If you do not have a section 60I certificate, then you need to provide details in an Affidavit non-filing of family dispute resolution certificate, as to why there are urgent circumstances surrounding your Application that prevent you from taking the time to obtain a S60I Certificate.
Any Family Violence Orders
Copies of any orders relating to Family Violence including any ADVOs issued.
Genuine Steps Certificate
The genuine steps certificate includes information relating to the pre-action procedures that parties are required to engage in prior to the commencement of proceedings. The commencing party will be required to certify that they have taken the relevant steps to attempt to resolve the dispute.
The Court will also require the payment of a filing fee prior to accepting an Initiating Application. The fee is usually reviewed by the Court at the end of each financial year.
If you have a government issued concession card, this may reduce the filing fee payable by you.
You will need to serve the documents on all other parties once you have commenced proceedings and received or downloaded the filed documents. An application starting a proceeding must be served by personal service by a person who is not a party to the proceedings and who is over the age of 18 years. Personal service means the server must give a copy of the documents to the person being served.
Urgent parenting matter?
Urgent parenting matters, are generally matters to do with:
- If a child is at immediate risk of harm or abuse.
- If a child has been or about to be abducted.
- If a parent is attempting to relocate with a Child and the other parent wishes to prevent the relocation, or otherwise if one person seeks orders allowing relocation which needs to occur immediately.
- If a Child is not being returned to their parents, and there is difficulty recovering the child from one parent.
In the above circumstances, parties may be exempt from being required to file:
- A Genuine Steps Certificate
- A s60I Certificate
- Parenting Questionnaire
- Notice of Child Abuse, Family Violence and Risk
Instead, the Initiating Application must be accompanied by an Affidavit that sets out the urgent circumstances as well as a covering letter that sets out the urgent nature of the Application with specific reference points to paragraphs in the Affidavit where that evidence is contained.
Once filed, the Court will consider the urgent application, and if satisfied as to the urgency of the matter, it will list the matter at the earliest possible date.
Once the urgent issues are dealt with, the parties will usually be required to complete and file the balance of the forms that they were otherwise exempt from filing due to the urgency of the situation.
For legal advice tailored to your circumstances, please contact the family lawyers at Ivy Law Group on (02) 9262 4003.
How to respond to an Initiating Application in parenting matters
If your former spouse or de facto partner commences proceedings in parenting matters, you will need to respond to the application by filing the following Court documents setting out your position:
Response to Initiating Application
This is a response to the Application filed by the other party. The Response includes personal information about each party, details of the relationship, as well as confirmation as to the Orders requested by the other party that you agree to (if any), and the Orders that you would be asking the Court to make.
Notice of Child Abuse, Family Violence and Risk
This form assists the Court in identifying if the child is, or has been, exposed to any harm or abuse (such as family or domestic violence, child abuse or sexual abuse).
Even in circumstances where there has been no exposure to risk, the form must be completed to allow the Court to make its own determination as to risk.
Affidavit
This should set out your written evidence, including reasons why the Court should make the Orders you are seeking.
There is a filing fee associated with a response to an Initiating Application. As at 1 July 2023, the filing fee associated with a response is $410. The fee is usually reviewed by the Court at the end of each financial year.
The documents will need to be served on the other party in the proceedings.
Given the complexity of family law matters, we recommend you obtain legal advice before responding to or initiating family law proceedings to ensure you understand how the Court process works and get advice about what range of outcomes you could expect in your circumstances if your matter was decided by the Court.
For legal advice tailored to your circumstances, contact the family lawyers at Ivy Law Group on (02) 9262 4003.
Initiating Court proceedings: financial/property matters
Financial or property matters include matters to do with:
- Division of the asset pool following the breakdown of a marriage or de facto relationship
- Spousal maintenance
- Maintenance of a child over the age of 18 years
- Superannuation
- Child support
When you make an application to the Court to commence proceedings for financial matters, including a property settlement, you must file the following documents with the Court:
Initiating Application
This sets out the details of the relationship, and the final Orders you are seeking. You can also seek Interim Orders, such as obtaining joint valuations, payment of spousal maintenance for a period of time, selling a property, or any other Order concerning something that will occur before Final Orders are made.
Financial Statement
This details the Applicant’s financial position (income, expenses, assets, liabilities and superannuation entitlements), the known asset pool, if possible, and assists in demonstrating the need or relevance of a spousal maintenance claim.
Affidavit
This sets out your written evidence, including reasons why the Court should make the Orders you are seeking in your Initiating Application.
- Financial Questionnaire
In circumstances where an Affidavit is not filed initially with the Initiating Application, then a financial questionnaire is required to be completed and filed.
Genuine Steps Certificate
The genuine steps certificate includes information relating to the pre-action procedures that parties are required to engage in prior to the commencement of proceedings. The commencing party will be required to certify that they have taken the relevant steps to attempt to resolve the financial dispute, including attending at FDR, prior to commencing proceedings.
Superannuation Information Kit
This kit is used to request information from a superannuation fund if you are seeking superannuation splitting or flagging orders. Once the form included in the kit is completed and submitted to the relevant superannuation fund, information relating to the member of the superannuation plan and their interests in their plan will be released to the requesting party. Among the information released, will be a current valuation of the superannuation interest.
The Court will also require the payment of a filing fee prior to accepting an Initiating Application. The fee is usually reviewed by the Court at the end of each financial year. Information relating to fees, can be accessed via the Federal Circuit and Family Court of Australia website.
You will need to serve the documents on all other parties once you have commenced proceedings and received or downloaded the filed documents.
An application starting a proceeding must be served by personal service by a person who is not a party to the proceedings and who is over the age of 18 years. Personal service means the server must give a copy of the documents to the person being served.
You can commence proceedings with or without a solicitor. However, given the complexity of family law matters, we recommend you obtain family law advice before commencing family law proceedings.
You should understand how the Court process works and get family law advice about what range of outcomes you would expect in your circumstances if your matter was to be decided by the Court.
You can also find tips on how to write an Affidavit or call our family lawyers on (02) 9262 4003 to obtain advice tailored to your family law dispute and circumstances.
How to respond to an Initiating Application seeking financial orders, including a property settlement
If you have been served with an Initiating Application relating to financial orders (which includes a property settlement), you will need to file the following Court documents in response, setting out your position:
Response to Initiating Application
This is a response to the issues in dispute raised in the Initiating Application and provides alternative orders requested by the responding party.
Financial Statement
Details of the responding party’s financial position (income, expenses, assets, liabilities and superannuation entitlements), the known asset pool, if possible, and, if relevant, why the party needs to claim spousal maintenance.
Affidavit
This should set out your written evidence, including reasons why the Court should make the Orders you are seeking in your response. an affidavit will only be required where you are seeking interlocutory (urgent) orders.
Financial Questionnaire
Where you are not required to file an Affidavit with your response, then you will be required to file a financial questionnaire to ensure the Court has sufficient information relating to the positions you are taking in the matter.
Genuine Steps Certificate
This document relates to the pre-action procedures, and whether you agree that both the responding party and the Applicant have complied with those requirements.
There is a filing fee associated with a response to an Initiating Application. As at 1 July 2023, the filing fee associated with a response is $410. The fee is usually reviewed by the Court at the end of each financial year.
The documents will need to be served on the other party in the proceedings.
Given the complexity of family law matters, we recommend you obtain family law advice before responding to an Initiating Application. You should understand how the Family Court related process works and get family law advice about what range of outcomes you would expect in your circumstances if your matter was to be decided by a Court.
For family law advice tailored to your circumstances, contact the family lawyers at Ivy Law Group on (02) 9262 4003.
Application for Consent Orders (parenting, property and spousal maintenance matters)
If you and your former spouse or de facto partner reach an agreement about parenting matters or financial matters, you can submit your agreement to the Court without the need to attend at Court in person.
The Court, upon review of the terms of the agreement, can make the Orders, that will have the same cause and effect as if the Orders were decided by a Judge on behalf of the parties.
This process requires the filing of an Application for Consent Orders. To file the Application successfully you must complete the following forms:
Application for Consent Order Forms
This sets out the details of each party (and any children under 18 years of age), the assets, liabilities and superannuation entitlements of each party, and in financial settlements, the Orders the agreement reached.
Minutes of Orders
This details the agreement reached in the form of Court Orders for the Court’s review and approval.
You will also need to pay a filing fee, although it is significantly less then filing fees for matters that require the Court to make a determination on your behalf. The fee is usually reviewed by the Court at the end of each financial year.
Once the Application is received by the Court, it will be allocated to a Judicial Registrar and given a listing date.
On the listed date, the Judicial Registrar will review the Application form, and consider the terms of the agreement. Where the Court considers that the outcome is Just and Equitable (financial matters) or in the best interests of the child (parenting matters) the Court will make the Orders without anything further being required of you or the other party.
Only one party to the Consent Orders is required to have independent legal advice to file the documents with the Court. However, we strongly recommend all parties involved obtain independent legal advice prior to signing any agreement.
If you’re ready to get professional family law advice, contact our family law firm, Ivy Law Group, on 02 9262 4003 to arrange a free, no-obligation initial consultation.
Registering a Child Support Agreement
If you and your former spouse or de facto partner have reached an agreement about child support matters, and formulated this agreement into a Binding Child Support Agreement (BSCA), the agreement can be registered with the Child Support Agency so that they are aware of the terms of the Agreement.
The Agreement can be registered by providing a properly signed copy to the Child Support Agency, a branch of Services Australia. Upon receipt of the Agreement, Services Australia will usually confirm in writing that the Agreement has been received and registered.
Service in family law proceedings
What is service?
Service is the legal term given to delivering Court documents to another person to satisfy the Court’s process and ensure the person being served has received the documents.
Service of all documents filed with the Court on all parties to a dispute is usually required in all Applications made to the Court. There are very limited circumstances where service of documents will not be required.
There are occasions where material filed with the Court will also be required to be served on third parties.
How do I serve documents on my former spouse or de facto partner?
Documents can be served by:
Hand
This can be attended by a process server, who is hired for a fixed fee, or any person over the age of 18 years who is not associated with the matter to hand deliver the documents on your behalf.
Post or electronic communication (for example, facsimile or email)
In some circumstances, service of documents by post or electronic communication is accepted. However, it is best to only use this method of service where you are certain of the receiving parties postal or email address, and to ensure the documents are received by the correct person.
Service on a lawyer
If a party or third party is represented by a lawyer, and the lawyer agrees in writing to accept service, then you can serve the documents on the lawyer’s office, as it will be as if you served the relevant party.
How do I prove that I served Court documents?
In Divorce Applications, where service is required, a serving party will need to prove to the Court that the Service has occurred. A form known as an an Acknowledgement of Service, will need to be signed by the party receiving the documents and then returned for filing with the Court. An Affidavit of Service (signed by the person who served the documents) is also required to be filed with the Court.
A court may also be satisfied that a person has been served if they file any other document in the proceedings, including a Response or Notice of Address for Service, as the Court can be assured that the proceedings have been brought to that person’s attention.
If the Court is satisfied that service has occurred, then regardless of the parties attendance at Court, the Court may make Orders in that persons’s absence.
Subpoenas in family law matters
What is a Subpoena?
A Subpoena is a Court document that is issued at the request of a party to legal proceedings.
A Subpoena compels the person or entity to:
- give evidence at a hearing or a trial; and/or
- to produce requested documents, such as medical records, child protection records, criminal histories or school records.
You may be able to obtain information from a company or trust or corporation that your former spouse or de facto partner has an interest in if they do not meet their disclosure obligations.
Parties to family law proceedings may only issue five Subpoenas each, without leave of the Court to issue more.
What information is needed in a Subpoena?
If you wish to issue a Subpoena you need to:
- clearly state the material you want to be produced (for example, if there are issues of family or domestic violence in the matter, you may wish to request the medical records of the victim for a specific date range rather than requesting their entire medical history)
- list all the types of documents and information you want produced (for example, you might list “medical records, presentations, medications prescribed, reports and referrals”)
- identify the person that the Subpoena is addressed to, either by name or by office, as the Subpoena may be rejected if you don’t identify the person who is responsible to produce the Subpoena).
How do you file a Subpoena?
You can only file a Subpoena if Court proceedings have commenced.
To issue a Subpoena you will also need to pay a filing fee of $65 per Subpoena.
Serving Subpoenas
If the Subpoena requires a person to produce information, you will need to serve the Subpoena on the person addressed in the Subpoena in accordance with ordinary service rules, with the Subpoena to be served as soon as practicable, but no later than ten days before the next Court date.
If the Subpoena requires a person to give evidence at Trial, the Subpoena must be served by hand on the named person at least seven days before they are required to give evidence at Trial.
It is best to serve the Subpoena with the relevant conduct monies, if necessary, to ensure there are no delays in the collation of the requested information or documents.
What are conduct monies?
Conduct monies is the amount of money required to be paid to the named person on the Subpoena to cover the costs of complying with the Subpoena.
If the Subpoena requires a person to produce information, conduct monies may be required to cover the costs of locating, photocopying and collating the information or documents requested in the Subpoena.
If the Subpoena requires a person to give evidence at Trial, conduct monies may be required to cover any reasonable expenses of the person who is required to give evidence at Trial, such as travel expenses, accommodation expenses and meals during the period of their Court attendance.
It is important to contact the person, company, trust, corporation, government department or agency, or other body, before you issue a Subpoena to see if they require conduct monies and determine the relevant sum to be paid.
What happens after the Subpoena has been served on the named person?
Once the Subpoena has been filed with the Court, and served on the named person along with any necessary conduct monies, the named person must comply with the request for information or documents, or to give evidence at trial, as detailed in the Subpoena.
Once the information or documents have been produced, the party who filed the Subpoena must file a Notice of Intention to Inspect the material. The Court must grant leave for the parties to view the Subpoenaed information or documents before they can be accessed.
Can I object to a Subpoena request?
The person named in the Subpoena, or a party to the legal proceedings, may object to the Subpoena and:
- request that the Court make an Order for the Subpoena to be set aside, or
- seek other relief if there has been any substantial loss or expense incurred in relation to the production of documents.
If a person’s medical records have been Subpoenaed, there can be an objection to the material being produced or viewed by the other party. In these circumstances, the person whose medical records are produced may be required to view the information or documents produced to the Court before allowing the other party to view them or make an objection to the entirety of the material produced.
If you wish to make an objection to a Subpoenaed either issued to you or issued in your family law matter, we highly recommend that you obtain legal advice as this can be a complex area of law and you will need to follow the relevant family law rules and regulations to make this objection.
If you’re ready to get professional family law advice and help, contact the family lawyers at Ivy Law Group on 02 9262 4003.
How to write an Affidavit for all Family Court matters
What is an Affidavit?
An Affidavit is a written statement that sets out a person’s evidence, or information, and helps to paint a picture of their family law matter.
Family Court Affidavits are used to provide evidence to the Court to prove or disprove an alleged fact. Evidence can only be given to the Court in the form of an Affidavit, unless otherwise ordered by the Court.
The legal requirements for a family law Affidavit
An Affidavit, whether drafted by you or your solicitor, must:
- include facts;
- be sworn (to swear on an oath to your God) or affirmed (to promise that the contents of the Affidavit are true and correct);
- be signed before a witness, who can be either a legal practitioner or Justice of the Peace (or if you are overseas, a Notary Public or Australian Diplomatic or Consulate Officer);
- be typed and printed single-sided, with a page number on each page;
- be initialled on each page (when swearing or affirming the Affidavit before the witness); and
- be signed by you and the witness on the last page (including your full name and signature, whether the Affidavit is sworn or affirmed, the date and place it was signed and the full name and occupation of the witness, and their signature).
There can be page limits placed on Affidavits. It is important to be aware of these page limits as the Court may not consider information that exceeds these limits.
If you are unable to read the contents of the Affidavit, your solicitor must read out loud the contents of the Affidavit before you sign the document.
If you do not speak English, you must have an authorised translator with you to read the Affidavit to you before you can sign the Affidavit. The authorised translator must sign a declaration that they have interpreted the contents of the Affidavit to you accurately and that you have understood.
Before signing an Affidavit, it is advisable to seek legal advice so that you comply with all of the relevant family law rules and regulations and to ensure that all of the relevant information is detailed in the Affidavit.
For help with drafting an Affidavit or any other family law issue, contact the family lawyers at Ivy Law Group on 02 9262 4003.
What do I need to include in my family law Affidavit?
An Affidavit, whether drafted by you or your solicitor, should be:
- structured in chronological order
- a comprehensive account of all of the factual matters that occurred during the relationship, at the date of separation and since separation (with the facts being to the best of your knowledge)
- a full and frank disclosure of all of the relevant circumstances in both parenting and property settlement matters (in accordance with your duty of disclosure)
- limited to accurate facts of the matter that support your position and the submissions that your legal representative will make on your behalf at a Court hearing (rather than your opinion or any legal submissions)
- as specific as possible when detailing the circumstances of events that occurred (for example, if there is a history of family or domestic violence in the former marriage or de facto relationship, you will need to provide specific and accurate occasions of each time the violence or abuse occurred rather than an overview)
- only detailed facts and circumstances that are relevant to the proceedings
- as clear and concise as possible.
Parenting Matters: What other factors do I need to include in my Affidavit?
Include all relevant details of the marriage or de facto relationship, including details about any children of the relationship, the date the relationship commenced, the date of final separation, the date of any Divorce Order and who has parental responsibility.
Include the following details of the relationship you and your former spouse or de facto partner had with the children during the relationship and since the date of separation:
- who the children live with and how much time they spend with the other parent (whether supervised or unsupervised time)
- details of what communication the children have with both parents when in the other parent’s care
- whether both parents have equal shared parental responsibility
- whether the children have been exposed to, or are at risk of, any harm such as family violence or child abuse
- any other aspect that deals with the care, welfare and development of the children.
Outline the issues in dispute in the parenting matter.
Explain, or provide evidence of, why the Court should make the Orders you seek in either your Initiating Application or Response.
Property settlement matters and spousal maintenance matters: What other factors do I need to include in my Affidavit?
When writing an Affidavit for property settlement and spousal maintenance matters, include:
all relevant details of the marriage or de facto relationship, including details about any children of the relationship, the date the relationship commenced, the date of final separation, and the date of any Divorce Order.
Detail the extent of the net asset pool of you and your former spouse or de facto partner.
Detail all contributions made at the commencement of the relationship (or marriage), during the relationship (or marriage) and after the date of final separation. Contributions may be:
- Financial contributions: made directly or indirectly on behalf of you or your former spouse or de facto partner towards the purchase, maintenance or improvement of the property, such as salary or wage earnings (direct financial contributions) or gifts or inheritances from family (indirect financial contributions);
- Non-financial contributions: made directly or indirectly on behalf of you or your former spouse or de facto partner towards the purchase, maintenance or improvement of the property, such as acting as the project manager for the building of a new home or assisting with renovating part of the property (direct non-financial contributions) or where one party’s dad builds a deck on the current property (indirect non-financial contributions);
- Homemaker and parenting contributions: any contributions to the welfare of the family, including any contribution made as a parent or homemaker;
- Negative contributions or waste: where you or your former spouse or de facto partner were involved in serious family violence that had a serious effect on the contributions that one party made or if either you or your former spouse or de facto partner wasted funds by gambling, extravagant spending or poor financial decisions.
Detail the age and state of health and wellbeing of both you and your former spouse or de facto partner, commitments to the children of the marriage or de facto relationship, or any other relationship, the extent of spousal maintenance which may be needed on an interim or long-term basis, or any other relevant factors considered by the Court.
Any additional evidence that the Orders you are seeking are just and equitable based on the circumstances of your former marriage or de facto relationship.
It is important to obtain advice from a family lawyer when drafting an Affidavit, as you need to comply with all of the relevant rules while ensuring the relevant facts and information are conveyed to the Court in a clear and concise manner.
For help with drafting an Affidavit or any other family law issue, contact the family lawyers at Ivy Law Group on 02 9262 4003.
What if I want to seek Parenting Orders and Property Settlement Orders in my Affidavit?
If you are commencing proceedings, or responding to an Initiating Application, about multiple areas of family law (such as parenting, property settlement and spousal maintenance matters), you can include all of the details relating to the various areas in one Affidavit.
For most family law disputes, you do not need to commence separate or individual proceedings, and one application can address or encompass the various issues. There are, however, exceptions to this, including in circumstances where you are filing a Divorce Application, which should be done separately.
When drafting your Orders and Affidavit, however, we recommend you deal with family law issues separately. For example, collating all of the Parenting Orders you are seeking together, outlining all of the Property Settlement Orders (including Spousal Maintenance Orders) afterwards, including any orders you require relating to Child Support, and so forth until you have addressed all of the issues and set out the Orders you are asking the Court to make.
Further, when drafting your Affidavit, a similar approach to that proposed above can be taken. Namely, where information relevant to each issue or area of family law should be included separately in the Affidavit.
Where there is information that is relevant to more than one area (i.e. dates relating to the commencement or conclusion of the relationship, dates of birth, names and addresses) these do not need to be duplicated for each section, and should only appear in the Affidavit once.
For help with drafting an Affidavit or any other family law issue, contact the family lawyers at Ivy Law Group on (02) 9262 4003.
Legal fees and Cost Orders in family law proceedings
Section 117 of the Family Law Act 1975: Who pays the legal fees?
Section 117 (1) of the Family Law Act 1975 states that each party to proceedings must pay their own legal fees unless certain exceptions apply. The Court has the discretion to make an Order for Costs.
Costs Orders in Family Law proceedings
If a Court is of the opinion in a particular case that there are circumstances that justify it to do so, the Court can make an Order for costs.
The circumstances that a Judge will consider when making a Costs Order include:
- the financial circumstances of both parties to the family law proceedings
- whether either party to the proceedings are receiving funding from Legal Aid
- the conduct of the parties throughout the proceedings, including the conduct in relation to the Orders sought, particulars, discovery (disclosure of documents), inspection, directions to answer questions, admissions of facts, production of documents as well as administrative matters (for example, whether the parties followed the Court rules and procedures or complied with Court Orders)
- failure to comply with the Orders made (which is also referred to as a contravention of existing Orders and is detailed below)
- whether either party was wholly unsuccessful in the Court proceedings
- any offer/s made by the parties and the terms of the offer/s
- such other matters that the Court considers relevant.
When making an application for Costs Orders, it is important to obtain legal advice beforehand.
If you’re ready to get professional family law advice, contact our family law firm, Ivy Law Group, on 02 9262 4003 to arrange a free, no-obligation initial consultation.
Costs Orders in contravention proceedings
Breaching an Order is where one party does not act in accordance with an Order made by the Court, and this may have very serious consequences if the person does not have a reasonable excuse or if the matter cannot be resolved through Family Dispute Resolution and comes before the Court.
An example of a contravention of Parenting Orders is where the Orders set out that the child is to spend time with their grandparents on every alternate Saturday but the parent who has the child in their care refuses to deliver the children to the grandparents in line with those orders.
A reasonable excuse for breaching a parenting Order is defined under the Family Law Act 1975 and includes situations where:
- the person breaching the Orders believed they had to breach the Orders to protect a person or child’s health or safety
- the breach only continued for the period of time necessary to protect a person or child’s health or safety
- the person breaching the Orders did not understand that they were breaching their obligations under the Orders.
It is always preferable for the parents to resolve any issues in dispute or the contravention of existing Orders between them.
However, where parents cannot resolve the issue between themselves, or it becomes a frequent or reoccurring problem that impacts the wellbeing of children, then the parties are able to apply to the Court by filing either a Contravention or Enforcement Application.
When the Court is considering a Contravention Application, it considers all of the circumstances of the breach, whether the breach occurred only once or was repeated, the severity of the breach and why the Order was breached.
The Court can make the following Orders:
- enforcement of an Order (so the arrangements under the existing Orders continue)
- an Order to compensate a parent, or other party to the earlier Orders, for lost contact time (which may include children spending additional time to make up for lost contact time)
- any Order to vary or change the existing parenting Orders
- an Order for a party, or both parties, to attend a Parenting Program
- a Costs Order for one parent to pay some or all of the legal costs of the other party
- an Order that a party pay some or all costs incurred by the other party as a result of the breach
- an Order to “put a party on notice” (which means that if the contravening parent does not continue to comply with the current parenting Orders they will be punished)
- an Order that punishes the contravening parent by way of fine or imprisonment.
Contravention Orders can be made in parenting matters, child support matters, property settlement matters and/or spousal maintenance matters.
Before making a Contravention or Enforcement Application with the Court, we recommend you obtain legal advice as it can be a complex area of law to navigate.
If you’re ready to get professional family law advice, contact our family law firm, Ivy Law Group, on 02 9262 4003 to arrange a free, no-obligation initial consultation.
How do I apply for costs?
When making an application for costs, you must file an application with the Court.
In some circumstances, you or your legal representative may seek a Costs Order by an oral application on the day of your Court hearing.
If you wish to seek a Costs Order, we recommend you obtain legal advice.
If you’re ready to get professional family law advice, contact our family law firm, Ivy Law Group, on 02 9262 4003 to arrange a free, no-obligation initial consultation.
FAQs about the Family Courts
Yes, in some circumstances.
A property Order can be set aside, or Orders varied, under section 79A(1) of the Family Law Act 1975 where:
- there is consent by both parties to the matter
- there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence, the giving of false evidence or any other circumstance
- the Order is impracticable because of circumstances that have arisen since it was made
- a person has defaulted in carrying out an obligation under the Order and, due to circumstances that have arisen as a result, it is just and equitable to vary the Order
- other exceptional circumstances have arisen since the making of the Order meaning that the applicant will suffer hardship if the court does not vary or set aside the Order
- a proceeds of crime Order against property of the parties or against one of the parties.
The Applicant is the person who commences proceedings in the Federal Circuit and Family Court of Australia (FCFCOA).
In a joint application for divorce or an Application for Consent Orders, the person who completes the application is the Applicant and the other party is the Respondent.
It does not matter if you are the Applicant or the Respondent in proceedings, as evidence from both parties is heard and considered by the Court.
The Respondent is the person who responds to the other party’s Initiating Application or Divorce Application.
It does not matter if you are the Applicant or the Respondent in proceedings, as evidence from both parties is heard and considered by the Court.
