Family Courts and processes

Structure of the Courts

Which Court do I file my initiating application in?

The Federal Circuit Court of Australia hears all family law matters, including applications for divorce. Its purpose is to hear less complex matters.

The Family Court of Australia does not determine divorce proceedings. Its purpose is to determine more complex family law matters. Some of these more complex matters include:

  • international child abduction matters
  • international child relocation matters
  • special medical procedures, such as sterilisation or gender reassignment
  • serious allegations of child sexual abuse
  • adoption
  • disputes as to whether a matter should be heard in Australia over another country
  • contravention of Parenting Orders made within 12 months prior to filing
  • complex questions of law or jurisdiction
  • validity of marriage
  • Consent Orders
  • any other matters that would take longer than four days for a Trial to be heard in, due to the complexity of the issues before the Court.

If your matter can be filed in either Court, then you should always file in the Federal Circuit Court of Australia first. If required, your matter can be transferred to the Family Court of Australia. 

The difference between the Children’s Court and the Family Courts

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.

Like the Family Court of Australia and the Federal Circuit Court of Australia, the paramount concern of the Children’s Court is the best interests of the child or young person.

The Family Court of Australia and Federal Circuit Court of Australia deal with any legal matters involving matters of separation or divorce that involve children. Such parenting matters deal with 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. The Family Court of Australia also deals with more complex matters, such as guardianship.

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

When making a divorce application, you need to file the following documents in the Federal Circuit 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 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 disagree with the date of separation and the divorce is not able to be processed).

  • 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.

You’ll also need to pay a filing fee in the sum of $930 (as of 1 July 2020). If you have a concession card this may reduce the filing fee payable.

Once the application has been filed in the Court, the application will be issued a date for hearing.

Service does not have to be completed if a joint application for divorce has been made. However, if you make a sole application for divorce, then service on the other party is required.

Parenting and children matters

How to initiate proceedings in parenting matters

When commencing Court proceedings in parenting matters, whether it is an urgent or non-urgent matter, you need to file the following Court documents in the Federal Circuit Court of Australia:

  • Initiating Application

    This sets out the details of the relationship, and the final Orders you are seeking in relation to the care, welfare and well-being of any children. You can also seek interim Orders, such as attending family law mediation, obtaining certain disclosure, attending a parenting program or any other Order concerning something that will occur before final Orders are made.

  • Notice of Risk

    This form must be completed by the person commencing proceedings. It 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).

    The form also allows notification to the relevant child authorities, if appropriate, to facilitate and identify any risks to the child and ensure appropriate measures are put in place.

  • Affidavit

    This sets out your written evidence, including reasons why the Court should make the Orders you are seeking.

  • Section 60I Certificate

    This certificate, which is issued by a Family Dispute Resolution Practitioner (“FDR practitioner”), should be attached to your Initiating Application. If you do not have a section 60I certificate, then you need to provide details in your Affidavit seeking interim Orders to commence proceedings without the certificate.

You’ll also need to pay a filing fee. If you have a concession card this may reduce the filing fee payable.

You will need to serve the documents on the other party once you have commenced proceedings. You can serve the documents by hand, post, email, facsimile or upon the solicitors acting for the other party (if they have agreed to accept service).

What are the exemptions to commence proceedings in an urgent parenting matter?

If there is family violence or child abuse in your relationship, or your matter falls within an exemption, you do not need to attend Family Dispute Resolution (“FDR”) to get a Section 60I Certificate to commence proceedings.

An urgent application may also be made if one of the following exemptions applies:

  • the Court is satisfied there are reasonable grounds to believe that there has been, or there’s a risk of, child abuse or family violence by a parent if there were to be a delay in commencing Court proceedings
  • where one parent is unable to participate in FDR effectively (for example, due to an incapacity to participate in FDR or geographical remoteness)
  • if there has been, or continues to be, a contravention of existing final Parenting Orders that were made by the Court within 12 months and the person who breached the Orders shows a serious disregard to their obligations under the existing Orders
  • any other reason the Court considers reasonable that a section 60I certificate was not required in the circumstances.

Advice about urgent parenting matters will vary depending on the complexity of your matter and whether you will be filing an application in the Family Court of Australia or the Federal Circuit Court of Australia. 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:

  1. Response to Initiating Application

    This is a response to the issues in dispute raised in the Initiating Application and provides alternative evidence, if necessary, to support your case.

  2. Notice of Risk

    This form must be completed by the person responding to an Initiating Application in parenting matters. 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).

    The form also allows notification to the relevant child authorities, if appropriate, to facilitate and identify any risks to the child and ensure appropriate measures are put in place.

  3. Affidavit

    This should set out your written evidence, including reasons why the Court should make the Orders you are seeking.

  4. Affidavit – Non-Filing of Family Dispute Resolution Certificate

    You should ensure that that affidavit also sets out those matters which you rely upon to file your applications without filing a certificate from a FDR practitioner.

You’ll also need to pay a filing fee. If you have a concession card this may reduce the filing fee payable.

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 an Initiating Application. You should understand how the Court process works and get advice about what range of outcomes you would 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: property settlement and spousal maintenance matters

How to initiate proceedings in property settlement matters, including spousal maintenance matters

When you make an application to the Court to commence proceedings for property settlement matters, including spousal maintenance, you must file the following documents with the Court:

  1. Initiating Application

    This sets out the details of the relationship, and the final Orders you are seeking in relation to the division of the net asset pool and spouse maintenance payments. You can also seek interim Orders, such as attending family law mediation, obtaining joint valuations, payment of spouse maintenance for a period of time, selling a property, or any other Order concerning something that will occur before final Orders are made.

  2. Financial Statement

    This details the Applicant’s financial position (income, expenses, assets, liabilities and superannuation entitlements), the known asset pool, if possible, and shows why a party needs to claim spousal maintenance.

  3. Affidavit

    This sets out your written evidence, including reasons why the Court should make the Orders you are seeking.

You’ll also need to pay a filing fee. If you have a concession card this may reduce the filing fee payable.

You will need to serve the documents on the other party once you have commenced proceedings. You can serve the documents by hand, post, email, facsimile or upon the solicitors acting for the other party (if they have agreed to accept service).

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 for property settlement matters, including spousal maintenance matters

If you have been served with an Initiating Application for Property Orders, you will need to file the following Court documents in response, setting out your position:

  1. Response to Initiating Application

    This is a response to the issues in dispute raised in the Initiating Application and provides alternative evidence, if necessary, to support your case.

  2. Financial Statement

    Details of the 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.

  3. Affidavit

    This should set out your written evidence, including reasons why the Court should make the Orders you are seeking.

You’ll also need to pay a filing fee. If you have a concession card this may reduce the filing fee payable.

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, property matters or spousal maintenance matters, you can file your agreement with the Court as Consent Orders.

Consent Orders can deal with one issue or all of the issues (that is, parenting matters, property settlement matters and spousal maintenance matters).

You can put the terms of your agreement into Consent Orders, governed by the Family Law Act 1975, by filing the following documents:

  • Application for Consent Orders

    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 the agreement you are seeking.

  • Minutes of Orders

    This details the agreement reached for the Court’s approval.

You’ll also need to pay a filing fee. If you have a concession card this may reduce the filing fee payable.

The Registrar will review the terms of the agreement and, if its considered fair to both parties, make the Orders binding. Both parties are bound by the terms of the agreement and neither party can make a future claim on the property. You don’t need to attend the Court.

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 you both 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.

Lodging a Child Support Agreement with the Court

If you and your former spouse or de facto partner have reached an agreement about child support matters, by way of Binding Child Support Agreement (BSCA), you need to:

  • draft a letter to Services Australia, requesting that they register the BCSA
  • enclose a completed Application for Acceptance of Child Support Agreement form from Services Australia (noting that your lawyer will have to complete Section 1 of the application, you’ll need to sign page 11, a certified copy of the BCSA will need to be attached and you or your lawyer will need to send the original Application to Services Australia)
  • Services Australia will send a letter directly to both parties (which may take up to eight weeks)
  • on receipt of the letter from Services Australia, either you or your lawyer will need to register the BCSA with the Family Court of Australia so that the Court can enforce provisions for non-periodic payments, as Services Australia can only enforce and collect periodic payments on your behalf.

Filing the Affidavit with the Court will allow you to enforce child support payments in the future if the “payer” refuses or fails to meet the child support payments.

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 is required when there is any application to commence Court proceedings or for a sole Application for Divorce.

How do I serve documents on my former spouse or de facto partner?

Documents can be served by:

  • Hand

    A process server, who is hired for a fixed fee, or any person over the age of 18 years can hand deliver the documents on your behalf to your former spouse.

  • Post or electronic communication (for example, facsimile or email)

    This service can be used when you are certain your former spouse will sign the Acknowledgment of Service form and return the original to you for filing.

  • Service on a lawyer

    If your former spouse 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.

How do I prove that I served Court documents?

Service is proved through an Acknowledgement of Service, which needs to be signed by your spouse, or served upon your spouse. An Affidavit of Service (signed by the person who served the documents) must be filed with the Court via the online Court portal.

If the Court is satisfied that service has been completed, the person served (usually the Defendant or Respondent) will not need to be present at Court for Orders to be made.

Subpoenas in family law matters

What is a Subpoena?

A Subpoena is a Court document that is issued by a Judge at the request of a party to legal proceedings.

A Subpoena compels a person to give evidence at a hearing or a trial 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.  If you are self-represented you need leave of the Court to issue Subpoena.

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 should 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 (for example, if you are issuing a Subpoena to the Police, the Subpoena will need to be addressed to “The Proper Officer, Australian Federal Police…” 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 file a Subpoena, you need to file the following documents in the relevant Court’s registry (that is either the Federal Circuit Court of Australia or the Family Court of Australia):

  • the original Subpoena
  • copies of the Subpoena (enough for each party involved in the proceedings since the original Subpoena is kept by the Court).

You’ll also need to pay a filing fee in the sum of $55. If you have a concession card or are experiencing financial hardship, the filing fee may be waived.

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.

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. Each party will need to make an appointment at the Court to view the Subpoenaed material.

Can I object to a Subpoena request?

The person named in the Subpoena, a party of the legal proceedings, or an Independent Children’s Lawyer 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 for any Subpoenaed material to be produced, 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 a fact. Evidence can only be given to the Court in the form of an Affidavit, unless otherwise ordered by the Court.

An Affidavit is filed when you or your former spouse or de facto partner initiate family law proceedings. You will also be required to file an Affidavit in response to an Initiating Application if your former spouse or de facto partner has commenced family law proceedings.

The legal requirements for a family law Affidavit

An Affidavit, whether drafted by you or your solicitor, must:

  • include facts and contents of the Affidavit and 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 initialed on each page (when swearing or affirming the Affidavit before the witness)
  • 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)

Affidavits for interim Court hearings (including an Initiating Application and Response to Initiating Application) in the Federal Circuit Court of Australia are restricted to a maximum of ten pages.

If you are illiterate and 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.

In the Federal Circuit Court of Australia, any supporting documents or material must be attached to the Affidavit. This must be stated in the Affidavit and the annexures clearly marked as annexures. Only relevant documents or material that are essential to making your case must be attached and there are restrictions on the number of attachments allowed to be attached.

In the Family Court of Australia, any attachments to the Affidavit must be identified in the Affidavit but not attached to the Affidavit. Rather, they must be tendered as evidence in Court. The attachments mentioned in the Affidavit must also be served on the other party to the family law proceedings.

If there are any false evidence or statements in the Affidavit, the Court will consider this to be perjury (lying under oath). This would mean you have committed a criminal offence and likely that the court may refer you to relevant authorities and to be dealt with in accordance with criminal law.

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 details facts and circumstances that are relevant to the proceedings
  • use headings and subheadings that are aligned with the Court’s considerations of the matter (see below for assistance).
  • as clear and concise as possible (to make it easier for the Judge to identify and navigate the issues in dispute and be persuaded in making the Orders you are requesting to be made).

Parenting Matters: What other factors do I need to include in my Affidavit?

When writing an Affidavit for parenting matters, use headings to inform the Court of all the relevant considerations they must take into account.

These example headings should be used as a guide only:

  • Summary of the relationship (recitals)

    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.

  • History of the former marriage or de facto relationship

    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.
  • Issues in Dispute

    Outline the issues in dispute in the parenting matter.

  • Summary of Orders sought

    Detail the Orders that you are seeking and explain, or provide evidence of, why.

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, use headings to inform the Court of all the relevant considerations they must take into account.

These example headings should be used as a guide only:

  • Summary of the relationship (recitals)

    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.

  • Net Asset Pool

    Detail the extent of the net asset pool of you and your former spouse or de facto partner by putting all of the relevant assets, superannuation entitlements and liabilities into a table and annexing any valuations or appraisals.

  • Contributions

    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
  • Future needs factors

    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.

  • Just and Equitable issues

    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 and regulations while ensuring  the issues in dispute 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 in one Affidavit.

You do not need to commence proceedings individually for different family law issues. It is all contained in one application or response.

When drafting your Orders and Affidavit, however, we recommend you deal with the issues separately. For example, put all of the Parenting Orders first, then all of the Property Settlement Orders (including Spousal Maintenance Orders) afterwards. This can be done vice versa as well.

Please note that you will only need to include one summary of the relationship (recitals) 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.

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 pleadings, particulars, discovery (disclosure documents), inspection, directions to answer questions, admissions of facts, production of documents and similar matters (for example, whether the parties followed the Court rules and procedures)
  • 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 offers made by the parties and the terms or any offer
  • 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 (for parenting matters) or mediation (for property and/or spousal maintenance matters).

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 let them go.

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. Making a Contravention Application should be a last resort.

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 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.

H3: 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 either the Family Court of Australia or the Federal Circuit Court of Australia.

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.

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