FAMILY COURT APPLICATIONS

This page provides information about how to make a Family Court application. One can apply for a range of different types of orders with the Federal Circuit and Family Court of Australia. Litigation can be lengthy and frustrating. Hence, you should use this process as your last resort. Consider litigation after all other avenues have failed in resolving the family dispute.

If you’d like to read more information about what you must do before applying to the Court, please see the following brochures.

Family Court Application for Parenting Orders

• Before you file – pre-action procedure for parenting cases.

Family Court Application for Financial Orders

financial orders

• Before you file – pre-action procedure for financial cases.

What are orders?

When you apply for a family court order, you will need to detail specific orders that you ask the court to make. For example, you may be requesting parenting or property orders. Thus, make sure your Family Court application lists all the orders you are seeking. But don’t worry, as you would typically have an opportunity to make changes to your application.

Firstly, there are two main types of orders:

• Final orders bring a matter to a close. The court may make final orders following a hearing or by consent between the parties.
• Interlocutory (interim) orders. To be specific, these are temporary orders court hands down that operate until Final Orders can be made. In practice, most parties will wait 12 months or longer for a Final Hearing. Therefore, they often require parenting or property orders that would resolve issues prior to a Final Hearing. Generally, you cannot file an application for interlocutory orders unless you have filed an application for final orders.

To illustrate, interim orders may include:

• Temporary parenting arrangements.
• Spousal Maintenance temporary arrangements.
• Orders for litigation funding.
• Exclusive occupation of a former matrimonial home.
• Recovery orders (when the child was unilaterally removed by one of the parents or a third party).
• Other matters that need urgent resolution and cannot wait until the final trial.

Consent Orders

Secondly, an important category of orders is consent orders. These are orders that you and the other party agree on. You and the other party can apply for consent orders without going to court. Consent orders have the same legal effect as if they had been made by a judicial officer after a court hearing.

You can agree on final orders or interim orders.

Lastly, if you are unable to agree, the matter will get a trial date and the judge will make orders following the hearing of your matter. In this case, the court will hand down a judgement. The judgement will set out the orders and the reasons, explaining how the court arrived at this or that conclusion. The judge will set out which evidence it considered and accepted or treated with caution, explaining why they made the orders.

Sometimes, the Court may not grant the orders that you request. Making orders the Federal Circuit and Family Court will weigh the facts of each case and

• in parenting cases, consider the best interests of the child;
• while in financial cases make sure the terms are just and equitable.

All Family Court applications for final orders and consent orders attract a filing fee.

Who can apply for orders?

Parenting

Any person concerned with the care, welfare and development of a child can file a Federal Circuit and Family Court application for parenting orders. This may include the child’s parents, grandparents or others (for example, a former partner of a parent).

You can apply for parenting orders at any time: before or after separation or divorce.

Financial

Married couples

Any person who has been married can apply for financial orders in the Court. You can file a Federal Circuit and Family Courtfor application at any time: before or after separation or divorce.

Under the Family Law Act, the time limit to start property proceedings for parties to a marriage, is 12 months from the date on which the divorce order becomes final. After this time, you need the Court’s permission to apply.

De facto couples

A person who has been a party to a de facto relationship may be able to apply for financial orders. Importantly, you must file an application for de facto financial orders within two years of the breakdown of your relationship. After this time, you need the Court’s permission to apply.

How do you apply for orders?

Commencing proceedings

For final orders, you must pay the relevant fee and file:

1. Initiating Application.
2. Financial Statement (for financial cases only).
3. Certificate from a Family Dispute Resolution practitioner (for parenting cases only, unless one of the exceptions applies).
4. Notice of child abuse, family violence or risk (for parenting cases only).
5. Genuine Steps Certificate.
6. A Questionnaire – Parenting and/or a Questionnaire – Financial (depending on the orders sought).

With interlocutory orders, you must file:

1. Initiating Application for new proceedings, or if proceedings have commenced file an Application in a Proceeding.
2. Affidavit in support of the orders you are seeking addressing the relevant matters.

For consent orders you must pay the relevant fee and file:

1. Application for Consent Orders.
2. Notice of child abuse, family violence or risk (for parenting orders).
3. Terms of the proposed Consent Orders.

The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 may require you to meet additional requirements if seeking consent orders.

Please note that you do not need to file an Initiating Application if you are seeking Consent Orders.

Fees

Paying a fee is required to apply for most types of Federal Circuit and Family Court applications. The registry cannot accept your application without this payment. It is worth mentioning, that there may be reduced fees if you have certain government cards (concession card or a pensioner card). Similarly, if you can demonstrate financial hardship, a reduced fee may apply.

As at 1 May 2022 the following fees apply when you file in the Federal Circuit and Family Court of Australia:

An Application for divorce         $940

Application for consent orders       $170

Initiating Application (Parenting OR Financial, Final only)       $365

Response to initiating application (Final) $365

Initiating application (Parenting AND Financial, Final only)     $595

What if the other side has started the case first?

If you have been served with an application filed by someone else, you still can and should apply for orders. You do so by filling out and filing a ‘Response To initiating Application’. The Response should set out the orders you would like the court to make and those orders of the applicant with which you agree.

At the end of the day, it does not matter whether you are an Applicant or a Respondent. Once you have filed this document, you are in the same position as the other party. Indeed, you are not at any disadvantage just because the other party started the case first.

Where do you apply?

The Federal Circuit and Family Court of Australia is the proper court to deal with the vast majority of family matters. In rare cases, you can file your application with the Local Court or Supreme Court, but we would suggest to always start with the Federal Circuit and Family Court.

The Court has 2 Divisions.

All matters start in Division 2 of the Court.

The Court’s Division 1 deals with more complex matters as well as appeals.

If the judicial registrar who initially reviews your case may consider that your matter is better suited to be dealt with by Division 1. They then can transfer the proceedings. This can be done on application by a party, or on the Court’s own initiative at any stage of the proceedings.

All applications (with rare exceptions) must be eFiled via the Commonwealth Court Portal at www.comcourts.gov.au.

Legal advice

This page provides general information only and is not provided as legal advice. If you have a legal issue, you should contact a lawyer before making a decision about what to do or making a Family Court application.

How can we help you?

At Consort Family Law we specialise in the area of family law. Our family law solicitors provide tailored service suitable in your particular circumstances. We have assisted many couples to avoid court disputes and settled their issues by means of a properly done agreements and consent orders.

Please call our confidential enquiry line on 02 8003 3013 to book a Free Initial Consultation or book it online 24 hours a day, 7 days a week.

We can help you.