There’s no getting around it. Family law litigation is a personally, intellectually and financially challenging experience for all parties, whether they are represented by a lawyer or not. But sometimes, it is simply necessary.
The difficulties are increased if you do not have a lawyer to represent you. Traditional family lawyers will conduct your negotiations with the other side, can advise you on what you might apply for in view of how the law would view yours and your family circumstances, prepare and file your documentation, and speak for you in court.
If you are definitely going to court and can truly afford to have a full-service family lawyer, this is likely to have a positive effect on your legal outcomes.
If this is not an option for you, then you will be commencing in court as a self-represented litigant. Despite the difficulties, the family courts are full of self-represented litigants: depending on the stage of the case, between 30 and 50% of all the applicants for family court orders are self-represented.
Tribe Family Lawyers has designed its entire practice around the needs of people who engage directly with the family law system. This includes self-represented litigants, for whose challenges we have the greatest respect. We provide a range of resources that will greatly assist a self-represented litigant. This Guide is one of them.
This is an introductory guide to the family law system and the early stages of family law litigation on property and parenting issue. It does not deal with the more specialised aspects of later stage litigation for the more entrenched disputes, including preparation for hearing. It is also not about going to court for a divorce.
See Tribe’s Guide to How to Get a Divorce for discussion about this.
The family court system
There seem to be two family courts. Which one do I apply to?
The family court system is in transition towards a more unified state but there are currently two-level family courts, the Family Court of Australia (FCA) and the Federal Circuit Court (FCC). Western Australia has its own separate Family Court of Western Australia.
You apply for consent orders in the FCA, but it is also court reserved for the more complex cases, such as the ones that involve child abuse.
If you have a parenting or property dispute, or to get a divorce, you must apply in the FCC. If the case is considered complex the court may transfer your case to the FCA.
Interim orders may be obtainable from the Local or Magistrates Court in regional areas, although quite often these matters are beyond the capacity of those much smaller courts. The FCC has a regional circuit. Check the FCC website for regional dates and locations.
How long does it take to get family court orders?
There are currently long delays in the family court system. Unless the matter is urgent, after filing your application, you will get an initial date for court that is within a few weeks. But this is an appearance rather than a hearing and no big decisions will be made. The court will explore the potential for resolving the case by agreement (called settling) first.
If you have applied for interim orders (temporary orders) and the case doesn’t settle, you may need to wait from 3 to 9 months for your interim hearing when the decision about your application for interim orders will be made.
Hearings on applications for final orders may not be set down until more than three years after the date of filing.
Fees in the family courts
There are fees for each type of process in the family court system. They range from $55 (for a subpoena) to $910 (for a divorce). There are daily fees for hearings.
Court fees are payable at the time that you are filing documents.
There are provisions for exemption from fees if you are a benefits recipient or otherwise experiencing hardship.
External service providers
The family law system encourages early, out-of-court resolution of family disputes. A wide range of community-based family law services are funded now to provide services that can help former partners come to agreement. These include charities (like Uniting, St Vincent de Paul and Anglicare) and relationships specialists (like Relationships Australia and Family Relationships Centres) who provide counselling and mediation services for property and parenting disputes. There are other specialist providers also, for specific types of client and problems (e.g. domestic violence, men’s issues, LGBT, culturally diverse).
These services may continue to be of great value in assisting you to reach settlement even after a court case is commenced. Speak to your local community legal centre, Family Relationship Centre or call the Family Relationships Advice Line for referral to a service in your area. The vast majority of case commenced in the family courts are settled relatively soon after commencement.
Australian family law
The Family Law Act (Commonwealth)
The Family Law Act 1975 is the centrepiece of Australian family law. It is a federal law that is exercised by a number of different courts, including the FCA, the FCC, the Western Australian Family Court, and local and magistrates courts when they are doing family law work. It applies in all Australian States and Territories. (In Western Australia, however, it is applied in relation to married or previously married parties only).
For the last decade, the work of Australian family law has been divided between two courts, the Family Court of Australia and the Federal Circuit Court. Those courts are currently poised to merge.
The Family Court Act 1997 (Western Australia)
Western Australia has its own family law system, integrating family law, domestic violence and other areas of family concern.
Court rules and procedure
There are separate sets of rules about court procedure. Until the merger of the court actually happens, there are two principal sets:
The Family Law Rules 2004 details practice, procedure and evidence in a case before the FCA.
The Federal Circuit Court Rules 2001, set out the rules of procedure and forms for the FCC.
The Australian child support scheme is not part of the family law system and is not administered by the family law courts.
The Child Support (Assessment) Act 1989 deals with eligibility to receive, and liability to pay, child support.
The Child Support (Registration and Collection) Act 1988 addresses registration requirements for paying maintenance of various types, including child support, and the means by which the Department of Human Services can enforce payment.
Law is made by parliaments in the form of legislation (called black-letter law), but it is also made by judges in the courts. This judge-made law is referred to as case law or the common law.
A court hearing a case is generally bound to apply the existing case law (that is, the judge-made law from previous similar cases), unless there are special difficulties encountered in applying it to the facts of the new case. The court reinterprets the relevant legislation, and then updates or clarifies the existing case law, to explain its decision in the new case. This is how the common law changes.
The common law is contained in the reported judgments of major cases.
Summaries of common law are published in looseleaf publications, online (for example, at AustLII) and in legal textbooks.
It may be useful to see how the courts are applying the black-letter law in the latest cases, especially in those similar to your own. Particularly if your dispute goes to court, and you are self-represented, you should spend some time before a hearing reviewing the major cases dealing with the issues in dispute in your case. A librarian could help you with this.
Stages of a family court case
Stage 1: Before starting a case
Parties are required by law to demonstrate ‘a genuine effort to resolve the dispute before starting a case’. This requirement is expressed in mandatory pre-action procedures.
In a parenting case, the requirement is to participate in family dispute resolution processes (although exemptions from the requirement are available).
In a property case, the requirement is for full disclosure of property and financial circumstances and genuine effort in negotiation.
It may be necessary to demonstrate to the court that you have undertaken these processes before your application to commence a case is accepted. For more details, see Chapter 6: Starting a Parenting Case and Chapter 7: Starting a Property Case.
Stage 2: Filing
Filing an application
If the dispute is not resolved in the pre-action stage, one party may start a case by making an Initiating Application to the family court. This is done by the process of filing. All filing is now done electronically through the Commonwealth Courts portal (Comcourts). You will need to register with Comcourts to use this facility. Once you start a case in Comcourts, the electronic file created there becomes the court file for your case. You can upload and download documents from it. You file documents in court by uploading them to Comcourts.
Filing a response
If you have been served with an Initiating Application by the other party, you will usually have the opportunity to file a Response. You do this also by registering and uploading through Comcourts.
Do I have to file a Response to a family court application?
No. But if you don’t, it is more than possible that the court will grant every order the applicant has applied for. The court will only hear one side of the story.
If you are prepared to accept the decision of the court without making a Response, and you don’t want to agree to Consent Orders to settle the case, and yet still want to be advised of the stages and outcomes of the case, you can indicate this and at the same time place your address on the court record, by filing a Submitting Notice.
Your Initiating Application or your Response will request that the court make orders about the disputed issues which are legally enforceable. You must tell the court exactly what orders you seek in your Initiating Application or Response.
You may apply for final and also for interim (temporary, holding or procedural orders). Final orders are decided in a trial at the end of a case. Interim orders apply only until the final orders are made. They are made at a hearing earlier in the case. Because of the long court lists, many trials don’t take place for three years or more from the date of filing, and most case settle before this date is reached. For this reason, you will almost certainly wish to apply for interim orders.
In addition to the orders you seek in your application and response and perhaps on other occasions throughout your case, the court can and usually will make other procedural orders at every appearance you make at court. You should make your best efforts to comply with any of the orders made by a judicial officer at any point in your case. If you are not sure about what was ordered on a given date (and sometimes it can be hard to understand or remember what the judicial officer says) you should be able all the orders that are made in your Comcourts file.
Except in the special case of an application to the FCA, you will be required also to submit your initial evidence, in support of your Application or Response, in the form of an affidavit. An affidavit is a detailed, sworn or affirmed document that sets out the ‘story’ of the issues in dispute between the parties. This must be put in a form that may be accepted by the court as evidence.
When you take a case to court, you bring objective reasons for the court to make the orders that you have applied for. These reasons must be in terms of the current written law, not just what is clearly ‘right’ (to you at least) in the given circumstances.
This means being able to prove facts by presenting admissible evidence of facts relevant to the legal issues at the core of your case.
Tribe has design a range of Legal Service Products, for both property and parenting disputes, to assist self-represented litigants to prepare an Initiating Application or Response, to prepare ‘orders sought’, to prepare an affidavit or the whole package of documents. See also our article How to prepare a family court affidavit.
How do I serve family court documents?
After you successfully file your documents in Comcourts, you will be able to download a copy of the filed document that has the court stamp on it. The stamp shows the name of the court and the date that the document was filed.
It is very important, then, that you serve the documents in accordance with the court rules using the stamped version of the documents. Almost all family law documents filed in court must be served on the other party
Service is the process of formally delivering filed and stamped court documents to another party in accordance with court rules.
Service is the responsibility of the filing party, not the court. You should arrange to serve your court documents as soon as possible after you file.
Both the applicant and the respondent must serve all of their filed documents on the other party.
There are several ways of serving documents and different requirements under the rules for serving particular documents. For most court documents, simply sending the documents in the mail to the other party is not sufficient. Frequently too, parties forget that they need to serve the version of the documents with the court stamp, not their original.
It is likely to be worth roughly $100 to have a professional process server manage the process of serving your documents in accordance with the law. This is usually money well spent. Problems with service may add significantly to the delays you will experience in any case in the family law system.
Alternatively, follow the instructions in the Family Court’s do-it-yourself ‘Service Kit’ very carefully.
Your case will not proceed until proper service of the documents is proved.
Stage 3: Initial court events
The focus of the court’s efforts in the period after filing is to attempt to resolve the dispute through court-managed investigation of the case. The first appearance in court, usually scheduled within weeks of the filing of an application, is a procedural hearing. At this event the judicial officer, usually a Registrar, on the bench will try to:
- clarify the disputed issues between the parties
- assign steps and dates for the various further mediation, investigatory and procedural events
- investigate the prospects for resolving the dispute (by speaking directly with the parties)
The registrar is likely to make procedural orders about the action that various parties should take. It is mandatory that you comply with these orders.
This court-managed investigatory and dispute resolution phase is likely to last many months if not years. In the course of it, there may be a hearing scheduled to make a decision about the application for interim orders. An interim hearing is a mini-trial and follows the same basic procedure as the final trial.
The law and the rules of court that apply for an interim hearing is likely to be different however.
Stage 4: Final decision-making
If family dispute resolution fails, and the case is not otherwise resolved, parties begin to prepare for trial. The focus shifts away from efforts to resolve the case without a judicial decision and towards collection, discovery and disclosure of the evidence needed for the court to make an independent decision. This stage, and the case, is completed when judgment is given on the final orders sought at the final trial.
Present case lists in some courts show that final trial dates are more than three years from the date of filing. There is a lot of ‘cost –in dollar terms certainly, but also in mental health, in relationship capital and damage to children—that is accrued in the continuation of a family law dispute over this period. Settle early if you possibly can.
Early days at court
This chapter provides an overview of the scenario for early family court events in the pre-pandemic times. Since the imposition of social distancing, there has been significant adjustments to procedure in the courts to minimise the need for physical attendance.
Please consider the material in this chapter in the light of these temporary arrangements. We hope that the capacity for physical attendance will return in soon-to-be post-pandemic times
What is the first day at family court about?
Your first appearance in family court establishes the scene of your case for the court. Your appearance will be brief. The court will be trying to identify and if possible, narrow, the legal issues in dispute in your case. The judicial officer will ask you both questions to determine whether there is any scope for movement by either of you and may be pointed about potential weaknesses in one or both of your positions. They may suggest that you both think about a particular arrangement to settle the matter. You should think carefully about these comments: it may be the writing on the wall for the eventual result of the case.
It is likely that there will be procedural orders made for further investigation of the case (seeing a family consultant, providing further disclosure of documents, more mediation).
How to prepare for the first day at family court
If you have a court date, you have documents, most probably from the other side as well. Consider carefully your own and the other party’s orders sought. What is the middle ground? Unless one party is completely off-base in terms of the applicable law, this is where the court will be looking. Think again about what you would be prepared to accept (for the sake of the children, to get out of the litigation, and then on with your life as soon as possible).
Negotiation on the day
It is likely that you will be in and out of the courtroom several times in the course of the first day. In the meantime, you will be invited to have discussions with the other party to try to work out a way forward. The court will be pleased if you are able to come to any sort of agreement, even if it is only about next-steps or about temporary arrangements for parenting until the next court appearance.
Concerns about safety at court
If you have any concerns about your safety at court, approach and tell any court official. They are trained to respond helpfully. There are safe facilities available at court. You will not miss out on being called if you use them.
What happens when a party doesn’t show up in court?
Sometimes a party knows about a hearing but doesn’t appear in court on the appointed day.
Sometimes neither party turns up. If this happens, the court has a number of options, depending on the facts of the case as revealed in the filed documents. It may decide to dismiss or it may decide to adjourn the case. But it also may decide to make such orders as it sees fit in the circumstances (in the best interests of children, for example).
If only the applicant turns up initially, it is possible that there will be an adjournment to permit time for the respondent to engage. Onward from the second court date, however, and if the respondent is still not present and has not filed a response, the case will be set down for hearing. Interim and eventually final orders will be made in a hearing in the absence of the respondent (called an ex parte hearing). These are likely to be more or less what the applicant has asked for. If you haven’t put an address on the court record, there may be no advice given to you about what these are.
Best to turn up, even if you have not managed to file a Response in time or at all. The court will likely give you some leeway to start and some direction about how to get support to prepare your Response.
Starting a parenting case
If you’re going to court on a parenting matter, you should have at least a basic idea of the legal principles the court will apply in deciding your case. A good appreciation should substantially affect:
- how you set and negotiate your position in negotiations, both before and after you start in court
- how you draft the orders sought in your Initiating Application or Response
- the content of your affidavit evidence
- how you present your arguments to the judicial officer in your earliest days in court
- whether, when and how you agree to settle the case
This Chapter outlines both the process and the basic legal principles relating to applications for parenting orders in the family court.
Should I go to family court?
Going to court about parenting arrangements should be the option of last resort for most parents. Family law litigation is emotionally taxing, time-consuming and expensive. It can take more than three years to reach a final hearing. The court ordered result might not ‘get it right’ (at least from your point of view). Notwithstanding your best efforts, the children will suffer by being exposed, even if only obliquely through the stress of the parents, to long-term and continuous legal disputing. And afterwards, the relationship capital may be so depleted that a pattern of disputing that might otherwise have healed over a couple of years of separation (like most couples’ do) may be permanently embedded between the parties.
Sometimes, however, litigation is unavoidable. The other party may be refusing to negotiate or attend mediation. Your mediation might have failed. Your children might be at risk. It might be dangerous for you to negotiate or attend mediation. Or the other party might be entirely disregarding the terms of your current form of agreement.
Or the other party might simply have started the case first.
This chapter addresses some of the specific issues to consider in taking a parenting matter to court.
Who can apply for parenting orders?
A parenting order may be applied for the child’s parents, the child, or any other person concerned with the care, welfare and development of the child (including the child’s grandparents and even the child).
Step-parents and other non-parent carers may also apply.
What do I need to do before going to court?
If parenting arrangements cannot be successfully negotiated either privately between you, or in family dispute resolution (FDR) processes, you can apply to the court for parenting orders about a wide range of issues. Although there are some exceptions, it is usually necessary to have a certificate that you have tried to mediate the dispute before you apply to the court. This is called a Section 60I certificate.
Mandatory pre-court action for parenting cases: Family dispute resolution
What is family dispute resolution?
Family dispute resolution is a form of mediation designed for the purposes of the resolving post-separation parenting disputes in the shadow of the Australian family law system. Engaging in family dispute resolution is now a pre-requisite for making most applications for parenting orders in court
The professionals involved in a family dispute resolution process are referred to as family dispute resolution practitioners (or FDRPs). FDRPs must have suitable qualifications, training and experience, and pursue certain practices, to be accredited in the family law system
What happens in family dispute resolution?
You will undertake an intake process, where the facts about the parents and the children are gathered. Then there is usually a pre-mediation session, where you meet with the nominated FDRP privately, and speak openly about what you want to achieve and identify the issues. They will likely ask you if you have received any legal advice on your position in relation to the issues and recommend that you obtain some if you have not already.
The first joint session for the parties takes place after the FDRP has met privately with both parties.
Usually first joint discussion takes place face-to-face between the parties, but depending on the circumstances and the service provider, the mediation can take place between two rooms (known as shuttle mediation), by video or by telephone. Specialist FDR models are developing all the time, including to support families where domestic violence has been an issue and where there are other special needs. You should raise any concerns with the FDRP about this in your pre-mediation session.
How long does mediation last?
A joint session might take anywhere between two and five hours, depending on the parties and the usual practice of the mediation service provider. Depending on the duration of the sessions and a whole range of factors around the issues and the parties, there might two to five sessions.
Where can I get mediation?
You can obtain good quality FDR services at all price points. There are publicly funded and subsidised services available from Family Relationship Centres, from Relationships Australia, Uniting Care, Legal Aid and many other community services in every state and territory.
There are also private mediators and FDRPs, who are often lawyers. The fees for these services are much greater than those for the publicly funded services, but are usually much less than for legal services, and often with a more sustainable result.
It is important to check that the FDRP is registered and able to provide certificates about the outcome of the mediation.
When is mediation a bad idea?
If there is a history of family violence, including in its forms as emotional and financial abuse, the power imbalance between the parents may be too strong to permit the meeting of minds that genuine agreement represents. There might be settlement—but it may be that one party is simply giving in (or giving up). Sometimes, also, one party is much more interested in coming to agreement than the other, and so does not negotiate in good faith. In other cases, the parties might discover that the technical, legal or financial issues in the case are beyond the expertise of the mediator.
If any of these circumstances applies, stop mediating immediately.
What are Family Relationship Centres?
Family Relationship Centres (FRCs) were established by the Commonwealth Government in 65 locations around Australia in 2006. They were set up as a one-stop shop to provide information and support for couples experiencing relationship breakdown.
FRCs provide information about family relationship issues and provide referrals to specialist community services. They run group programs on parenting after separation and early intervention services that may help to prevent relationships from breaking down.
FRCs undertake family dispute resolution for both parties in relation to parenting arrangements, and for any property or financial matters.
It is not compulsory for couples to attend an FRC when they separate.
FRCs provide individual advice free of charge. Three hours of joint dispute resolution sessions are provided free of charge. If more joint sessions are needed, parties can continue at the FRC, or be referred to another service, on a fee-paying basis (though fees may be waived in certain circumstances).
What is a section 60I certificate?
If parenting arrangements cannot be successfully negotiated either privately between you or in FDR, you will be permitted to apply to the court for parenting orders about a wide range of issues. Although exceptions and exemptions apply, including in the case of domestic violence, it is usually necessary to have a certificate from a registered FDR practitioner that you have tried to mediate the dispute in FDR before you apply for parenting orders in court. This is called a Section 60I certificate
What if the other parent refuses to go to family dispute resolution?
It is clear you can’t mediate a dispute without two people. But even if you know that the other parent will not be interested, unless one of the exceptions or exemptions applies, you must make a formal attempt at family dispute resolution before you can take the dispute to court. After your initial approach to the service, the FDRP will invite participation by your former partner. If they refuse to engage, the practitioner will give you a certificate that states this. You will then be able to file an application for parenting orders in court if you wish.
How do I start a parenting case in the family court?
To bring a parenting dispute to the family courts you will need to make an application for final orders on an Initiating Application.
As we discussed earlier in this Guide, you must submit the necessary documents to the court by electronically filing (e-filing) them at Comcourts.
If you are in agreement with the other parent, do not use this method. If you want to get the courts authority in the form of orders for your agreement, you should apply to the Family Court for consent orders. See Tribe’s Guide to Parenting Agreements for more detail about how to do this.
What documents do I need to file in a parenting case?
Depending on the facts in your case, you may need to file:
- An Initiating Application for final and perhaps also interim (temporary) orders. You will need to state exactly what these are in the orders sought section of the Application.
- An affidavit setting out your evidence for why the orders you have asked for are in the child’s best interests.
- A Section 60I certificate from a family dispute resolution practitioner OR if you are claiming that one of the exceptions applies, an ‘Affidavit – Non-Filing of Family Dispute Resolution Certificate’
- a notice of risk (if relevant)
- current family violence orders (if any)
- possibly the children’s birth certificates and your marriage and divorce certificates, if requested
American TV, ‘wrong’ and ‘right’ words
The words ‘custody’ and ‘access’ and even ‘contact’ have not been part of Australian family law since the 1990s. The idea for the change is that these words suggest that a child is a thing that might be possessed, ‘accessed’ or even touched. There were concerns too that the words were inappropriately attached as labels for parents.
And yet, the terms persist in current ordinary usage, especially ‘custody’. Its use in the US media has a lot to do with this.
Instead, in contemporary Australia family law, we talk about parental responsibility, about where the child lives and about arrangements for each parent to spend time and communicate with a children. No one has ‘custody’. No one is labelled an ‘access parent’ or a ‘residence parent’. The use of primary carer is still pretty common, even at court, though this does not come from the black-letter family law.
It is a very good idea to try to use the correct and contemporary Australian terms when you are drafting documents to put into court. It shows that you have a grasp of, and concern for the principles of Australian family law (and that you may have even read some!)
Orders for parental responsibility
Parental responsibility is the duty and power to make decisions about both the big and the small issues involved in the care, welfare and development of a child. (For more information about parental responsibility, see Tribe’s Guide to Parenting Agreements.
Parental responsibility can be lost by the court making an order for sole parental responsibility in favour of one person only. This usually happens in circumstances of family violence, or child abuse, or where a biological parent is long-gone. Sadly, the loss of parental responsibility is ordered reasonably frequently.
Parental responsibility can also be gained by a person who is not a biological or adoptive parent, by applying for a parental responsibility order from the court. There are many children in the care of people—such as grandparents or step-parents–who do not have natural parental responsibility. Their capacity to make important decisions for a child-like applying for a passport or even writing a permission note for a child–will be very difficult unless they obtain an order granting them parental responsibility.
What is (and isn’t) equal shared parental responsibility?
When a court is considering a parenting case, it must apply a presumption that it is in a child’s best interests for the parents to have equal, shared parental responsibility. It is possible, also, for a court to make an order for equal, shared parental responsibility. If the court makes that order, this will have serious repercussions on how much time a child spends with each parent.
But there is huge misunderstanding about this principle. Apart from the plain fact that the vast majority of separated parents don’t have any sort of orders from a family court (and so the presumption doesn’t apply), there is a misconception that the presumption of equal, shared parental responsibility is the same as a presumption of equal, shared care (or ‘50/50 care’).
This is simply not true. There is no presumption for 50/50 arrangements, or even for shared care more generally, for parents under Australian law.
The main consideration in the law about any arrangements for a child, including the amount of time the child spends with each parent is about what is in their best interests. (Keep reading for more detail about a child’s best interests in this Guide.)
What is an order for equal shared parental responsibility?
Unless there is evidence of child abuse or family violence, the starting point for a court in making decisions about parenting is that it is in a child’s best interests for the parents to have equal, shared parental responsibility.
This means that it must consider making an order for equal, shared parental responsibility, in addition to (or instead of) the orders applied for, unless there is evidence before it that this would not be in the child’s best interests.
An order for equal, shared parental responsibility requires the parties to consult and make decisions jointly on all major long-term issues. These are issues like health care, schooling, the child’s name and their passport.
Taken alone, the making of this order does not mean that a child must spend equal time with both parents. But if the court does decide to make the order, it is bound then to consider whether an order for equal time or for substantial and significant time (to both parents) should also be made.
A takeaway here: if you don’t want an order for equal, shared parental responsibility, with possible ramifications in terms of equal time, think twice about starting a family law case.
Orders about a ‘slice’ of parental responsibility
The court may also make an order allocating parental responsibility for a specific aspect of a child’s life. This may be a major, long-term issue or not.
The ‘best interests of the child’
What is the ‘best interests’ test?
The best interests test is used within Australian family law for deciding what parenting arrangements should apply.
Though the best interests test applies in court proceedings, rather than for parents on a day-to-day basis, parents can be held responsible for not acting in their children’s best interest, if they end up in a court.
This is quite apart from the fact that parents clearly should act in the best interests of their children. This might seem like an obvious statement, but perhaps surprisingly, it may not be the case. Parents sometimes become blinded to their children’s needs by their own.
How are the best interests of a child decided?
You might think the notion of the best interests of your children might be reasonably straightforward. But the family court has taken a specific view on how to decide this.
The factors that the family court will use to decide the best interests of a child are divided into primary and additional considerations. Any facts or evidence that weigh into the primary considerations will be given more weight in the judge’s decision-making than facts or evidence that relate to one or more of the secondary best interests considerations.
What are the primary best interests considerations?
The benefit of a meaningful relationship with not just one, but with both parents
Protecting a child from harm.
Since changes to the law in 2012, if there is any conflict between these considerations (e.g. if the child having a relationship with both parents might lead to harm for the child), then the harm consideration will be given more weight.
What are the secondary best interests considerations?
Depending on the circumstances of the case, a court might consider:
- The views of the child
- The child’s age
- Relationships with parents, grandparents and others, like siblings
- Demonstrated willingness to be a responsible parent
- The status quo parenting arrangements
- The difficulty and expense of a parent spending time with a child
- The capacity of the parent
- Characteristics of the child and parents
- Aboriginal or Torres Strait Islander background
- Parental attitude to parenting responsibilities
- Family violence and family violence orders
- The likelihood of finality of the arrangements
- Any other relevant facts
How to change parenting orders?
Children’s needs change over time and so do parents’ circumstances. What seems logical in 2020 may be completely unworkable by 2025. Contemporary sets of court orders usually contain provisions for parenting arrangements changing as children get older. But it is truly impossible to foresee all developments.
If parents can agree on the need to vary court orders, they can apply for the varied orders by consent. Consent orders are legally enforceable and not very difficult to obtain.
But if you are not so concerned about enforceability, and all you both want to do is to establish new arrangements without being in breach of previous court orders, the easier method is to enter into a parenting plan that explicitly varies your orders. The Family Law Act makes express provision for a properly prepared and executed parenting plan to vary formal orders.
If the parties don’t agree about the variation, it is open to the parent who wants the change to apply to the court to change its earlier orders. But this won’t be an easy task if ‘final’ orders have already been made.
The court will only grant a change to earlier final orders (including consent orders) if there are substantially changed circumstances. This is called the ‘Rice and Asplund principle’ after a case of the same name.
What is a family consultant?
One of the earliest orders of the court may be to appoint a family consultant to the case. A family consultant is an officer of the court with special professional expertise in child and family psychology who assists and advises the parties and the court towards resolution in parenting cases.
A family consultant may be appointed to a case before, at or some stage after the first court appearance. They are often appointed to the more complex or high conflict cases. But it is open to all parties to apply to have a family consultant appointed. If the court does not appoint one and you think this would be a good idea, talk to the court registry about how to apply for one and what the conditions might be.
Family consultants have a powerful role in the management and outcome of a case. They conduct an independent investigation and assessment on the issues and make a report. The court is will need some persuading to make orders that are not consistent with the recommendations of a family consultant. It is crucial then to represent yourself and your case well in the interview processes with a family consultant.
You should be aware that anything you say to a family consultant may be appear in this report.
The family consultant is sworn-in to bring their report and other testimony into evidence at the final hearing in a child-related case.
It is mandatory for parties to make and attend appointments with a family consultant. Failure to attend is effectively a breach of a court order.
What is an independent children’s lawyer?
Another early appointment may be for an independent children’s lawyer. An independent children’s lawyer may be appointed by the court to ensure that the best interests of a child are represented during court proceedings.
Best interests representation is not the same as the direct representation that a lawyer provides to an adult. For example, an independent children’s lawyer may make submissions to the court that are against the child’s wishes.
Once an independent children’s lawyer is appointed, there is effectively a third party–the child–in the case. All documents that are served or disclosed to the original parties must be served or disclosed to the independent children’s lawyer. The independent children’s lawyer should be involved in settlement discussions.
When will an independent children’s lawyer will be appointed?
The independent children’s lawyer is almost always a Legal Aid lawyer, or a private lawyer organised through the legal aid system. They are usually appointed on the court’s own initiative but the child, a parent, or any other person can apply for one to be appointed.
They are usually appointed in the more serious, high-conflict or cases of other types of complexity including where there are allegations of child abuse, and where there are significant medical, psychiatric or psychological issues in play.
What does an independent children’s lawyer do?
The task of an independent children’s lawyer is to form a view from available evidence as to what is in the child’s best interests, and act accordingly. This may include:
- investigates the child’s circumstances
- arranging for independent evidence to be compiled
- bring the views of the child to court
- consider the family consultant’s report
- making recommendations minimise psychological damage to the child suffers
- work to reach agreement with the other parties that is in the child’s best interests
Contravention of parenting orders
What is contravention?
Contravention is the legal term for breach of a family court order.
There are two types of contravention of a parenting order:
- where a person has failed to comply with the explicit terms of the order (for example, returning children on Tuesday rather than the Sunday as specified)
- by preventing another person from performing actions covered by an order (for example, preventing a child from going with a parent as specified in an order)
What are reasonable excuses for contravention?
Contravention occurs if a person intentionally fails, or does not make a reasonable attempt, to comply with the order. The scope for an excusable breach is quite wide.
A person will have a reasonable excuse for contravening a parenting order if they didn’t understand it, or if they reasonably believed that their action was necessary to protect the health or safety (including the psychological health and safety) of the child.
What can you do about a contravention?
There is a specific set of mechanisms, under the Family law Act, to apply for punishment of a person who has breached a family court order. These are categorised according to the seriousness of the breach.
But if what you are interested in is change in the other parent’s behaviour, rather than punishing them, it may be easier, quicker and overall, more effective, to apply for additional or varied parenting orders.
In any case, you will be required to attend in FDR to attempt to mediate the dispute.
What is a recovery order?
If a child is taken from the care of a primary carer by another parent, the primary carer can apply for court orders to assist with the recovery of the child. Any person concerned about the welfare of a child can apply to the family courts for recovery orders. Recovery orders authorise the finding and return of a child to legal and appropriate care, using official enforcement if necessary.
When can you get a recovery order?
Recovery orders are a form of parenting order arising from circumstances of removal from legal or safe care arrangements. The court will consider the best interests of the child in all the circumstances about which it has evidence. This will include evidence from the removing parent, if they choose to engage in the legal process.
In all cases, negative impact on the welfare of the child, and the continuation of removal from the usual and appropriate care arrangements, are the usual and main criteria for obtaining a recovery order.
If a parent who is not the primary carer fails to return a child strictly in accordance with even court-authorised parenting arrangements, unless they continue to retain the child and the welfare of the child is at risk, the more appropriate approach may be an application for contravention of existing parenting orders, or an application for new or varied parenting orders of other types.
Continued refusal to return a child, or the disappearance of the child and the parent, suggests the necessity of immediate action for recovery.
What should I do if the other parent refuses to return my child?
Refusal to return to usual or legally authorised care arrangements is, unfortunately, quite common. This may be serious or it may not be.
- If the child is unsafe, contact the Police.
- If the child is not unsafe, the Police will not be able to assist you, even if you have court orders that state the child should be in your care.
- If you have contact details for the other parent, open discussions with them to determine their reasoning for withholding the child. Try to negotiate the reduction of their concerns. You might need to do this with the assistance of friends and family.
- If negotiation fails, and the removal continues, you may apply for recovery orders. If you already have parenting orders, and there is no risk to the child, you might consider making a contravention application instead.
- If you cannot make contact with the other parent, and you don’t know where your child is, you should consider applying for urgent location and recovery orders.
What is a location order?
A location order issued by a family court authorises a Commonwealth department or agency (like Centrelink), to give the court information about a child’s location, notwithstanding the usual rules about privacy. It is often applied for alongside a recovery order, when a parent has taken a child from their usual home and the primary carer has no knowledge of that parent’s or the child’s whereabouts. If the child’s location can be determined, the recovery order can be enforced.
Starting a property case
This Chapter provides a basic outline of process and legal principles applicable to starting a case in the Federal Circuit Court for property settlement orders. For detailed discussion about how a property settlement is assessed in court see Tribe’s Guide to How to make a Property Settlement.
Remember the deadline!
Be very clear. In the usual case, for married or previously married couples, you can apply for property settlement orders within 12 months after the date of a divorce. De facto parties must apply within 2 years after the date of separation.
The court has the power to grant parties permission to file an application for a property settlement out-of-time: that is, after the deadline. To allow this, the court must be satisfied that hardship would be caused to the party or a child of the relationship if leave is not granted. To successfully start a property settlement application out-of-time, then, you will need to provide a reason for your delay, and further demonstrate how hardship is caused if permission to start is not granted.
Family law disclosure obligations
What is disclosure?
Western civil law systems make disclosure one of their fundamental principles. In fact, disclosure is what makes civil litigation even remotely fair—it is all about building a level playing field.
The disclosure principle is that each party has a duty to make all material relevant to the case available to the other. Both can then draw from a common pool of information to put their best case before the court.
The duty of disclosure applies on a continual update basis – that is, from the time pre-application procedures start to the end of the case. If something relevant changes, or new information becomes available to you, you have a duty to disclose it as soon as possible.
Parties in a property settlement case are required to provide full and frank disclosure of their financial affairs, whatever this may mean in the particular case.
The list of material to be disclosed in a financial case in the family courts includes, but is not limited to:
- earnings and other financial resources
- property interests in property
- income earned or property held by a legal entity (such as a company or business) owned or controlled by a party
- trusts in which a party has a significant role
- sale or disposal of property, or use of funds, since separation and 12 months before separation and
- debts and continuing liabilities.
The general duty to disclose exists from the beginning of a case to its end, but there are specific requirements at particular times. These are each discussed below.
Disclosure in the pre-application period
In all Family Court cases, and all financial cases in the Federal Circuit Court, parties are required to make full and frank disclosure, as soon as a dispute becomes apparent, by disclosing and exchanging at least a schedule of assets and liabilities, a list of the relevant documents they possess, and a copy of any document on the list that the other party requires.
When filing the Initiating Application and Response
In financial cases, parties are required to file a Financial Statement, in the approved form, with their Initiating Application and Response. If your circumstances then change significantly in the case, you must file (and serve) an amended Financial Statement, or an affidavit describing the change, within 21 days of the change.
Around the first court date
According to the court rules, within 14 day after filing each party must serve on the other party the following documents:
(a) copies of the party’s j most recent taxation returns;
(b) copies of the party’s three most recent taxation assessments;
(c) if the party is a member of a superannuation plan:
(i) if not already filed or exchanged–the completed superannuation information form for any superannuation interest of the party; and
(ii) for a self-managed superannuation fund–the trust deed and copies of the three most recent financial statements for the fund;
(d) if the party has an Australian Business Number, copies of the last 4 business activity statements lodged;
(e) if there is a partnership, trust or company (except a public company) in which the party has an interest, copies of the three most recent financial statements and the last four business activity statements lodged by the partnership, trust or company.
Consequences of non-disclosure
To counter the temptation to hide evidence of financial resources or other relevant information there are heavy penalties for failure to meet disclosure requirements in a family law case. These include:
- dismissal of the case
- an order for legal costs against the offending party
- fines and imprisonment
- the possibility of a more generous property settlement order for the party disadvantaged by the non-disclosure
When disclosure may not be required
You will not be required to disclose a document if you can claim protection for it under the doctrine of legal privilege.
How do I start a property settlement case?
Making an application for property settlement orders
Applications for property settlement orders should be made on an Initiating Application.
In the Federal Circuit Court, the applicant may file either a Financial Statement or an affidavit with full details of the party’s financial position with their initiating application. See the courts’ DIY Financial Statement Kit for further information.
Responding to an application for property orders
A respondent to an application for property orders must also file a Financial Statement and/or affidavit of financial circumstances with their Response.
You can discuss Talk to Tribe about making an application or response in relation to a property case.
First court date
The first court date of a property case in the Federal Circuit Court, after documents have been filed, is a form of case assessment. The judicial officer, likely a Registrar, will review the status of the documentation and attempt to assist the parties towards resolution by conducting a short, strong version of mediation from the bench. They may deliver frank assessments of the apparent strengths and weaknesses of one or both parties’ cases. There are likely to be procedural orders about next-steps for all parties and in court.
All parties to a case in the family court should familiarise themselves with the relevant law. In the case of a property settlement, the most important provisions are at sections 79(4) and 75(2) of the Family Law Act, for married parties, and sections 90SM(4) and 90SF(3) for former de factos.
See also Tribe’s Guide to How to make a Property Settlement where we outline and explain the court’s Four Step Process to property settlement decision-making.
Then each party to a new property settlement case should take time review their own and the other party’s filed and disclosed documentation, before attending on the first court date.
Applying for spousal maintenance
What is spousal maintenance?
The Family Law Act states that one former partner is liable to maintain the other, after separation, to the extent that the first party can reasonably do so but only if the other party is unable to reasonably support themselves.
This applies for former married partners and also for de factos.
Spousal maintenance payable only for a set period after separation, although it can be ordered for an indefinite time. It depends on the circumstances of the parties
Spousal maintenance is different to child support or adult child maintenance, which is specifically financial support for children.
- The other party has the capacity to provide that support; and
- It would be proper in all the circumstances that the support be provided.
How is spousal maintenance paid?
The usual method is by regular payments commencing from the time of separation. These might be cash payments, or payment of expenses like mortgage payments, rates, utilities, health care and other household expenses.
You can also receive spousal maintenance as a lump sum cash payment as part of your property settlement.
How do I apply for spousal maintenance?
You can apply for spousal maintenance orders either as part of your application for a property settlement or separately, on an Initiating Application.
You can also make a private agreement that spousal maintenance should be paid. This agreement will not be legally enforceable unless it is put into court in the form of consent orders or a binding financial agreement is made.
How does the court assess an application for spousal maintenance?
The court is concerned about the twin factors need and ability to pay. Both need to be present to provide the basis for spousal maintenance orders. But the needy party does not have to be near-destitute to succeed. The relevant factors include not only the care of children, but also age, health and capacity for employment and importantly, a standard of living that is reasonable within the context of the family.
Talk to Tribe about how to make an agreement or application for spousal maintenance.
Tribe has a range of Legal Service Products, for both property and parenting disputes, to assist self-represented litigants to consider issues around going to court, to prepare an Initiating Application or Response, to prepare ‘orders sought’, to prepare an affidavit or the whole package of documents.