The Federal Circuit and Family Court of Australia (the FCFCOA) is the principal court dealing with family law matters in Australia in all states and territories except in Western Australia.   FCFCOA\ Western Australia has its own separate Family Court of Western Australia.

Interim (temporary) family law orders may be obtainable from the Local or Magistrates Court in regional areas, although quite often even these matters are beyond the capacity of those much smaller courts. The FCFCOA has a regional circuit. Check the FCFCOA website for regional dates and locations.

There are still significant delays in many parts of the family court system. But 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 (this is 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 6 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 one or more years after the date of filing.

There are fees for each type of process in the family court system.  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.

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 UnitingCare, St Vincent de Paul, Anglicare and CatholicCare) 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, LGBTIQ, culturally diverse).

These services may continue to be of great value in assisting you to reach settlement even after a court case has 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 cases commenced in the family courts are settled relatively soon after commencement.

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 FCFCOA, 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).

Western Australia has its own family law system, integrating family law, domestic violence and other areas of family concern.

There are separate sets of rules about court procedure:

The Federal Circuit and Family Court of Australia (Family Law) Rules 2021,

details practice, procedure and evidence in a case before the FCFCOA.

Additionally, as a self-represented litigant, you will need to have a grasp of the Practice Directions that apply to your particular type of case, as well as the Central Practice Directions.  Find all the current Practice Directions for the FCFCOA here.

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 (sometimes 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.

Mediation, sometimes referred to as family dispute resolution, is designed to resolve parenting and property disputes.  Engaging in family dispute resolution is now a pre-requisite for making most applications for parenting and property 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.

You will undertake an intake process, where the facts about the family, couple and the dispute are gathered. Then there is usually a pre-mediation session, where you meet with the nominated practitioner 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, the 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.

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 be two to five sessions.

You can obtain good quality mediation 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.

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.

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).

A ‘section 60I certificate’ tells the court about whether the parties attempted mediation and if they did, if it was not successful. In most cases, you cannot start a court case in a family court without a section 60I certificate.

It is clear you can’t mediate a dispute without two people. But even if you know that the other party will not be interested, unless one of the exceptions or exemptions applies, you must make a formal attempt at mediation before you can take the dispute to court. After your initial approach to a mediation service, the FDRP will invite participation by your former partner. If they refuse to engage, the practitioner will give you a section 60I certificate that states this. You will then be able to file an application for parenting orders in court if you wish.

If a mediation practitioner decides that mediation is not appropriate, for any reason, but in practice most often because of a history of domestic violence between the parties, they can provide a section 60I certificate that states this. The issue of this certificate is at the discretion of the mediator.

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 all cases now, both property and parenting case, there is a requirement to attempt to participate in a mediation or family dispute resolution process before starting a case in court (although exemptions from the requirement are available).

In a property case, additionally, there is a requirement is for full disclosure of property and financial circumstances.

It is also necessary, if you intend to start a case in court, that you make a genuine final offer to settle the dispute in writing. This is called a ‘notice of intention’. The requirement is present for both starting both property and parenting proceedings.

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.

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 FCFCOA. 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.

See this guide on how to register at the Comcourts portal.

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.

‘Orders sought’

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 years after the date of filing, and most cases 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 to see all the orders that are made in your Comcourts file.

Affidavit

Except in the special case of an application to the FCFCOA, 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 designed 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 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 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 not expensive at all 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 Court’s do-it-yourself ‘Service Kit’ very carefully.

Your case will not proceed until proper service of the documents is proved.

Click here for more details about serving divorce documents.

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 Judicial Registrar, who sits 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 judicial 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. 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.

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.

Almost all family court proceedings now take place online unless there are special circumstances in the case.

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 for the writing of a family report, providing further disclosure of documents, or more mediation).

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).

It is possible that you will be in and out of the court several times in the course of the first day. In the meantime, you may 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.

Sometimes a party knows about a court event but doesn’t appear 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.

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.

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 years to reach a final hearing. And even then, 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 indirectly through the stress and upset of the parents, to long-term and continuous legal disputing. And afterwards, the ‘relationship capital’ may be so downgraded 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 of harm. 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.

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.

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. They expire after 12 months.

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 court’s 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 details 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 child. No one has ‘custody’. No one is labelled an ‘access parent’ or a ‘residence parent’. The use of primary carer is still 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!)

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. Biological parents naturally share parental responsibility for a child.

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.

Joint or sole decision-making

The Family Law Amendment Act 2023 brought in major changes to the previous law that referred to parental responsibility. The correct terminology now, rather than ‘parental responsibility’, is ‘decision-making about long-term issues’.

What is a major long-term issue can differ from child to child. But, in general, decisions about education, religious and cultural upbringing, health, the child’s name and significant changes to the child’s living arrangements (such as relocation) would come into this category.  Parents are ‘encouraged’ under the new law to consult each other about major long‑term issues in view of the best interests of the child. But this is not enforceable.

What would be enforceable, however, is a court order for joint decision-making about major long-term issues, and the court still has the power to make this order and will likely exercise it regularly.

Orders about a ‘slice’ of parental responsibility

Quite often, however, disputes arise about only one or two major long-term issues, such as making decisions about health care or where a child will go to school. The court has power to make an order allocating decision-making authority about a specific issue to one or the other parent.

To access the court’s powers to make parenting orders in your favour, you should expressly apply for those orders in your Application or Response documents.

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 specific guidelines—often referred to as ‘the best interests considerations’–that it must use when assessing what the best interests of a particular child might be.

What are the best interests considerations?

In deciding what arrangements would be in the best interests of a child, the court will consider:

• what arrangements would promote the safety (including safety from being exposed to family violence) of the child and each person who has care of the child
• any views expressed by the child
• the developmental, psychological, emotional and cultural needs of the child
• the capacity of parents (or others with parental responsibility) to provide for the child’s developmental, psychological, emotional and cultural needs
• the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so
• any history of family violence, abuse or neglect involving the child or a person caring for the child and any family violence order that applies or has applied to the child or a member of the child’s family
• the child’s right to explore, enjoy and maintain connection with their Aboriginal or Torres Strait Islander culture, community, country and language, and
• anything else that is relevant to the particular circumstances of the child

Children’s needs change over time and so do parents’ circumstances. What seems logical and a choice in the best interests of a child in 2025 may be completely inappropriate by 2028. 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 significant and relevant changes in circumstances and the court is satisfied that it is now in the child’s best interests that the earlier order(s) should be changed.

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 of the issues and make a report. The court 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 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.

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.

The independent children’s lawyer is required to meet with the child and to provide them with an opportunity to express any views about the issues in the case, unless the child is under 5 or doesn’t want to have a meeting or to express their views.

When will an independent children’s lawyer 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
• speaking with the child
• 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

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, their own self. or any other person.

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 a 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, it will, in most cases, be necessary to attempt to resolve the dispute by mediation before starting a case in court.

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 FCFCOA 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 a serious threat, amounting to kidnapping. Or it may result from an intention to cause irritation or from misunderstanding .

• 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 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 the 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.

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.

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.

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 about financial matters, 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 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.

Making an application for property settlement orders

Applications for property settlement orders should be made on an Initiating Application.

In the FCFOA, 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.

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 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 to review their own and the other party’s filed and disclosed documentation, before attending on the first court date.

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. We can also help you to prepare an affidavit or the whole package of documents that required to be filed.