Family Law – filing in court

divorce

The types of family law orders you can seek

Federal Circuit Court of Australia (previously known as the Federal Magistrates Court)

Generally the Federal Circuit Court deals with less complex family law matters that are more likely to be settled or decided quickly. However, simply because you may not think that your matter is likely to settle quickly this is not an indication that you should instead file in the Family Court of Australia. We recommend you seek legal advice from one of our highly experienced family lawyers before proceeding.

If you are filing a contravention or enforcement application you are to file your application in the Federal Circuit Court. However if this application relates to orders made by the Family Court of Australia made less than 12 months ago, then you are permitted to file in the Family Court of Australia.

All divorce or child support applications must be filed in the Federal Circuit Court.

If you decide to file your matter in the Federal Circuit Court you must complete the following forms:

  • 1. Initiating Application (Family Law);
  • 2. Affidavit;
  • 3. Financial Statement (only if filing for property orders);
  • 4. Notice of Risk (only required if filing for parenting orders);
  • 5. Section 60I certificate from a Family Dispute Resolution practitioner (only if filing for parenting orders); or
  • 6. If you are seeking an exemption to family dispute resolution then you must file an Affidavit of Non-Filing of Family Dispute Resolution Certificate.

Family Court of Australia

Family Court of Australia

When deciding what court you need to file your family law matter in you must understand that the Family Court resources are reserved for more complex matters.

If you are seeking parenting orders your matter would be considered 'complex' if it involves any of the following:

  • • allegations of serious sexual abuse
  • • allegations of serious family violence
  • • mental health issues
  • • involvement with child welfare agencies
  • • international child abduction; or
  • • special medical procedures.
If you are property orders your matter would be considered 'complex' if it involves any of the following:

  • • if your matter involves multiple parties;
  • • valuation of corporate structures;
  • • if either party has an interest in a trust; or
  • • complicated issues regarding superannuation.
When filing your matter in the Family Court of Australia, regardless as to whether you are seeking final orders only or if you are seeking interim and final orders you must complete and file the same forms as are required for filing in the Federal Circuit Court.

However in the Family Court you are not required to file an affidavit at the time you initially file the matter in the court, although the court will ask you to file an affidavit at some point during your matter, particularly when the matter is approaching an interim or final hearing.

Should your matter already be in the Family Court and you are seeking to apply for interim orders you must file the following:
  • 1. Application in a Case; and
  • 2. Affidavit in support of the interim orders you are seeking.

If you and the other party have agreed to come to a settlement and have decided to file an Application for Consent Orders – this should be filed in the Family Court of Australia along with the signed Terms of Settlement (also known as 'Consent Orders' or 'Minutes of Consent') and an Annexure to Draft Consent Parenting Orders. These are all individual forms that can be found on the court website. Please note that if your matter does not fall within the above categories then you must file in the Federal Circuit Court.

Disclosure Obligations

In Family Law proceedings parties have what is called a 'duty of disclosure'. This means that parties are compelled to provide the Court and other parties with all information that may be relevant to their case. There are also duties of disclosure that exist in other circumstances – including when entering into Binding Financial Agreements. In fact, a failure to disclose is possibly one of the most common reasons for a Binding Financial Agreement to be set aside.

Under the Family Court Rules and the Federal Circuit Court Rules (these being the family law courts in Australia) parties to a property matter have a duty of full and frank disclosure. This can be through the disclosure of documents between parties, as well as through filing a Financial Statement.

Under the Family Law Rules r 13.04 and the Federal Circuit Court Rules r 24.03 – parties have a duty to disclose the following (this is not an exhaustive list);

    • Earnings;
    • Interest in property;
    • Interest in property owned by entity controlled by the party;
    • Income of entity controlled by the party;
    • Financial resources;
    • Any trust;
    • The disposal of any property; and
    • Liabilities
Parties can achieve this through the disclosure of documents, as well as the requisite Financial Statement. A Financial Statement (under r 13.05 of the Family Law Rules and r 24.02 of the Federal Circuit Court Rules) must be filed by an Applicant or a Respondent who files a Response. It involves a series of questions used to compile information about a person's financial situation at that point in the proceedings.

In parenting matters there is also a duty of disclosure – to disclose relevant information about a child or children. This is specific to the circumstances of each case but may include such things as medical or other reports, information about schooling, health and other considerations. This duty can extend to the disclosure of information to an Independent Children's Lawyer (ICL).

Understand your Obligations

Your duty to disclose in family law proceedings is complex. It is something that is treated very seriously by the Court, and can have a significant impact on your case. It is a duty that requires constant attention – you must disclose certain changes in your circumstances (financial or otherwise) to the Court. At Bainbridge Legal we understand the importance of disclosure, and understand how difficult it can be to sort through so much documentary evidence. A failure to properly disclose can, in some circumstances, result in orders and agreements being varied or overturned. Contact us today if you need assistance in your family law matter – our expertise can lift a weight off your shoulders.

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