Applying to court

• use the correct court documents
• serve these documents on the parties to the matter
• follow the court process.

If your children are in someone else’s care and you think they are in danger, contact the police. In an emergency, call 000. Get legal advice.

If your children are in the care of the Department of Child Safety, or another person under a child protection order there may be some extra steps to take before applying to the family law courts for parenting orders. You should get legal advice before making an application.

Making an application

The person who files (gives) an application to the court first is called the applicant. The person who files a response to an application with the court is called the respondent. It doesn’t affect your case if you are the applicant or respondent.

The courts divide their forms into interim and final orders. Interim orders are temporary orders. They apply until the court makes a final decision or the case is sorted out by agreement.

You need to say in the application form if you want interim and final orders, or just one or the other.

Court documents

Forms

The ‘Initiating application’ form and the ‘Response to an initiating application’ form are used for the Federal Circuit and Family Court of Australia

You can use the ‘Initiating application’ form for both interim orders and final orders. You need to fill out both areas in the form, asking for the orders you seek. You can also use an ‘Application in a proceeding’ and ‘Response to an application in a proceeding’ to apply and respond to interim orders.

Make sure you use the most recent version of the forms and the correct form for the court you are applying to. You can download the current forms at the Federal Circuit and Family Court of Australia website or get them from the court registry. Contact the Family Court National Enquiry Line to find out which forms to use.

Documents to hand in with an application

When you file (hand in) an application for parenting orders with the court, you must include a s 60I certificate, unless good grounds exist for not having one, such as urgency of the application.

You can use the one application form for Federal Circuit and Family Court of Australia. There is a statement of truth at the end of the form which needs to be filled in.

If you are applying for interim orders, you will need to file an affidavit stating the facts that support the interim orders. The court has its own 'Affidavit’ form which you can get from the court or the website.

These forms and requirements can change. Always check with the court first.

Where to file your application

Once you have completed your Application or Response, you should electronically file the documents with the court, on the secure Commonwealth Courts Portal. This allows you to access your court file, electronically file and access court orders 24/7.

If you are can’t electronically file your Application or Response, you can file them at a court registry. For registry locations near you, see Court locations.

If you are filing your documents at a court registry, before filing the documents, make enough copies of the originals for each person involved in the case. Keep a copy for your own records too. Original documents are kept in a file at the court. Find out your file number after you have given these to court as you need to quote it in future documents.

After you have given the documents to the court, they are stamped with the court's official seal (stamp). It is then up to you to serve (deliver) a sealed copy of all documents on the other party or parties.

Court fees

The courts charge fees for filing your ‘Initiating application form’ or ‘Response form’. Fees also apply to interim applications filed separately after your Initiating application or Response.

An exemption from payment of filing fees applies if you hold certain government concession cards. In some cases, a reduced fee may be sought for a divorce application, or decree of nullity, if you can demonstrate financial hardship.

Contact the court for more information.

Arranging service of court documents

You need to arrange to serve a sealed copy of your Application or Response and any other documents on the other party as soon as possible if your application is in the Federal Circuit and Family Court of Australia. If your application is in the Federal Circuit and Family Court of Australia, these forms must be served:

• at least 7 days before the first court date
• at least 3 days before the hearing date fixed for that application if the application is for orders after your court case has already started.

A sealed copy means that the court must stamp and sign the copies before you serve them.

A copy of all documents served on the respondent (or applicant) also needs to be served on any other parties (including the independent children’s lawyer, if there is one involved). The response doesn’t have to be served personally but it must be served at least 7 days before the court date.

You can’t serve court documents yourself. You need to arrange for someone else over the age of 18 to serve the documents. This person can be a family member or friend, or you can hire a ‘process server’.

A process server is a person who is hired to serve legal documents. Look at the Yellow Pages for listings of process servers. Note that the person serving the documents can’t be someone with an ‘interest’ in the case (e.g. a person named in your application).

The Response can be served by post to the other party or parties by sending it to the ‘address for service’ (this address is on the application you have been served with).

The person serving the documents should get an ‘Acknowledgment of service’ signed by the respondent. Afterwards, the person serving the documents needs to complete an ‘Affidavit of service’.

You can download these forms from the Federal Circuit and Family Court of Australia website at or get them sent to you by contacting the Family Court National Enquiry Line.

Both the forms need to be filed with the court. If you’re unable to serve the other party, you need to apply to the court for:

• substituted service (service of documents on another person) or
• dispensation of service (court permission not to serve the documents).

You do this by making an interim application to the court and supporting your application with an affidavit. Keep copies.

As well as keeping copies of all court documents, you also need to keep copies of anything in writing that you send to the other party.

If an independent children’s lawyer is appointed, send them a copy of any letter you send to your ex-partner, or his or her lawyer. Serve the independent children’s lawyer with copies of all court documents which you want to use in court.

Independent children’s lawyers must be served as they are a ‘party’ to the proceedings. This gives the independent children’s lawyer the opportunity to participate fully. Show you have included the independent children’s lawyer by inserting ‘cc’ at the end of any letters, for example:
Yours faithfully
Jenny Brown
cc Independent children’s lawyer

Responding to an application

If you’re served (given) an application from your ex-partner or the other party in the dispute, you can choose to:

• disagree with some or all of the orders the other person has asked for and apply for different orders. You can do this by filing a Response
• agree to the orders the other person has asked for. In this case you, sign a consent order and file a ‘Notice of address for service’
• do nothing and allow the court to decide if it will grant orders in favour of the applicant.

Don’t ignore the application if you don’t want those orders to be made. The applicant may get those orders against you if you don’t take part in the court case.