Applying to Court

If you cannot reach an agreement about parenting arrangements for children or property settlement outside of Court or in family dispute resolution, you may need to apply to Court.

To apply to Court or to respond to an application to Court, you must:

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

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 does not 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 both the Family Court and the Federal Circuit Court.

In the Family Court you can also use the ‘Application for Final Orders’ and ‘Response to an application for Final Orders’ which do the same as the ‘Initiating application’ forms.

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. In the Family Court you can also use an ‘Application in a case’ and ‘Response to an application in a case to apply and respond to Interim Orders’. The other forms used in each Court are generally similar.

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 family Court website or get them from the Court registry. Contact the Family Court National Enquiry Line to find out which forms to use.

The Federal Circuit Court sometimes accepts Family Court forms if they follow the Court’s rules.

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 both the Federal Circuit Court and the Family Court. There is a statement of truth at the end of the form which needs to be filled in.

If you are filing the ‘Initiating application form’ for both Interim and Final Orders, you need to file a separate Affidavit for the Interim Orders. Each Court has its own Affidavit form which you can get from the Court or their website.

In the Federal Circuit Court you need to file a separate Affidavit at the same time as filing your Application or Response, even if you are seeking Final Orders only. You can get these forms from the Court or their 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 must file them at the Court with any documents which support your case. You can post your application or give it to the Court yourself.

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 Family Court. If your application is in the Federal Circuit Court, 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 does not have to be served personally but it must be served at least 7 days before the Court date.

You cannot 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 cannot be someone with an ‘interest’ in the case (eg 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 Family Courts 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 are 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.

Responding to an application

If you are 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.

Do not ignore the application if you do not want those orders to be made. The applicant may get those orders against you if you do not take part in the Court case.

Division 12A

Division 12A of the Family Law Act 1975 (‘the Act’) makes the Family Law Courts’ processes shorter and more informal and flexible. Some of the main features of Division 12A processes are:

• the Judge tells you how the case is to run in Court. It may be run as an orderly discussion or it might run more formally. They decide the issues that are looked at, the witnesses who will attend, and when and if reports are needed.
• most rules of evidence do not apply, unless the Judge says so.
• evidence begins on the first day of the Hearing or trial. Anything said is part of the evidence
  most of the evidence comes from you and the other parent or party.
• the Judge actively manages the case. They speak directly to you and you can say in your own words what you would like for the children or other issues.
• the Judge controls the case by focusing on what is best for the children. If it is a property or financial case, the Court focus on what is just and equitable (fair) for each party.
• the Judge can make Orders or decisions at any time during the case, not just at the end.

Division 12A is used in:

• all children’s cases (parenting, child maintenance and parentage).
• any property or financial case and both people agree to Division 12A being used.
• any case where both parties agree and the Court grants ‘leave’ (permission).

In children’s cases, a family consultant helps you and the other party throughout the Court process. They are sworn in as a witness on the first day of the trial in the Family Court and at any time during a Hearing in the Federal Circuit Court.

The Court process

There are different steps throughout a Court case between the Family Court and Federal Circuit Court.

The Family Court website has information on each step of the process

Disclaimer: The material presented on this website is an information source only. The information on this website is written for people resident in, or affected by the laws of Queensland, Australia only. Links to other sites from this website are provided for the users’ convenience. The LGBTI Legal Service does not endorse these sites and is not responsible for the information on these sites or the use made of this information. If you have a specific legal problem, you should consult a professional legal advisor.