I need to go to Court. What do I do?

This guide explains the steps to start a child custody Court case for parenting orders.

After separation or divorce, you're likely facing important decisions about your children. Although it’s generally preferable to work things out by mutual agreement with the other parent, there are often times where the disagreement cannot be resolved and the Court’s assistance is needed to work things out.

Which Court?

There are two Australian Courts that deal with family law issues: the Federal Circuit Court and the Family Court of Australia.

Most cases are filed in the Federal Circuit Court. The Family Court deals with cases which are really complicated, such as international family law disputes or cases or involving sexual abuse of children.

Both Courts require more or less the same documents to be filed to start a new Court case. Despite this, there are some common traps for the uninitiated because while the documents are quite similar, they’re not exactly the same and each Court has some differing formalities that need to be met when filing them, set out under their separate Court Rules.

You can read the relevant Rules here (Federal Circuit Court) or here (Family Court) (or you can consult one of the Do-It-Yourself Kits the Courts publish!)

It can be helpful to obtain legal advice from specialist lawyers who work under those Rules every day. They can help you avoid common pitfalls that might set back your application or prevent it from being accepted for filing.

What documents to I need to file?

  • An Initiating Application. In this document, you provide your personal details and set out the Orders you’d like the Court to make, for the short term (interim orders) or for the long term (final orders). For parenting orders to work well they need to be both practical, easy to understand and be expressed in a way that creates an obligation upon one or both parents to do something. A lawyer can help you with this and the common sorts of parenting orders you should cover off.

  • An Affidavit - In this document, you need to provide evidence to support the orders you want the Court to make. Writing an affidavit can be tricky. There are also some Court Rules you should know of, which require particular formatting, page length and presentation of your affidavit. Annoying the Judge by not following them can get your case off to a bad start.

In your affidavit, you should tell the Court a little bit about what has happened in the past for your children – such as who cared for them before separation and what has happened since. You should also explain who’s who in the family, why you think things need to change for the children’s custody or care arrangement and if there are any risks or urgent issues in play regarding the children’s safety and welfare or yours.

An affidavit is based on evidence rather than your own opinion of things. Preparing a good (or a very poor) affidavit can make a huge impact on your case. It’s a good idea to get a lawyer to run eyes over it before you file it, because you can’t take it back once it is on the Court record. A lawyer can also help you identify other documents which you could attach to your affidavit, to back up your evidence and make it more persuasive.

  • A Notice of Risk - As of 30 October 2020 applications for parenting Orders must be filed alongside a Notice of Child Abuse, Family Violence or Risk of Family Violence. This document requires you to provide details about child’s safety issues, including child abuse, family violence or other risks to the Court’s attention. You can read more about this document in our recent blog.

  • A 60I certificate - Where parents do not agree about parenting issues, they must first attend mediation before they can go to Court. If attending mediation is inappropriate, or impossible, you may be able to apply for an exemption for this requirement. If you want to be exempt, you need to file a second affidavit, called Affidavit of Non-Filing of an FDR Certificate. There are specific criteria to be met to be given an exemption, so it’s best to speak to a lawyer before filing to avoid your application being knocked back when you file it.

How do I file?

The Federal Circuit Court and Family Court both let you file your documents either online or in person. In the current health climate, the Courts prefer that you file online. Click here for a guide to E-filing. You can also file your documents at the Family Court Registry nearest to you. Be sure to take your original documents and two copies of the documents you want to file. If you have a lawyer, they will take care of filing the documents for you, and serving them on the other party too.

Remember that whenever you are filing Court documents, you have to ‘serve’ them documents on the party. This means you must arrange for a process server to give them a copy of the documents once they have been sealed by the Court, or send them to their legal representative if they have one. This should be done as soon as possible after filing your documents with the Court.

Need more help?

Still not sure where to start or feeling overwhelmed? Totally understandable. We’re happy to help – either a little or a lot. You can outsource the whole task to us from ‘go to whoa’, or get in touch for bits and pieces of advice as you go. Contact us to find out more or make a booking online with one of our experienced family law and Court specialists.