What documents do I need to file in court to start family law proceedings?13 August 2019 Topics: Family law
The answer to this question will depend on the orders you are seeking.
The documents you need to file in court will differ, depending on whether you are seeking orders for property settlement, spousal maintenance or parenting orders.
Property and spousal maintenance
For property settlement or spousal maintenance, you will need to file an initiating application, affidavit and financial statement.
The initiating application sets out the orders you are asking the court to make on an interim and final basis.
There are two significant court appearances in family law matters – an interim hearing and a final hearing.
At an interim hearing, a judge cannot make findings of fact on disputed matters (i.e. who is right and who is wrong). Instead, the judge can only make interim orders or directions (requiring certain procedural things to be done) to assist the parties until the court can hear all of the evidence at a final hearing.
Your affidavit will set out the facts you wish to rely upon that support the orders you are asking the court to make.
If you have asked the court to list your matter for an interim hearing, and the proceeding is in the Federal Circuit Court, your affidavit must not be longer than ten pages and contain no more than five annexures. You will need the court’s permission to rely on any additional information. This rule can be strictly enforced, so you may wish to obtain legal advice before you file your material to ensure you have addressed the most relevant information.
You can file a further affidavit in support of the final orders, but this would generally be done after the court has dealt with the interim orders and only if your matter is to be listed for a final hearing.
A financial statement (referred to as a form 13) is a form that includes details of your income, expenses, assets including superannuation, liabilities and resources. This document must be filed where you are seeking property or spousal maintenance orders.
If you are seeking orders for spousal maintenance, you must also complete Part N of the financial statement, which sets out the specifics of your day to day expenses. This is necessary for the interim determination as to whether the expenses you are claiming are reasonable.
For parenting orders, you will need to file an initiating application annexing your section 60I certificate (unless you qualify for an exemption), an affidavit and a notice of risk. If you do not file all the correct documents, your initiating application may not be accepted, and the proceedings will not commence until you do.
The notice of risk is a form the court uses to identify clearly the risks posed to the children. This form may be provided to a child protection authority, such as the Department of Child Services in Queensland, if you provide details of risks to the children when in the care of either party.
The documents you need to file will vary depending on whether you are asking the court to make parenting or property orders. There are also differences in the forms depending on whether your matter is in the Federal Circuit Court or the Family Court. While the courts are looking to address the issue of different forms and different rules between the two courts, presently you need to ensure you are aware of the differences and that you file the appropriate forms for each court.
You can access draft documents from the websites for each of the respective courts.
You may benefit from consulting with an experienced family lawyer before you file your material to ensure you have complied with each of the rules that relate to your matter.
If you need specific advice regarding commencing proceedings or assistance drafting your court material, please contact Genevieve Dee or Niki Schomberg of our family law team.