Family law can be very complex in Australia, and even more so when it comes to the Court process. It can be very confusing, especially when it comes to making applications to Court for your family law matter.
The Federal Circuit and Family Court of Australia (FCFCOA) is the same court used across the majority of Australia. As a family lawyer based in Brisbane and the Gold Coast, we usually file applications in the Brisbane Registry, however from time to time we need to file applications in other registries around the country. Fortunately, they are the same applications, and the same family law rules and family law legislation apply no matter which registry you are in.
The purpose of an Initiating Application for Family Court is to start a family law application seeking interim and or final orders that are related to family law issues such as child custody, parenting issues, property division, spousal maintenance, and divorce. In other words, it is used to start a family law application seeking final orders, or interim orders while the matter is still working its way through the Court.
To start the court process in your family law matter, an initiating application must be filed, and the rules for making the application must be adhered to closely. Getting this step wrong, whether that is choosing the wrong court, missing a supporting document, or drafting orders that are not properly framed, can slow your matter down significantly.
In this article we go into more detail than most guides on this topic, drawing on what an initiating application actually contains, which court to file it in, what happens after filing, and the questions people most commonly ask our Gold Coast and Brisbane family lawyers about starting Court proceedings.
What Is An Initiating Application?
An Initiating Application is a formal document filed with the Federal Circuit and Family Court of Australia (FCFCOA) that is used to start a family law application. It is the document that formally commences your case, and it sets out, in a structured way, the orders you are asking the Court to make.
Your Initiating Application outlines the orders you want the Court to make, whether that relates to who your children live with and spend time with, how the property pool should be divided, whether spousal maintenance should be paid, or a combination of parenting and financial matters. Once it is filed and served, the Court treats your matter as “on foot”, meaning it now exists as a live case within the Court system, with timeframes, directions, and obligations attached to it.
The initiating application in family law will need to be accompanied by supporting documents such as an affidavit, a financial statement for financial matters, a Section 60I certificate and a Notice of Risk for parenting matters, or an exception to the requirement for a 60I certificate if one applies to your circumstances (for example, in cases involving family violence or urgency).
Once the application is filed and served, the Court will review the documents and list the matter for a First Court Event. From there, both parties have the opportunity to present evidence, make legal arguments, and respond to the other party’s position, either through negotiation, family dispute resolution, or ultimately at a final hearing.
What Court Do I File My Initiating Application For Family Law?
This is confusing for many people, including some lawyers who do not regularly practise in family law. There are technically two courts that can hear family law matters under the FCFCOA structure: Division 1 (the more complex list, historically known as the Family Court of Australia) and Division 2 (the general list, historically known as the Federal Circuit Court of Australia).
Most initiating applications are filed in Division 2, unless the matter is very complex, in which case it will be filed in Division 1. Complexity might include things like allegations of serious family violence, international relocation, complex trust or business structures, or matters involving multiple related proceedings.
An experienced family lawyer will know which division to file an initiating application in. However, if a person is self-represented, we would suggest filing in Division 2 (the general list), and if the Court determines that it needs to be dealt with at a higher level, it will transfer the matter to Division 1 for you.
What Types Of Family Law Matters Can You File An Initiating Application For?
The Federal Circuit and Family Court of Australia (FCFCOA) deals with family law matters prescribed by the Family Law Act 1975 (Cth).
The main areas you can make an initiating application for in a family law case relate either to parenting and the care of your children, or to finances and the division of property. Everyone’s circumstances are different, and there are many issues under these two umbrellas that can be dealt with by the FCFCOA.
Some examples of family law issues where people seek help from the Court in determining their matter are (this is not an extensive list):
- Custody of children, including disputes over changing a child’s school without the other parent’s consent or working out whether one parent can enrol a child in school without the other parent’s permission
- Child relocation
- Spousal maintenance
- De facto family law matters, including rising rates of cohabitation in Australia and how the law treats de facto couples
- Division of assets after separation, including disputes over whether a girlfriend or partner can take half your house
- Airport watch orders
- Superannuation splits
- International parenting issues
- International property issues
- Setting aside binding financial agreements
- Enforcing court orders that have not been adhered to
- Injunctions for property related issues
- Changing your name after separation or divorce, for example working out how to change back to your maiden name
Whatever your situation, it helps to understand how your circumstances fit within these categories before you start drafting your application, because the orders you seek need to match the type of relief the Court actually has the power to grant.
What Does An Initiating Application In Family Law Contain?
The Initiating Application for family law matters will contain details of both parties, details of the relationship, and what orders are sought. In other words, what the applicant is seeking in terms of parenting arrangements and time with children, or how the applicant proposes that the property and assets of the relationship be divided.
More specifically, the document typically sets out:
- The details of the applicant and the respondent, including any children of the relationship
- A brief summary of the relationship, including the date of marriage or when the de facto relationship began, and the date of separation
- The orders sought on an interim (short term) basis, and the orders sought on a final (long-term) basis
- Confirmation of compliance with pre-action procedures, such as attempts at family dispute resolution or genuine efforts to negotiate
Getting the orders sought section right matters a great deal. Interim orders are what you are asking for while the case is progressing through the Court, for example, temporary living arrangements for children or short-term access to funds. Final orders are what you want the Court to permanently order once your matter has concluded. Drafting these clearly, and in a way that is consistent with the Family Law Rules, gives your matter the best chance of being progressed efficiently.
Supporting Documents You Will Need
An Initiating Application rarely stands alone. Depending on whether your matter involves parenting issues, financial issues, or both, you will usually need to file it together with:
- An affidavit: a sworn or affirmed written statement setting out the relevant facts, evidence, and circumstances supporting your application.
- A financial statement: required for financial and property matters, setting out your income, expenses, assets, liabilities, and financial resources.
- A Section 60I certificate: confirms that the parties have attempted family dispute resolution (mediation) before applying to the Court, required for most parenting matters unless an exception applies.
- A Notice of Risk: required for parenting matters, this document sets out any concerns relating to the safety or welfare of a child, including allegations of family violence, abuse, or neglect.
- A Genuine Steps Certificate: confirming that genuine efforts were made to resolve the matter before filing.
- An undertaking as to disclosure: affirming that you understand and will comply with your ongoing duty to disclose relevant financial or other information.
If you have concerns about a child’s safety, and this is relevant to why an exemption to the Section 60I certificate requirement might apply, it is worth discussing this directly with your family lawyer before filing, so that the correct exception is claimed and supported with appropriate evidence.
What Happens After You File?
Once your Initiating Application and supporting documents have been filed and sealed by the Court, they must be personally served on the other party, or served on their lawyer if they have one. Most parties track the progress of their matter, including upcoming events and orders, through the Commonwealth Courts Portal. You will then need to file an affidavit of service to prove that this has occurred.
The Court will list your matter for what is often called a First Court Event. At this hearing, the Court will:
- Deal with any urgent interim orders sought by either party
- Confirm compliance with pre-action procedures
- Make directions about the next steps, such as attending mediation, exchanging financial disclosure, obtaining a Family Report, or appointing an Independent Children’s Lawyer in more complex parenting matters
If the matter cannot be resolved through negotiation or dispute resolution, it will proceed toward a Compliance and Readiness hearing and, ultimately, a final hearing where a judge will make binding orders after hearing all the evidence.
What Is A Response To Initiating Application?
If you are served with an Initiating Application, you do not simply have to accept the orders sought by the other party. You are entitled to file a Response to Initiating Application, which is the formal document used to reply to the claims made against you.
The response allows you to set out your own position on parenting arrangements, property division, or other relief sought, and to propose alternative orders. Like the Initiating Application itself, your response should be accompanied by a supporting affidavit and any other relevant documents, such as a financial statement if property matters are involved.
Common Issues That Come Up Alongside Initiating Applications
Because an Initiating Application is often the first formal step in a broader dispute, related family law issues tend to surface around the same time. Some of the more common ones our clients ask about include:
Property settlement percentages. People often ask us about a 70/30 divorce settlement in Australia and whether a split like this is common. There is no fixed percentage or formula under the Family Law Act. Every property settlement is assessed on the parties’ financial and non-financial contributions, and their future needs, which means an uneven split like 70/30 can occur in some cases, but it depends entirely on the individual facts of the matter, not a standard outcome you can assume.
Intervention orders. Where a protection or intervention order has been made, either party may later want to know the reasons to revoke an intervention order. Courts will generally only consider revoking or varying an order where circumstances have genuinely changed, such as the risk that led to the order no longer being present, both parties consenting to the change, or evidence that the original order is no longer necessary. This is a separate legal process from your family law matter, but it can significantly affect parenting orders sought in an Initiating Application, so it is important to raise it with your lawyer early.
Parenting schedules by age. Once orders are made, working out practical, age-appropriate parenting time is its own challenge. Child custody schedules by age in Australia are not set out in legislation, but courts and family consultants generally recognise that younger children benefit from shorter, more frequent time with each parent, while older children and teenagers can usually manage longer blocks of time, including overnight and holiday periods. The orders sought in your Initiating Application should reflect what is realistic and developmentally appropriate for your children’s ages, not a generic template.
Online income and its relevance to family law. With more people generating income through online platforms, we are increasingly asked questions like is OnlyFans illegal in Australia. It is not illegal, and income earned through platforms like this is generally treated the same as any other form of income or asset for the purposes of financial disclosure and property settlement, meaning it still needs to be disclosed as part of your financial statement if you are involved in a property matter.
Getting The Right Advice From The Start
If you need assistance with your family law matter and advice about making an application in the Federal Circuit and Family Court of Australia (FCFCOA), our Gold Coast family lawyers can assist you in ensuring that you make a successful application.
Our team, including principal lawyer Hayder Shkara and family lawyer Caralee Fontenele, regularly assists clients across Queensland and other registries with drafting, filing, and responding to Initiating Applications. You can view our full team here.
At Collective Family Law Group, we understand how overwhelming it can feel to start the Court process, and we work with our clients to make sure their Initiating Application is drafted properly the first time, with the correct orders sought and the right supporting documents in place.
We offer a free family consultation for up to 45 minutes, where we can advise you on your family law issues and your prospects of success in making an Initiating Application to the Federal Circuit and Family Court of Australia (FCFCOA).
Phone 1300 225 393 to arrange your free family law appointment with one of our Gold Coast family lawyers.
This article is general information only and does not constitute legal advice. Every family law matter is different, and you should speak with a qualified family lawyer about your specific circumstances before taking any action.
Frequently Asked Questions
Can a mother deny a father access in Australia?
Not unilaterally, and not without a valid reason connected to the child’s safety or best interests. Unless there is a parenting order or court order in place that restricts contact, both parents generally have an obligation to facilitate a meaningful relationship between the child and the other parent, provided it is safe to do so. If a mother has genuine concerns about a child’s safety, she should raise this through the Court, for example by filing an Initiating Application seeking parenting orders and, where relevant, a Notice of Risk, rather than simply refusing access. A parent who withholds a child without a proper basis can be found by the Court to have acted contrary to the child’s best interests, which can affect the outcome of parenting proceedings.
Where do I file a petition for child custody?
In Australia, custody matters are not started with a “petition” as they might be in other countries. Instead, you file an Initiating Application seeking parenting orders with the Federal Circuit and Family Court of Australia. Most parenting applications are filed in the general list (Division 2), formerly the Federal Circuit Court, unless your matter is particularly complex, in which case it may be filed or transferred to Division 1. Before filing, you will generally need to attempt family dispute resolution and obtain a Section 60I certificate, unless an exception applies.
What is the best evidence for Family Court?
The strongest evidence in a family law matter is usually evidence that is specific, contemporaneous, and independently verifiable. This includes detailed and accurate affidavits, written communications such as texts or emails, financial records and bank statements, school or medical records where relevant to a child’s welfare, and independent reports such as a Family Report prepared by a family consultant. Vague, emotional, or unsubstantiated claims tend to carry far less weight than evidence that is specific and can be corroborated.
What goes against you in Family Court?
Several factors can weigh against a party in family law proceedings, including a failure to comply with pre-action procedures or court orders, evidence of dishonesty or non-disclosure of financial information, behaviour that undermines a child’s relationship with the other parent, allegations of family violence or substance abuse that are substantiated by evidence, and a general failure to act in the best interests of the children. Being inconsistent, uncooperative, or failing to engage genuinely with dispute resolution processes can also negatively affect how the Court views a party’s conduct.
