Going to court
You may need to go to court to deal with your family law matter.
You will need to go to court if you want to get a divorce, formalise a parenting or financial arrangement (known as getting ‘consent orders’), or the issue is urgent.
For most property and parenting arrangements, there are alternatives to court if you can reach agreement with your former partner.
You will need to go to court if you can’t reach an agreement with your former partner.
Which court you attend, and the process you will go through, will depend on your individual circumstances.
You can seek legal advice and have a lawyer represent you, or you can represent yourself (known as being a ‘self-represented litigant’).
The family law court websites have information, fact sheets and application kits to guide you through the court process. The Family Law National Enquiry Centre 1300 352 000 is the entry point for all family law court enquiries.
- Making a parenting agreement
- The court process
- Family law courts
- Contacting the family law courts
- Related links
- Next steps
Making a parenting agreement
It is often better for everyone involved if you are able to make a parenting agreement without going to court. Going to court can be expensive and time consuming. It also puts a lot of stress on everyone. There is information and support available to help you make a parenting agreement without going to court.
The court process
You must be able to show that you have tried to resolve your matter before going to court.
If you cannot agree on arrangements for the care of your children, in most cases you will need to attend Family Dispute Resolution before going to court.
If the matter is urgent or if family violence has occurred, you may not need to attend Family Dispute Resolution. You may wish to seek legal advice if you think you do not need to attend.
If you only need to make arrangements about your property, you will not need to attend Family Dispute Resolution. However, you will need to attend some form of mediation before applying to court.
Going to court is expensive, time consuming and you may not end up with a result you agree with. Applying to the court for orders should be a last resort.
If you are applying for a divorce or consent orders, you will be able to apply to court without attending Family Dispute Resolution.
The Australian Government has published Model Parenting Orders Handbook, Parenting orders: what you need to know. The Handbook is a resource for separating parents to help prepare clear and practical parenting orders that focus on the best interests of the children.
You should file with the court best suited to deal with your application. Most applications should be filed in the Federal Circuit Court. More complex matters, and applications for consent orders, must be filed in the Family Court. If you are in Western Australia, you must file in the Family Court of Western Australia. You may wish to seek legal advice if you are not sure which court to file in.
Family law courts
There are three family law courts in Australia. They are:
- The Family Court of Australia
- The Federal Circuit Court of Australia
- The Family Court of Western Australia
Magistrates courts in the states and territories sometimes deal with simple family law matters.
The Family Court deals with the more complex family law matters, including:
- parenting cases involving
- a child welfare agency
- allegations of abuse
- family violence
- mental health issues
- financial cases involving
- complex financial issues
- complex superannuation issues
Applications for consent orders must also be filed in the Family Court.
Most family law matters are heard in the Federal Circuit Court (previously known as the Federal Magistrates Court). These matters are generally less complex than those seen in the Family Court.
If you want to get a divorce, you will need to apply in the Federal Circuit Court.
If you live in Western Australia, you will need to apply to the Family Court of Western Australia.
Contacting the family law courts
The National Enquiry Centre (NEC) is the entry point for all telephone and email enquiries on family law matters. The NEC can provide information and procedural advice, forms, brochures and referral advice to community and support services. The NEC cannot provide legal advice.
If you are in Western Australia, you can contact the Family Court of Western Australia.
There are fees for applying to court, which you will be responsible for. Information about current fees, including information about fee reductions or exemptions, can be found at the family law courts’ websites:
As well as court filing fees, you will also be responsible for legal practitioner’s fees unless you are self-represented. Seek advice from your legal adviser about costs of going to court.
Case Study 1: Going to court for a divorce
An and Linh are married and do not have any children. They have decided to divorce. Linh finds that the Federal Circuit Court website has lots of information about the process. After being separated for 12 months An and Linh decide that they want to make a joint application for their divorce. They are able to do this online.
An and Linh have also been able to work out between themselves how they would like their property divided. An uses the Family Court of Australia website which guides him through the process of applying for consent orders to formalise their agreement.
Case Study 2: Making an application to court about children
Jessica and Matthew are living together and have three children. Their relationship breaks down and they want to make arrangements for the care of their children. Jessica and Matthew arrange Family Dispute Resolution and try to come to an agreement. Unfortunately, Family Dispute Resolution is not successful. Their Family Dispute Resolution practitioner provides them with a certificate to say that they have attempted to resolve their matter.
Jessica wants to make an application to the Federal Circuit Court for parenting orders. She finds that the Federal Circuit Court website has information to guide her through this process. She is able to file an application and start the court process.
Try mediation or Family Dispute Resolution before going to court.
Explore the family law courts websites.
Seek legal advice.
Contact the National Enquiry Centre.