How do I start a case?
An Initiating Application is the document that is filed with the Federal Circuit and Family Court of Australia, to start proceedings in family law. Proceedings could be about any issue that is within the jurisdiction of the court, for example:
● Dividing property after you and your partner have separated;
● orders that set out who a child of the relationship will live with, and what time they will spend with the other parent; or
● obtaining temporary financial support from your former partner, until a property settlement if finalised.
Do I need an Initiating Application?
Hopefully not! Most separating couples take the opportunity to try and negotiate a resolution to their dispute. In fact, any lawyer you retain is obligated to inform the other spouse what your proposal is and seek to resolve the dispute without any court processes. If you and your former partner agree as to how you will divide your property, or what parenting arrangements suit your family best, then you will be able to record the agreement formally without participating in a court case at all.
However, post-separation can be a tricky time to foster an amicable dynamic between you and your former partner. For various reasons, you might not have any option but to start a court case, if you fall into this category, then, you will need an Initiating Application to get the ball rolling.
What do I do if I am served with an Initiating Application?
In simple terms, get legal advice. Being served with an Initiating Application means that:
● your former partner has started a court case;
● you will be expected to attend court, and engage in the proceedings;
● you are required to prepare and file a Response to the Initiating Application, and almost certainly give other documents to your spouse (known as financial disclosure).
Preparing a Response is a difficult and technical task that requires that expertise of a family law lawyer. You will also need advice as to what your options are, and in particular if the orders sought in the Initiating Application are “reasonable” at law.
How do I prepare an Initiating Application?
Much like the preparation of a Response, preparing an Initiating Application is not easy. You will need the assistance of an expert to help you prepare your evidence, and put together the orders you will be seeking in the Initiating Application. It is important that what you ask for is allowed and likely to be granted. Asking for too much or things the court cannot give can backfire terribly.
You will not be able to file an Initiating Application on its own. Depending on what you are asking the Court to do for you, you may also need to prepare:
● An Affidavit.
● A Financial Statement (for financial cases only).
● A certificate from a Family Dispute Resolution practitioner (for parenting cases only).
● A Notice of child abuse, family violence or risk (this is a mandatory form which must be filed in all parenting cases only).
● A Genuine Steps Certificate.
● A Questionnaire – Parenting and/or a Questionnaire – Financial (depending on the orders sought), unless you file an affidavit.
Our lawyers can guide you through which documents your case requires.
Does starting a case oblige me to “stay the course”?
Starting the case does not mean that you are committed to the process until its very end. In fact, the vast majority of cases do not live to see a final hearing. You and your spouse can choose to stop proceedings at any point. We can help you understand the process, and ways in which a resolution can be reached without “staying the course”.
Important Disclaimer: The content of this article is general in nature and for reference purposes only. It does not constitute legal or financial advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication.
