References.¹

• For 'General':

• You must have a card issued by the Commonwealth, including:

• Health Care Card

• Pensioner Concession Card

• Commonwealth Seniors Health Card

• Any other card that entitles the person to Commonwealth health concessions.

• Or, you must be receiving Youth Allowance, Austudy, or ABSTUDY payments from Centrelink.
• Or, you must have been granted legal aid, including:

• (ACT) Legal Aid ACT
.

• (Qld) Legal Aid Queensland

• (NSW) Legal Aid New South Wales

• (NT) Northern Territory Legal Aid Commission

• (SA) Legal Services Commission of South Australia

• (Tas) Legal Aid Commission of Tasmania

• (VIC) Victoria Legal Aid

• (WA) Legal Aid Western Australia

• Or, financial hardship:

• To qualify for financial hardship, the full fee must cause financial hardship. The Registrar or an authorised officer will consider your income, day-to-day living expenses, liabilities and assets and then form the opinion of whether the general fee would in fact cause financial hardship.
• To determine whether you are likely to be eligible for financial hardship:

• The following table provides the maximum income you can receive per week.¹ If you earn more than this, may not be eligible.

• Your liquid assets must not total more than $4,550. Liquid assets is your cash, convertible shares or convertible bonds.
• After all your day-to-day expenses and liabilities are paid, you cannot have a surplus of more than $227.50 per week. Expenses may include, for example, food, rent or home mortgage payments, credit card debts, other loan or lease repayments, electricity, phone, running a car, etc.
• You may still be granted 'Financial Hardship' even if you fail the above requirements. For this to occur, you must explain that your circumstances are such that paying the full fee would cause financial hardship. For example, your income may me higher than the maximum but your daily expenses are also very high. Or, as another example, you have a number of liabilities which are not being met. The form which you will need to complete is explained below.

References.¹

References.¹

References.¹

If your marriage certificate is not in English, you must do the following:

1. File a translation of your marriage certificate in English.

1. File an affidavit completed by the translator. The affidavit should include:

1. The translator's qualifications.
2. A copy of the marriage certificate.
3. The translated marriaged certificate.
4. The translator must state that the translation is an accurate translation.
5. The translator must state that the copy of the marriage certificate is in fact a true copy of the marriage certificate.

The Federal Circuit Court of Australia provides a short guide on what you need to state in your affidavit. You must prove:

“...that there has been a change in the marriage, gradual or sudden, showing you and your spouse have separated.”

To do this, you will need to explain the following:

• “[Any] change in sleeping arrangements[;]
• [Any] reduction in shared activities or family outings[;]
• [Any] decline in performing household duties for each other[;]
• [Any] division of finances; for example, separate bank accounts ... [;]
• [A]ny other matters that show the marriage has broken down; for example, if you have notified family and friends of your separation[;]
• Why you continued to live in the same home following separation and what intention, if any, you have of changing the situation[;]
• Living arrangements you made for any child of the marriage under 18 years during the time you were living under one roof[; and]
• What government departments you have advised of your separation if you receive a government benefit; for example, Centrelink or the Department of Human Services (Child Support). If correspondence has been received from these departments about your separation, attach a copy to your affidavit.”

You should explain what your marriage was like before separation and what it was like after separation.

References.¹

References.¹

References.¹

References.¹

References.¹

References.¹

References.¹

References.¹

References.¹

References.¹

References.¹

References.¹

References.¹

References.¹

3. Divorce Law

1. An Application for Divorce must be filed in the Federal Circuit Court of Australia.¹
2. An Application for Divorce may be made by either:

1. A sole application – This is where one spouse to the marriage applies for divorce and completes the application without the other spouse;² or
2. A joint application – This is where both spouses to the marriage applies for divorce and completes the application together.³

3.1. Requirements for the Court to Grant a Divorce

1. The marriage must be broken down irretrievably.⁴

1. To establish that the marriage has been broken down irretrievably, the couple must be separated and lived separately and apart for a minimum of 12 months before filing the divorce order application.⁵

1. Separation:

1. The persons to a marriage will be held to have separated even if the cohabitation was brought to an end by the action or conduct of only one of the persons.⁶
2. Separation means more than mere physical separation – it involves the breakdown of the marital relationship.⁷
3. Separation may be indicated by the absence of elements which make up a marriage (called the consortium vitae, meaning ‘partnership for life’).⁸

1. Elements of a marriage include:

1. Living in the same house;⁹
2. Sexual intercourse;¹⁰
3. Mutual society and protection;¹¹
4. Support;¹²
5. Recognition of the existence of the marriage by both spouses in public and private relationships;¹³
6. Correspondence during separation;¹⁴
7. The nurture and support of the children of the marriage.¹⁵

2. Marriage involves many elements¹⁶ and these elements are not fixed for every marriage.¹⁷
3. What comprises of a marriage will differ from couple to couple.¹⁸
4. Where only one person to the couple has formed the intention to separate, this must be communicated either directly or indirectly to the person.¹⁹
5. Separation is the only way to establish the irretrievable breakdown of marriage.²⁰

4. The law does not consider:

1. Who was at fault for the marriage ending.²¹
2. Why the marriage ended.²²
3. Who left who.²³

2. Lived Separately and Apart:

1. The persons to a marriage will be held to have ‘separated and lived separately and apart’ even both persons continued to live in the same residence.²⁴

1. If both persons separated and continued to live under the same roof, the person or persons separating must (1) explain why the couple continued to live under the one roof, and (2) show that there has been a change in their relationship, whether gradual or sudden, constituting a separation.²⁵

1. This evidence must be provided by affidavit.²⁶

1. Example affidavits - spouse:

Dr Maree Livermore in her book The Family Law Handbook, 5th Edition provides an example affidavit. You can find Dr Livermore at Aequitas Collaborative and Marrickville Legal Centre.




Example 1: Separation Under the One Roof - Spouse

I, MARY ANN BLACK of 75 Risalt Street, Tadbugnall in the State of New South Wales salesperson, make oath and say/affirm as follows: I am the applicant for the dissolution of my marriage to Daniel John Black (“Daniel”). Daniel and I were married on 29 January 1990. There are two children of our relationship: Samuel Black, born 6 June 1995 and Anna May Black, born 5 May 1997. Daniel and I lived together with our children at 36 Antonen Road, Tadbugnall, New South Wales ("the marital home”). I am 40 years of age and am employed full-time as a jewellery salesperson at David Jones in Tadbugnall. My average weekly income is approximately $1150.00 gross. I have no other income. Throughout our marriage and until our separation, my salary was deposited each fortnight into a joint account in both Daniel's and my name at the Commonwealth Bank, Tadbugnall. The mortgage and all the housekeeping expenses were paid from this account with free access to the account available to both of us. Since our marriage, Daniel has not been formally employed nor earned an independent income. In the course of our marriage, Daniel cooked on weeknights for the whole family and did most of the housework and laundry. After experiencing difficulties within our marriage for some months previously, Daniel and I had a heated argument on 3 March 2005. At the end of it, I screamed at him: “I've had enough. We're finished.” At this point on 3 March 2005, I regarded my marriage to Daniel as over. We remained separated under one roof without reconciling until 12 December 2005. On 4 March 2005 I moved all of my clothes and personal possessions out of our double bedroom and into the spare bedroom. I have not slept with, nor had sexual relations with, Daniel since that time. Daniel and I have danced as partners in ballroom dancing title competitions throughout NSW since 1992. Ballroom dancing has been a very important part of our life together. On 4 March 2005 I attended at the RSL hall where our team rehearses each week and put up a notice advising that I would no longer be dancing with Daniel and asking for potential new dance partners to contact me directly. I have not danced with Daniel, competitively or otherwise, since our separation. Also on 4 March 2005, I closed the joint account, and arranged for my pay to be deposited to an account in my name only. I arranged to pay the mortgage directly from my account and gave Daniel $600 in cash each payday from 10 March 2005 until my child support assessment in January 2006 for food and housekeeping expenses for himself and the children After our separation, we did not eat together as a family anymore. I prepared my own meals late in the evening or ate out and I looked after my own washing. Daniel continued to do most of the other housework. Between 3 March and the end of November 2005. I tried unsuccessfully to find affordable, alternative accommodation near to the marital home so that I could continue to see the children easily. In early December 2005, I found a unit at my current address in Risalt Street, Tadbugnall, which is only a few minutes drive from the marital home. I moved in on 12 December 2005.




The College of Law also provide an example affidavit in the book Victoria Practice Papers 2019-2020 (LexisNexis Butterworths, Volume 1).²⁷




Example 2: Separation Under the One Roof - Spouse

I, Ann Abrahams of (address), Sales Assistant, make oath and say: I am the Applicant in this application for divorce. For some years prior to 7 January 20xx–1, I felt my relationship with the husband had deteriorated. On 7 January 20xx–1, I had a discussion with the husband about our relationship. At the conclusion of that discussion I decided that the marriage had finished and that we should terminate the marriage. I said to the husband: “Look, the marriage is finished as far as I'm concerned. Why don't we go our separate ways.” The husband said: “That's all right with me.” From 7 January 20xx–1, the husband and I continued to live together in the former matrimonial home until 4 April 20xx–1 when he left that home. We have not subsequently lived in the same home. When we lived together in the former matrimonial home following separation we resided together in the home in the circumstances set out below. Prior to 7 January 20xx–1, the husband and I slept in the same bed, engaged in sexual intercourse, went out socially together, paid all expenses from a joint bank account, ate meals together and shared household tasks. On 7 January 20xx–1, the husband moved into the study at the former matrimonial home where he slept until he left the home on 4 April 20xx–1. From 7 January 20xx–1, we did not have meals together except on one or two isolated occasions. The husband prepared his own meals, made his own bed and cleaned the study where he slept. I cleaned the rest of the house and I did all the washing and ironing. I also purchased all food for the three members of the family from the money made available by the husband being $200 per week. On 8 January 20xx–1, we closed our joint bank account and opened separate accounts. We have subsequently kept our financial arrangements entirely separate except for the husband's contribution to housekeeping expenses as I have already mentioned. Within a few days after 7 January 20xx–1, I informed my family and close friends of the separation. The husband and I have not subsequently been out socially together or entertained at home at all. Apart from a parent/teacher interview at Julie's school in mid-February 20xx–1, the husband and I have not jointly attended any function or engagement since 7 January 20xx–1. From 7 January 20xx–1, the husband and I have not discussed anything between ourselves except those matters concerning Julie's welfare and the necessities of day-to-day living.




Legal Aid New South Wales also provides an example affidavit.




Example 3: Separation Under the One Roof - Spouse

I am the Applicant [Husband/Wife] in these proceedings. I was born on [full date of birth] in [location] and I am [XX] years of age. I came to Australia on or around [year] and I am now an Australian citizen [or state your migration status]. The Respondent [Husband/Wife] is [full name] [Write the name of the Respondent and then use this name throughout the Affidavit where it says ‘Respondent’]. [Respondent] was born on [full date of birth] in [location] and is [XX] years of age and is also an Australian citizen. [Respondent] and I met around [date] and were married on [date] in [location]. [Respondent] and I separated on a final basis on [date], and we continued to live at the same address at [address] from [date] to [date] until he/she/I moved out to [address]. There are [X] child/ren of the marriage. They are [list full names and dates of birth and current ages for each child of the relationship, including stepchildren]. Our marriage before separation During our marriage, I cooked for [Respondent] and washed and ironed their clothes [describe any other household tasks you shared or did for each other whilst together]. [Respondent] and I would visit friends and sometimes they would come to our home [give examples]. We also travelled as a family [give examples]. We have a joint bank account and we [bought/rented] our home in our joint names. During our marriage, we slept in the same bed and had a sexual relationship/we had been living in separate bedrooms under the one roof for many years. Marriage after separation [Describe what happened on your date of separation. Did you have an argument on the telephone? Did you have a discussion and decide how to tell the children and family and friends? Were police or family members involved on that day? Did you write text messages or emails saying the marriage had ended? State the facts as best as you can remember. If you are reporting a conversation use direct language, eg:] On [date], [Respondent] and I were at [location] and I remember we had a conversation with words to the effect of: Me: “This isn’t working, our marriage is over.” [Respondent]: “I agree. I will move my stuff into the spare bedroom until I can find my own place.” Use the words that you each said [as far as you can remember] to show that you believed each of you knew the marriage ended on that date. [Then, explain how the relationship changed from what it was before. For example:] Since the date of separation [Respondent] moved into a separate bedroom. I continue to cook for our family but [Respondent] eats separately and often eats out of the home. I have stopped washing and ironing [Respondent]’s clothes and doing other household chores for [Respondent]. Since separation, I have done my own shopping and washed my own clothes. [Respondent] and I no longer socialise as a couple and do not visit friends together, or celebrate family occasions like Christmas or birthdays. [Respondent] and I have separate bank accounts and we split all our bills for the children. [Respondent] and I do not usually speak to each other unless it relates to the [children/household bills/discussions about moving]. Around [date], I told my close friend [friend’s full name] who lives in [location] that [Respondent] and I had separated. I remember I said words to the effect of “[Respondent] and I have decided to separate since last month. I moved out to the spare room and I need to find a new place to stay.” Since we became separated under the same roof, [Respondent] and I have not spent time or socialised with each other except for the children’s birthdays. Sometimes we have done things together for the home but it was as housemates, not as a husband and wife. When we separated I told Centrelink/other agencies about the separation. [Describe how you informed Centrelink or other agencies about the separation.] [Also describe when you or the other person moved out. For example:] On [date], I moved to [new address] and [Respondent] and I divided our things. We are currently working out a financial settlement between us with lawyers. [Or, if you can’t move, explain why you are still living under one roof.] Both [Respondent] and I receive Centrelink income and have applied to the Department of Housing to find new accommodation. I have looked at the rental properties available that are nearby to the children’s school but they are [$dollars] per week and I only receive [$dollars]. So I cannot afford to move out yet.



2. If both persons separated and continued to live under the same roof, evidence from a witness to corroborate the claim by the person or persons divorcing should be ready.²⁸

1. However, this rule is not inflexible and whether the judge requires this evidence will depend upon the circumstances of the case.²⁹
2. In Western Australia, the court will usually require an affidavit by the witness and the witness should attend the hearing.³⁰ In other states and territories, the court will usually require an affidavit by the witness, but the witness does not need attend the hearing.³¹
3. Example affidavits - Witness

Dr Maree Livermore in her book The Family Law Handbook, 5th Edition provides an example affidavit. You can find Dr Livermore at Aequitas Collaborative and Marrickville Legal Centre.




Example 1: Separation Under the One Roof - Witness

I, EVA LARSON of 24 Gidibal Street, Tadbugnall in the State of New South Wales, dance teacher, make oath and say/affirm as follows: I am a friend of both Daniel Black (“Daniel”) and Mary Black (“Mary”). I first met them as my next-door neighbours in Antonen Street, Tadbugnall in 1991. I introduced Daniel and Mary to competitive ballroom dancing. Between 1992 and March 2005, they danced as a couple with the dance team the Tea-Trees that I founded and continue to manage. On Thursday 5 March 2005 I went to the RSL hall for rehearsals as usual. Mary handed me a piece of paper. Her name and signature were at the bottom of the page. The document was headed “Public Notice” and included words to the effect: “Daniel and I will no longer be dance partners. If anyone else is interested in partnering me in the Samba section at the upcoming Regional titles, please contact me directly.” Neither Daniel nor Mary attended at rehearsal that night. Daniel has not attended club activities since that time. Mary found a new partner and continues to compete with the team. On 15 November 2005, being the weekend after the Regional Dance Championships, I pulled up outside 36 Antonen Street to drop Mary back after a rehearsal. She hesitated before opening the car door, staring through the window at the house. The front room was clearly full of people. Mary said: “I'll have to go round the back.” I said words to the effect: “Mary this is ridiculous, you can't continue to live like this.” She replied: “I know – but I am looking for places all the time. Something has to come up soon.” On 14 January 2006, at rehearsal, Mary handed around a little card with her new address in Risalt Street on it. I believe that Daniel and Mary were living separated under one roof at the Antonen Street house between early March and late December 2005.




The College of Law also provide an example affidavit.³²




Example 2: Separation Under the One Roof - Witness

I, Muriel June Hoskins, of (address) Sales Assistant make oath and say, I have known Robert Abrahams and Ann Abrahams for approximately 10 years. I first met Ann Abrahams when I worked with her at (location) and I met Robert Abrahams (the husband) shortly before they married. My husband Keith Hoskins and I moved next door to Robert and Ann approximately 6 years ago. At that time Ann and I were no longer working together. Prior to 8 January 20xx–1, I visited Robert and Ann's home on many occasions and observed both their clothes in the main bedroom. They both attended dinner and theatre parties with us from time to time. On 8 January 20xx–1, I had a conversation with Ann who said to me: “Robert and I decided to separate last night. We both agreed our marriage had finished and we can now go our separate ways. Neither of us can afford to move out at this stage but hopefully I can get a job and Robert can find an alternative place to live.” I said: “I'm sorry to hear that, but hope I can be friends with you both.” Ann replied: “Yes, so do I.” Since 8 January 20xx–1, I visited (address of former matrimonial home) on several occasions and observed that Robert’s clothes and personal effects were in the study. Both Keith and I have been out with Ann and Robert individually. I met Ann at a party in the company of John Clyde on 20 February 20xx–1. I have not seen Robert or Ann go out together socially or otherwise since 8 January 20xx–1.




Legal Aid New South Wales also provides an example affidavit of a witness.




Example 3: Separation Under the One Roof - Witness

I am the best friend/cousin/doctor/co-worker [describe your relationship] of the Applicant [name you call the Applicant] in this matter. I have known [Applicant] for [how long?]. I was born on [full date of birth] in [location] and I am [XX] years of age. I came to Australia on or around [year] and I am now an Australian citizen [or state your migration status]. [Describe how you met the [Respondent] and if you attended the wedding, and how often you spent time with the couple after they were married. For example:] I often visited my friend [Applicant] at home. I was their wedding photographer. Our children are the same ages and attended the same schools so we met almost every day. When I visited their home, I noticed that both [Applicant and Respondent] would cook together. I noticed they were sharing a bedroom when we travelled together. [Describe how you heard about the separation. For example:] Around [date], [Applicant] came over to my house looking upset and said words to the effect of “[Respondent] and I have decided to separate since last month. I moved out to the spare room and I need to find a new place to stay.” [Describe what you have personally seen, heard or been told about the separation. For example:] I have not directly spoken to [Respondent] about what happened since they separated. I remember I said words to the effect of “I was sorry to hear what happened, I’m here if you want to talk”. Since their separation, I have visited [Applicant] and [Respondent] has not been around when I have visited their home. When I visited the home, I observed [Respondent’s] clothes and computer in the spare room, with blankets and a mattress on the floor. [Applicant] said words to the effect of “I cook and clean for myself now”. A few months ago. I attended a friend’s wedding and I saw that [Respondent] attended and the host told me words to the effect of “I couldn’t invite [Applicant] because everyone knows they just separated.” I understand from my observations and conversations with [Applicant/Respondent] that they live separately and apart in the same home.



2. The persons to a marriage will be held to have ‘separated and lived separately and apart’ even if either person provided some household services the other person.³³

2. A divorce will not be granted if there is a reasonable likelihood of cohabitation being resumed.³⁴

1. To establish this, whether both spouses have an intention to resume living together is too high a standard.³⁵
2. Where, after the persons to the marriage separated, they resumed cohabitation but, within 3 months they again separated and remained separated up until filing the application for divorce, (1) the periods before and after the separation will be aggregated together,³⁶ and (2) the cohabitation gap will not be included in the total time of separation. For example, if the couple separated in January and got back together in June but separated again in August, the gap between June and August will not be included.³⁷

• Family Court of Australia, Practice Direction 2003/6: No. 6 of 2003 - Divorce Applications to be Filed in Federal Magistrates Court, 13 November 2003. Note, the Federal Circuit Court of Australia was previously called the Federal Magistrates Court.

• Family Law Act 1975 (Cth), 44(1A)(a):

  “(1A) Proceedings under this Act for:

  (a) a divorce order in relation to a marriage …

  …

  may be instituted by either party to the marriage or jointly by both parties to the marriage.”

• Family Law Act 1975 (Cth), 44(1A)(a):

  “(1A) Proceedings under this Act for:

  (a) a divorce order in relation to a marriage …

  …

  may be instituted by either party to the marriage or jointly by both parties to the marriage.”

• Family Law Act 1975 (Cth), s 48(1):

  “(1) An application under this Act for a divorce order in relation to a marriage shall be based on the ground that the marriage has broken down irretrievably.”

• Family Law Act 1975 (Cth), s 48(2):

  “(2) Subject to subsection (3), in a proceeding instituted by such an application, the ground shall be held to have been established, and the divorce order shall be made, if, and only if, the court is satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the application for the divorce order.”

• Family Law Act 1975 (Cth), s 49(1):

  “(1) The parties to a marriage may be held to have separated notwithstanding that the cohabitation was brought to an end by the action or conduct of one only of the parties.”

• In the Marriage of Todd (No 2) (1976) 25 FLR 260, 262 (Watson J):

  “In my view "separation" means more than physical separation — it involves the destruction of the marital relationship (the consortium vitae).”

  In the Marriage of Pavey (1976) 25 FLR 450, 453-4 (Evatt CJ, Demack J and Watson J):

  “In Todd's case it was said: " In my view 'separation' means more than physical separation-it involves the destruction of the marital relationship (the consortium vitae).

  …

  We agree that "separation means more than physical separation" because "separation" is the event which is used to prove the breakdown of the marriage. However, we do not accept the state-ment-" it involves the destruction of the marital relationship". Just as Mr. Bryant submitted that "repudiation" had the ring of fault about it, so "destruction" has the same ring. In any case, what the Act speaks of is the breakdown of the marriage, so it is appropriate to use the word "breakdown" instead of the word "destruction". In practical terms, this may make no difference, but it is in keeping with the wording of the Act.”

• Lisa Young, Adiva Sifris, Robyn Carroll and Geoffrey Monahan, Family Law in Australia (LexisNexis Butterworths, 9th ed, 2016) 6.60.

• Tulk v Tulk [1907] VLR 64, 65 (Cussen J):

  “… the dwelling under the same roof, … making up as a whole the consortium vitae, which the old writers distinguish from the divortium a mensa et thoro, may be regarded separately as different elements, the presence or absence of which go to show more or less conclusively that the matrimonial relationship does or does not exist.”

  In the Marriage of Todd (No 2) (1976) 25 FLR 260, 262 (Watson J):

  “Marriage involves many elements, some or all of which may be present in a particular marriage – elements such as dwelling under the same roof”.

• Tulk v Tulk [1907] VLR 64, 65 (Cussen J):

  “Marital intercourse, … making up as a whole the consortium vitae, which the old writers distinguish from the divortium a mensa et thoro, may be regarded separately as different elements, the presence or absence of which go to show more or less conclusively that the matrimonial relationship does or does not exist.”

  In the Marriage of Todd (No 2) (1976) 25 FLR 260, 262 (Watson J):

  “Marriage involves many elements, some or all of which may be present in a particular marriage – elements such as … sexual intercourse …”

• Tulk v Tulk [1907] VLR 64, 65 (Cussen J):

  “Marital intercourse, … making up as a whole the consortium vitae, which the old writers distinguish from the divortium a mensa et thoro, may be regarded separately as different elements, the presence or absence of which go to show more or less conclusively that the matrimonial relationship does or does not exist.”

  In the Marriage of Todd (No 2) (1976) 25 FLR 260, 262 (Watson J):

  “Marriage involves many elements, some or all of which may be present in a particular marriage – elements such as … sexual intercourse …”

• Tulk v Tulk [1907] VLR 64, 65 (Cussen J):

  “… support, … making up as a whole the consortium vitae, which the old writers distinguish from the divortium a mensa et thoro, may be regarded separately as different elements, the presence or absence of which go to show more or less conclusively that the matrimonial relationship does or does not exist.”

• Tulk v Tulk [1907] VLR 64, 65 (Cussen J):

  “… recognition in public and in private, … making up as a whole the consortium vitae, which the old writers distinguish from the divortium a mensa et thoro, may be regarded separately as different elements, the presence or absence of which go to show more or less conclusively that the matrimonial relationship does or does not exist.”

  In the Marriage of Todd (No 2) (1976) 25 FLR 260, 262 (Watson J):

  “Marriage involves many elements, some or all of which may be present in a particular marriage – elements such as … recognition of the existence of the marriage by both spouses in public and private relationships.”

• Tulk v Tulk [1907] VLR 64, 65 (Cussen J):

  “… correspondence during separation, … making up as a whole the consortium vitae, which the old writers distinguish from the divortium a mensa et thoro, may be regarded separately as different elements, the presence or absence of which go to show more or less conclusively that the matrimonial relationship does or does not exist.”

• In the Marriage of Pavey (1976) 25 FLR 450, 455 (Evatt CJ, Demack J and Watson J):

  “The constituent elements of the marital relationship were referred to in Todd's case in these words: “Marriage involves many elements some or all of which may be present in a particular marriage-elements such as dwelling under the same roof, sexual intercourse, mutual society and protection, recognition of the existence of the marriage by both spouses in public and private relationships.”

  
  

  To this general statement we wish to add but one phrase, “the nurture and support of the children of the marriage”.”

• In the Marriage of Todd (No 2) (1976) 25 FLR 260, 262 (Watson J):

  “Marriage involves many elements, some or all of which may be present in a particular marriage”.

• In the Marriage of Pavey (1976) 25 FLR 450, 455 (Evatt CJ, Demack J and Watson J):

  “We also agree with the statement in Todd's case that " what comprises the marital relationship for each couple will vary". It is for this reason that it is difficult to formulate a satisfactory test in cases where the parties live under the one roof. As s. 48 is concerned with the marriage of the parties, it is the content of their marital relationship which must be examined, not a definition of what a marital relationship ought to include. This, of course, does not mean that the various statements about the content of the marital relationship are useless. They do provide valuable checklists in each case, but they cannot be applied mechanically. If, during the marriage, the parties treat as of little importance something which may ordinarily be a significant part of the marital relationship, then that aspect of their life may be of little importance in determining whether they have separated.”

• In the Marriage of Todd (No 2) (1976) 25 FLR 260, 262 (Watson J):

  “What comprises the marital relationship for each couple will vary.”

• Price v Underwood (2008) 39 Fam LR 614, [55] (May, Boland & Ryan JJ):

  “Perhaps as a consequence of the learned Federal Magistrate’s failure to consider the parties’ marriage prior to October 2005 he overlooked the importance, on the facts of this case, of the necessity for the husband to communicate to the wife his intention to end the marriage. In Falk the Full Court held at 76,333:

  “The attitudes and intentions of the parties may be spoken or unspoken; where both parties withdraw from recognition of the marriage the surrounding circumstances would often make it easier to establish separation. Where one party only has formed the relevant attitude and intention they should have been communicated to the other party directly or indirectly. Where other aspects of the relationship continue a party should not be heard to claim separation on the basis of a secret intention unknown to the other party. There are many ways of communicating an intention or change of attitude.””

• Lisa Young, Adiva Sifris, Robyn Carroll and Geoffrey Monahan, Family Law in Australia (LexisNexis Butterworths, 9th ed, 2016) 6.59.

• Lisa Young, Adiva Sifris, Robyn Carroll and Geoffrey Monahan, Family Law in Australia (LexisNexis Butterworths, 9th ed, 2016) 6.1.

  
  

  ---

  
  

  The College of Law, Victoria Practice Papers 2019-2020 (LexisNexis Butterworths, 2019) vol 1, [F101.05].

  
  

  ---

  
  

  In the Marriage of Abbott (1995) 18 Fam LR 550, 561 (Fogarty, Baker and Kay JJ):

  “…it is necessary for registrars to bear in mind that the question of divorce can be a highly personal and emotional topic and a respondent may feel entitled to ‘oppose’ the application on grounds which are unrelated to the legislation. This is particularly so in areas of religious belief, conduct, fault, etc. This must be balanced with the recognition that the Parliament has made a judgment on these matters in legislation in 1975 which removed the plethora of fault grounds and substituted the present single, no fault, ground of divorce in Australia. An applicant is not obliged to face a contest on irrelevant issues and that needs to be clearly, but courteously, explained to the respondent.”

• The College of Law, Victoria Practice Papers 2019-2020 (LexisNexis Butterworths, 2019) vol 1, [F101.15].

• The College of Law, Victoria Practice Papers 2019-2020 (LexisNexis Butterworths, 2019) vol 1, [F101.15].

• Family Law Act 1975 (Cth), s 49(1):

  “(2) The parties to a marriage may be held to have separated and to have lived separately and apart notwithstanding that they have continued to reside in the same residence or that either party has rendered some household services to the other.”

• In the Marriage of Pavey (1976) 25 FLR 450, 457-8 (Evatt CJ, Demack J and Watson J):

  “The words in italics are particularly significant in cases where the parties to a marriage continue to live in the same residence, and yet assert that the marriage has irretrievably broken down. In such cases, without a full explanation of the circumstances, there is an inherent unlikelihood that the marriage has broken down, for the common residence suggests continuing cohabitation. Such cases therefore require evidence that goes beyond inexact proofs, indefinite testimony and indirect inferences. The party or parties alleging separation must satisfy the court about this by explaining why the parties continued to live under the one roof, and by showing that there has been a change in their relationship, gradual or sudden, constituting a separation.”

• The College of Law, Victoria Practice Papers 2019-2020 (LexisNexis Butterworths, 2019) vol 1, [F101.15].

• The College of Law, Victoria Practice Papers 2019-2020 (LexisNexis Butterworths, 2019) vol 1, [F101.420].

• In the Marriage of Pavey (1976) 25 FLR 450, 457-8 (Evatt CJ, Demack J and Watson J):

  “The words in italics are particularly significant in cases where the parties to a marriage continue to live in the same residence, and yet assert that the marriage has irretrievably broken down. In such cases, without a full explanation of the circumstances, there is an inherent unlikelihood that the marriage has broken down, for the common residence suggests continuing cohabitation. Such cases therefore require evidence that goes beyond inexact proofs, indefinite testimony and indirect inferences. The party or parties alleging separation must satisfy the court about this by explaining why the parties continued to live under the one roof, and by showing that there has been a change in their relationship, gradual or sudden, constituting a separation. For this reason many of the judges of the Family Court of Australia have adopted the practice of requiring corroboration of the applicant's evidence in cases where the parties reside in the same residence. We do not wish to lay down an inflexible rule that evidence from a witness other than the parties to a marriage must be given, but an applicant should always be ready to call such evidence. Whether the judge will require such evidence will depend on the circumstances of each case.”

• In the Marriage of Pavey (1976) 25 FLR 450, 458 (Evatt CJ, Demack J and Watson J):

  “We do not wish to lay down an inflexible rule that evidence from a witness other than the parties to a marriage must be given, but an applicant should always be ready to call such evidence. Whether the judge will require such evidence will depend on the circumstances of each case.”

• Family Court of Western Australia, Case Management Guidelines (7 May 2012) 51.1:

  “In cases where it is claimed that parties have lived separately and apart under the same roof during any part of the period of twelve months immediately preceding the date of filing of the application for divorce the Court will ordinarily require corroboration of the claim by the filing of an affidavit by an independent witness, in addition to an affidavit by the applicant/s. The witness should attend the hearing in case further evidence is deemed necessary.”

• The College of Law, Victoria Practice Papers 2019-2020 (LexisNexis Butterworths, 2019) vol 1, [F101.15].

• The College of Law, Victoria Practice Papers 2019-2020 (LexisNexis Butterworths, 2019) vol 1, [F101.425].

• Family Law Act 1975 (Cth), s 49(2):

  “The parties to a marriage may be held to have separated and to have lived separately and apart notwithstanding that they have continued to reside in the same residence or that either party has rendered some household services to the other.

• Family Law Act 1975 (Cth), s 48(3):

  “(3) A divorce order shall not be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed.”

• In the Marriage of Bates and Sawyer (1977) FLC ¶90-319:

  “The learned trial Judge applied certain observations by Watson S.J. in Todd and Todd (No. 2) (1976) FLC 90-008, reading as follows:

  “As to the third element, resumption of cohabitation, once the necessary period of separation has been established, the decree for dissolution should be made unless the court is satisfied that there is a reasonable likelihood of cohabitation being resumed. The onus of establishing such likelihood is on the spouse who assets it. More than the likely resumption of some elements of the marital relationship must be shown — resumption of cohabitation must be shown to be likely — that is a bilateral intention on the part of both spouses to resume living together.”

  We agree with his Honour's observations regarding the onus of establishing that there is a reasonable likelihood of cohabitation being resumed ``is on the spouse who asserts it'' but with due respect to his Honour we do not agree that it must be shown that there is ``a bilateral intention on the part of both spouses to resume living together''. In our view a spouse who seeks to invoke the provisions of sec. 48(3) may succeed by relying on evidence that falls short of a demonstrated intention on the part of both parties to resume cohabitation. In our opinion a Judge who is required to rule on an assertion by one spouse that sec. 48(3) applies must come to his conclusion on the whole of the evidence and give full weight to the words reasonable likelihood in the subsection. It is not difficult to visualize a situation where one spouse convinces the Court that he or she wishes to resume cohabitation and the other gives evidence of an equivocal nature indicating that he or she is interested in exploring the possibility of a reconciliation. Such evidence could not be classified as a ``bilateral intention'' but depending on the Court's opinion based on the whole of the evidence it may be sufficient to justify a finding by the Court that there is a reasonable likelihood of cohabitation being resumed.”

• Family Law Act 1975 (Cth), s 50(1):

  “(1) For the purposes of proceedings for a divorce order, where, after the parties to the marriage separated, they resumed cohabitation on one occasion but, within a period of 3 months after the resumption of cohabitation, they again separated and thereafter lived separately and apart up to the date of the filing of the application, the periods of living separately and apart before and after the period of cohabitation may be aggregated as if they were one continuous period, but the period of cohabitation shall not be deemed to be part of the period of living separately and apart.”

• Family Law Act 1975 (Cth), s 50(1):

  “(1) For the purposes of proceedings for a divorce order, where, after the parties to the marriage separated, they resumed cohabitation on one occasion but, within a period of 3 months after the resumption of cohabitation, they again separated and thereafter lived separately and apart up to the date of the filing of the application, the periods of living separately and apart before and after the period of cohabitation may be aggregated as if they were one continuous period, but the period of cohabitation shall not be deemed to be part of the period of living separately and apart.”

3. Minor interruptions to the cohabitation period are treated as one continuous cohabitation period.³⁸
4. If persons to the marriage separate and then within 1 year³⁹ cohabitate again for over 3 months, a divorce will not be granted.⁴⁰
5. The court should be advised at the court hearing if the spouses cohabitate again between filing the application for divorce and the court hearing.⁴¹

• Family Law Act 1975 (Cth), s 50(2):

  “(2) For the purposes of subsection (1), a period of cohabitation shall be deemed to have continued during any interruption of the cohabitation that, in the opinion of the court, was not substantial.”

• Family Law Act 1975 (Cth), s 48(2):

  “(2) Subject to subsection (3), in a proceeding instituted by such an application, the ground shall be held to have been established, and the divorce order shall be made, if, and only if, the court is satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the application for the divorce order.”

• Family Law Act 1975 (Cth), s 50(1):

  “(1) For the purposes of proceedings for a divorce order, where, after the parties to the marriage separated, they resumed cohabitation on one occasion but, within a period of 3 months after the resumption of cohabitation, they again separated and thereafter lived separately and apart up to the date of the filing of the application, the periods of living separately and apart before and after the period of cohabitation may be aggregated as if they were one continuous period, but the period of cohabitation shall not be deemed to be part of the period of living separately and apart.”

• Family Court of Western Australia, Case Management Guidelines (7 May 2012) 50.1:

  “An applicant (or his or her lawyer) should be in a position to advise the Court on the date of hearing of the application for divorce whether or not - 31 - there has been any resumption of cohabitation at any time between the date of filing of the application and date of hearing.”

2. A divorce will not be granted until the court has made a declaration in relation to children (regardless of whether the couple has children).⁴²

1. If there are no children of the marriage, the court will declare that there are no children to the marriage.⁴³

2. If there are children to the marriage, the court will declare one of the following:

1. The court will declare once satisfied (1) that the children of the marriage under 18 years of age are the children specified in the divorce order and (2) proper arrangements in all the circumstances have been made for the care, welfare and development of those children.⁴⁴

1. This rule is question number 28 on the application for divorce. The College of Law provides an example response to question 28.⁴⁵



Question 28 - Example

(a) Time spent and communication with the child Julie now spends each second weekend with the husband from about 4pm Friday to 7pm Sunday (or Monday if a public holiday). In addition, Julie will spend up to six weeks each year with the husband during school holidays. Julie has regular telephone and social media communication with the husband. These arrangements are working well. (b) Financial support 1. The husband pays child support of $150.00 per week as assessed under the Child Support formula. In addition, he pays half the mortgage payments, rates and insurance for the home. 2. The wife meets her share of the upkeep of the home and provides food, clothing and other necessities for Julie and herself from her own earnings and from child support of $150.00 per week received from the husband. (c) Health Julie is in good health except that since age three she suffers from mild asthma. She takes regular medication for this condition, under the care of a local general practitioner. (d) Education Julie is in year 1 at Smithville Primary School and is progressing well. General Further Information (e) Housing Julie lives with the wife at the former matrimonial home. Julie has her own bedroom. (f) Supervision The wife works as a retail sales assistant five days each week during school hours. She supervises Julie out of school hours when Julie is not spending time with the husband.



2. The court will declare once satisfied (1) that the children of the marriage under 18 years of age are the children specified in the divorce order and (2) there are circumstances by reason of which the divorce order should be granted even though the court is not satisfied that proper arrangements of the care, welfare and development of those children have been made.⁴⁶

1. For example, in Yee & Woo [2018] FCCA 666, the special circumstances were: the children and wife lived in China and it is unclear whether they will ever return; the children were in the care of the grandmother and not either of the parents; the lack of enforceable child support assessment; and that there are no family law proceedings.⁴⁷

3. The court will adjourn the proceedings for a divorce order if there are no special circumstances and the court doubts whether the arrangements made for the care, welfare and development of a child of the marriage are proper in all the circumstances until a report has been obtained from a family consultant regarding those arrangements.⁴⁸
4. A ‘child’ means a child ‘is a child of the marriage if the child was treated by both parties to the marriage as a child of their family at the relevant time.’⁴⁹

1. A child also includes an ‘ex‑nuptial child of either party to the marriage, a child adopted by either of them or a child who is not a child of either of them.’⁵⁰
2. The ‘relevant time’ is the ‘time immediately before the time when the parties to the marriage separated or, if they have separated on more than one occasion, the time immediately before the time when they last separated before the institution of the proceedings in which the divorce order was made.’⁵¹

3.2. Divorce When the Marriage Lasted Less Than 2 Years

1. A divorce is not allowed for marriages which have existed less than 2 years.⁵²

1. Except with permission of the court.⁵³

1. A person in a marriage may file an application for divorce with a certificate stating that the parties to the marriage have considered a reconciliation with the assistance of a specified person, who is (1) a family counsellor; or (2) if the court is the Family Court, the Federal Circuit Court of Australia or the Family Court of a State – an individual or an organisation nominated for the parties by a family consultant; or (3) if the court is not the Family Court, the Federal Circuit Court of Australia or the Family Court of a State – an individual or an organisation nominated for the parties by an appropriately qualified officer of the court.⁵⁴ The certificate must be signed by that specified person or on behalf of the organisation.⁵⁵

1. Whether the couple has considered reconciliation, ‘considered’ means no more than that the matter be brought to their attention and they make a decision about it one way or another.⁵⁶

1. For example, in In the Marriage of NUELL (1976) 1 Fam LR 11,239, the judge provides a description of the events involved a couple seeking divorce:

   “…when Mrs Nuell came to file her application for divorce on 8 January 1976, she having by that time been separated from her husband for a period beyond 12 months, she was informed by court officials that she would have to seek marriage counselling because she had not been married for more than two years at that time. An appointment was made for her to see a marriage counsellor attached to this court. It is clear that she was not interested in any question of reconciliation and she merely went through the procedures which appeared necessary in order to get her divorce application heard. Mrs Nuell had one appointment with a marriage counsellor in which she indicated she wanted a divorce and was not interested in a reconciliation. It would appear that the discussion went little further than that.

   So far as Mr Nuell is concerned the position is even stronger, because a letter was sent out to him by a marriage counsellor of this court requesting him to attend a conference for the purpose of discussing a reconciliation and marriage counselling generally. He considered that letter but decided not to attend because he was not interested in a reconciliation and did not in fact reply to the letter.

   …

   Here, the parties considered reconciliation in the sense that that subject matter was brought to the attention of each of them by a marriage counsellor and both of them rejected it.

   …

   On balance, I have formed the view that ... where the question of reconciliation is clearly brought to the attention of both of the parties by the prescribed persons and they have considered it, at least in the sense they have both made a choice about it one way or the other.”

2. A person in a marriage may file an application for divorce if there are (1) special circumstances for not attending counselling and (2) the couple has not considered reconciliation under section 44(1B) of the Family Law Act 1975 (Cth).⁵⁷ If the couple has received counselling, the subsection (1B) certificate is mandatory.⁵⁸ The special circumstances need to be set out in an affidavit.⁵⁹

1. Special circumstances may include for example, a spouse cannot be located, or a spouse will not attend.⁶⁰

3.3. Same Sex Couples

1. Same sex couples can divorce.

1. Same sex couples can divorce regardless of when the marriage was solemnised.⁶¹
2. Same sex couples who divorced overseas before 9 December 2017, that divorce is recognised in Australia.⁶²
3. The Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth) amended the Marriage Act 1961 (Cth) and changed:

1. The definition of marriage under section 5(1) of the Marriage Act 1961 (Cth) was changed from “a man and a woman” to “2 people”.⁶³ It now states, ““marriage” means the union of 2 people to the exclusion of all others, voluntarily entered into for life.”

4. Same sex marriages which solemnised in a foreign country before or after the amended marriage definition can divorce.⁶⁴

3.4. Fees

1. General Fee: $910.⁶⁵
2. Reduced Fee: $305.⁶⁶

1. A person is eligible to pay the reduced fee in the following circumstances:

1. The person has been granted legal aid.⁶⁷
2. The person has a card issued by the Commonwealth including a Health Care Card,⁶⁸ Pensioner Concession Card,⁶⁹ Commonwealth Seniors Health Card,⁷⁰ or any other card that entitles the person to Commonwealth health concessions.⁷¹
3. The general fee would cause financial hardship.⁷²

1. The Registrar or an authorised officer will consider the person’s income, day-to-day living expenses, liabilities and assets and then form the opinion of whether the general fee would in fact cause financial hardship.⁷³

3.5. Serving Documents

1. If the parties made a joint application, no documents need to be served on either party.⁷⁴
2. The respondent (the spouse who did not file the application for divorce), must personally be served with (1) the application for divorce⁷⁵ and (2) The brochure titled ‘Marriage, Families and Separation’ written by the Family Court of Australia and the Federal Circuit Court of Australia.⁷⁶

1. A lawyer representing the spouse who did not file the application for divorce, may instead be served if the lawyer agrees in writing to accept the application for divorce.⁷⁷
2. If the respondent has a disability, the documents must be serviced on the respondent’s (1) case guardian, or (2) guardian appointed by law, or (3) if there is no guardian, an adult who has the care of the respondent.⁷⁸ If there is no guardian, and the respondent is in a hospital, nursing home, or other care facility, the head of that hospital, nursing home, or other care facility, is the adult which the documents must be served.⁷⁹
3. If the respondent is a prisoner, the documents must be serviced on the person in charge of the prison.⁸⁰

3. There are three options to serve the documents:

1. By hand.⁸¹

1. A copy of the application for divorce must be served on the receiver.⁸²
2. The applicant (the spouse filing the application for divorce) must not personally serve the documents themselves.⁸³ Instead, the documents must be served by a process server or a third party.⁸⁴ The applicant may be present the process server or third party serves the documents.⁸⁵
3. If the respondent refuses to take the documents, to satisfy the requirement of service, the documents must be placed down in the presence of the receiver (the respondent or respondent’s lawyer) and the receiver must be told what it is.⁸⁶

2. By post.

1. The documents must be posted to the receiver’s last known address.⁸⁷
2. The documents must be sent by pre-paid post in a sealed envelope.⁸⁸
3. An Acknowledgment of Service must be included for the receiver (the respondent or respondent’s lawyer) to sign.⁸⁹

1. The applicant must complete formAffidavit Proving Signature (Divorce) in order to prove that the signature on the Acknowledgment of Service is in fact the respondent’s signature.⁹⁰

4. A stamped envelope addressed to applicant must be included.⁹¹ This is so the respondent can complete the Acknowledge of Service and post it back to the applicant without having to buy and organise an envelope and postage.⁹²

3. By electronic communication.⁹³

1. An Acknowledgment of Service must be included for the receiver (the respondent or respondent’s lawyer) to sign.⁹⁴

1. The respondent will need to print out and sign a hard copy of the Acknowledgment of Service and arrange for the signed copy to be returned to the applicant.⁹⁵
2. The applicant must complete form Affidavit Proving Signature (Divorce) in order to prove that the signature on the Acknowledgment of Service is in fact the respondent’s signature.⁹⁶

4. The documents must be served at least 28 days before the hearing. If the respondent is outside of Australia, then the documents must be at least 42 days before the hearing. This is because the respondent must file a response to the application for divorce either 28 days (if the respondent is in Australia)⁹⁷ or 42 days (if the respondent is outside of Australia)⁹⁸ after being served.⁹⁹
5. The date that the documents are served is as follows:

1. On the date when service is acknowledged,¹⁰⁰ or;
2. If served by post to an address in Australia, on the third day after it was posted;¹⁰¹ or
3. If served by delivery to a document exchange, on the next working day after the day when it was delivered;¹⁰² or
4. On a date fixed by the court.¹⁰³

6. The applicant must prove that the documents have been served on the respondent.

1. If the server served the documents in person:

1. If the person served signed the Acknowledgment of Service, this may be used as proof of service.¹⁰⁴

1. If the person served signed the Acknowledgment of Service, this may be used as proof of service.¹⁰⁵
2. If the server can identify the person served, the server may use this as proof of service.¹⁰⁶
3. If the server can identify a photograph of the person served, and another person who knows the person served identifies the photograph as a photograph of the person served, this may be used as proof of service.¹⁰⁷
4. If a person other than the server of a document saw the document handed to, or put down in the presence of, the person served and can identify the person served, this may be used as proof of service.”¹⁰⁸

2. If the server served the documents by post, the server must complete an affidavit of service in the form: Affidavit of Service by Post (Divorce).¹⁰⁹

1. Service may be proved by (1) the Affidavit of Service, and (2) the Acknowledgement of Service signed by the respondent, and (3) the Affidavit Proving Signature.¹¹⁰

3. If the server served the documents by electronic communication, the server must complete an affidavit of service.¹¹¹ The affidavit must contain the name of the deponent, witness, and date of swearing.¹¹²

1. Service may be proved by (1) the Affidavit of Service, and (2) the Acknowledgement of Service signed by the respondent, and (3) the Affidavit Proving Signature.¹¹³

7. The court has the discretion to hold that the documents have been served even if the rules have not been complied with.¹¹⁴

1. Evidence must be provided, usually by affidavit, to establish why the court should use its discretion.¹¹⁵
2. The court will usually only hold that the documents have been served if there is no detriment to the respondent or if the respondent agrees.¹¹⁶

8. If the applicant cannot serve documents on the respondent, the applicant may instead apply for (1) substituted service or (2) dispensation with service.¹¹⁷

1. Substituted Service:

1. The applicant may not be able to serve documents on the respondent because the respondent is unable to be found or the respondent is avoiding service.¹¹⁸
2. Substituted service is filed as an Application in a Case.¹¹⁹

1. The applicant must file an affidavit stating the facts relied upon for the order.¹²⁰
2. The applicant may be required to give oral evidence.¹²¹

3. The court may specify how the documents must be served.¹²²
4. The court may consider the following factors when determining whether a substituted service should be ordered:

1. The proposed method of bringing the documents to the attention of the respondent.¹²³
2. Whether all reasonable steps have been taken to serve the documents or bring it to the attention of the respondent.¹²⁴
3. Whether the respondent could reasonably become aware of the existence and nature of the document by advertisement or another form of communication that is reasonably available.¹²⁵
4. The likely cost of service.¹²⁶
5. The means of the respondent.¹²⁷
6. The nature of the case.¹²⁸
7. Any other relevant matter.¹²⁹

2. Dispensing with Service:

1. The applicant may not be able to serve documents on the respondent because the respondent is unable to be found or the respondent is avoiding service.¹³⁰
2. Dispensing with service is filed as an Application in a Case.¹³¹

1. The applicant must file an affidavit stating the facts relied upon for the order.¹³²
2. The applicant may be required to give oral evidence.¹³³

3. The court may or may not assign conditions in order to dispense with service.¹³⁴

1. A condition which the court may require is that that the applicant place a notice of the application for divorce in a newspaper.¹³⁵ After the notice has been published, obtain a copy of the page of the newspaper, file an affidavit at the Court confirming the notice was published, attaching as an attachment the relevant page of the newspaper.¹³⁶

1. The Family Court of Western Australia Case Management Guidelines provides an example notice:¹³⁷

Notice Example
Form of Notice TO: Name of Party TAKE NOTICE: Your husband/wife has applied to the Family Court of Western Australia for divorce. Unless you file an answer within 28 days the application may proceed. A copy of the application is available from the Principal Registrar, 150 Terrace Road, Perth, Western Australia.

4. The court may consider the following factors when determining whether dispensing with service should be ordered:

1. The proposed method of bringing the documents to the attention of the respondent.¹³⁸
2. Whether all reasonable steps have been taken to serve the documents or bring it to the attention of the respondent.¹³⁹

1. The Family Court of Western Australia provides a list of example steps the applicant has taken in order to locate their spouse:¹⁴⁰

• “[T]he efforts and enquiries you made to find your spouse.
• details of the last time you saw or communicated with your spouse. your spouse’s last known address.
• Who your spouse’s nearest relatives and friends are, and details of the enquiries you made of these people.
• What employment, if any, your spouse had.
• Details of the enquiries you made with your spouse’s last known employer.
• Details of any current child support or maintenance arrangements or orders.
• If correspondence has been received from the Department of Human Services (Child Support), attach a copy to your affidavit.
• Details of any property, bank accounts or businesses jointly owned.
• If the respondent lives overseas, details where they are living, how long they have lived there and if they plan to travel or move back to Australia.
• Any reasons why the respondent may not be contactable.
• The costs of trying to locate the respondent and whether such costs are creating financial difficulties for you.
• Any other relevant information that may help the Court.”

3. Whether the respondent could reasonably become aware of the existence and nature of the document by advertisement or another form of communication that is reasonably available.¹⁴¹
4. The likely cost of service.¹⁴²
5. The means of the respondent.¹⁴³
6. The nature of the case.¹⁴⁴
7. Any other relevant matter.¹⁴⁵

3.6. Court Hearing

1. If the application for divorce is undefended, the application will be heard before the court.¹⁴⁶
2. Neither spouse may be required to attend the hearing if:

1. For a joint application:

1. One of the spouses has requested the court to determine the divorce application without both spouses¹⁴⁷ and the other spouse has not opposed this request;¹⁴⁸ or
2. Both spouses have requested the court to determine the divorce application without themselves at the hearing.¹⁴⁹
3. If there are children to the marriage under the age of 18, the court is satisfied that proper arrangements in all the circumstances have been made for the care, welfare and development of those children.¹⁵⁰

2. For an individual application:

1. The divorce application is undefended;¹⁵¹ and
2. There are no children of the marriage under 18 years of age;¹⁵² and
3. The applicant has requested the court to determine the proceedings in the absence of the spouses;¹⁵³ and
4. The respondent has not requested the court not to determine the proceedings in the absence of the spouses.¹⁵⁴

1. If the respondent objects to the case being heard in the absence of the spouses, the respondent must at least 7 days before the date for hearing file and serve a written notice.¹⁵⁵

3. Either spouse may apply to attend the hearing by electronic communication.¹⁵⁶ Such as phone or video link.¹⁵⁷ Form for Telephone / Video link Attendance Request.

1. The court may consider the following factors when determining whether to grant the application:

1. The distance between the spouse’s residence and the court.¹⁵⁸
2. Any difficulty the spouse has in attending because of illness or disability.¹⁵⁹
3. The expense associated with attending.¹⁶⁰
4. The expense to be incurred, or the savings to be made, by using the electronic communication.¹⁶¹
5. Any concerns about security, including family violence and intimidation.¹⁶²
6. Whether any other party objects to the request.¹⁶³

2. Requirements for application:

1. Before making an application, the spouse must ask the other spouse whether they agree, or object, to the use of electronic communication for attending the hearing.¹⁶⁴
2. The application must be in writing.¹⁶⁵
3. The application must be made at least 7 days before the hearing.¹⁶⁶
4. The application must include the following information:

1. The kind of electronic communication to be used.¹⁶⁷
2. The expense of using the electronic communication, including any expense to the court, and the applicant’s proposals for paying those expenses.¹⁶⁸
3. The details of the notice in relation to the application that has been given to the other spouse.¹⁶⁹
4. Whether the spouse agrees or objects to the application.¹⁷⁰

5. If an application is granted, the spouse who made the application must immediately give written notice to the other spouse.¹⁷¹

3. If the court grants the application, the court may further order: (1) one spouse to pay the expense of using the electronic communication, or (2) apportion the expenses between the spouses.¹⁷²

3.7. Additional Rules

1. For the court to order a divorce, the marriage must first be proven. To prove the marriage:

1. An original marriage certificate may be filed as evidence.¹⁷³
2. Or, a certified extract of the entry in the register of marriage may be filed as evidence.¹⁷⁴

2. For the court to order a divorce, the must court must have jurisdiction over one of the spouses.¹⁷⁵

1. For the court to have jurisdiction:

1. (1) One of the spouses must be an Australian citizen and (2) is domiciled in Australia;¹⁷⁶ or
2. (1) One of the spouses is an Australian citizen and (2) is ordinarily resident in Australia and has been so a resident for the last 12 months before the filing of the application for divorce.¹⁷⁷

2. Question 11 on the divorce application has four options.

1. “(a) regards Australia as his/her home and intends to live indefinitely in Australia”

1. The court may require evidence, for example, a visa, or Australia citizenship documents.¹⁷⁸
2. The court may require evidence that the spouse has lived in Australia and in likely to continue living in Australia.¹⁷⁹ For example, telephone bills, water bills, electricity bills, rent receipts, income tax, or government correspondence.¹⁸⁰ These documents should be in the spouse’s name and address.¹⁸¹

2. “(b) is an Australian citizen by birth or descent”
3. “(c) is an Australian citizen by grant of Australian citizenship”

1. The court may require evidence, for example, a visa or Australia citizenship documents.¹⁸²

4. “(d) ordinarily lives in Australia & has done so for 12 months immediately before filing this application”

1. The court may require evidence, for example, a visa or Australia citizenship documents.¹⁸³
2. The court may require evidence that the spouse has lived in Australia and in likely to continue living in Australia.¹⁸⁴ For example, telephone bills, water bills, electricity bills, rent receipts, income tax, or government correspondence.¹⁸⁵ These documents should be in the spouse’s name and address.¹⁸⁶

3. If the application for divorce is granted, it takes 1 month and 1 day for the order to come into effect.¹⁸⁷
4. After the divorce order has come into effect, the persons to the ex-marriage have 12 months to initiate proceedings in relation to property and spousal maintenance.¹⁸⁸
5. Forms by the Federal Court or the Family Court do not need be complied with strictly. Instead, the forms must be complied with substantially.¹⁸⁹
6. For Western Australia, the Family Law Rules 2004 (Cth) is applied in the Family Court of Western Australia, except for the following rules: 1.18, 4.14, 4.25, 4.30, 4.31, 5.09(2), 12.01(e), 12.08, 12.09, 12.14 to 12.16, 15.03(1) Chapter 16A.2, 18.01 to 18.10, and 19.03(3).¹⁹⁰
7. The legal definition of marriage is “the union of 2 people to the exclusion of all others, voluntarily entered into for life.”¹⁹¹
8. A lawyer must provide their client with the brochure titled ‘Marriage, Families and Separation’ written by the Family Court of Australia and the Federal Circuit Court of Australia.¹⁹²

1. Except where the lawyer has reasonable grounds to believe that the client has already been given the documents.¹⁹³
2. Except where the lawyer considers that their client’s marriage cannot be reconciled.¹⁹⁴

• Family Law Act 1975 (Cth), 55A.

• Family Law Act 1975 (Cth), 55A(1)(a):

  “(1) A divorce order in relation to a marriage does not take effect unless the court has, by order, declared that it is satisfied:

  (a) that there are no children of the marriage who have not attained 18 years of age …”

• Family Law Act 1975 (Cth), 55A(1)(b)(i):

  “(1) A divorce order in relation to a marriage does not take effect unless the court has, by order, declared that it is satisfied:

  …

  (b) that the only children of the marriage who have not attained 18 years of age are the children specified in the order and that:

  (i) proper arrangements in all the circumstances have been made for the care, welfare and development of those children …”

• The College of Law, Victoria Practice Papers 2019-2020 (LexisNexis Butterworths, 2019) vol 1, [F101.400].

• Family Law Act 1975 (Cth), 55A(1)(b)(ii):

  “(1) A divorce order in relation to a marriage does not take effect unless the court has, by order, declared that it is satisfied:

  …

  (b) that the only children of the marriage who have not attained 18 years of age are the children specified in the order and that:

  (i) proper arrangements in all the circumstances have been made for the care, welfare and development of those children; or

  (ii) there are circumstances by reason of which the divorce order should take effect even though the court is not satisfied that such arrangements have been made.”

• Yee & Woo [2018] FCCA 666, (Judge Monahan):

  “[40] In this case there are circumstances of note. As stated, the children (and the wife) are not in the jurisdiction and it is unclear whether they will ever return. A family report process in the absence of the wife and the children would be a problematic exercise and a potential expense to the Australian taxpayer.

  [41] In addition, the parties agree that the children are in the primary care of the maternal grandmother, and not the mother, and it was unclear whether the maternal grandmother has ever sought financial support from one or both of the parties to assist with the children’s expenses.

  [42] Another circumstance of note is that there are no contemporaneous parenting and/or property proceedings either in Australia or China and that neither party has sought a child support assessment in Australia.

  [43] While I note the wife’s criticism that the husband could have applied for a child support assessment in Australia (or otherwise voluntarily pay child support) the wife provides no real explanation as to why she has similarly not sought any child support assessment.

  Conclusion

  [44] In this case I find that there are circumstances to enable the Court to make a declaration under section 55A(1)(b)(ii). These include:

  • the children and the wife residing in China;

  • the children being in the care of the maternal grandmother (and not one of the parties);

  • the apparent disagreement between the parties as to whether the children should return to live in Australia;

  • the lack of any child support assessment to enforce; and

  • the reality that there are no family law proceedings before this Court or elsewhere, save for this subsequent divorce application and response.

  [45] Consequently, I pronounce a declaration under section 55A(1)(b)(ii); that is, that there are circumstances by which the divorce order should take effect even though the Court is not satisfied that such proper arrangements for the children have been made.”

• Family Law Act 1975 (Cth), 55A(2):

  “Where, in proceedings for a divorce order in relation to a marriage, the court doubts whether the arrangements made for the care, welfare and development of a child of the marriage are proper in all the circumstances, the court may adjourn the proceedings until a report has been obtained from a family consultant regarding those arrangements.”

• Family Law Act 1975 (Cth), 55A(3):

  “For the purposes of this section, a child (including an ex‑nuptial child of either party to the marriage, a child adopted by either of them or a child who is not a child of either of them) is a child of the marriage if the child was treated by both parties to the marriage as a child of their family at the relevant time.”

• Family Law Act 1975 (Cth), 55A(3):

  “For the purposes of this section, a child (including an ex‑nuptial child of either party to the marriage, a child adopted by either of them or a child who is not a child of either of them) is a child of the marriage if the child was treated by both parties to the marriage as a child of their family at the relevant time.”

• Family Law Act 1975 (Cth), 55A(4):

  “(3) For the purposes of this section, a child (including an ex‑nuptial child of either party to the marriage, a child adopted by either of them or a child who is not a child of either of them) is a child of the marriage if the child was treated by both parties to the marriage as a child of their family at the relevant time.

  (4) For the purposes of subsection (3), the relevant time is the time immediately before the time when the parties to the marriage separated or, if they have separated on more than one occasion, the time immediately before the time when they last separated before the institution of the proceedings in which the divorce order was made.”

• Family Law Act 1975 (Cth), 55A(4):

  “(3) For the purposes of this section, a child (including an ex‑nuptial child of either party to the marriage, a child adopted by either of them or a child who is not a child of either of them) is a child of the marriage if the child was treated by both parties to the marriage as a child of their family at the relevant time.

  (4) For the purposes of subsection (3), the relevant time is the time immediately before the time when the parties to the marriage separated or, if they have separated on more than one occasion, the time immediately before the time when they last separated before the institution of the proceedings in which the divorce order was made.”

• Family Law Act 1975 (Cth), s 44(1B):

  “An application for a divorce order in relation to a marriage shall not, without the leave of the court granted under subsection (1C), be filed within the period of 2 years after the date of the marriage…”

• Family Law Act 1975 (Cth), s 44(1B):

  “(1B) An application for a divorce order in relation to a marriage shall not, without the leave of the court granted under subsection (1C), be filed within the period of 2 years after the date of the marriage unless there is filed with the application a certificate:

  (a) stating that the parties to the marriage have considered a reconciliation with the assistance of a specified person, who is:

  (i) a family counsellor; or

  (ii) if the court is the Family Court, the Federal Circuit Court of Australia or the Family Court of a State—an individual or an organisation nominated for the parties by a family consultant; or

  (iii) if the court is not the Family Court, the Federal Circuit Court of Australia or the Family Court of a State—an individual or an organisation nominated for the parties by an appropriately qualified officer of the court; and

  (b) signed by that person or on behalf of that organisation, as the case may be.”

• Family Law Act 1975 (Cth), s 44(1B):

  “(1B) An application for a divorce order in relation to a marriage shall not, without the leave of the court granted under subsection (1C), be filed within the period of 2 years after the date of the marriage unless there is filed with the application a certificate:

  (a) stating that the parties to the marriage have considered a reconciliation with the assistance of a specified person, who is:

  (i) a family counsellor; or

  (ii) if the court is the Family Court, the Federal Circuit Court of Australia or the Family Court of a State—an individual or an organisation nominated for the parties by a family consultant; or

  (iii) if the court is not the Family Court, the Federal Circuit Court of Australia or the Family Court of a State—an individual or an organisation nominated for the parties by an appropriately qualified officer of the court; and

  (b) signed by that person or on behalf of that organisation, as the case may be.”

• In the Marriage of Nuell (1976) 1 Fam LR 11,239, 11240 (Fogarty J):

  “The question then arises whether the parties have “considered a reconciliation with the assistance of a marriage counsellor” within the meaning of s 14(6). It rather depends upon what is meant by the word “considered”, although it must be borne in mind that such consideration must be “with the assistance of a marriage counsellor” or other described organization.

  …

  Here, the parties considered reconciliation in the sense that that subject matter was brought to the attention of each of them by a marriage counsellor and both of them rejected it. If the word “considered” means no more than that the matter be brought to their attention and they make a decision about it one way or another, then the requirement is satisfied here. If the phrase “considered a reconciliation with the assistance of a marriage counsellor etc” involves the necessity of reconciliation discussions having occurred with each of them with such a person, so that they have made an informed choice as to whether a reconciliation should be effected or not, the first part of the subsection would not be satisfied here, at least in respect of the husband.

  On balance, I have formed the view that the former of those two interpretations is correct, that is, the sub-paragraph is satisfied where the question of reconciliation is clearly brought to the attention of both of the parties by the prescribed persons and they have considered it, at least in the sense they have both made a choice about it one way or the other.”

• Family Law Act 1975 (Cth), s 44(1C):

  “(1C) Notwithstanding subsection (1B), if the court is satisfied that there are special circumstances by reason of which the hearing of an application for a divorce order in relation to a marriage should proceed notwithstanding that the parties have not considered a reconciliation with assistance of the kind referred to in subsection (1B), the court may:

  (a) if the application has not been filed—give leave for the application to be filed; or

  (b) if the application has been filed—at any time before or during the hearing of the application, declare that it is so satisfied; and, where the court makes a declaration under paragraph (b), the application shall be deemed to have been duly filed and everything done pursuant to that application shall be as valid and effectual as if the court had, before the application was filed, given leave under paragraph (a) for the application to be filed.”

  (1B)

  “(1B) An application for a divorce order in relation to a marriage shall not, without the leave of the court granted under subsection (1C), be filed within the period of 2 years after the date of the marriage unless there is filed with the application a certificate:

  (a) stating that the parties to the marriage have considered a reconciliation with the assistance of a specified person, who is:

  (i) a family counsellor; or

  (ii) if the court is the Family Court, the Federal Circuit Court of Australia or the Family Court of a State—an individual or an organisation nominated for the parties by a family consultant; or

  (iii) if the court is not the Family Court, the Federal Circuit Court of Australia or the Family Court of a State—an individual or an organisation nominated for the parties by an appropriately qualified officer of the court; and

  (b) signed by that person or on behalf of that organisation, as the case may be.”

• The College of Law, Victoria Practice Papers 2019-2020 (LexisNexis Butterworths, 2019) vol 1, [F101.25].

• The College of Law, Victoria Practice Papers 2019-2020 (LexisNexis Butterworths, 2019) vol 1, [F101.25].

• The College of Law, Victoria Practice Papers 2019-2020 (LexisNexis Butterworths, 2019) vol 1, [F101.140].

• The College of Law, Victoria Practice Papers 2019-2020 (LexisNexis Butterworths, 2019) vol 1, [F101.10].

• The College of Law, Victoria Practice Papers 2019-2020 (LexisNexis Butterworths, 2019) vol 1, [F101.10].

• Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth), s 3:

  “Omit “a man and a woman”, substitute “2 people”.”

• Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth), s 70(2):

  “Part VA of the amended Act (recognition of foreign marriages) applies at and after that commencement in relation to a marriage (within the meaning of the amended Act), even if the marriage took place before that commencement.” Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth), s 71:

  “(1) A marriage is recognised as valid in Australia if:

  (a) the marriage was solemnised in Australia, before the commencement of this item, by or in the presence of a diplomatic or consular officer of a foreign country (whether or not the country was a proclaimed overseas country at the time the marriage was solemnised); and

  (b) at the time the marriage was solemnised:

  (i) the marriage was not recognised in Australia as valid because the marriage was not the union of a man and a woman; and

  (ii) the marriage was recognised as valid under the law of the foreign country; and

  (c) had the marriage occurred in the foreign country at the time the marriage was solemnised, the marriage would, after items 57 and 58 of this Schedule commence, be recognised as valid under Part VA of the Marriage Act 1961.

  (2) In this item:

  ...

  diplomatic or consular officer has the meaning given by section 52 of the Marriage Act 1961.

  proclaimed overseas country has the meaning given by section 52 of the Marriage Act 1961.”

  Marriage Act 1961 (Cth), s 52:

  “In this Division, unless the contrary intention appears:

  diplomatic or consular officer, in relation to an overseas country, means a person recognised by the Government of the Commonwealth as a diplomatic or consular representative of that overseas country in Australia.

  proclaimed overseas country means an overseas country in respect of which a Proclamation under section 54 is in force.

  …”

• Family Law (Fees) Regulation 2012 (Cth), 2.02(1)(a):

  “(1) Schedule 1 sets out the fees payable for:

  (a) the filing of a document…”

  
  

  ---

  
  

  Family Law (Fees) Regulation 2012 (Cth), 2.13(1):

  “The amount of each fee mentioned in Schedule 1 is increased on 1 July 2014, and on each second 1 July following that day.”

  
  

  ---

  
  

  Family Law (Fees) Regulation 2012 (Cth), Schedule 1 Fees, Item 2:

  “Filing an application in proceedings for a divorce order:

  (a) commenced in a court mentioned in paragraph 10A (a) or (c) of the Family Law Regulations 1984; or

  (b) commenced in another court for transfer to a court mentioned in paragraph 10A (a) or (c) of those Regulations; or

  (c) commenced in the Federal Magistrates Court

  “(a) general fee—$900

  (b) reduced fee—$300”

  Family Law Regulations 1984 (Cth), r 10A:

  “For section 44A of the Act, proceedings for a divorce order in relation to a marriage may not be instituted in, or transferred to, a court of summary jurisdiction other than the following prescribed courts:

  (a) a court constituted by a stipendiary magistrate who is the Principal Registrar, or a Registrar, of the Family Court of Western Australia;

  (b) the Magistrates Court constituted by section 4 of the Magistrates Court Act 1930 of the Australian Capital Territory;

  (c) the Court of Petty Sessions of Norfolk Island.”

  
  

  ---

  
  

  Commonwealth of Australia, Annual Federal Courts and Tribunals Fee Increases from 1 July 2019, No C2019G00482, 04 Jun 2019, Item 2 (Family Law Fees):

  “Pursuant to section 2.13 of the Family Law (Fees) Regulation 2012, from 1 July 2019 the fee prescribed for each item of Schedule 1 to those Regulations will be the amount listed below.”

  “(a) general fee - $910

  (b) reduced fee - $305”

• Family Law (Fees) Regulation 2012 (Cth), 2.02(1)(a):

  “(1) Schedule 1 sets out the fees payable for:

  (a) the filing of a document…”

  
  

  ---

  
  

  Family Law (Fees) Regulation 2012 (Cth), 2.13(1):

  “The amount of each fee mentioned in Schedule 1 is increased on 1 July 2014, and on each second 1 July following that day.”

  
  

  ---

  
  

  Family Law (Fees) Regulation 2012 (Cth), Schedule 1 Fees, Item 2:

  “Filing an application in proceedings for a divorce order:

  (a) commenced in a court mentioned in paragraph 10A (a) or (c) of the Family Law Regulations 1984; or

  (b) commenced in another court for transfer to a court mentioned in paragraph 10A (a) or (c) of those Regulations; or

  (c) commenced in the Federal Magistrates Court

  (a) general fee—$900

  (b) reduced fee—$300”

  Family Law Regulations 1984 (Cth), r 10A:

  “For section 44A of the Act, proceedings for a divorce order in relation to a marriage may not be instituted in, or transferred to, a court of summary jurisdiction other than the following prescribed courts:

  (a) a court constituted by a stipendiary magistrate who is the Principal Registrar, or a Registrar, of the Family Court of Western Australia;

  (b) the Magistrates Court constituted by section 4 of the Magistrates Court Act 1930 of the Australian Capital Territory;

  (c) the Court of Petty Sessions of Norfolk Island.”

  
  

  ---

  
  

  Commonwealth of Australia, Annual Federal Courts and Tribunals Fee Increases from 1 July 2019, No C2019G00482, 04 Jun 2019, Item 2 (Family Law Fees):

  “Pursuant to section 2.13 of the Family Law (Fees) Regulation 2012, from 1 July 2019 the fee prescribed for each item of Schedule 1 to those Regulations will be the amount listed below.”

  (a) general fee - $910

  (b) reduced fee - $305

• Family Law (Fees) Regulation 2012 (Cth), r 2.04(1)(a):

  “(1) A person is exempt from paying a fee mentioned in Schedule 1 (other than the fee mentioned in item 1 or 2 of Schedule 1) if, at the time the fee is payable, one or more of the following apply:

  (a) the person has been granted legal aid under a legal aid scheme or service:

  (i) established under a law of the Commonwealth or of a State or Territory; or

  (ii) approved by the Attorney-General;

  for the proceeding for which the fee would otherwise be payable;”

  r 2.06(1):

  “(1) If:

  (a) a fee mentioned in item 1 or 2 of Schedule 1 is payable by a person in relation to a proceeding; and

  (b) the person is exempt under section 2.04 from paying any other fees mentioned in Schedule 1;

  the person may pay the reduced fee mentioned in the item instead of the fee that would otherwise be payable.”

• Family Law (Fees) Regulation 2012 (Cth), r 2.04(1)(a):

  “(1) A person is exempt from paying a fee mentioned in Schedule 1 (other than the fee mentioned in item 1 or 2 of Schedule 1) if, at the time the fee is payable, one or more of the following apply:

  …

  (b) the person is the holder of any of the following cards issued by the Commonwealth:

  (i) a health care card;”

  r 2.06(1):

  “(1) If:

  (a) a fee mentioned in item 1 or 2 of Schedule 1 is payable by a person in relation to a proceeding; and

  (b) the person is exempt under section 2.04 from paying any other fees mentioned in Schedule 1;

  the person may pay the reduced fee mentioned in the item instead of the fee that would otherwise be payable.”

• Family Law (Fees) Regulation 2012 (Cth), r 2.04(1)(a):

  “(1) A person is exempt from paying a fee mentioned in Schedule 1 (other than the fee mentioned in item 1 or 2 of Schedule 1) if, at the time the fee is payable, one or more of the following apply:

  …

  (b) the person is the holder of any of the following cards issued by the Commonwealth:

  …

  (ii) a pensioner concession card …”

  r 2.06(1):

  “(1) If:

  (a) a fee mentioned in item 1 or 2 of Schedule 1 is payable by a person in relation to a proceeding; and

  (b) the person is exempt under section 2.04 from paying any other fees mentioned in Schedule 1;

  the person may pay the reduced fee mentioned in the item instead of the fee that would otherwise be payable.”

• Family Law (Fees) Regulation 2012 (Cth), r 2.04(1)(a):

  “(1) A person is exempt from paying a fee mentioned in Schedule 1 (other than the fee mentioned in item 1 or 2 of Schedule 1) if, at the time the fee is payable, one or more of the following apply:

  …

  (b) the person is the holder of any of the following cards issued by the Commonwealth:

  …

  (iii) a Commonwealth seniors health card …”

  r 2.06(1):

  “(1) If:

  (a) a fee mentioned in item 1 or 2 of Schedule 1 is payable by a person in relation to a proceeding; and

  (b) the person is exempt under section 2.04 from paying any other fees mentioned in Schedule 1;

  the person may pay the reduced fee mentioned in the item instead of the fee that would otherwise be payable.”

• Family Law (Fees) Regulation 2012 (Cth), r 2.04(1)(a):

  “(1) A person is exempt from paying a fee mentioned in Schedule 1 (other than the fee mentioned in item 1 or 2 of Schedule 1) if, at the time the fee is payable, one or more of the following apply:

  …

  (b) the person is the holder of any of the following cards issued by the Commonwealth:

  …

  (iv) any other card that certifies the holder’s entitlement to Commonwealth health concessions …”

  r 2.06(1):

  “(1) If:

  (a) a fee mentioned in item 1 or 2 of Schedule 1 is payable by a person in relation to a proceeding; and

  (b) the person is exempt under section 2.04 from paying any other fees mentioned in Schedule 1;

  the person may pay the reduced fee mentioned in the item instead of the fee that would otherwise be payable.”

• Family Law (Fees) Regulation 2012 (Cth), r 2.05:

  “(1) If:

  (a) a fee mentioned in Schedule 1 (other than the fee mentioned in item 1 or 2 of Schedule 1) is payable by an individual in relation to a proceeding; and

  (b) in the opinion of a Registrar or an authorised officer of the relevant court at the time the fee is payable, the payment of the fee would cause financial hardship to the individual; the Registrar or authorised officer may exempt the individual from paying the fee.

  (2) In considering whether payment of a fee would cause financial hardship to an individual, the Registrar or authorised officer must consider the individual’s income, day-to-day living expenses, liabilities and assets.”

  
  

  ---

  
  

  Family Law (Fees) Regulation 2012 (Cth), r 2.06(2)+(3):

  “(2) If:

  (a) a fee mentioned in item 1 or 2 of Schedule 1 is payable by an individual in relation to a proceeding; and

  (b) in the opinion of a Registrar or an authorised officer of the relevant court at the time the fee is payable, the payment of the fee would cause financial hardship to the individual; the Registrar or authorised officer may determine that the individual may pay the reduced fee mentioned in the item instead of the fee that would otherwise be payable.

  (3) In considering whether payment of a fee would cause financial hardship to an individual, the Registrar or authorised officer must consider the individual’s income, day-to-day living expenses, liabilities and assets.”

• Family Law (Fees) Regulation 2012 (Cth), r 2.05:

  “(1) If:

  (a) a fee mentioned in Schedule 1 (other than the fee mentioned in item 1 or 2 of Schedule 1) is payable by an individual in relation to a proceeding; and

  (b) in the opinion of a Registrar or an authorised officer of the relevant court at the time the fee is payable, the payment of the fee would cause financial hardship to the individual; the Registrar or authorised officer may exempt the individual from paying the fee.

  (2) In considering whether payment of a fee would cause financial hardship to an individual, the Registrar or authorised officer must consider the individual’s income, day-to-day living expenses, liabilities and assets.”

  
  

  ---

  
  

  Family Law (Fees) Regulation 2012 (Cth), r 2.06(2)+(3):

  “(2) If:

  (a) a fee mentioned in item 1 or 2 of Schedule 1 is payable by an individual in relation to a proceeding; and

  (b) in the opinion of a Registrar or an authorised officer of the relevant court at the time the fee is payable, the payment of the fee would cause financial hardship to the individual; the Registrar or authorised officer may determine that the individual may pay the reduced fee mentioned in the item instead of the fee that would otherwise be payable.

  (3) In considering whether payment of a fee would cause financial hardship to an individual, the Registrar or authorised officer must consider the individual’s income, day-to-day living expenses, liabilities and assets.”

• Federal Circuit Court of Australia, How do I serve a divorce? (Webpage, 22 June 2016) http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/how-do-i/divorce/serve-divorce/serve-a-divorce.

• Family Law Rules 2004 (Cth), r 7.01:

  “Service of a document may be carried out by special service (see Part 7.2) or ordinary service (see Part 7.3) unless otherwise required by a legislative provision.”

  Family Law Rules 2004 (Cth), r 7.03:

  “A person must serve a document in the manner set out in Table 7.1.”

  Item = 4

  Document = Application for Divorce

  Form of Service = Special service

  Family Law Rules 2004 (Cth), r 7.05:

  “A document that must be served by special service must be personally received by the person served.”

• Family Law Rules 2004 (Cth), r 7.01:

  “Service of a document may be carried out by special service (see Part 7.2) or ordinary service (see Part 7.3) unless otherwise required by a legislative provision.”

  Family Law Rules 2004 (Cth), r 7.03:

  “A person must serve a document in the manner set out in Table 7.1.”

  Item = 9

  Document = Brochure required by these Rules to be served with a Form mentioned in this Table (see rules 2.03 …)

  Form of Service = The form of service set out in this Table for that Form

  Family Law Rules 2004 (Cth), r 2.03:

  “A person who files an Initiating Application (Family Law) or an Application for Divorce must, when serving the application on the respondent, also serve a brochure prepared by the court for section 12F of the Act.”

  Family Law Act 1975 (Cth), s 12F:

  “Obligation to give prescribed information

  (1) The principal executive officer of a court that has jurisdiction under this Act must ensure that any person who is considering instituting proceedings under this Act is, on the first occasion the person deals with a registry of the court, given documents containing the information prescribed under:

  (a) section 12B (about non‑court based family services and court’s processes and services); and

  (b) section 12C (about reconciliation); and

  (c) section 12D (about Part VII proceedings).

  Obligation to respond to requests for information

  (2) The principal executive officer of a court that has jurisdiction under this Act must ensure that, if a person involved in proceedings under this Act requests an officer or staff member of the court for information about family counselling services or family dispute resolution services, the person is given documents containing information about those services.

  Note: See subsection 4(1AA) for people who are taken to be involved in proceedings.”

  Family Law Act 1975 (Cth), 4(1AA):

  “(1AA) A reference in this Act to a person or people involved in proceedings is a reference to:

  (a) any of the parties to the proceedings; and

  (b) any child whose interests are considered in, or affected by, the proceedings; and

  (c) any person whose conduct is having an effect on the proceedings.”

  Family Law Act 1975 (Cth), s 12B:

  “(1) The regulations may prescribe information that is to be included in documents provided to persons under this Part, relating to non-court based family services and court's processes and services.

  (2) Without limitation, information prescribed under this section must include information about:

  (a) the legal and possible social effects of the proposed proceedings (including the consequences for children whose care, welfare or development is likely to be affected by the proceedings); and

  (b) the services provided by family counsellors and family dispute resolution practitioners to help people affected by separation or divorce; and

  (c) the steps involved in the proposed proceedings; and

  (d) the role of family consultants; and

  (e) the arbitration facilities available to arbitrate disputes in relation to separation and divorce.”

  Family Law Act 1975 (Cth), s 12C:

  “The regulations may prescribe information that is to be included in documents provided to persons under this Part, relating to services available to help with a reconciliation between the parties to a marriage.”

  Family Law Act 1975 (Cth), s 12D:

  “(1) The regulations may prescribe information that is to be included in documents provided under this Part to persons involved in proceedings under Part VII.

  (2) Without limitation, the information must include information about the family counselling services available to assist the parties, and the child or children concerned, to adjust to the consequences of orders under that Part.”

• Family Law Rules 2004 (Cth), r 7.08:

  “A document is taken to be served by special service on a person if:

  (a) a lawyer representing the person agrees, in writing, to accept service of the document for the person; and

  (b) the document is served on the lawyer in accordance with rule 7.06 or 7.07.”

  Family Law Rules 2004 (Cth), r 7.06-7.07:

  “7.06 Special service by hand

  (1) A document to be served by hand must be given to the person to be served (the receiver).

  (2) If the receiver refuses to take the document, service occurs if the person serving the document:

  (a) places it down in the presence of the receiver; and

  (b) tells the receiver what it is.

  (3) A party must not serve another party by hand but may be present when service by hand occurs.

  7.07 Special service by post or electronic communication

  (1) A document may be served on a person in Australia by sending a copy of it to the person’s last known address by post.

  (2) A document may be served on a person in Australia by sending it to the person by electronic communication.

  (3) A person serving a document by post or electronic communication must include with the document:

  (a) an Acknowledgement of Service for the person served to sign; and

  (b) for service by post within Australia—a stamped self‑addressed envelope.

  Note: Subrule 24.07(3) does not apply to an Acknowledgement of Service. If an applicant wants to prove service by electronic communication (other than by facsimile), the applicant must still produce a signed Acknowledgement of Service. This means that the person served will need to print out and sign a hard copy of the Acknowledgement of Service and arrange for the signed copy to be returned to the applicant in a form in which the applicant is able to identify the signature on the signed copy as that of the person served (see note to rule 7.14).”

• Family Law Rules 2004 (Cth), 7.09(1):

  “(1) A document that is required to be served by special service on a person with a disability, must be served:

  (a) on the person’s case guardian;

  (b) on the person’s guardian appointed under a State or Territory law; or

  (c) if there is no one under paragraph (a) or (b)—on an adult who has the care of the person.”

• Family Law Rules 2004 (Cth), 7.09(2):

  “(1) A document that is required to be served by special service on a person with a disability, must be served:

  (a) on the person’s case guardian;

  (b) on the person’s guardian appointed under a State or Territory law; or

  (c) if there is no one under paragraph (a) or (b)—on an adult who has the care of the person.”

  “(2) For paragraph (1)(c), the person in charge of a hospital, nursing home or other care facility is taken to have the care of a person who is a patient in the hospital, nursing home or facility.”

• Family Law Rules 2004 (Cth), 7.10(1):

  “(1) A document that is required to be served by special service on a prisoner must be served by special service on the person in charge of the prison.”

• Federal Circuit Court Rules 2001 (Cth), 25.02(a):

  “An application for a divorce order must be served on the respondent by:

  (a) service by hand in accordance with rule 6.07…”

  Federal Circuit Court Rules 2001 (Cth), 6.07(1):

  “(1) A person serving a document by hand on an individual must give a copy of the document to the person to be served.”

  Family Law Rules 2004 (Cth), 7.06(1):

  “(1) A document to be served by hand must be given to the person to be served (the receiver).”

• Federal Circuit Court Rules 2001 (Cth), 25.02(a):

  “An application for a divorce order must be served on the respondent by:

  (a) service by hand in accordance with rule 6.07 …”

  Federal Circuit Court Rules 2001 (Cth), 6.07(1):

  “(1) A person serving a document by hand on an individual must give a copy of the document to the person to be served.”

• Family Law Rules 2004 (Cth), 7.06(3):

  “(3) A party must not serve another party by hand but may be present when service by hand occurs.”

  Federal Circuit Court Rules 2001 (Cth), 25.02(a):

  “An application for a divorce order must be served on the respondent by:

  (a) service by hand in accordance with rule 6.07 …”

  Federal Circuit Court Rules 2001 (Cth), 6.07(3):

  “(3) In a family law or child support proceeding, the person serving a document must not be the party on whose behalf it is served.”

• The College of Law, Victoria Practice Papers 2019-2020 (LexisNexis Butterworths, 2019) vol 1, [F101.55].

• Family Law Rules 2004 (Cth), 7.06(3):

  “(3) A party must not serve another party by hand but may be present when service by hand occurs.”

• Family Law Rules 2004 (Cth), 7.06(2):

  “(2) If the receiver refuses to take the document, service occurs if the person serving the document:

  (a) places it down in the presence of the receiver; and

  (b) tells the receiver what it is.”

  Federal Circuit Court Rules 2001 (Cth), 25.02(a):

  “An application for a divorce order must be served on the respondent by:

  (a) service by hand in accordance with rule 6.07 …”

  Federal Circuit Court Rules 2001 (Cth), 6.07(3):

  “(1) A person serving a document by hand on an individual must give a copy of the document to the person to be served.

  (2) However, if the person to be served does not take the copy of the document, the person serving it may put it down in the presence of the person to be served and tell the person what it is.”

• Family Law Rules 2004 (Cth), 7.07(1):

  “(1) A document may be served on a person in Australia by sending a copy of it to the person’s last known address by post.”

• Federal Circuit Court Rules 2001 (Cth), 25.02(b):

  “An application for a divorce order must be served on the respondent by:

  …

  (b) sending it by pre‑paid post in a sealed envelope addressed to the respondent at the respondent’s last known address.”

• Family Law Rules 2004 (Cth), 7.07(1)(a):

  “(3) A person serving a document by post or electronic communication must include with the document:

  (a) an Acknowledgement of Service for the person served to sign …”

  Federal Circuit Court Rules 2001 (Cth), 25.03(a):

  “A person serving a document by post must include with the document:

  (a) a form of acknowledgment of service in accordance with the approved form …”

• Family Law Rules 2004 (Cth), 7.14:

  “(1) This rule applies if a document is required to be served by special service and the applicant seeks to prove service by way of affidavit.

  (2) If service was by post or electronic communication, service is proved by:

  (a) attaching to an Affidavit of Service, an Acknowledgement of Service signed by the respondent; and

  (b) evidence identifying the signature on the Acknowledgement of Service as the respondent’s signature.”

  Federal Circuit Court Rules 2001 (Cth), 25.07:

  “Evidence that the signature on an acknowledgment of service is the signature of the person required to be served may be given by an affidavit proving signature in accordance with the approved form.”

• Family Law Rules 2004 (Cth), 7.07(3)(b):

  “(3) A person serving a document by post or electronic communication must include with the document:

  …

  (b) for service by post within Australia—a stamped self‑addressed envelope.”

  Federal Circuit Court Rules 2001 (Cth), 25.03(b)(i):

  “A person serving a document by post must include with the document:

  …

  (b) an envelope that:

  (i) is addressed to the address for service of the person on whose behalf the document is served; and

  (ii) if the document is to be sent to an address in Australia, bears the correct postage for the return by post of the acknowledgment of service.”

• Family Law Rules 2004 (Cth), 7.07(3)(b):

  “(3) A person serving a document by post or electronic communication must include with the document:

  …

  (b) for service by post within Australia—a stamped self‑addressed envelope.”

  Federal Circuit Court Rules 2001 (Cth), 25.03(b)(i):

  “A person serving a document by post must include with the document:

  …

  (b) an envelope that:

  (i) is addressed to the address for service of the person on whose behalf the document is served; and

  (ii) if the document is to be sent to an address in Australia, bears the correct postage for the return by post of the acknowledgment of service.”

• Family Law Rules 2004 (Cth), 7.07(2):

  “(2) A document may be served on a person in Australia by sending it to the person by electronic communication.”

• Family Law Rules 2004 (Cth), 7.07(3)(a):

  “(3) A person serving a document by post or electronic communication must include with the document:

  (a) an Acknowledgement of Service for the person served to sign…”

• Family Law Rules 2004 (Cth), 7.07(3):

  “Note: Subrule 24.07(3) does not apply to an Acknowledgement of Service. If an applicant wants to prove service by electronic communication (other than by facsimile), the applicant must still produce a signed Acknowledgement of Service. This means that the person served will need to print out and sign a hard copy of the Acknowledgement of Service and arrange for the signed copy to be returned to the applicant in a form in which the applicant is able to identify the signature on the signed copy as that of the person served (see note to rule 7.14).”

• Family Law Rules 2004 (Cth), 7.14:

  “(1) This rule applies if a document is required to be served by special service and the applicant seeks to prove service by way of affidavit.

  (2) If service was by post or electronic communication, service is proved by:

  (a) attaching to an Affidavit of Service, an Acknowledgement of Service signed by the respondent; and

  (b) evidence identifying the signature on the Acknowledgement of Service as the respondent’s signature.”

• Family Law Rules 2004 (Cth), 3.04(1)(a):

  “(1) A respondent to an Application for Divorce who seeks to oppose the divorce or contest the jurisdiction of the court must file a Response to an Application for Divorce:

  (a) if the respondent is served in Australia—within 28 days after the day when the Application for Divorce is served on the respondent …”

  Federal Circuit Court Rules 2001 (Cth), 25.10(a):

  “A respondent’s response to an application must be filed within:

  (a) if the respondent is served with the application in Australia—28 days after service …”

• Family Law Rules 2004 (Cth), 3.04(1)(b):

  “(1) A respondent to an Application for Divorce who seeks to oppose the divorce or contest the jurisdiction of the court must file a Response to an Application for Divorce:

  …

  (b) if the respondent is served outside Australia—within 42 days after the day when the Application for Divorce is served on the respondent.”

  Federal Circuit Court Rules 2001 (Cth), 25.10(b):

  “A respondent’s response to an application must be filed within:

  …

  (b) otherwise—42 days after service.”

• Family Law Rules 2004 (Cth), 3.04(1):

  “(1) A respondent to an Application for Divorce who seeks to oppose the divorce or contest the jurisdiction of the court must file a Response to an Application for Divorce:

  (a) if the respondent is served in Australia—within 28 days after the day when the Application for Divorce is served on the respondent; or

  (b) if the respondent is served outside Australia—within 42 days after the day when the Application for Divorce is served on the respondent.”

  Federal Circuit Court Rules 2001 (Cth), 25.10:

  “A respondent’s response to an application must be filed within:

  (a) if the respondent is served with the application in Australia—28 days after service; and

  (b) otherwise—42 days after service.”

• Family Law Rules 2004 (Cth), 7.17(a):

  “A document is taken to have been served:

  (a) on the date when service is acknowledged …”

• Family Law Rules 2004 (Cth), 7.17(b):

  “A document is taken to have been served:

  …

  (b) if served by post to an address in Australia—on the third day after it was posted …”

• Family Law Rules 2004 (Cth), 7.17(c):

  “A document is taken to have been served:

  …

  (c) if served by delivery to a document exchange—on the next working day after the day when it was delivered …”

• Family Law Rules 2004 (Cth), 7.17:

  “A document is taken to have been served:

  …

  (d) on a date fixed by the court.”

  Family Law Rules 2004 (Cth), 7.02(1):

  “(1) A court may find that a document has been served or that it has been served on a particular date, even though these Rules or an order have not been complied with in relation to service.

  …

  Note: Rule 7.17 also sets out when a document is taken to have been served.”

• Federal Circuit Court Rules 2001 (Cth), 25.05(1):

  “(1) Unless the Court or a Registrar otherwise orders, any evidence of service to be given (other than for acknowledgment of service) must be given by affidavit in accordance with the appropriate approved form.”

• Federal Circuit Court Rules 2001 (Cth), 25.06(1):

  “(1) Subject to the Court or a Registrar being satisfied that the identity of the person served is established, an acknowledgment of service of a document that is signed by the person served is evidence of service in accordance with the acknowledgment.”

• Federal Circuit Court Rules 2001 (Cth), 25.06(2):

  “(2) If the server of a document can identify the person served, service may be proved by evidence to that effect by the server.”

• Federal Circuit Court Rules 2001 (Cth), 25.06(3):

  “(3) If the server of a document can identify a photograph of the person served, and another person who knows the person served identifies the photograph as a photograph of the person served, service may be proved by evidence to that effect by the server and the other person.”

• Federal Circuit Court Rules 2001 (Cth), 25.06(4):

  “(4) If a person other than the server of a document saw the document handed to, or put down in the presence of, the person served and can identify the person served, service may be proved by evidence to that effect given by that other person.”

• Federal Circuit Court Rules 2001 (Cth), 25.05(1):

  “(1) Unless the Court or a Registrar otherwise orders, any evidence of service to be given (other than for acknowledgment of service) must be given by affidavit in accordance with the appropriate approved form.”

  Family Law Rules 2004 (Cth), 7.14:

  “(1) This rule applies if a document is required to be served by special service and the applicant seeks to prove service by way of affidavit.

  (2) If service was by post or electronic communication, service is proved by:

  (a) attaching to an Affidavit of Service, an Acknowledgement of Service signed by the respondent …”

• Family Law Rules 2004 (Cth), 7.14

  “(1) This rule applies if a document is required to be served by special service and the applicant seeks to prove service by way of affidavit.

  (2) If service was by post or electronic communication, service is proved by:

  (a) attaching to an Affidavit of Service, an Acknowledgement of Service signed by the respondent; and

  (b) evidence identifying the signature on the Acknowledgement of Service as the respondent’s signature.”

  Federal Circuit Court 2001 (Cth), 25.07:

  “Evidence that the signature on an acknowledgment of service is the signature of the person required to be served may be given by an affidavit proving signature in accordance with the approved form.”

• Family Law Rules 2004 (Cth), 7.14:

  “(1) This rule applies if a document is required to be served by special service and the applicant seeks to prove service by way of affidavit.

  (2) If service was by post or electronic communication, service is proved by:

  (a) attaching to an Affidavit of Service, an Acknowledgement of Service signed by the respondent;

  …

  Note: If a person serving a document seeks to prove service under this rule, an Acknowledgment of Service must be signed by the person served with the document. However, if the Affidavit of Service with the Acknowledgement of Service is filed by electronic communication, subrule 24.07(4) applies to the original affidavit and the signed acknowledgment.”

  Family Law Rules 2004 (Cth), 24.07(4):

  “(4) If a document that is required to be sworn is filed by electronic communication, the document:

  (a) is taken to have been sworn by the deponent before it is transmitted; and

  (b) must bear the name of the deponent, witness and date of swearing.”

• Family Law Rules 2004, (Cth), 7.14:

  “(1) This rule applies if a document is required to be served by special service and the applicant seeks to prove service by way of affidavit.

  (2) If service was by post or electronic communication, service is proved by:

  (a) attaching to an Affidavit of Service, an Acknowledgement of Service signed by the respondent;

  …

  Note: If a person serving a document seeks to prove service under this rule, an Acknowledgment of Service must be signed by the person served with the document. However, if the Affidavit of Service with the Acknowledgement of Service is filed by electronic communication, subrule 24.07(4) applies to the original affidavit and the signed acknowledgment.”

  Family Law Rules 2004, (Cth), 24.07(4):

  “(4) If a document that is required to be sworn is filed by electronic communication, the document:

  (a) is taken to have been sworn by the deponent before it is transmitted; and

  (b) must bear the name of the deponent, witness and date of swearing.”

• Family Law Rules 2004 (Cth), 7.14

  “(1) This rule applies if a document is required to be served by special service and the applicant seeks to prove service by way of affidavit.

  (2) If service was by post or electronic communication, service is proved by:

  (a) attaching to an Affidavit of Service, an Acknowledgement of Service signed by the respondent; and

  (b) evidence identifying the signature on the Acknowledgement of Service as the respondent’s signature.”

  Federal Circuit Court 2001 (Cth), 25.07:

  “Evidence that the signature on an acknowledgment of service is the signature of the person required to be served may be given by an affidavit proving signature in accordance with the approved form.”

• Family Law Rules 2004 (Cth), 7.02(1):

  “(1) A court may find that a document has been served or that it has been served on a particular date, even though these Rules or an order have not been complied with in relation to service.”

• The College of Law, Victoria Practice Papers 2019-2020 (LexisNexis Butterworths, 2019) vol 1, [F101.55].

• The College of Law, Victoria Practice Papers 2019-2020 (LexisNexis Butterworths, 2019) vol 1, [F101.55].

• Federal Circuit Rules 2011 (Cth), 6.14(1):

  “(1) If, for any reason, it is impracticable to serve a document in a way required under this Part, the Court may make an order dispensing with service or substituting another way of serving the document.”

  Family Law Rules 2004 (Cth), 7.18(1):

  “(1) A party who is unable to serve a document may apply, without notice, for an order:

  (a) to serve the document in another way; or

  (b) to dispense with service of the document, with or without conditions.”

• The College of Law, Victoria Practice Papers 2019-2020 (LexisNexis Butterworths, 2019) vol 1, [F101.70].

• Family Law Rules 2004 (Cth), 7.18:

  “…

  Note: An application under this rule is made by filing an Application in a Case and an affidavit (see rules 5.01 and 5.02).”

• Family Law Rules 2004 (Cth), 5.02(1):

  “(1) A party who applies for an interim, procedural, ancillary or other incidental order in an Initiating Application (Family Law), or who files an Application in a Case, must at the same time file an affidavit stating the facts relied on in support of the orders sought.”

• The College of Law, Victoria Practice Papers 2019-2020 (LexisNexis Butterworths, 2019) vol 1, [F101.70].

• Federal Circuit Rules 2011 (Cth), 6.14(2)+(3):

  “(2) The Court may specify the steps to be taken for bringing the document to the attention of the person to be served.

  (3) The Court may specify that the document is to be taken to have been served on the happening of a specified event or at the end of a specified time.”

• Family Law Rules 2004 (Cth), (2)(a):

  “(2) The factors the court may have regard to when considering an application under subrule (1) include:

  (a) the proposed method of bringing the document to the attention of the person to be served …”

• Family Law Rules 2004 (Cth), (2)(b):

  “(2) The factors the court may have regard to when considering an application under subrule (1) include:

  …

  (b) whether all reasonable steps have been taken to serve the document or bring it to the notice of the person to be served …”

  Federal Court Rules 2011 (Cth), 6.15(aa):

  “When making an order for dispensing with service or for substituted service, the Court may have regard to:

  …

  (aa) whether it is likely that the steps that have been taken have brought the existence and nature of the document to the attention of the person to be served …”

• Family Law Rules 2004 (Cth), (2)(c):

  “(2) The factors the court may have regard to when considering an application under subrule (1) include:

  …

  (c) whether the person to be served could reasonably become aware of the existence and nature of the document by advertisement or another form of communication that is reasonably available …”

  Federal Court Rules 2011 (Cth), 6.15(b):

  “When making an order for dispensing with service or for substituted service, the Court may have regard to:

  …

  (b) whether the person to be served could become aware of the existence and nature of the document by means of advertising or another means of communication that is reasonably available …”

• Family Law Rules 2004 (Cth), (2)(d):

  “(2) The factors the court may have regard to when considering an application under subrule (1) include:

  …

  (d) the likely cost of service …”

  Federal Court Rules 2011 (Cth), 6.15(c):

  “When making an order for dispensing with service or for substituted service, the Court may have regard to:

  …

  (c) the likely cost to the party serving the document, the means of that party and the nature of the proceedings …”

• Federal Court Rules 2011 (Cth), 6.15(c):

  “When making an order for dispensing with service or for substituted service, the Court may have regard to:

  …

  (c) the likely cost to the party serving the document, the means of that party and the nature of the proceedings …”

• Family Law Rules 2004 (Cth), (2)(e):

  “(2) The factors the court may have regard to when considering an application under subrule (1) include:

  …

  (e) the nature of the case.”

  Federal Court Rules 2011 (Cth), 6.15(c):

  “When making an order for dispensing with service or for substituted service, the Court may have regard to:

  …

  (c) the likely cost to the party serving the document, the means of that party and the nature of the proceedings …”

• Federal Court Rules 2011 (Cth), 6.15(d):

  “When making an order for dispensing with service or for substituted service, the Court may have regard to:

  …

  (d) any other relevant matter.”

• The College of Law, Victoria Practice Papers 2019-2020 (LexisNexis Butterworths, 2019) vol 1, [F101.70].

• Family Law Rules 2004 (Cth), 7.18:

  “…

  Note: An application under this rule is made by filing an Application in a Case and an affidavit (see rules 5.01 and 5.02).”

• Family Law Rules 2004 (Cth), 5.02(1):

  “(1) A party who applies for an interim, procedural, ancillary or other incidental order in an Initiating Application (Family Law), or who files an Application in a Case, must at the same time file an affidavit stating the facts relied on in support of the orders sought.”

• The College of Law, Victoria Practice Papers 2019-2020 (LexisNexis Butterworths, 2019) vol 1, [F101.70].

• Family Law Rules 2004 (Cth), 7.18(1)(b)+(3):

  “(1) A party who is unable to serve a document may apply, without notice, for an order:

  …

  (b) to dispense with service of the document, with or without conditions.

  …

  (3) If the court orders that service of a document is:

  (a) dispensed with unconditionally; or

  (b) dispensed with on a condition that is complied with; the document is taken to have been served.”

• The College of Law, Victoria Practice Papers 2019-2020 (LexisNexis Butterworths, 2019) vol 1, [F101.70].

• Family Court of Western Australia, Case Management Guidelines (7 May 2012) 46.

• Family Court of Western Australia, Case Management Guidelines (7 May 2012) 46.

• Family Law Rules 2004 (Cth), (2)(a):

  “(2) The factors the court may have regard to when considering an application under subrule (1) include:

  (a) the proposed method of bringing the document to the attention of the person to be served …”

• Family Law Rules 2004 (Cth), (2)(b):

  “(2) The factors the court may have regard to when considering an application under subrule (1) include:

  …

  (b) whether all reasonable steps have been taken to serve the document or bring it to the notice of the person to be served …”

  Federal Court Rules 2011 (Cth), 6.15(aa):

  “When making an order for dispensing with service or for substituted service, the Court may have regard to:

  …

  (aa) whether it is likely that the steps that have been taken have brought the existence and nature of the document to the attention of the person to be served …”

• Family Court of Western Australia, If you cannot Locate your Spouse (Web Page, 1 May 2019) <https://www.familycourt.wa.gov.au/I/if_you_cant_locate_your_spouse.aspx>.

• Family Law Rules 2004 (Cth), (2)(c):

  “(2) The factors the court may have regard to when considering an application under subrule (1) include:

  …

  (c) whether the person to be served could reasonably become aware of the existence and nature of the document by advertisement or another form of communication that is reasonably available …”

  Federal Court Rules 2011 (Cth), 6.15(b):

  “When making an order for dispensing with service or for substituted service, the Court may have regard to:

  …

  (b) whether the person to be served could become aware of the existence and nature of the document by means of advertising or another means of communication that is reasonably available …”

• Family Law Rules 2004 (Cth), (2)(d):

  “(2) The factors the court may have regard to when considering an application under subrule (1) include:

  …

  (d) the likely cost of service …”

  Federal Court Rules 2011 (Cth), 6.15(c):

  “When making an order for dispensing with service or for substituted service, the Court may have regard to:

  …

  (c) the likely cost to the party serving the document, the means of that party and the nature of the proceedings …”

• Federal Court Rules 2011 (Cth), 6.15(c):

  “When making an order for dispensing with service or for substituted service, the Court may have regard to:

  …

  (c) the likely cost to the party serving the document, the means of that party and the nature of the proceedings …”

• Family Law Rules 2004 (Cth), (2)(e):

  “(2) The factors the court may have regard to when considering an application under subrule (1) include:

  …

  (e) the nature of the case.”

  Federal Court Rules 2011 (Cth), 6.15(c):

  “When making an order for dispensing with service or for substituted service, the Court may have regard to:

  …

  (c) the likely cost to the party serving the document, the means of that party and the nature of the proceedings …”

• Federal Court Rules 2011 (Cth), 6.15(d):

  “When making an order for dispensing with service or for substituted service, the Court may have regard to:

  …

  (d) any other relevant matter.”

• Federal Circuit Court Rules 2001 (Cth), 20.00A:

  “(1) For subsection 103(1) of the Act, a power of the Court mentioned in an item of the following table is delegated to a Registrar who is approved, or is in a class of Registrars who are approved, by the Chief Judge for the exercise of the power.”

  “Item: 7

  Legislative provision: Family Law Act 1975 (Cth), Section 48

  Description of power (for information only): To make a divorce order in undefended proceedings”

  Federal Circuit Court Rules 2001 (Cth), Schedule 3:

  “"Act" means the Federal Circuit Court of Australia Act 1999.”

  Federal Circuit Court of Australia Act 1999 (Cth), s 103:

  “(1) The Rules of Court may delegate to the Registrars any of the powers of the Federal Circuit Court of Australia, including (but not limited to) all or any of the powers mentioned in subsection 102(2).”

  Federal Circuit Court of Australia Act 1999 (Cth), s 5:

  “"Rules of Court" means Rules of Court made under this Act.”

  
  

  ---

  
  

  Family Court Rules 1998 (WA), 24(a)(i):

  “For the purposes of section 33, the following powers of the Court are delegated to each Principal Registrar, registrar and deputy registrar –

  (a) the powers conferred under a provision –

  (i) of the Family Law Act referred to in column 1 of the Table to this paragraph …”

  Family Law Act 1975 (Cth), Section 48

• Family Law Act 1975 (Cth), s 98A(2):

  “(2) The applicable Rules of Court may provide that where, at the date fixed for the hearing of proceedings for a divorce order in relation to a marriage instituted jointly by the parties to the marriage:

  (a) one of the parties to the marriage has requested the court to determine the proceedings in the absence of the parties …

  …

  the court may, in its discretion, determine the proceedings notwithstanding that neither the parties to the proceedings nor their legal representatives are present in court.”

  Federal Circuit Court Rules 2001 (Cth), 25.14:

  “If, in a joint application for a divorce order, the applicants request that the case be heard in their absence, the court may so determine the case.”

• Family Law Act 1975 (Cth), s 98A(2):

  “(2) The applicable Rules of Court may provide that where, at the date fixed for the hearing of proceedings for a divorce order in relation to a marriage instituted jointly by the parties to the marriage:

  (a) one of the parties to the marriage has requested the court to determine the proceedings in the absence of the parties …

  …

  the court may, in its discretion, determine the proceedings notwithstanding that neither the parties to the proceedings nor their legal representatives are present in court.”

• Family Law Act 1975 (Cth), s 98A(2):

  “(2) The applicable Rules of Court may provide that where, at the date fixed for the hearing of proceedings for a divorce order in relation to a marriage instituted jointly by the parties to the marriage:

  …

  (b) both parties to the marriage have requested the court to determine the proceedings in the absence of the parties;

  the court may, in its discretion, determine the proceedings notwithstanding that neither the parties to the proceedings nor their legal representatives are present in court.”

• Family Law Act 1975 (Cth), s 98A(2):

  “(2A) The court must not determine proceedings for the divorce order in relation to the marriage under subsection (2) if:

  (a) there are any children of the marriage who are under 18; and

  (b) the court is not satisfied that proper arrangements in all the circumstances have been made for the care, welfare and development of those children.”

• Family Law Act 1975 (Cth), s 98A(1):

  “(1) The applicable Rules of Court may provide that where, at the date fixed for the hearing of proceedings for a divorce order in relation to a marriage instituted by one party to the marriage:

  (a) the proceedings are undefended;

  (b) there are no children of the marriage who have not attained the age of 18 years;

  (c) the applicant has requested the court to determine the proceedings in the absence of the parties; and

  (d) the respondent has not requested the court not to determine the proceedings in the absence of the parties;

  the court may, in its discretion, determine the proceedings notwithstanding that neither the parties to the proceedings nor their legal representatives are present in court.”

  Federal Circuit Court Rules 2001 (Cth), 25.13(a):

  “If, in an application for a divorce order (other than a case started by a joint application):

  (a) no response has been filed …

  …

  the court may determine the case in the absence of the parties.”

• Family Law Act 1975 (Cth), s 98A(1):

  “(1) The applicable Rules of Court may provide that where, at the date fixed for the hearing of proceedings for a divorce order in relation to a marriage instituted by one party to the marriage:

  (a) the proceedings are undefended;

  (b) there are no children of the marriage who have not attained the age of 18 years;

  (c) the applicant has requested the court to determine the proceedings in the absence of the parties; and

  (d) the respondent has not requested the court not to determine the proceedings in the absence of the parties;

  the court may, in its discretion, determine the proceedings notwithstanding that neither the parties to the proceedings nor their legal representatives are present in court.”

  Federal Circuit Court Rules 2001 (Cth), 25.13(b):

  “If, in an application for a divorce order (other than a case started by a joint application):

  …

  (b) at the date fixed for the hearing, there are no children of the marriage within the meaning of subsection 98A(3) of the Family Law Act …

  …

  the court may determine the case in the absence of the parties.”

• Family Law Act 1975 (Cth), s 98A(1):

  “(1) The applicable Rules of Court may provide that where, at the date fixed for the hearing of proceedings for a divorce order in relation to a marriage instituted by one party to the marriage:

  (a) the proceedings are undefended;

  (b) there are no children of the marriage who have not attained the age of 18 years;

  (c) the applicant has requested the court to determine the proceedings in the absence of the parties; and

  (d) the respondent has not requested the court not to determine the proceedings in the absence of the parties;

  the court may, in its discretion, determine the proceedings notwithstanding that neither the parties to the proceedings nor their legal representatives are present in court.”

  Federal Circuit Court Rules 2001 (Cth), 25.13(c):

  “If, in an application for a divorce order (other than a case started by a joint application):

  …

  (c) the applicant has requested that the case be heard in the absence of the parties …

  …

  the court may determine the case in the absence of the parties.”

• Family Law Act 1975 (Cth), s 98A(1):

  “(1) The applicable Rules of Court may provide that where, at the date fixed for the hearing of proceedings for a divorce order in relation to a marriage instituted by one party to the marriage:

  (a) the proceedings are undefended;

  (b) there are no children of the marriage who have not attained the age of 18 years;

  (c) the applicant has requested the court to determine the proceedings in the absence of the parties; and

  (d) the respondent has not requested the court not to determine the proceedings in the absence of the parties;

  the court may, in its discretion, determine the proceedings notwithstanding that neither the parties to the proceedings nor their legal representatives are present in court.”

  Federal Circuit Court Rules 2001 (Cth), 25.13(c):

  “If, in an application for a divorce order (other than a case started by a joint application):

  …

  (d) the respondent has not requested the court not to hear the case in the absence of the parties;

  the court may determine the case in the absence of the parties.”

• Federal Circuit Court Rules 2001 (Cth), 25.15:

  “A respondent to an application for a divorce order who objects to the case being heard in the absence of the parties must, at least 7 days before the date fixed for the hearing, file and serve a written notice to that effect.”

• Federal Circuit Rules 2001 (Cth), 25.11(1):

  “(1) A party may apply to attend the hearing of an application for a divorce order by electronic communication.”

• Family Court of Australia and Federal Circuit Court of Australia, Application for Divorce Kit (Guide) D.

• Federal Circuit Rules 2001 (Cth), 25.11(5)(a):

  “The Court or a Registrar may take the following matters into account when considering an application:

  (a) the distance between the party’s residence and the place where the Court or the Registrar is to sit …”

• Federal Circuit Rules 2001 (Cth), 25.11(5)(b):

  “The Court or a Registrar may take the following matters into account when considering an application:

  …

  (b) any difficulty the party has in attending because of illness or disability …”

• Federal Circuit Rules 2001 (Cth), 25.11(5)(c):

  “The Court or a Registrar may take the following matters into account when considering an application:

  …

  (c) the expense associated with attending …”

• Federal Circuit Rules 2001 (Cth), 25.11(5)(d):

  “The Court or a Registrar may take the following matters into account when considering an application:

  …

  (d) the expense to be incurred, or the savings to be made, by using the electronic communication …”

• Federal Circuit Rules 2001 (Cth), 25.11(5)(e):

  “The Court or a Registrar may take the following matters into account when considering an application:

  …

  (e) any concerns about security, including family violence and intimidation …”

• Federal Circuit Rules 2001 (Cth), 25.11(5)(f):

  “The Court or a Registrar may take the following matters into account when considering an application:

  …

  (f) whether any other party objects to the request.”

• Federal Circuit Rules 2001 (Cth), 25.11(2):

  “(2) Before making an application, the party must ask any other party whether the other party agrees, or objects, to the use of electronic communication for attending the hearing.”

• Federal Circuit Rules 2001 (Cth), 25.11(3)(a):

  “(3) An application must:

  (a) be in writing …”

• Federal Circuit Rules 2001 (Cth), 25.11(3)(b):

  “(3) An application must:

  …

  (b) be made at least 7 days before the date fixed for the hearing …”

• Federal Circuit Rules 2001 (Cth), 25.11(3)(c)(i):

  “(3) An application must:

  …

  (c) set out the following information:

  (i) the kind of electronic communication to be used …”

• Federal Circuit Rules 2001 (Cth), 25.11(3)(c)(ii):

  “(3) An application must:

  …

  (c) set out the following information:

  …

  (ii) the expense of using the electronic communication, including any expense to the court, and the applicant’s proposals for paying those expenses …”

• Federal Circuit Rules 2001 (Cth), 25.11(3)(d):

  “(3) An application must:

  …

  (d) set out details of the notice in relation to the application that has been given to any other party …”

• Federal Circuit Rules 2001 (Cth), 25.11(3)(e):

  “(3) An application must:

  …

  (e) state whether any other party agrees or objects to the application.”

• Federal Circuit Rules 2001 (Cth), 25.11(7):

  “(7) If an application is granted, the party who made the application must immediately give written notice to each other party.”

• Federal Circuit Rules 2001 (Cth), 25.11(6):

  “(6) If the Court or a Registrar grants the application, the Court or the Registrar may:

  (a) order a party to pay the expense of using the electronic communication; or

  (b) apportion the expense between the parties.”

• Family Law Act 1975 (Cth), s 102(a):

  “In proceedings under this Act, the court may receive as evidence of the facts stated in it a document purporting to be either the original or a certified copy of:

  (a) a certificate, entry or record of a birth, death or marriage alleged to have taken place, whether in Australia or elsewhere …”

• Family Law Act 1975 (Cth), s 102(b):

  “In proceedings under this Act, the court may receive as evidence of the facts stated in it a document purporting to be either the original or a certified copy of:

  …

  (b) an entry in a register of parentage information kept under the law of the Commonwealth or of a State, Territory or prescribed overseas jurisdiction.”

• Family Law Act 1975 (Cth), s 39(3):

  “Proceedings for a divorce order may be instituted under this Act if, at the date on which the application for the order is filed in a court, either party to the marriage:

  (a) is an Australian citizen;

  (b) is domiciled in Australia; or

  (c) is ordinarily resident in Australia and has been so resident for 1 year immediately preceding that date.”

• Family Law Act 1975 (Cth), s 39(3):

  “Proceedings for a divorce order may be instituted under this Act if, at the date on which the application for the order is filed in a court, either party to the marriage:

  (a) is an Australian citizen;

  (b) is domiciled in Australia …”

• Family Law Act 1975 (Cth), s 39(3):

  “Proceedings for a divorce order may be instituted under this Act if, at the date on which the application for the order is filed in a court, either party to the marriage:

  (a) is an Australian citizen;

  …

  (c) is ordinarily resident in Australia and has been so resident for 1 year immediately preceding that date.”

• The College of Law, Victoria Practice Papers 2019-2020 (LexisNexis Butterworths, 2019) vol 1, [F101.105].

• The College of Law, Victoria Practice Papers 2019-2020 (LexisNexis Butterworths, 2019) vol 1, [F101.105].

• The College of Law, Victoria Practice Papers 2019-2020 (LexisNexis Butterworths, 2019) vol 1, [F101.105].

• The College of Law, Victoria Practice Papers 2019-2020 (LexisNexis Butterworths, 2019) vol 1, [F101.105].

• The College of Law, Victoria Practice Papers 2019-2020 (LexisNexis Butterworths, 2019) vol 1, [F101.105].

• The College of Law, Victoria Practice Papers 2019-2020 (LexisNexis Butterworths, 2019) vol 1, [F101.105].

• The College of Law, Victoria Practice Papers 2019-2020 (LexisNexis Butterworths, 2019) vol 1, [F101.105].

• The College of Law, Victoria Practice Papers 2019-2020 (LexisNexis Butterworths, 2019) vol 1, [F101.105].

• The College of Law, Victoria Practice Papers 2019-2020 (LexisNexis Butterworths, 2019) vol 1, [F101.105].

• Family Law Act 1975 (Cth), s 55(1)(a):

  “(1) Subject to this section, a divorce order made under this Act takes effect by force of this section:

  (a) at the expiration of a period of 1 month from the making of the order …”

• Family Law Act 1975 (Cth), s 44(3):

  “(3) Where, whether before or after the commencement of section 21 of the Family Law Amendment Act 1983:

  (a) a divorce order has taken effect; or

  (b) a decree of nullity of marriage has been made;

  proceedings of a kind referred to in paragraph (c), (caa), (ca) or (cb) of the definition of matrimonial cause in subsection 4(1) (not being proceedings under section 78 or 79A or proceedings seeking the discharge, suspension, revival or variation of an order previously made in proceedings with respect to the maintenance of a party) shall not be instituted, except by leave of the court in which the proceedings are to be instituted or with the consent of both of the parties to the marriage, after the expiration of 12 months after:

  (c) in a case referred to in paragraph (a)—the date on which the divorce order took effect; or

  (d) in a case referred to in paragraph (b)—the date of the making of the decree.

  The court may grant such leave at any time, even if the proceedings have already been instituted.”

  Family Law Act 1975 (Cth), s 4(1):

  “"matrimonial cause" means:

  …

  (c) proceedings between the parties to a marriage with respect to the maintenance of one of the parties to the marriage; or

  (caa) proceedings between:

  (i) a party to a marriage; and

  (ii) the bankruptcy trustee of a bankrupt party to the marriage;

  with respect to the maintenance of the first-mentioned party; or

  (ca) proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them, being proceedings:

  (i) arising out of the marital relationship;

  (ii) in relation to concurrent, pending or completed divorce or validity of marriage proceedings between those parties; or

  (iii) in relation to the divorce of the parties to that marriage, the annulment of that marriage or the legal separation of the parties to that marriage, being a divorce, annulment or legal separation effected in accordance with the law of an overseas jurisdiction, where that divorce, annulment or legal separation is recognised as valid in Australia under section 104; or

  (cb) proceedings between:

  (i) a party to a marriage; and

  (ii) the bankruptcy trustee of a bankrupt party to the marriage;

  with respect to any vested bankruptcy property in relation to the bankrupt party, being proceedings:

  (iii) arising out of the marital relationship; or

  (iv) in relation to concurrent, pending or completed divorce or validity of marriage proceedings between the parties to the marriage; or

  (v) in relation to the divorce of the parties to the marriage, the annulment of the marriage or the legal separation of the parties to the marriage, being a divorce, annulment or legal separation effected in accordance with the law of an overseas jurisdiction, where that divorce, annulment or legal separation is recognised as valid in Australia under section 104 …”

• Family Law Rules 2004 (Cth), r 24.04(3)+(4):

  “(3) Strict compliance with an approved form or a form in Schedule 2 is not required, and substantial compliance is sufficient.

  Note: A form must be completed in accordance with any directions specified in the form, but the directions may be omitted from the completed document.

  (4) A document in a form approved for the Federal Circuit Court is taken to be in substantial compliance with the form approved for the same purpose under these Rules.”

  The forms in Schedule 2 referred in (3) above are:

  • Notice of Child Abuse, Family Violence or Risk of Family Violence (Current Case); and
  • Notice of Child Abuse, Family Violence or Risk of Family Violence (Application for Consent Orders).

  Federal Circuit Court Rules 2001 (Cth), r 2.04(1)+(2):

  “(1) Unless the Court otherwise orders, strict compliance with forms is not required and substantial compliance is sufficient.

  (2) A document prepared in the form prescribed for a similar purpose for the Family Court or the Federal Court may be taken to substantially comply with the appropriate form for a proceeding.”

• Family Court Rules 1998 (WA), r 12(1):

  “The Family Law Rules, except for those set out in the Table to this subrule, are adopted and apply in accordance with this Division, to the extent to which they are relevant, for the purposes of the exercise by the Court and courts of summary jurisdiction of their jurisdiction under the Act.”

  The rules included in the table are: 1.18, 4.14, 4.25, 4.30, 4.31, 5.09(2), 12.01(e), 12.08, 12.09, 12.14 to 12.16, 15.03(1) Chapter 16A.2, 18.01 to 18.10, and 19.03(3).

• Marriage Act 1961 (Cth), s 5:

  ““marriage” means the union of 2 people to the exclusion of all others, voluntarily entered into for life.”

• Family Law Act 1975 (Cth), s 12E(1)-(3):

  “(1) A legal practitioner who is consulted by a person considering instituting proceedings under this Act must give the person documents containing the information prescribed under section 12B (about non-court based family services and court's processes and services).

  (2) A legal practitioner who is consulted by, or who is representing, a married person who is a party to:

  (a) proceedings for a divorce order in relation to the marriage; or

  (b) financial or Part VII proceedings in relation to the marriage; must give the person documents containing the information prescribed under section 12C (about reconciliation).

  (3) A legal practitioner representing a party in proceedings under Part VII must give the party documents containing the information prescribed under section 12D (about Part VII proceedings).”

  Family Law Act 1975 (Cth), s 12B:

  “(1) The regulations may prescribe information that is to be included in documents provided to persons under this Part, relating to non-court based family services and court's processes and services.

  (2) Without limitation, information prescribed under this section must include information about:

  (a) the legal and possible social effects of the proposed proceedings (including the consequences for children whose care, welfare or development is likely to be affected by the proceedings); and

  (b) the services provided by family counsellors and family dispute resolution practitioners to help people affected by separation or divorce; and

  (c) the steps involved in the proposed proceedings; and

  (d) the role of family consultants; and

  (e) the arbitration facilities available to arbitrate disputes in relation to separation and divorce.”

  Family Law Act 1975 (Cth), s 12C:

  “The regulations may prescribe information that is to be included in documents provided to persons under this Part, relating to services available to help with a reconciliation between the parties to a marriage.”

  Family Law Act 1975 (Cth), s 12D:

  “(1) The regulations may prescribe information that is to be included in documents provided under this Part to persons involved in proceedings under Part VII.

  (2) Without limitation, the information must include information about the family counselling services available to assist the parties, and the child or children concerned, to adjust to the consequences of orders under that Part.”

• Family Law Act 1975 (Cth), s 12E(4):

  “(4) A legal practitioner does not have to comply with subsection (1), (2) or (3) if the practitioner has reasonable grounds to believe that the person has already been given documents containing the prescribed information mentioned in that subsection.”

• Family Law Act 1975 (Cth), s 12E(5):

  “(5) A legal practitioner does not have to comply with subsection (2) if the practitioner considers that there is no reasonable possibility of a reconciliation between the parties to the marriage.”

4. Property Settlement (‘Splitting Assets’)

1.1. Overview

A ‘property settlement’ is the legal jargon for dividing up property after a relationship has ended. The term ‘propery’ is a general term for all assets, liabilities, superannuation and financial resources - it does not refer exclusively to property in the sense of land, house, apartment, etc.

If you can agree with your spouse, your options include:

(a) An informal agreement without any legal process. If you come to an informal agreement, it is safer to seek legal advice anyway to make sure that you are not being treated unfairly without you knowing. However, there is no legal requirement you must divide the property a certain way or have any agreement formalised.

(b) A Binding Financial Agreement. A Binding Financial Agreement (a “BFA”) is a legally enforceable document which is essentially a contract between you and your spouse. There are a few benefits to a BFA. Firstly, a BFA can be finalised faster then Consent Orders. This may be useful if there is a time-pressing issue. Secondly, a BFA does not have the legal requirement that division of property must be fair. The practical effect of this is that the parties can come to an arrangement which the Courts or Consent Orders would not allow. On the flip side, there are a number of negatives to a Binding Financial Agreement. Firstly, a lawyer must sign-off that they have provided you with legal advice. This means, you cannot do a BFA without a lawyer. Secondly, there are more grounds to set aside a BFA compared to Consent Orders, which means, BFA's are not as strong as Consent Orders.

(c) Consent Orders. Consent Orders are orders made by the Court without having to go to Court and have a legal battle. Instead, the parties agree on the orders and the Court turns them into legally enforceable Court orders. There are a number of benefits to Consent Orders. Firstly, there are less grounds to set them aside compared to a BFA. This means, Consent Orders are stronger than a Binding Financial Agreement. Secondly, a lawyer is not required to do Consent Orders. You are free to fill the form yourself, to write the orders you are seeking, and to file it with the Family Court of Australia. Perhaps The Law Project is a little biased as we are lawyers, but we do not advise that you do it yourself. Family Law is quite complex and to put it bluntly - you likely to not know what you are doing. While Consent Orders have a number of benefits, there are not negatives. Firstly, Consent Orders can take a bit of time for the Court to authorise them. It ranges from a few weeks to a few months. During the COVID-19 pandemic, it took the Court 3 months to complete for a client of ours. Secondly, Consent Orders have the requirement that the orders are ‘just and equitable’, or in other words, the orders must be fair. This means, if you and your partner have decided to divide your assets in a way which may appear unfair, the Court will reject your application.

If you cannot agree with your spouse, the last resort and final option is to go Court and have the Court make orders. The process for determining how the property is be divided includes: (a) Determine and value all the assets, liabilities, superannuation and financial resources of both parties. (b) Determine the financial and non-financial, direct and indirect contributions of each of the parties. A non-financial contribution includes being a stay-at-home parent and the homemaker. (c) Determine each party’s future needs. (d) Determine a ‘just and equitable’ division of property, or in other words, the division must be fair. (d) Determine whether the Court should make any orders at all or instead, whether the Court should reject the application. Note that an ex-spouse has one year after divorce to file an application for property orders which means that the parties should move quickly. Further note that you do not need to wait until you are legally divorced before you can proceed with a property settlement.

1.2. The Five Step Property Settlement Process

Broadly speaking, the Court will run through a five-step process in relation to property settlements.¹

1. Identify each party’s assets, liabilities, superannuation, and financial resources.
2. Identify each party’s contributions.
3. Identify each party’s future needs.
4. Determine whether it is ‘just and equitable’ to order property settlement.
5. Determine whether the proposed orders are ‘just and equitable’.

Do not worry about the precise wording or the order of the above five steps as each judge has their own wording and each judge will run through the steps in a different order.

1.2.1. Identify the Parties’ Assets, Liabilities, Superannuation, and Financial Resources

Examples include:

1. Houses, apartments, townhouses, and land.
2. Cars, motorbikes, caravans, trucks, tractors, boats, and planes.
3. Bank accounts.
4. Shares including ordinary shares, preference shares, and partly-paid shares; Australian Real Estate Investment Trusts (A-REITs); Exchange Traded Funds (ETFs), Exchange Traded Managed Funds (ETMFs), Exchange Traded Products (ETPs), and Structured Products (SPs); Listed Investment Companies (LICs) and Listed Investment Trusts (LITs); Managed Funds (mFunds); Convertible debts securities, capital notes including perpetual debt securities, subordinated debt securities, and knock-out debt securities; Bonds including fixed rate bonds, floating rate bonds, and indexed bonds; Options including equity options, exchange traded funds options, index options, low exercise price options including (LEPOs) shares LEPOs, index LEPOs, toress LEPO; Warrants including MINIs, GSL MINIs, equity & index warrants, international equity, turbos or knock-out warrants.
5. Business interests including sole traders, partnerships, companies, trusts, and co-operatives.
6. Furniture and household contents.
7. Partial property settlement.
8. Jewellery.
9. Cryptocurrecy and Initial Coin Offerings (ICOs). Note, in Powell & Christensen [2020] FamCA 944 at [291]-[292], the Court valued the cryptocurrency at the purchase prices as the party did not provide any evidence in relation to whether value has decreased or increased.