Wednesday, 28 May 2008

Family Court, Federal Magistrates Court forms: Step 1 applications

For litigants going to the Family Court or the Federal Magistrates Court, it is bad enough when you are represented- suddenly you are being asked to sign or respond to a whole series of forms, written in legal gobbledygook, but even worse when you are representing yourself.

To start any of the proceedings off, you need to file an application. The word "application" very simply describes what you are doing- you are applying to- asking- the court to give you certain orders that you want.

Divorce applications are made on their own- usually in the Federal Magistrates Court.

Child support applications are tricky little beasts- and I will talk about them some other time.

For other types of cases- parenting, adult child maintenance, property settlement, spousal maintenance- there are three types of forms.

Federal Magistrates Court

There is one type of form- an application. It is essential to set out in this what a party wants, including whether there are any temporary or interim orders sought or just the orders at the end of the matter. Sometimes, as with property settlement, a party will not be seeking any interim orders. With children's matters parties almost always ask for interim orders, and a failure to do so may leave a party waiting for months to be heard on what they want (and possibly be prejudiced in the meantime).

The Federal Magistrates Court expects affidavits to be filed in support of the application, even if all you are seeking are final orders.

Family Court

Unhelpfully, the forms in the Family Court are different from those in the Federal Magistrates Court. Thankfully, the Family Court forms are accepted in the Federal Magistrates Court- but not the other way around.

In the Family Court, there are two types of applications filed: Application (final orders)- what you want at the end of the matter; and Application in a case- any temporary or interim orders you want. A failure to file the application in a case may mean you cannot have any interim orders made.

There is a requirement to state that you have evidence in support of your application. Do not make ambit claims!

Affidavits are filed in support of the application in a case but NOT in support of the application for final orders- well not until the final straight leading to the trial, that is.

Unless you are exempt, filing fees have to be paid when you seek final orders, whether in the Family Court or the Federal Magistrates Court.

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