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Can I get divorced if I cannot find my spouse?

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Can I get divorced if I cannot find my spouse?

You may still be able to obtain a divorce if you cannot locate your spouse. However, you cannot simply skip service. After reasonable attempts to serve the documents, you can ask the court for an order permitting another method of service or, in exceptional circumstances, dispensing with service.

Why does service matter?

Service formally brings filed court documents to the other person’s attention. A sole divorce application normally requires service on your spouse. A joint application does not.

Being unable to find your spouse is different from your spouse refusing to agree to a divorce. Their cooperation with a joint application is not the only way forward, but you still need to meet the divorce requirements and deal properly with service.

What should I do before asking for a service order?

Keep a dated record of reasonable, lawful attempts to locate and serve your spouse. What is reasonable depends on the information available and your circumstances.

Useful evidence may include the last known address, your last communication, enquiries of relatives or a former employer, and the outcome of attempted service. Keep relevant replies, returned correspondence and process-server information.

Do not put yourself at risk, breach a protection order or access someone else’s private accounts to gather information. If contact or enquiries would create a safety concern, explain that to your lawyer so it can be addressed in the evidence.

What is substituted service?

Substituted service allows service in another way authorised by the court. Depending on the evidence, that could involve email, a text message, social media or a relative or other third person likely to bring the documents to your spouse’s attention.

The proposed method needs a factual basis. For example, evidence that a particular email address is still being used may matter. Merely knowing an old address or finding an account with a similar name does not establish that the documents will reach the right person.

Do not assume that sending a message yourself satisfies service. Ask for an order and follow its actual terms.

When might the court dispense with service?

Dispensation means the court waives the service requirement, with or without conditions. The court describes this as a serious step, available only in exceptional circumstances, because the other person may not know about the divorce application.

Substantial evidence of attempts to locate your spouse is required. Difficulty, inconvenience or an unanswered message does not automatically establish that service should be waived.

What application and evidence are needed?

The court’s guidance requires an Application in a Proceeding and a supporting affidavit. The affidavit should explain the searches and enquiries undertaken, their results, why your spouse cannot be contacted, and any other relevant circumstances.

Include what is known about an overseas location, existing support arrangements or jointly owned property where relevant. Explain the costs of attempts to locate your spouse if those costs are causing financial difficulty.

The court may require further enquiries or adjourn the matter. Unless excused by the court, you must attend the hearing for the service application, even if the divorce was originally listed without appearances.

Can I hand the divorce papers to my spouse myself?

No. For ordinary service by hand, the court requires another person over 18 to serve them.

Is an overseas spouse automatically a missing spouse?

No. Overseas service has its own requirements. Get advice about the country and circumstances rather than assuming service can be waived.

See our separation checklist for related practical steps. For advice about divorce service difficulties, contact Aegis Law Group.

This article is general information, not legal advice.

Can I apply for divorce if we are separated under one roof?

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Can I apply for divorce if we are separated under one roof?

Yes. Living at the same address does not prevent you from being separated for divorce purposes. If you shared a home during any part of the required separation period, you will need extra evidence showing that the marriage had ended despite the shared address.

What does separation under one roof mean?

It means spouses have separated but continue living in the same home. Financial pressure, housing arrangements or children’s needs may explain that decision. Sharing an address is not the same thing as continuing a married relationship.

Under the Family Law Act, spouses can be separated even if one person ended the relationship, or if they still provide some household services for each other. The court looks at the facts, not simply whether you have separate leases or whether both people describe the situation in the same way.

How long must we be separated before applying?

The court must be satisfied that you have been separated for at least 12 months immediately before the application and that there is no reasonable likelihood of resuming married life.

Record the date of separation and the events that establish it. If there was a reconciliation or disagreement about when separation occurred, get advice before choosing an application date. Do not assume every period at the same address counts, or that every shared meal means separation has ended.

For the wider practical issues, see our first-30-days separation checklist.

What evidence does the court want?

The court’s guidance asks you to explain changes in the marriage, including:

  • sleeping arrangements;
  • shared activities and family outings;
  • household tasks performed for each other;
  • financial arrangements; and
  • whether friends, family or relevant government agencies knew about the separation.

Describe what actually happened. If you still shared a mortgage or occasionally cooked for everyone, explain the circumstances rather than presenting an artificial picture of completely separate lives.

You should also explain why you remained in the home, any plans to change that arrangement, and the living arrangements for children under 18. If you receive a government benefit, the court’s guidance asks what agencies you notified and for relevant correspondence.

Who needs to provide an affidavit?

An affidavit is a written statement of evidence sworn or affirmed before an authorised witness.

For a sole divorce application involving separation under one roof, you must file your own affidavit. The court’s guidance says you should also file an affidavit from an independent person, such as a friend, relative or neighbour.

For a joint application, each spouse must file a separate affidavit. If only one spouse can provide one, the guidance says an independent person’s affidavit should also be filed.

A supporting witness should describe what they personally know. They should not copy your statement or claim to have observed private arrangements they never saw.

Does divorce resolve the house or parenting arrangements?

No. Divorce legally ends the marriage; it does not itself divide property or create parenting arrangements. Those issues need separate attention. Do not postpone advice about them simply because you are still sharing a home.

Must I move out to establish separation?

No. Separation under one roof is recognised, but evidence is needed when it falls within the relevant period.

Can incomplete evidence delay the application?

Yes. The court may seek additional material or adjourn the application if the evidence is insufficient.

For advice about separation evidence and a proposed divorce application, contact Aegis Law Group.

This article is general information, not legal advice.

Separation Checklist Queensland: The First 30 Days, Legally and Practically

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Aegis Law Group
(07) 3709 7610 Speak to a Lawyer

SEPARATION

Separation checklist Queensland: the first 30 days, legally and practically

The first month after separation feels like survival - but the decisions made (and avoided) in these weeks quietly shape the parenting and property outcomes that follow. Here's the checklist we walk new clients through.

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Packed moving boxes beside a potted plant

01 / WEEK ONE

Week one: safety and stability

If there is any violence or risk, safety comes first - police in an emergency (000), and advice about protection orders promptly. Otherwise, stabilise: where is everyone living, what do the children need this week, and what's the interim money arrangement? Note your separation date somewhere reliable - it matters legally (de facto property time limits and divorce eligibility both count from it) and memories blur fast.

02 / DOCUMENTS

Documents: gather while you can

Quietly assemble copies of the paperwork that property settlement will need: recent payslips and tax returns, bank and mortgage statements, superannuation statements (both of you, if accessible), vehicle and property documents, insurance policies, and business records if either of you has one. This is dramatically easier in week two than in month eight, and it's your own information - gathering it lawfully is prudence, not aggression. See what disclosure requires.

03 / MONEY

Money: protect without provoking

Update passwords on your personal email and banking. Consider whether joint accounts and redraw facilities need limits - large unilateral withdrawals inflame everything and get scrutinised later, so the goal is preventing surprises, not creating them. Start a simple record of what you pay for from separation onward. Review your will and superannuation death nominations; separation doesn't automatically change them.

04 / CHILDREN

Children: build the pattern early

The arrangements that run in these first weeks tend to become the reference point later, so think before defaulting into something unsustainable. Keep the children out of the conflict entirely, keep both parents in their lives where it's safe, and start a factual diary of arrangements and handovers. Communicate with your former partner as if a judge will read every message - because one day, one might. Brief, civil, child-focused, always. (See there is no automatic 50/50.)

05 / ADVICE

When to get advice

Earlier than you think - not to "lawyer up," but because an appointment in the first month helps avoid the classic mistakes: moving out in a way that muddies things, informal deals that unravel, missed time limits, generosity or panic that becomes a precedent. Many people who get early advice never end up in court.

07 / SPEAK WITH US

Speak with Aegis Law Group

This article is general information about Queensland and Australian family law, not legal advice.

For a first appointment on separation, parenting or property, call Aegis Law Group on (07) 3709 7610.

(07) 3709 7610
BRISBANE OFFICE33 Queen Street, Brisbane

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Legal Aid in Queensland Family Law: Who Qualifies and What a Grant of Aid Covers

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FAMILY LAW

Legal Aid in Queensland family law: who qualifies and what a grant of aid covers

Family law problems don't wait for money to be available. For many Queenslanders, Legal Aid Queensland (LAQ) is the difference between having a lawyer and facing the system alone - and misunderstanding how it works stops eligible people from applying.

Request a call Call (07) 3709 7610
A notepad, pen and coffee cup on a desk

01 / THE TESTS

The two tests

LAQ decides applications on two questions. The means test looks at your income, assets and household circumstances - it's designed for people on low incomes, Centrelink benefits, or otherwise limited means, and depending on your position a contribution toward costs may be required. The merits test asks whether the matter is one a reasonable, self-funding person would pursue, and whether aid is a sensible use of public funds - the type of matter, its prospects, and the benefit to you and any children all feed in.

02 / COVERAGE

What family law matters attract aid

Aid is commonly granted for parenting disputes - particularly where children's safety, family violence, or significant disagreement about living arrangements is involved. LAQ places heavy emphasis on resolving matters early: grants frequently fund family dispute resolution conferences before any litigation, and many matters resolve there. Aid can extend to court proceedings where conferencing fails or isn't appropriate, and separate grants fund Independent Children's Lawyers. Domestic violence applications and responses have their own pathways, including duty lawyer services at court. Divorce applications are generally not funded unless special circumstances apply (for example, where the divorce would end continuing harassment). Property disputes are funded only in limited cases - broadly, a net pool between $20,000 and $400,000 that includes the former home or superannuation, with no business or investment property - and usually only for property arbitration, with court proceedings funded only alongside another family law matter or where there is a risk of homelessness.

03 / PRIVATE FIRMS

How it works with a private firm

A point many people miss: a grant of aid doesn't mean a government lawyer. Private law firms on LAQ's preferred supplier panels regularly act for legally aided clients. You apply (online, through a law firm on the panel, or via LAQ directly), and if aid is granted, the grant funds defined stages of work at LAQ's rates. The lawyer-client relationship is the same; the funder differs.

04 / PRACTICAL TIPS

Practical tips

Apply early - aid takes time to assess, and court dates don't wait. Be complete and accurate on the means test; incomplete applications stall. If circumstances change, grants can be extended or varied as the matter progresses. And if you're refused, review rights exist - a refusal isn't always the end.

05 / SUMMARY

The takeaway

If money is the reason you haven't got advice on a parenting or DV matter, find out whether LAQ will fund it before assuming you're on your own - eligibility is broader than most people expect, and the earlier aid starts, the more it can do.

Source: Legal Aid Queensland. Eligibility rules and guidelines change; check LAQ's current guidelines or ask us. The law changes from time to time, so please get advice about your own matter before relying on this general information.

Source: Legal Aid Queensland, Commonwealth family law guidelines (Guidelines 11 and 12, checked 4 November 2026). The law changes from time to time, so please get advice about your own matter before relying on this general information.

07 / SPEAK WITH US

Speak with Aegis Law Group

This article is general information, not legal advice.

Call (07) 3709 7610 to discuss your matter and whether a grant of aid may be available.

(07) 3709 7610
BRISBANE OFFICE33 Queen Street, Brisbane

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Texts, Screenshots and 2am Messages: How Your Phone Ends Up in an Affidavit

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EVIDENCE

Texts, screenshots and 2am messages: how your phone ends up in an affidavit

Here's the single most valuable habit a separated parent can adopt, and it costs nothing: assume every message you send will one day be read aloud to a judge. Because in contested family law matters, a startling proportion of them are.

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Two hands holding a smartphone

01 / EVIDENCE

How messages become evidence

Family law runs on affidavits - sworn written evidence - and annexures. Text threads, emails, social media posts, comments, and voicemail transcripts are routinely annexed to affidavits to prove communication patterns, conflict, threats, admissions, parenting capacity, or simply tone. There's no special process required: a screenshot, an annexure note, and your words are in the court file, timestamped and permanent.

It cuts both ways. The other parent's abusive 2am tirade is evidence for you. Your sarcastic reply, sent thirty seconds later, sits directly underneath it - and judges read the whole thread, not the half that helps you.

02 / WHAT THEY SHOW

What the messages are used to show

More than people expect: hostility and denigration of the other parent (which speaks to the children's best interests); inconsistency between what a parent swears in an affidavit and what they wrote at the time; threats or controlling behaviour relevant to family violence findings; admissions about drinking, drug use, or where the children were; and reliability - the parent whose messages are consistently civil and child-focused builds credibility with every page.

03 / RULES

The communication rules that protect you

Write every message as if the judge is the true recipient. Keep it brief, factual, and about the children: logistics, health, school. Never insult, never threaten, never rehash the relationship. If a message enrages you, don't reply for twelve hours - no response ever hurt anyone's case; countless instant ones have. Don't send volleys: one clear message beats seven fragments, and message frequency itself gets counted in affidavits. Use a parenting communication app or email if texting keeps going wrong - slower channels produce better evidence. And never delete threads once proceedings are on foot or anticipated; deletion looks worse than almost anything you wrote.

If a protection order is in place, check its conditions before sending anything - see what a DVO changes day-to-day.

04 / SUMMARY

The takeaway

You cannot control what the other parent sends. You have total control over what sits under your name in the court file. In a jurisdiction decided on credibility and the children's best interests, a clean message history is one of the cheapest advantages available - and it's built one boring, civil text at a time.

06 / SPEAK WITH US

Speak with Aegis Law Group

This article is general information about Australian family law, not legal advice.

For advice on your parenting or property matter, call Aegis Law Group on (07) 3709 7610.

(07) 3709 7610
BRISBANE OFFICE33 Queen Street, Brisbane

Request a call

Your Ex Is Withholding the Kids: Recovery Orders and What Not to Do First

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PARENTING

Your ex is withholding the kids: recovery orders and what not to do first

Few moments in family law are more frightening: changeover time passes and the children aren't returned, or you discover they've been taken interstate. The law has a specific remedy - the recovery order - and a set of mistakes that can badly damage the parent who makes them.

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A child looking calmly out of a car window

01 / THE ORDER

What a recovery order is

A recovery order is an order of the Federal Circuit and Family Court of Australia requiring a child's return, and it can authorise police - including the Australian Federal Police - to find and recover the child. The court can also make orders preventing a child's removal from a location or from Australia, which can lead to the child being placed on the Family Law Watchlist at airports and other departure points.

02 / APPLYING

Who can apply, and how fast

A parent, a grandparent, a person with parenting orders, or anyone else concerned with the child's care, welfare or development can apply. If parenting orders already exist, the application enforces them; if none exist, you'll typically seek parenting orders and a recovery order together. These applications are treated urgently - the section 60I mediation requirement doesn't stall a genuinely urgent recovery matter, and courts can list them quickly. The application runs on affidavit: the arrangements that existed, what happened, why return is in the children's best interests, and what's known about where they are.

03 / WHAT NOT TO DO

What not to do first

Do not self-help. Turning up to take the children back, confronting the other parent at their home, or enlisting relatives to intercept them at school converts a strong legal position into a mutual-conflict story - and can generate police involvement and DV applications against you. Do not bombard the other parent with threats or a wall of messages; every text is a future exhibit. Write once, calmly, proposing return and recording the facts. And do not wait weeks "to see if it settles down" - delay can be read as acceptance, and the longer a new status quo runs, the harder it is to unwind.

One more hard truth: if there's no court order in place, police generally cannot force a return on your say-so - which is precisely why the recovery order exists.

04 / SUMMARY

The takeaway

Speed and discipline matter: one calm written request, immediate legal advice, an urgent application if return doesn't follow. The parent who behaves impeccably while moving fast is usually in the stronger position - in the recovery application and in everything that follows.

Source: Family Law Act 1975 (Cth) (Compilation No. 101, compiled 10 June 2025; the latest compilation on the Federal Register of Legislation as at 4 November 2026), ss 60I(9), 67Q and 67T; Federal Circuit and Family Court of Australia. The law changes from time to time, so please get advice about your own matter before relying on this general information.

06 / SPEAK WITH US

Speak with Aegis Law Group

This article is general information about Australian family law, not legal advice.

If your child has been withheld or taken, call Aegis Law Group on (07) 3709 7610 immediately - urgent applications are time-critical.

(07) 3709 7610
BRISBANE OFFICE33 Queen Street, Brisbane

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What Is an ICL - and What Happens When One Is Appointed to Your Parenting Matter

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PARENTING

What is an ICL - and what happens when one is appointed to your parenting matter

Partway through a contested parenting matter, an order appears: an Independent Children's Lawyer is appointed. For many parents it sounds alarming - a lawyer for the children, against whom? The short answer: against no one.

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A young girl drawing quietly at a table

01 / THE ROLE

What an ICL is

An ICL is a lawyer appointed by order of the court - usually arranged through Legal Aid - to represent and promote your children's best interests in the proceedings. Crucially, the ICL is not either parent's ally and is not simply a mouthpiece for the children's wishes. Their statutory job is to form an independent view of what arrangements are in the children's best interests, based on the evidence, and to put that view before the court - while making sure the children's views are fully put before the court too. Sometimes those align; sometimes they don't, and the ICL will tell the court both.

02 / APPOINTMENT

When ICLs are appointed

Typically in matters involving allegations of family violence or child abuse, high conflict, mental health or substance issues, proposals to relocate, or wherever the court considers the children's interests need an independent voice. Either party can seek the appointment, or the court can make it of its own motion.

03 / IN PRACTICE

What the ICL actually does

Expect the ICL to gather evidence the parents can't or won't: subpoenaing school, medical, police and child safety records, and arranging or reviewing a family report. Since the 2024 reforms, the ICL must meet with the child and give them an opportunity to express their views - unless the child is under 5, doesn't want to, or there are exceptional circumstances. These meetings are usually low-key and child-appropriate, not an interrogation.

The ICL participates in court events like any party: questioning witnesses, making submissions, and frequently brokering sensible interim arrangements between hearings. Many entrenched matters settle because the ICL's independent view resets both parents' expectations.

04 / WORKING WITH AN ICL

How to work with an ICL

Treat the ICL as you'd want to be seen by the judge, because their impression of you travels. Be responsive, be child-focused in every communication, comply with orders precisely, and never coach the children about meetings with the ICL or the family report writer - children reliably disclose coaching, and nothing damages a parent's case faster. ICL costs are commonly funded through Legal Aid, though parents can be asked or ordered to contribute.

05 / SUMMARY

The takeaway

An ICL is not a threat to either parent - but they are an independent set of professional eyes, and their view carries real weight. The parent who engages constructively usually finds the ICL's involvement helps their case; the parent who fights them rarely does.

Source: Family Law Act 1975 (Cth) (Compilation No. 101, compiled 10 June 2025; the latest compilation on the Federal Register of Legislation as at 4 November 2026), ss 68L and 68LA (including s 68LA(5A)-(5B)); Federal Circuit and Family Court of Australia. The law changes from time to time, so please get advice about your own matter before relying on this general information.

07 / SPEAK WITH US

Speak with Aegis Law Group

This article is general information about Australian family law, not legal advice.

For advice on your parenting matter, call Aegis Law Group on (07) 3709 7610.

(07) 3709 7610
BRISBANE OFFICE33 Queen Street, Brisbane

Request a call

Separation on the Gold Coast: family law for Southport and surrounds

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Aegis Law Group
(07) 3709 7610 Speak to a Lawyer

GOLD COAST

Separation on the Gold Coast: family law for Southport and surrounds

If you have separated in Southport or anywhere on the Gold Coast, you are probably carrying two questions at once: what happens with the children, and what happens with the house, the superannuation and everything else. Neither question has an automatic answer. There is no default division of a child's time and no default division of property. Outcomes are built from evidence, and most of that evidence is created in the first months after separation, long before anyone stands in front of a judge.

That should change what you do this week. Most family law matters are never decided at a final hearing. They are shaped early: where everyone lives, how the children's week runs, what is said in writing, what is disclosed and what is quietly done.

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A couple and their child walking together in a park

01 / THE FIRST MONTHS

The first months decide more than the final hearing

Separation creates facts on the ground quickly. Within weeks there is a pattern: who the children wake up with, who does the school run in Southport or Labrador, who stayed in the house, who is paying the mortgage. None of that is legally final, but all of it becomes evidence about what works and about who is doing the day-to-day care. The parent who can show a track record of meeting the children's needs, and of behaving sensibly under pressure, is in a stronger position than the parent with a spreadsheet of nights.

Two practical rules follow. First, write everything as though a judge will read it, because one day a judge might. Messages sent in anger this month have a way of resurfacing in an affidavit next year. Second, do not make unilateral moves with money or with the children to improve your position. They rarely improve it. We set out how we run parenting, property, divorce and protection order matters on our family law page, and the theme is the same throughout: early positioning decides these matters. Our separation checklist covers the first 30 days.

02 / PARENTING

Parenting: there is no automatic 50/50

The belief we correct most often at first conferences is that the law starts at an equal split of time. It does not. Australian family law starts with one question: what arrangement is in the best interests of this child? That is the paramount consideration under the Family Law Act, and everything else flows from it. The court considers the safety of the child and of the people who care for them; any views the child expresses, given weight according to their age and maturity; the child's developmental, psychological, emotional and cultural needs; the capacity of each person with parental responsibility to meet those needs; and the benefit of a relationship with each parent and other significant people where that is safe.

The 50/50 myth grew out of an earlier presumption about equal shared parental responsibility, which was about decision-making rather than time, and which was removed from 6 May 2024. Today the position is blunter: best interests, assessed on the evidence, child by child. We explain where the myth came from, and what it means for how you negotiate, in our article on why there is no automatic 50/50 in parenting arrangements.

In practice, outcomes turn on unglamorous variables: how far apart the parents live, school logistics, the children's ages, who has been doing the day-to-day care, each parent's work patterns and, above everything, safety. Equal time does happen, typically where parents live near each other and communicate functionally. Many children instead spend most time with one parent and regular time with the other. Where there are safety concerns, time may be supervised. Build any proposal around your child's actual week, school, sport, sleep and transitions, not around a percentage.

One sequencing point matters for timing: in most parenting matters you must attempt family dispute resolution and obtain a section 60I certificate before filing in court, with exceptions that include urgency and family violence. Getting that sequence right saves months, and many matters resolve at or before mediation.

03 / PROPERTY

Property: four steps, not a formula

Property has its own myths: "she gets half" and "what is in my name stays mine". Neither is the law. Property settlement runs through a structured process, usually described as four steps: identify the property pool, assess each party's contributions, weigh current and future circumstances, and check that the overall outcome is just and equitable. We walk through each stage in our guide to the four-step property settlement process.

Three points from that process matter most for someone newly separated. The pool is built from what exists, not from whose name is on the title, and it includes superannuation, often the second-largest asset and the one people persistently forget. Contributions are not only financial: the law treats homemaking and raising children as genuine contributions, not lesser ones. And half is sometimes the answer, but only as the output of the four steps in a particular case, never as a starting rule.

Timing matters here too. Time limits apply to property claims: generally 12 months from a divorce order taking effect, and 2 years from the end of a de facto relationship. Settling promptly protects your rights, and agreements can be formalised through consent orders without anyone ever litigating. Most are.

04 / DISCLOSURE

Disclosure: the obligation both of you owe

Every property settlement runs on full and frank disclosure, a duty owed by both parties. That means the accounts, the payslips, the business records, the superannuation statements, the lot. It is not optional and it is not tactical. Hiding assets is ineffective, because lawyers know where to look, and it is damaging when found, which it usually is.

For you, that cuts two ways. Do not quietly move money, delete records or run down accounts after separation: the disclosure process is built to surface exactly that conduct, and it colours everything that follows. Equally, if you suspect the other side is holding something back, do not investigate by confrontation: keep your own records in order and let the process do its work.

05 / ADVICE

Courts, costs and when to get advice

Parenting and property proceedings are managed through the Federal Circuit and Family Court of Australia. Run well, most matters never need a final hearing at all: they resolve through negotiation, mediation and consent orders.

The right time to get advice is early, ideally before positions harden. At Aegis Law Group, family matters begin with a first conference with the Principal. Our office is at 33 Queen Street, Brisbane: we are Brisbane criminal and family lawyers, and we act for Gold Coast clients across South East Queensland.

One thing comes before all of this. If there is violence or you are not safe, that is the first priority. In an emergency call 000. For urgent protection order advice, call us.

Source: Family Law Act 1975 (Cth) (Compilation No. 101, compiled 10 June 2025; the latest compilation on the Federal Register of Legislation as at 4 November 2026), ss 44, 60CC, 60I, 71B and 79. The law changes from time to time, so please get advice about your own matter before relying on this general information.

07 / SPEAK WITH US

Speak with Aegis Law Group

Separated or separating on the Gold Coast? Call Aegis Law Group on (07) 3709 7610 to book a first conference.

This article is general information only and is not legal advice. Parenting and property outcomes turn on the facts of each family; get advice on your specific situation.

(07) 3709 7610
BRISBANE OFFICE33 Queen Street, Brisbane

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The Section 60I Certificate: Why You (Usually) Must Mediate Before Filing - and the Exceptions

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PARENTING

The section 60I certificate: why you (usually) must mediate before filing - and the exceptions

You can't simply file a parenting application because negotiations have broken down. In most cases, Australian law requires a genuine attempt at family dispute resolution (FDR) first - and the proof is a piece of paper called the section 60I certificate.

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A person holding a cup of coffee at a table

01 / THE REQUIREMENT

How the requirement works

Before starting parenting proceedings in the Federal Circuit and Family Court of Australia, parties are generally required to attend FDR - mediation run by an accredited practitioner, through services like Relationships Australia, Legal Aid conferencing, or private mediators. The FDR practitioner then issues a certificate under section 60I of the Family Law Act 1975 (Cth), and the certificate is filed with any later application.

The certificate records what happened, in one of several forms: the other party refused or failed to attend; the practitioner assessed the matter as not appropriate for FDR; both attended and made a genuine effort; both attended but one or both didn't make a genuine effort; or mediation started but the practitioner decided it was not appropriate to continue. Which certificate you hold can matter later - the court can take the kind of certificate into account.

02 / EXCEPTIONS

The exceptions

The requirement is not absolute. The court can grant an exemption where it is satisfied that an exception applies, including:

  • urgency (for example, a recovery order where a child has been withheld or relocated);
  • reasonable grounds to believe there has been, or is a risk of, family violence or child abuse;
  • a party being unable to participate effectively in FDR; and
  • certain contravention applications, where an order was made in the last 12 months and the other person has shown serious disregard for it.

Applications for consent orders don't require a certificate either - if you've reached agreement, you can formalise it without mediating first.

The exceptions are gateways, not loopholes: an application filed without a certificate must satisfy the court that an exception genuinely applies, usually by affidavit.

03 / WHY IT MATTERS

Why mediation is worth taking seriously anyway

Beyond the legal requirement, the practical case is strong: many parenting matters settle at or before mediation; the arrangements parents build together tend to hold up better than orders imposed on both of them; and litigation is measured in many months and many thousands of dollars. Preparation matters - going in with a realistic, child-focused proposal (school weeks, changeovers, holidays, communication) converts mediation from a box-ticking exercise into the place your matter actually resolves. Read there is no automatic 50/50 before you write that proposal.

04 / SUMMARY

The takeaway

FDR first is the rule; urgency and safety are the exceptions; and the certificate you walk out with becomes part of your matter's story. Get advice before mediation, not just before court - durable outcomes are usually built there.

Source: Family Law Act 1975 (Cth) (Compilation No. 101, compiled 10 June 2025; the latest compilation on the Federal Register of Legislation as at 4 November 2026), s 60I (including s 60I(8)-(9)). The law changes from time to time, so please get advice about your own matter before relying on this general information.

06 / SPEAK WITH US

Speak with Aegis Law Group

This article is general information about Australian family law, not legal advice.

For advice on mediation, certificates or parenting proceedings, call Aegis Law Group on (07) 3709 7610.

(07) 3709 7610
BRISBANE OFFICE33 Queen Street, Brisbane

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Parenting Orders in Australia: What Separated Brisbane Parents Need to Know in 2026

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PARENTING

Parenting orders in Australia: what separated Brisbane parents need to know in 2026

Separation is hard enough without trying to decode the family law system at the same time. This guide explains how parenting arrangements are decided in Australia, what changed under the 2024 reforms to the Family Law Act, and the practical steps from separation through to court orders - written for parents in Brisbane and across Queensland.

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01 / AGREEMENT

Parenting plans vs parenting orders

Most separated parents never see the inside of a courtroom. If you and your former partner can agree on arrangements, you have two main options:

  • A parenting plan - a written agreement, signed and dated by both parents and made free from threat, duress or coercion. Flexible and easy to update, but not enforceable as a court order.
  • Consent orders - your agreement formalised by the Federal Circuit and Family Court of Australia (FCFCOA). These carry the same force as orders made by a judge, without anyone attending court.

We compare the two in more detail in parenting plans vs consent orders. Court proceedings are the pathway when agreement genuinely cannot be reached, or where safety concerns make negotiation inappropriate.

02 / BEST INTERESTS

The best interests of the child: what the court actually weighs

Every parenting decision the court makes is governed by one paramount consideration: the best interests of the child. Following the reforms that commenced on 6 May 2024, section 60CC of the Family Law Act sets out a streamlined list of considerations:

  • the safety of the child and of the people who care for them, including any history of family violence and any family violence order;
  • any views expressed by the child;
  • the developmental, psychological, emotional and cultural needs of the child;
  • the capacity of each person who has or is proposed to have parental responsibility to meet those needs;
  • the benefit to the child of a relationship with each parent and other significant people, where it is safe;
  • anything else relevant to the child's circumstances.

Importantly, the former presumption of "equal shared parental responsibility" was removed by those reforms. There is no starting assumption about how time is divided - arrangements are built around the individual child. More on that in there is no automatic 50/50.

03 / BEFORE FILING

Before you can file: mediation and the section 60I certificate

In most cases, parents must attempt family dispute resolution (mediation) before filing a parenting application. If mediation fails or the other parent refuses to attend, the mediator can issue a section 60I certificate, which allows you to file. The court can grant an exemption - most significantly in matters involving family violence, child abuse or genuine urgency.

04 / PROCEEDINGS

What court proceedings look like

If a matter does proceed, the FCFCOA follows a structured pathway designed to resolve cases early:

  • Filing - an Initiating Application supported by an affidavit setting out your evidence.
  • First return and interim hearing - the court can make interim orders about where children live and how they spend time with each parent while the case continues.
  • Court-ordered dispute resolution - most matters are directed back to mediation or a conciliation-style event.
  • Trial - only a small fraction of matters reach a final hearing before a judge.

The affidavit is where cases are won and lost. It is your evidence, and its quality - relevance, structure, restraint - matters far more than its length. Read how your phone ends up in an affidavit before you send your next message.

05 / NON-ENGAGEMENT

When the other side won't engage

A common frustration is a former partner (or their lawyers) who simply doesn't respond. The system has tools for this: procedural applications can compel compliance, and courts take a dim view of parties who ignore reasonable proposals to progress a matter. Silence is a strategy that tends to end badly for the silent party.

06 / FAQ

Frequently asked questions

Is there an automatic 50/50 arrangement?

No. There has never been an automatic entitlement to equal time, and the 2024 reforms removed the presumption that previously led to that misconception. Arrangements turn on the child's best interests.

How long does a parenting matter take?

Consent orders are usually dealt with much faster than contested proceedings, though timing depends on the court's workload. Contested proceedings commonly take a year or more to reach a final hearing, though interim orders provide certainty in the meantime.

Do children get a say?

A child's views are a relevant consideration, given weight according to their age and maturity - usually conveyed through a family report writer or an Independent Children's Lawyer, not by children attending court.

07 / ADVICE

Get advice early - it changes outcomes

The strongest positions in parenting matters are built early: sensible proposals, clean correspondence, and evidence gathered before it's needed. Aegis Law Group acts for parents in the FCFCOA from consent orders through to final hearings.

Source: Family Law Act 1975 (Cth) (Compilation No. 101, compiled 10 June 2025; the latest compilation on the Federal Register of Legislation as at 4 November 2026), ss 60CA, 60CC, 60I and 63C; Federal Circuit and Family Court of Australia. The law changes from time to time, so please get advice about your own matter before relying on this general information.

09 / SPEAK WITH US

Speak with Aegis Law Group

This article is general information only and is not legal advice. Your circumstances matter - get advice specific to them.

Contact our Brisbane office for a confidential consultation on (07) 3709 7610.

(07) 3709 7610
BRISBANE OFFICE33 Queen Street, Brisbane

Request a call

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