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Divorce Hearing

Your divorce hearing will be held in the Federal Circuit and Family Court of Australia, in one of its principal or circuit court locations around the country. Ordinarily, a Registrar of the court will preside over the divorce hearing, instead of a Judge. The Registrar will determine whether to grant your divorce at the end of the hearing.

Do I need to attend the divorce hearing?

You may not need to be at your divorce hearing, and in practice, it’s actually common that people don’t need to attend their divorce hearings. Attendance at a divorce hearing is only required in the following circumstances. First, either you or a lawyer representing you must attend if you’ve filed a sole application and there’s a child of the marriage who’s under 18 at the time of filing. Second, either you or your lawyer must attend if you’ve indicated in your application that you wish to attend. You don’t need to attend the divorce hearing at all if you’ve filed a joint application with your spouse, in which you both requested that the case be heard by the court in your absence. You also don’t need to attend if you’ve filed a sole application and you have no children who are under 18.

What do I need to bring with me if I attend the divorce hearing?

When attending the divorce hearing, you should bring all relevant documents with you. These would include a copy of your Application for Divorce form, the service documents and any other supporting documents.

What happens at the divorce hearing?

On the day of the divorce hearing, it’s a good idea to arrive early, in order to have plenty of time to locate the courtroom in which your case will be heard, and compose yourself. After you arrive at the court building, you should consult the list of cases displayed in the foyer, in order to determine the number of the courtroom in which your case will be heard. You can then wait by the courtroom for the court orderly to call on your case, at which point you’ll enter the courtroom and sit at the table opposite the Registrar of the Court. The only matter that will be considered by the Registrar at the divorce hearing is whether or not to grant your divorce. The Registrar will not be considering any reasons for the divorce, nor will it consider any issues such as parenting arrangements, child support, spousal maintenance, child custody or property settlement. In most cases, the divorce hearing will only take several minutes, provided that the Registrar is satisfied that there was correct service of the application documents on your spouse and that all the other divorce requirements have been proven.

What happens after the divorce hearing?

If you’re successful in your divorce application, the Court will grant a divorce order at the hearing. After a further period of one month and one day following the hearing, this divorce order will then become permanent, and you’ll be sent a certificate of divorce. However, it should be noted that sometimes the Court will require additional proof of the date when you and your partner separated, before it will grant a divorce order. The Court might also require additional proof of the adequacy of any arrangements made for any children of the marriage who are under 18.

If your partner wants to appeal against the divorce order

If your spouse wants to appeal against the divorce order, he or she would need to do so within 28 days after the date the order is granted by the Court, by filing a Notice of Appeal in a Regional Appeal Registry. Furthermore, the only legal ground for such an appeal is a consideration of whether or not the law was correctly applied by the Court at the divorce hearing. Such an appeal wouldn’t actually involve your case being reheard by the appeal court, nor would it involve another decision being made as to the facts and merits of your case. As a result, should the appeal court find the law to have been correctly applied by the Court in the divorce hearing, it’s then bound to dismiss the appeal. However, there will then be an automatic delay of one month after the appeal has been decided before the divorce order will take effect and become final.

What does the certificate of divorce mean?

Once you’ve received your certificate for divorce, this means that the divorce has effectively become final. From this point onwards, no appeal can be made against the divorce order and you’ll no longer be legally married. You’ll then be free to remarry.

What if I’m required to attend the divorce hearing, but I don’t show up?

If you’ve made a divorce application and you’re required to attend the divorce hearing but then you fail to attend, (either in person or as represented by a lawyer), then under Section 25.12(a) of the Federal Circuit Court Rules 2001, the Court may dismiss your divorce application.

What if my partner is required to attend the divorce hearing, but doesn’t show up

Conversely, your spouse might fail to attend the divorce hearing (either in person or as represented by a lawyer), even though he or she was actually required to attend. Specifically, your spouse will be required to attend if he or she has filed a Response to Divorce, which essentially means that they don’t want the divorce to be granted. In these circumstances, if your spouse doesn’t attend, then under Section 25.12(b) of the Federal Circuit Court Rules 2001, you may then proceed with the divorce hearing .

Applying to attend the divorce hearing by telephone or video link

You can make a request to the Court to attend the divorce hearing by telephone or video link, should you think that you might have difficulty attending in person.  To make such a request, you’d need to fill out a Telephone / Video Link Attendance Request form, listing the reasons for your request. Under Section 25.11(5) of the Federal Circuit Court Rules, such reasons might include excessive travelling distance between your residence and the location of the divorce hearing, or any illness or disability you have that might make it hard for you to attend in person. They might also include excessive expense that would be incurred by you or any security concerns that might arise were you to attend in person. In addition, you’d need to let your partner know that you’re making the request to appear by telephone or video link, and then indicate on the form whether your partner objects to your request, doesn’t object or hasn’t responded.

What happens after I complete the Telephone / Video Link Attendance Request form?

After completing the Telephone / Video Link Attendance form, you’d need to either electronically file (eFile) the form using the Commonwealth Courts Portal, or alternatively you could email, posted or fax the form to the registry where the divorce hearing will be taking place, for filing with the Court. This must be done at least five business days prior to the divorce hearing, otherwise your request may not be considered by the Court. Whether your request is approved or refused will be up to the Court, and specifically the Registrar who is listed to preside over the divorce hearing. The Court will inform you of the outcome of your request prior to the divorce hearing, and if it’s granted, you’ll need to immediately provide written notice of this to your spouse.

When you can’t find your spouse for service of the divorce application

It’s advisable to attend a divorce hearing if you’re making an application for an order for substituted service or a dispensation of service, which will be relevant when you haven’t been able to locate your partner for service of the application. In this situation, you’ll need to satisfy the Court that you’ve exhausted every available option in trying to locate your spouse for service.

When the Court requires you to provide additional affidavit material

It’s also advisable to attend a divorce hearing if you’re required by the Court to provide additional affidavit material, to explain certain situations that might impact upon your application. Situations in which additional affidavit material might be required include where you’re separated from your spouse but you’ve still been living under the same roof, or where you’ve been married for less than two years.

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