(FAM-NULLITY)
1. Introduction
1.1 This Practice Direction applies to all family law applications and proceedings filed in the Federal Circuit and Family Court of Australia (FCFCOA) for:
- an order that a marriage is a nullity (nullity proceeding); and
- a declaration as to the validity of a marriage, divorce or annulment of a marriage (validity proceeding).
1.2 It is to be read together with:
- the Family Law Act 1975 (Cth) (Family Law Act);
- the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Family Law Rules); and
- Central Practice Direction – Family Law Case Management.
1.3 This Practice Direction applies to all proceedings commenced on or after 1 September 2021. This Practice Direction will also apply to all proceedings commenced prior to 1 September 2021, unless unfair or impractical to do so.
1.4 To the extent this Practice Direction is inconsistent with any act, regulation, rule or other legislative provision (whether or not expressly listed above), the act, regulation, rule or other legislative provision shall prevail.
Before a proceeding starts
1.5 Parties to nullity proceedings or validity proceedings are exempt from complying with the pre-action procedures in Schedule 1 of the Family Law Rules under rule 4.01(2)(b).
2. Application
Parties to nullity proceedings and validity of marriage proceedings
2.1 An application must include all necessary parties: see Part 3.1 of the Family Law Rules.
Making an application and documents to file
2.2 A nullity proceeding or a validity proceeding is commenced by filing an Initiating Application (Family Law).
2.3 A supporting affidavit must be filed with an Initiating Application (Family Law) in a nullity proceeding or a validity proceeding stating:
- the facts relied on to support the application;
- the applicant’s belief as to whether the respondent resides in or outside Australia at the time of filing;
- if either a decree of nullity of marriage or a declaration as to the validity of a marriage is sought, details about the marriage ceremony, including time, place and form; and
- if a declaration as to the validity of a divorce or an annulment of marriage is sought:
- the date of the divorce or order of nullity;
- the name of the court that granted the divorce or order of nullity; and
- the grounds on which the divorce or order of nullity was ordered.
2.4 An Initiating Application (Family Law) that seeks a decree of nullity of a marriage and/or a declaration as to the validity of a marriage, divorce or annulment of marriage must not seek orders related to any other type of proceeding.
2.5 The applicant must also pay the filing fee set by regulation, unless an exemption applies. A Judge or Judicial Registrar may require a party to give an undertaking to pay a filing fee before accepting a document for filing.
When an affidavit is required
2.6 An affidavit is required to be filed with an Initiating Application (Family Law) in all nullity proceedings and validity proceedings.
2.7 Any affidavit filed must be in the proper form as outlined in rules 2.14 (Formal requirements for documents) and 5.08 (Limit on number and length of affidavits) of the Family Law Rules.
Notifying the other party/parties
2.8 The applicant must serve the following documents on all other parties in accordance with Part 2.6 or Part 2.7 (as appropriate) of the Family Law Rules:
- Initiating Application (Family Law);
- any affidavit filed; and
- the Marriage, Families and Separation brochure.
2.9 If an interlocutory order is sought to be made by the Court without notice being given to the respondent (application without notice), the applicant must satisfy the Court of the requirements set out in rule 5.11 of the Family Law Rules.
What the Court will do next
2.10 Upon filing the Initiating Application (Family Law) and supporting documents, the Court will fix a date as soon as practicable for the first Court event.
3. Responding to an application
3.1 A respondent must file a Response to Initiating Application if consenting to or opposing any of the orders sought by the applicant, or if seeking any other orders in accordance with Part 2.4 of the Family Law Rules.
3.2 However, if a respondent does not wish to contest any of the orders sought by the applicant and will submit to any order the court may make, a Submitting Notice should be filed in accordance with rule 2.22 of the Family Law Rules.
3.3 An affidavit responding to the applicant’s application must be filed with a Response to Initiating Application in a nullity proceeding or a validity proceeding.
3.4 A Response to Initiating Application must be filed and served within 28 days of service of the application to which it relates: see rule 2.18(2) of the Family Law Rules.
3.5 A Response to Initiating Application filed in a nullity proceeding or a validity proceeding must not seek orders related to any other type of proceedings.
3.6 It is not possible to seek a decree of nullity of marriage and/or a declaration as to the validity of a marriage, divorce or annulment of marriage in a Response to Initiating Application.
Attendance at hearing
3.7 The applicant and the respondent must attend the first Court event, either in person or by electronic means unless otherwise directed by a Judge or Judicial Registrar.
4. Further information
4.1 For information on how family law proceedings are conducted in the FCFCOA, please refer to Central Practice Direction – Family Law Case Management.
4.2 Parties should also consult the FCFCOA website at www.fcfcoa.gov.au for further information about nullity proceedings and validity proceedings.
The Honourable Justice William Alstergren
Chief Justice (Division 1) | Chief Judge (Division 2)
Federal Circuit and Family Court of Australia
Date: 1 September 2021
