QLD How to Apply for Divorce When Husband Cannot Be Located?

[3 EES Mum]

Hi, just wondering how I go about initiating divorce proceedings when my husband cannot be located.
We have 3 children together, the eldest is 15 whose current whereabouts are unknown. The other 2 younger children 14 and 9 reside with myself. There are no court orders as no one including authorities have been able to locate my husband's whereabouts, so the children's residence cannot even be settled beforehand.

I'm very confused as how to overcome both these issues.

Thank you kindly for any help or suggestions.

 

[AllForHer]

This sounds like a distressing situation, so I'm sorry to hear you're going through it.

For a divorce to be granted, the court must be satisfied that the relationship has broken down irretrievably. This is demonstrated by showing the parties have been separated for at least 12 months before applying for divorce.

A divorce does not require the consent of both parties before it will be granted, but it does require that you either serve, or show the court that you have made every reasonable attempt to serve the other party with the divorce application. If you're unable to locate your spouse, you can apply to the court for substituted service (whereby you can serve the papers on to a third party who you are confident will alert your former spouse of the application) or dispensation of service (whereby you show the court you have made every reasonable to attempt at service but have been unsuccessful).

For more information, go here: Are you having trouble serving your divorce application - Federal Circuit Court of Australia

You will likely be required to attend the divorce hearing before the registrar as there are children under the age of 18 involved, but it only requires confirmation that some sort of arrangements are in place for the children. Though the arrangements are obviously not ideal, they do exist, so the registrar should be satisfied with that to at least grant the divorce.

If you're looking at parenting orders, though, that's a different and far more complicated matter. You might like to contact a lawyer or Legal Aid.

Hope this helps.

 

[3 EES Mum]

This sounds like a distressing situation, so I'm sorry to hear you're going through it.

For a divorce to be granted, the court must be satisfied that the relationship has broken down irretrievably. This is demonstrated by showing the parties have been separated for at least 12 months before applying for divorce.

A divorce does not require the consent of both parties before it will be granted, but it does require that you either serve, or show the court that you have made every reasonable attempt to serve the other party with the divorce application. If you're unable to locate your spouse, you can apply to the court for substituted service (whereby you can serve the papers on to a third party who you are confident will alert your former spouse of the application) or dispensation of service (whereby you show the court you have made every reasonable to attempt at service but have been unsuccessful).


For more information, go here: Are you having trouble serving your divorce application - Federal Circuit Court of Australia

You will likely be required to attend the divorce hearing before the registrar as there are children under the age of 18 involved, but it only requires confirmation that some sort of arrangements are in place for the children. Though the arrangements are obviously not ideal, they do exist, so the registrar should be satisfied with that to at least grant the divorce.

If you're looking at parenting orders, though, that's a different and far more complicated matter. You might like to contact Legal Aid for more information about parenting matters.

Hope this helps.

Thank you so much, so I can get the divorce through if I show these things.
He cannot be contacted at all by anyone. Do you know if it is possible to get any kind of orders for all 3 children?

 

[3 EES Mum]

* so sorry... Am I able to get orders ex parte as he is not able to be located in any usual manner eg. (Location order) with the other party or other child with admissible proof that the father is a fugitive, is diagnosed delusional needs treatment, and is not stable in any way. He is also inducing paranoid delusions on our son. I'm very desperate and am doing my best to return our child to a normal stable family, but I'm lost. Thank you again.

 

[AllForHer]

Yes, you can get orders for all three children, but this is an entirely different proceeding in court, and before you can start the process, you must attempt mediation with the other party.

What you do is contact Legal Aid to organise mediation and give as much information as you can about your ex. They will use their best endeavours to track him down, but if they're unable to do so, then mediation won't go ahead and you'll be given a s60I certificate, which is required before you can file an initiating application with the court for parenting orders.

After that, you can file an initiating application for parenting orders, and again, use your best endeavours to serve the other parent. I strongly suggest a process server for this particular application as it can delay proceedings indefinitely if the court is not satisfied that your best endeavours have been used to deliver service to the other parent. If they refuse to participate, the court can give leave for the application to proceed undefended and make parenting orders in the father's absence.

I have made it sound like a fast process, but it can generally take upwards of a year or two to get final orders on paper. Still, though, once you've commenced proceedings, the court can order the federal police to use their powers as required to locate the father and recover the child from his care if the court deems it in the best interests of the child to do so.

Given the complexity of the situation, though, you should speak to Legal Aid. They offer free consultations for parents dealing with family law matters.

 

[3 EES Mum]

Your words are most appreciated thank you. That does give me at least a straight answer for once that is not directed at me to give up entirely.