Going to the Federal Circuit and Family Court

Making a claim

If you are owed wages or entitlements you can make a claim up to $100,000 in the Federal Circuit and Family Court of Australia. The Court can hear your case and decide whether your employer owes you any unpaid wages or entitlements.

This section of the topic only deals with small claims applications to the Federal Circuit and Family Court of Australia. Small claims are any claim for unpaid wages or entitlements totalling $20,000 or less. You are not allowed to be represented by a lawyer without the court's permission if you use the small claims procedure.

If you want to claim more than $20,000, or you don't want to use the Court's small claims procedure, you may be able to use some of the information in this topic, but you should get legal advice.

Before going to court, it is a good idea to contact the Fair Work Ombudsman, which is a free service. The Fair Work Ombudsman can help try and resolve your issue and may also be able to help you make a small claim in court.  

For more information, see Contact us on the Fair Work Ombudsman website.

How to apply

To apply to the Federal Circuit and Family Court of Australia (FCFCOA), you must file:

• an Application - Fair Work Division
• a Form 5 - Small claim under the Fair Work Act 2009
• supporting documentation.

You will need to pay a filing fee when you file your application. However, you may be able to apply for a fee exemption or reduction if you receive a Centrelink benefit or are experiencing financial hardship.

If you have made a complaint to the Fair Work Ombudsman (FWO) and your complaint was investigated, you should ask the FWO for a copy of their report. You can submit this to the Court with your application.

For more information about applying to the FCFCOA for a small claim, see  Step by step guide - Making an application to the Federal Circuit and Family Court of Australia. 

Prepare for court

Find your courtroom

The first court date and any further directions hearings are held in a courtroom at the Federal Circuit and Family Court of Australia. When you file your application, the date, time and place of the first court date will be written by the Court on your application and the copies that you file.

The details of court dates are also published on the Daily court lists page on the Federal Circuit and Family Court of Australia website​, usually the day before.

It is a good idea to get to court as early as possible. You should be there at least half an hour before your case is meant to start. Wait until your courtroom opens. When it does, go in and see if the Judge's Associate (assistant) is there.

Tell the Associate your name. The Associate will then check the court list and note that you are there. The court list is a numbered list of all the cases that will be heard by the Judge on that day. After you have spoken to the Associate, sit down in the courtroom and wait until your name and case is called. The Associate will check to see if anyone is there for your employer.

Once your case is called, you and your employer (or their representative) will go and sit at the bar table. The bar table is the table in front of the Judge where the lawyers usually sit. You will have to tell the Judge who you are. You should stand when talking to the Judge and you should call the Judge 'Your Honour'. 

Interpreters and disability support

If you need an interpreter at court you should contact the Court registry at least one week before your court date. The Court may be able to provide an interpreter for you for free. 

If you need any other special arrangements, you should contact the registry at least one week before your court date.

For more information, see Interpreter policy and guidelines and Court support on the Federal Circuit and Family Court of Australia website.

Directions hearings

When you file an application with the Federal Circuit and Family Court of Australia you will be told a date that you have to come to court. This first court date is sometimes called a first directions hearing. 

If your case has been in court at least once before, any directions hearings that follow will be called 'further directions hearings'.

At the first court date or further directions hearing, the Judge may decide your case or make orders about how your case should be run.​

For more information, see Directions hearings in unpaid wages and entitlement cases.

Mediation

Mediation is an informal way of solving a problem. It is common for the Court to order parties to attend mediation. Mediation is a chance for you and your employer to talk about what you believe you are owed and why.

If you have filed a small claim in the Federal Circuit and Family Court of Australia the Judge might ask you and your employer to attend mediation. This is also known as 'dis​pute resolution'.

Mediation is an informal way of solving a problem. At mediation, a neutral person (the 'mediator') will you and your employer to talk to each other about the issues and to reach an agreement. A mediator will not take sides and cannot give you legal advice.

If you are ordered to attend mediation, the mediator will usually be a Registrar or Judge of the Court. In some cases, it may be conducted by the Fair Work Commission or someone else appointed by the Court. 

If you are ordered to attend mediation, you will usually not have to pay anything, unless the mediation is run by a private mediator.

For more information, see Mediation for unpaid wages or entitlements.

Preparing your evidence

Your case may be listed for another directions hearing after mediation. If you and your employer came to an agreement at mediation, you can tell the Court at the further directions hearing. If you and your employer didn't settle the case, the Court will make some orders about the next steps in your case.

Evidence is information or things that help to prove or disprove the existence of a fact. For example, a letter from an employer offering you a job at a certain wage could be used as evidence of what you should have been paid. Evidence can be a testimony by a witness, or documents such as letters, emails, text messages, pay slips and time sheets.

Affidavits and witness statements

You should work out who you need to be a witness in your case. Witnesses could be:

• work colleagues
• your manager or managers
• anyone else who can give evidence about why or how you were underpaid or not given your correct entitlements.

In small claims cases, evidence from witnesses may be in the form of a statement or an affidavit. An affidavit is a written statement where the contents are sworn or affirmed to be true. You will need to prepare your own affidavit, because you will be your main witness. 

Small claims (claims for $20,000 or less) in the Federal Circuit and Family Court of Australia may be dealt with less formally than other types of cases. The Judge may order you and your employer to prepare written statements instead of affidavits. Unlike affidavits, written statements are not usually sworn or affirmed, but they are signed.   

For more information, see Affidavits and statements.

Subpoenas

If a witness provides an affidavit for your case, it is likely they will also need to give evidence at the hearing. It is a good idea to subpoena your witnesses to make sure they turn up. A subpoena is a court order requiring someone to attend a hearing or produce documents related to the case.

If you don't have the documents that you need for your case, you may be able to get an order from the Court telling the person who has the documents to produce them to the Court. This is called a ‘Subpoena to Produce’. Once the documents are produced, the Court will usually let you see them and make copies of what you need.

If you think you will need to subpoena documents, it is a good idea to mention this at the first directions hearing, or at any further directions hearings.​

For information on how to prepare a subpoena, see Subpoenas.

GIPA requests

You may be able to request information under the Government Information (Public Access) Act (GIPA - previously Freedom of Information) if the documents or evidence you want are held by a NSW government department. For more information about making a request under GIPA, go to the Information and Privacy Commission​ website.

The hearing

If you apply to recover unpaid wages and entitlements to the Federal Circuit and Family Court of Australia using the small claims procedure, the Judge may want to hear your case on the first court date or at a later date. 

At a hearing, you can make submissions (present your argument) and give evidence about why you think you are owed wages and entitlements.

A hearing is where you and your employer each present your side of the story to the Judge and ask them to decide your case.

A hearing is the next step if you and your employer can't come to an agreement at mediation. A hearing date will be set on a different day, usually several months after the mediation has taken place.

At a directions hearing, the Judge may ask if you and your employer want to have your case 'heard on the papers'. This means that the Judge can decide your case based on all the evidence and other documents that are filed, without the need to attend a hearing.

You should get legal advice about whether your case could, or should, be heard on the papers, before you go to court.

At a hearing, you will be given a chance to present your evidence, including any witnesses. Your employer will also have a chance to present their evidence. After this, a Judge will decide your case and make orders. The orders could include that:

• your employer pay you the wages and entitlements you are owed
• your employer pay a fine (penalty)
• you get paid some of your legal costs
• your case be dismissed.

For more information about preparing for the hearing, see Step by step guide: Preparing for the hearing. 
For more information about going for the hearing, see: 

• Step by step guide: Presenting your case at the hearing
• Arguing your case.

The decision

After the hearing has finished, the judge will either decide that:

• you have proved your case (your employer owes you some or all of the wages or entitlements you claimed)
• you haven't proved your case (your employer does not owe you the wages or entitlements you claimed).

You have proved your case

If the Judge finds that you proved your case, the Judge must then decide what orders to make. The Judge may order that your employer pays:

• the money owed to you
• a penalty.

The money owed to you

If the Judge finds that your employer has not paid you your correct wages or given you your entitlements, they will usually calculate a dollar figure and order your employer to pay you that sum.

The amount may be exactly the same as the amount you claimed, but it could be more or less depending on the evidence given at court.

A penalty

If the Judge finds that your employer broke laws about paying you the right wage or entitlements, your employer could receive a penalty. For more information on the civil penalty amount, see Litigation on the Fair Work Ombudsman website. If a Judge makes an order about your employer paying a penalty, the Judge can order that the amount payable be paid to you in some cases.

The Judge generally will not order that the penalty be paid to you if it would result in you receiving a 'windfall'. Windfall means that you would be in a better position than you would have been if you hadn't been incorrectly paid.

If you have proved your case, you may be able to ask that a costs order be made against your employer. This is an order that your employer must pay your legal costs.

You haven't proved your case

If the Judge finds that you didn't prove your case, the orders you asked for will not be made. That means you won't be paid what you believe you are owed and your employer won't be given a penalty.

If you lost your case, it may be possible to appeal. For more information, see After court below.

If you haven’t proved your case, your employer may ask that a costs order be made against you.

The losing side can be ordered to pay the legal costs of the other side, however this happens only in limited circumstances.

Costs

In limited circumstances, the court may make a costs order against the unsuccessful party. For more information, see Costs in unpaid wages or entitlement cases.

After court

If you and your employer agreed to settle your case, and your employer is not doing what they agreed, for example, pay you an amount of money, you may be able to enforce the agreement.

If the court has made orders in your case and your employer has not followed them, there are things you can do to try and force them to.

If you are unhappy with the decision made by the court, you may be able to appeal to the Federal Court of Australia within 28 days.

You may be able to appeal if you think the court made a mistake about the law (called an 'error of law'), but not about what happened (called an 'error of fact'). You can't appeal just because you disagree with the decision.

Appealing a decision can be complicated. If you lose, the court may order you to pay the other side's legal costs in the appeal case. Before you appeal, you should get legal advice.

For more information, see After court - wages and entitlements.

Last updated: September 2026