If parties are unable to come to an agreement, or there is urgency to your matter, then the parties may have no other option than to make an application in the Family Court. An Initiating Application in the Court will put the matter before a Judge or Magistrate, who will make decisions about your matter.

The Parliament takes the view that an application to court ought to be a last resort. The Application made will seek Final Orders from the Court. From the beginning of the matter to the end, it can take some months (even years) for a resolution. Even then, it is not guaranteed that what you seek will be what the Court orders. Accordingly, it is important that you carefully consider whether your matter is at a point where making an application in the Court is necessary.

If so, you will have to draft particular documents and do particular things for the Court to accept your application. For information from the Family Court about Court applications and procedure, download a copy of the Court’s case information brochures here.

You must first decide whether you will be making an application for children’s matters, for financial matters or both.

To commence either, or both, matters in the Family Court, you will have to file a Form 1 Initiating Application. The Family Court has drafted comprehensive kits to assist parties with their application.

• For Children’s matters, download a copy of the Children’s application kit here;
• For Financial matters, download a copy of the Financials application kit here.

If your application includes Children’s and Financial matters, you can use both kits together. You should read these kits before commencing the steps to filing your application.

Pre-Action Procedure

Before you can file any application in the Family Court, you need to have satisfied pre-action procedure requirements. In short, they are that both parties have tried to negotiate their matter before taking it into the Court.

For financial matters, you must have at least written to the other party with a genuine offer for settlement. You can also satisfy this pre-action procedure by attending formal mediation to discuss potential settlement options.

For children’s matters, you must have attended Family Dispute Resolution mediation. Family Dispute Resolution mediation is mediation lead by a specialist Family Dispute Resolution Practitioner. FDR is offered publically and privately. You can access community FDR services through Relationships Australia and Anglicare. You can also pursue FDR mediation via private services. The Court will not accept any application for children’s matters unless you have a certificate from an FDR practitioner, stating that mediation was attempted and no resolution was achieved. This extends to one party refusing to attend or take part in mediation. This is known as a “section 60I certificate”.

There are very limited circumstances under which the Court will accept your application seeking parenting orders if you have not completed FDR. They are:

1. If there is a history or present risk of family violence;
2. If your matter is too urgent to go through the FDR process;
3. If you are unable to attend FDR due to extenuating circumstances (eg: location of the parties, illness, etc); or
4. Your application is brought because one party is not following a set of Orders already made by the Court.

If you intend to bring your application under one of these four exemptions, you will need to complete and file with your application an FDR Exemption Form. You can download this from the Family Court website, here.

Drafting Your Application

The respective Children’s and Financial kits have detailed instructions on how to write your application. For more information, or to answer particular queries about the type of Orders you should be seeking, you will need to seek legal advice.

For both Children’s and Financial matters, you will need to file a Form 1 Initiating Application. If you are filing for both Children’s and Financial matters, you can use the one form for both aspects of your matter. You can download a copy of the Form 1 in PDF or Word document by heading to the Court’s “Prescribed Forms” site, here.

In the Form 1, you will have to list the Orders that you seek. You will also be given the opportunity to seek “Final” and “Interim” Orders.

Final Orders are the Orders that you are asking the Court to make on a final basis. You will have to consider what you would like to be the permanent, long-term care arrangement for your children, and/or the final division of your property. You should consider any legal advice you may have received.

Interim Orders are Orders that you seek to deal with matters in the meantime, as you move through the Court process towards a trial and Final Orders are made. Interim Orders may be a temporary arrangement as to the care of the children or temporarily halting the disposal of property. You will have to consider what your immediate and short-term needs will be, along with any legal advice you may have received.

Along with your Form 1, you will have to draft and file additional documents, depending on your application.

If your application is for children’s Orders, you will also need to file a Case Information Affidavit (along with your section 60I certificate or FDR Exemption Form). A Case Information Affidavit will provide you with the opportunity to explain why you are seeking the Orders that you are and, more importantly, why the Court should make the Orders you are seeking.

You can download a copy of the Form NP3 Case Information Affidavit here. The Case Information Affidavit has a range of questions to answer, which will outline the context to your matter and application. As the name suggests, the document is an affidavit and so will become sworn evidence. Because of this, you must ensure that the content is true and correct to the best of your knowledge and belief.

Once you have drafted your Case Information Affidavit, you must have the document sworn before an authorised witness (commonly a Justice of the Peace). Justices of the Peace are available at public libraries, as well as certain hours at all Magistrates Courts, and the Family Court. You can find out more by contacting your local Magistrates Court or Library, or searching online.

If your application involves financial matters, you will also have to complete a Form 13 Financial Statement. A Financial Statement will ask you to list all of your income, assets, liabilities and expenses. You can download a copy of the Form 13 here.

To complete the Form 13, you must read and consider Family Law Rule 13.04, and sign an affidavit. Rule 13.04 requires that the parties to a financial matter be completely honest about their financial situation. You can read and consider Rule 13.04 here. It is imperative that you disclose all relevant financial information in your Form 13. Very serious consequences can follow from failing to do this.

You will need to file a standard affidavit along with your Form 13. In this affidavit, you must outline the history of the parties’ finances and why you are seeking the Orders for property division that you are. You can find a copy of the standard affidavit form here, and the Family Court’s affidavit instruction kit here . Again, as the affidavit will be sworn evidence you must ensure that the contents are true and correct to the best of your knowledge and belief.

Once you have completed these documents, you can file your application.

Filing Your Application

When you have drafted your Application, you will then have to file it in the Family Court. You will have to do so in person at the Court in Perth.

To file a Form 1 Initiating Application, you will need the following documents:

• The originally signed Form 1, and 2 copies;

• For matters involving children, the originally signed Case Information Affidavit, and 2 copies;

• For matters involving financials, the originally signed Form 13 Financial Statement and accompanying Affidavit, and 2 copies of each;

• For matters arising out of a marriage, a copy of your marriage certificate;

• For de facto matters involving children, a copy of each of the children’s birth certificates;

• Your mediation certificate or your pre-action procedure exemption form; and

• Your filing fee.

Your application to the Court will attract a filing fee. For the Court’s filing fee schedule and payment options, click here. You can also download the Court’s fee schedule here. Your application will vary in cost, depending on whether you are seeking final Orders only, or final and interim Orders.

You may be entitled to a reduction or exemption of the filing fee if you meet certain criteria. You will not have to pay a filing fee if you:

• Are under the age of 18;
• You are detained in prison;
• You have a grant of Legal Aid;
• You are receiving youth allowance, AuStudy or AbStudy payments;
• You are the holder of a valid and prescribed Government concession card.

You may also be entitled to a reduction or exemption of the Court filing fee if you are suffering financial hardship or meet particular financial criteria.

For the Court’s exemption guidelines, click here. Once you have ascertained which criteria you would meet, download the relevant Court filing fee exemption application form here.

You will need to complete the exemption form and file it, along with any supporting documents (eg: a copy of your Government concession card), with your Initiating Application.

You can also apply for a deferral or refund of your filing fee. Contact the Family Court directly to find out whether this applies to you.

Next Steps and Service

Once your application has been accepted for filing, the Court will allocate your matter to a Magistrate or Judge in the Court. You are now the Applicant in your matter. You will be contacted at the details you have provided to the Court with your first court hearing date.

Most importantly though, you will need to serve the other party with a sealed copy of your application. A sealed copy is a copy stamped and received by the Court, returned to you with details of the first hearing date for the Respondent to your matter to be aware of. The Court has very specific rules regarding proper service. If they are not followed, your application may be delayed or dismissed.

Find a copy of the Family Court’s Service Kit here. The Kit includes an Affidavit for Service (to be completed by the person serving to prove that service was done) and an Acknowledgement of Service (to be completed by the person being served to confirm that they received their documents).

Any person can serve the other party to your matter, as long as they follow the specific instructions as required. You can serve the party directly (if that is appropriate and safe), or you can ask a friend or family member to do so. Alternatively, and more commonly, you can hire a Process Server in the area to serve the Respondent for you. Process Servers are professionals who specialise in the special service of Court documents. You can find a Process Server by searching online or contacting the Court for more information.

After service, you can file the Affidavit of Service and the Acknowledgment of Service in the Court ahead of your hearing date. These documents will serve as evidence that service was effected directly.

You can then expect to receive the Respondent’s Form 1A Response to an Initiating Application documents in due course. You ought to receive these documents well before your first hearing in the Court.

If you have any procedural queries about your matter ahead of your first hearing date, you can contact the Family Court directly. You may also wish to consider getting legal advice or visiting the Court’s duty lawyer.

Urgency

In some circumstances, you will require urgent intervention from the Court. If your application is urgent, you will need to make sure that your documents show this. You will also need to ensure that you include a request for interim Orders in your application, to be made by the Court as soon as possible. You may want to also consider writing a covering letter to the Principal Registrar, explaining why your application is urgent and requesting a hearing as soon as possible.

The Court will consider hearing your matter on an urgent basis under circumstances like the following:

1. You need to recover children that are being withheld from you;
2. There is reasonable cause to believe that your children will be removed from Western Australia;
3. Where a child or a party is in imminent danger of being a victim of family violence or neglect;
4. Where an important asset is about to be disposed of without your permission.

If you need help with an urgent family law matter, you should consider contacting Legal Aid, your local community legal clinic or a private lawyer for legal advice.

Superannuation

If your matter includes financials, and you seek an Order regarding a party’s superannuation, you will need to consider the Court’s rules and requirements about superannuation.

You can find a copy of the Court’s Superannuation Kit here.

If you need help with a family law matter that involves superannuation, you should consider contacting Legal Aid, your local community legal clinic or a private lawyer for legal advice.

If parties are unable to come to an agreement, or there is urgency to your matter, then the parties may have no other option than to make an application in the Family Court. If the other party lodges an application, then you become the ‘Respondent’.

If you are the Respondent to an application, and have been served with Family Court documents, you do not have to respond. However, if you do not, the Court will not hear your side of the story and what you want. The court may also assume that you are not responding because you agree with the application. If you do respond, the Court’s job will then be to decide between the two outcomes proposed by the parties (unless the parties settle their matter by consent first).

You respond by filing specified documents in the Family Court. If you have been served with documents about a matter that deals with both children’s and financial issues, you can respond to both. If you have been served with an application which only deals with one of those matters, your response can seek Orders for both anyway.

For information from the Family Court about Court applications and procedure, download a copy of the Court’s case information brochures here.

To respond to either, or both matters in the Family Court, you will have to file a Form 1A Response to an Initiating Application. The Family Court has drafted comprehensive kits to assist parties with their application.

• For Children’s matters, download a copy of the Children’s application kit here;
• For Financial matters, download a copy of the Financials application kit here.

If your response includes Children’s and Financial matters, you can use both kits together. You should read these kits before commencing the steps to filing your responding application.

You will not have to file any evidence of pre-action procedure having been completed, as the Applicant in the matter would already have done so.

Drafting Your Application

The respective Children’s and Financial kits have detailed instructions on how to write your application. For more information, or to answer particular queries about the type of Orders you should be seeking, you will need to seek legal advice.

For both Children’s and Financial matters, you will need to file a Form 1A Response to an Initiating Application. If you are filing for both Children’s and Financial matters, you can use the one form for both parts of your matter. You can download a copy of the Form 1A in PDF or Word document by heading to the Court’s “Prescribed Forms” site, here.

In the Form 1A, you will have to do two things: confirm the Orders that the Applicant has asked for that you agree with; and then list the different Orders that you seek. You will also be given the opportunity to seek “Final” and “Interim” Orders.

Final Orders are the Orders that you are asking the Court to make on a final basis. You will have to consider what you would like to be the permanent, long-term care arrangement for your children, and/or the final division of your property. You should consider any legal advice you have received.

Interim Orders are Orders that you seek to meet any requirements in the meantime, as you move through the Court process towards a trial and Final Orders being made. Interim Orders may be a temporary arrangement as to the care of the children or temporarily halting the disposal of property. You will have to consider what your immediate and short-term needs will be, along with any legal advice you may have received.

If you agree with any or all of the Interim and Final Orders that the Applicant has asked for, you can note this in your application for the Court to consider at your first hearing.

Along with your Form 1A, you will have to draft and file additional documents, depending on your application.

If your application is for children’s Orders, you will also need to file a Case Information Affidavit. A Case Information Affidavit will provide you with the opportunity to explain why you are seeking the Orders that you are, what parts of the Applicant’s evidence you don’t agree with and, more importantly, why the Court should make the Orders you are seeking.

You can download a copy of the Form NP3 Case Information Affidavit here. The Case Information Affidavit has a host of questions to answer, which will outline the context to your matter and application. As the name suggests, the document is an affidavit and so will become sworn evidence. Because of this, you will need to ensure that the content is true and correct to the best of your knowledge and belief.

Once you have drafted your Case Information Affidavit, you will have to get the document sworn before an authorised witness (commonly a Justice of the Peace). Justices of the Peace are available at public libraries, as well as certain hours at all Magistrates Courts, and the Family Court. You can find out more by contacting your local Magistrates Court or Library, or searching online.

If your application involves financial matters, you will also have to complete a Form 13 Financial Statement. A Financial Statement will ask you to list all of your income, assets, liabilities and expenses. You can download a copy of the Form 13 here.

To complete the Form 13, you must read and consider Family Law Rule 13.04, and sign an affidavit to say that you have done. Rule 13.04 dictates that the parties to a financial matter must be completely upfront with their income and assets. You can read and consider Rule 13.04 here.

You will need to file a standard affidavit along with your Form 13. In this affidavit, you must outline the history of the parties’ finances, your response to any evidence that the Applicant has provided which you disagree with and why you are seeking the Orders for property division that you are. You can find a copy of the standard affidavit form here, and the Family Court’s affidavit instruction kit here . Again, as the affidavit will be sworn evidence you must ensure that the contents are true and correct to the best of your knowledge and belief.

Once you have completed these documents, you can file your application.

Filing Your Application

When you have drafted your Application, you will then have to file it in the Family Court. You will have to do so in person at the Court in Perth.

To file a Form 1A Initiating Application, you will need the following documents:

• The originally signed Form 1A, and 2 copies;

• For matters involving children, the originally signed Case Information Affidavit, and 2 copies;

• For matters involving financials, the originally signed Form 13 Financial Statement and accompanying Affidavit, and 2 copies of each; and

• Your filing fee.

Your responding application to the Court will attract a filing fee (though it is comparatively less than the Applicant would have paid to commence the application in the Court). For the Court’s filing fee schedule and payment options, click here. You can also download the Court’s fee schedule here. Your application will vary in cost, depending on whether you are seeking final Orders only, or final and interim Orders.

You may be entitled to a reduction or exemption of the filing fee if you meet certain criteria. You will not have to pay a filing fee if you:

• Are under the age of 18;
• You are detained in prison;
• You have a grant of Legal Aid;
• You are receiving youth allowance, AuStudy or AbStudy payments;
• You are the holder of a valid and prescribed Government concession card.

You may also be entitled to a reduction or exemption of the Court filing fee if you are suffering financial hardship or meet particular financial criteria.

For the Court’s exemption guidelines, click here. Once you have ascertained which criteria you would meet, download the relevant Court filing fee exemption application form here.

You will need to complete the exemption form and file it, along with any supporting documents (eg: a copy of your Government concession card), with your Initiating Application.

You can also apply for a deferral or refund of your filing fee. Contact the Family Court directly to find out whether this applies to you.

Next Steps and Service

Once your application has been accepted for filing, you will be the Respondent in your matter. You will already have been made aware of the first hearing date.

Importantly, you will need to serve the other party with a sealed copy of your responding application. A sealed copy is a copy stamped and received by the Court, returned to you for service. The Court has very specific rules regarding proper service. If they are not followed, your application may be delayed or dismissed.

Find a copy of the Family Court’s Service Kit here. The Kit includes an Affidavit for Service (to be completed by the person serving to prove that service was done) and an Acknowledgement of Service (to be completed by the person being served to confirm that they received their documents).

Any person can serve the other party to your matter, as long as they following the specific instructions as required. You can serve the party directly (if that is appropriate and safe), or you can ask a friend or family member to do so. Alternatively, and more commonly, you can hire a Process Server in the area to serve the Applicant for you. Process Servers are professionals who specialise in the special service of Court documents. You can find a Process Server by searching online or contacting the Court for more information.

After service, you can file the Affidavit of Service and the Acknowledgment of Service in the Court ahead of your hearing date. These documents will serve as evidence that service was effected directly.

If you have any procedural queries about your matter ahead of your first hearing date, you can contact the Family Court directly. You may also wish to consider getting legal advice or visiting the Court’s duty lawyer.

Urgency

In some circumstances, you will require urgent intervention from the Court. If your responding application is urgent, you will need to make sure that your documents show this. You will also need to ensure that you include a request for interim Orders in your response, to be made by the Court as soon as possible. You may want to also consider writing a covering letter to the Principal Registrar, explaining why your application is urgent and requesting a hearing as soon as possible.

The Court will consider hearing your matter on an urgent basis under circumstances like the following:

1. You need to recover children that are being withheld from you;
2. There is reasonabe cause to believe that your children will be removed from Western Australia;
3. Where a child or a party is in imminent danger of being a victim of family violence or neglect;
4. Where an important asset is about to be disposed of without your permission.

If you need help with an urgent family law matter, you should consider contacting Legal Aid, your local community legal clinic or a private lawyer for legal advice.

Superannuation

If your matter includes financials, and you seek an Order regarding a party’s superannuation, you will need to consider the Court’s rules and requirements about superannuation.

You can find a copy of the Court’s Superannuation Kit here.

If you need help with a family law matter that involves superannuation, you should consider contacting Legal Aid, your local community legal clinic or a private lawyer for legal advice.

Your matter in the Court will involve a number of steps from beginning to end. Depending on the circumstances, your matter may have particular milestones, require experts to give their opinions or be heard before particular judicial officers.

For information from the Family Court about Court hearings and procedure, download a copy of the Court’s case information brochures here.

Generally, a matter in the Court will have the following steps:

1. First Return Date. This will be the first hearing that the parties attend. If your application has included an application for urgent interim Orders, your application will likely be heard on this date. This hearing will allow the Court to learn about your matter and make procedural directions to get your application moving. If your matter involves children, then this may be a matter listed on the “Child Related Hearing” matters.

2. Interim Hearing. If your application included a request for (non-urgent) interim Orders, you will be required to appear before the Court at an Interim Hearing. At this hearing, you and the other party will be given the opportunity to tell the Court why they should, or shouldn’t, make the Orders that have been asked of them.

3. Conciliation Conference – matters involving finances. One of the first hearings you will be required to attend after the First Return Date will be a Conciliation Conference. This will be one of many Court Ordered opportunities to mediate and negotiate towards a settlement. This will also be an opportunity for the Court to understand your matter better. A Conciliation Conference is normally heard before a Registrar of the Court, who has the power to finalise any agreements that the parties make at the Conference.

At the end of the Conference, the Registrar will make further Orders as required and a Memorandum about what the parties discussed.

4. Case Assessment Conference – matters involving children. One of the first hearings you will be required to attend after the First Return Date will be a Case Assessment Conference. This will be one of many Court Ordered opportunities to mediate and negotiate towards a settlement. This will also be an opportunity for the Court to understand your matter better. A Case Assessment Conference is normally heard before a Family Court Consultant, who can forward agreements that the parties make at the Conference to a Magistrate or Judge to finalise.

At the end of the Conference, the Consultant will make further Orders as required and a Memorandum about what the parties discussed.

You can find out more information about Case Assessment Conferences by downloading a copy of the Court’s Conference handbook here.

The Court may also Order for a Family Report to be drafted, most commonly by your Consultant. For more information about Family Reports, download a copy of the Court’s brochure here.

5. Directions Hearing. As the matter progresses, the Court will request your attendance to see how things are going between you and the other party, and if any interim Orders are working. At these hearings, the Court will be able to make more procedural Orders to move the matter towards a final hearing, as well as make any Orders that the parties may wish to settle the matter.

6. Child Dispute Conference – matters involving children. Child Dispute Conferences are very much like Case Assessment Conferences. They are a further opportunity for the parties to resolve any outstanding issues they have, voice any major concerns they may still have and discuss the possibility of a final settlement.

At the end of the Conference, the Consultant will make further Orders as required and a Memorandum about what the parties discussed.

For more information about child related proceedings generally, download a copy of the Family Court’s Child Related Proceedings brochure here.

7. Readiness Hearing. If the parties have not been able to come to a final agreement during the course of the matter, then the Court has to put the matter on track for Trial. You will be given Orders by the Court to file a number of documents to be used in the trial. These will range from an updated Final Orders sought (if necessary), to witness affidavits.

The Applicant and/or Respondent will also be required to pay for the number of days that the matter will be before the Court at trial, pursuant to the Readiness Orders made by the Court. You can find details about the Court’s hearing costs here. If you meet the Court’s requirements, you can apply to the Court for an exemption of Court fees. See our information about Court fees in [Commencing an Application].

At the Readiness Hearing, you will be asked to confirm that all of your documents are filed as required. If not, you will have to explain why. If the Court is satisfied that the parties are ready for Trial, then the Court will send the parties off to get their trial date.

8. Callover. The Callover hearing is purely procedural. The only thing that will happen is the parties will be allocated a trial date. Provided there are no issues outstanding on your matter, you will only miss a date at the hearing if the Court has run out of dates for that month. Then, you will be listed at the next Callover.

9. Trial. Your final hearing will be your trial. This will be the “big” Court event, where both parties will showcase all of their evidence, examine and cross-examine witnesses and explain to the Court why they should get the final Orders that they are seeking. The more complex your matter will be, the longer your trial will be.

If your matter proceeds to the trial stage, you may wish to consider getting legal advice. A lawyer can help make sure your trial documents are properly drafted before your Readiness Hearing and run the trial for you (including making submissions to the Court and cross-examining witnesses).

In reality, most matters do not make it to trial. Normally, the Court helps the parties come to a settlement ahead of trial and the application is finalised before getting to that stage. In that respect, it is important that both parties take every opportunity to explore options for settlement (where reasonable and appropriate). It is equally important that both parties maintain a polite and business-like relationship for the life of the matter, otherwise the chances for settlement will deteriorate.

It is also important that you engage in the Court process, especially if you are the Applicant in the matter. Sometimes, the Court process can be very overwhelming and it will be tempting to procrastinate from advancing your matter. Nonetheless, you will have to continue following the Orders that the Court has given you and work on your matter towards finalisation. The more that you put into the matter, the quicker that it will be resolved.

Self-representing

Many people in the Family Court, for one reason or another, do not have a lawyer to appear for them. If you do not have legal representation, then you are a “self-represented litigant”.

The Family Court is very experienced in working with self-represented people and, if you fall into this category, you can rest assured that you are not the only one.

The Chief Justice of the Family Court, His Honour Stephen Thackray, has written two handbooks on how to appear in the Court as a self-represented litigant – one for financial matters and one for children’s matters. You can learn more about them, and download a copy, here. Reading this brochure is highly recommended.

Hints and Tips

If you are appearing in Court self-represented, here are a few tips to help you in your appearances:

1. The Family Court is a big place and you will need to know where your hearing or Conference will be held. Each afternoon, the Family Court releases a list of all of the matters to be heard the following day, along with their times and locations. You can find this information on the Family Court of Western Australia’s website. You can also find this information at the Court upon your arrival; there are screens on every level of the Court with the complete Court list, as well as Court staff who can assist with your hearing details. Alternatively, you can call the Family Court directly for further information.

2. If you are unable to make a Court date, you will need to write to the Court in advance to notify them of your unavailability. You will need to write to the other party in your matter too, and seek that they too write to the Court to consent to your hearing being adjourned to a later date. However you should only be changing your Court appearance dates if absolutely necessary. If you are running late for your hearing for any reason, you should call the Court to notify them as soon as possible.

3. Once you are at the Court, you will need to check in with the Court staff to confirm your attendance. To do so, make your way to any of the desks on the Court room floors. Note that the bottom floor to the Court is the Registry, where you can file and swear your documents. The Registry will not be able to assist; you will need to go upstairs for your hearing.

4. When you are entering a Court room, and the Magistrate or Judge is present, the proper Court etiquette is to bow to the Court upon entering the courtroom and upon leaving the Court room. If the Magistrate or Judge is not present, you do not have to do so.

5. When your matter is called up, you and the other party to your matter will need to approach the stand. The Applicant is to stand on the right and the Respondent is to stand on the left.

6. When the Magistrate or Judge is directing a question at you, or if you are addressing the Court, you should remain standing. Whenever you are speaking to the Magistrate or Judge, you should be polite and professional at all times. You must refer to the presiding judicial officer as “Your Honour”.

7. You must remain before the Court until the Magistrate or Judge dismisses you and the other party. Upon leaving the bench, you can bow to the Court.

8. If you are feeling nervous about your appearance, this is completely normal. Remember that the Court is there to assist the public, not intimidate it. If you have any genuine procedural questions about the matter, you can direct them to the Court.

Some matters before the Court will call for the appointment of an Independent Children’s Lawyer (“ICL”). An ICL is a neutral third party lawyer who is there to advocate for the best interests of the children.

An ICL will be appointed to your matter if there are any complex issues, allegations or a history of family violence or if the parties are particularly hostile. The ICL will give submissions and make recommendations to the Court with respect to the children’s best interests. The ICL would normally meet with the child to ascertain their wishes.

Solicitors who act as ICLs are lawyers experienced in family law and are often senior solicitors.

You and the other party to your matter will not be expected to cover the costs of the ICL; this is normally done by Legal Aid. To this end, the introduction of an ICL will largely be at the discretion of the Court.

If there is an ICL appointed to your matter, you will need to treat the ICL like the other party. When you write to the Court or file any documents in the course of the matter, you will need to make sure a copy is also sent to the ICL.

If you have any queries about the role of an ICL in your matter, you can find out more by downloading the Family Court’s ICL guidelines here.

Most parties will be able to settle their matter ahead of trial, and many even before an application is filed in the Family Court. In those cases, the parties may wish to seek final Orders from the Court, by consent, and together.

The court will generally agree to make orders that both parties consent to, though there may be instances where they will not. For example, the court will not make an order that exposes a child to an unacceptable risk of harm.

Drafting Requirements

If the parties have not already filed an application in the Court, you will be able to file a Form 11 Application for Consent Orders. Neither party needs to receive legal advice before entering into the agreement, however both parties are entitled to do so should they wish.

It is recommended that, ahead of drafting a Form 11 Application, both parties read the Family Court’s Consent Orders kit. You can download a copy here.

The parties can make Orders by Consent for both, or either, financial and children’s matters. You can include both parts of the matter in the same form. You do not have to seek both children’s and financial Orders if you do not wish to.

You and your former partner will need to jointly complete the Form 11. You can download a copy of the form here. Both married couples and de facto couples will be able to use the same form.

The Form 11 asks a series of questions about each party’s finances, the present asset pool, your income and the care of your children. Answer each part of the form as it applies to you.

Even though both parties are in agreement when a Form 11 is filed, each of you will still need to ensure that you disclose all of the assets, liabilities, financial resources (including superannuation) and income that you receive. Everything is in the pool.

In addition to the Form, you will need to draft and file a Minute of Consent Orders. This is a written document that lists the particular Orders that the parties wish the Court to make. In simple terms, the Form 11 itself is the relevant information that the Court needs. The Minute will be the actual Orders that the Court makes. When the Orders are made final, the parties will be provided back with a stamped and sealed copy of the Minute.

The kit mentioned above has instructions on how to write a Minute of Consent Orders. However, it will be the responsibility of the parties to ensure that the Minute is written properly and includes everything that you seek. If you have any queries about how the Minute, or the Application generally, ought to be written, you should consider seeking legal advice.

The Form 11 itself is an affidavit. The parties are required to disclose all information in the form frankly, to the best of their knowledge and belief. Both parties will need to have their sections of the form witnessed by an authorised witness, commonly a Justice of the Peace. The Family Court offers a free witnessing service, along with all regional and metropolitan Magistrates Courts and some public libraries and government facilities. You will need to contact those facilities to arrange a time to have your portion of the form witnessed.

Both parties will also need to sign each page of the Minute of Consent Orders, however it is not required to be witnessed.

Special rules for De Facto couples

If you are a party to a former de facto relationship, you will also need to draft an affidavit detailing how the two parties were in a de facto relationship. The Court has written guidelines about the nature of the affidavit required, and you can view it here. You can download a copy of the standard affidavit form here.

Superannuation

If your application includes a superannuation split, you will need to consider the Court’s requirements before filing your Consent Order Application. It is important to note that for former de facto couples, the Court will consider your superannuation as part of the asset pool but it cannot make a splitting Order. The Court can only make a superannuation splitting Order in matters concerning a marriage.

If the parties are seeking a superannuation split, you will need to write to the superannuation fund with a copy of the proposed Orders to make sure that the Trustee of the fund agrees to the split. This is because the Trustee of the superannuation fund will also be bound under the Orders to make the split on the parties’ behalf. You will not be able to effect the superannuation split unless the superannuation fund has given its written consent to be bound by the Orders that the parties seek.

Filing your Application

Once the parties have successfully drafted their Form 11 Application, it can be filed in the Family Court of Western Australia. You will need to do this in person, by post or by fax.

Your application must include the following documents:

1. The originally co-signed Form 11 Application for Consent Orders, plus 2 copies;

2. The originally co-signed Minute of Consent Orders, plus 5 copies;

3. For married couples, a copy of your marriage certificate;

4. For de facto couples, your originally signed joint-affidavit, and 2 copies;

5. For de facto couples seeking children’s Orders, copies of your children’s birth certificates;

6. If your matter involves the transfer or sale of real property (a house and/or land), a copy of your Landgate Certificate of Title. If you don’t have a copy of your certificate, you can Order one from Landgate. Visit their website here or call them on (08) 9273 7373;

7. If your application includes a split of superannuation, a copy of correspondence to and from the superannuation Trustee confirming the Trustee’s consent to the Orders sought; and

8. Your filing fee.

Your application to the Court will attract a filing fee. For the Court’s filing fee schedule and payment options, click here. You can also download the Court’s fee schedule here.

The parties may be entitled to a reduction or exemption of the filing fee if you both meet certain criteria. You will not have to pay a filing fee if the parties:

• Are under the age of 18;
• Are detained in prison;
• Have a grant of Legal Aid;
• Are receiving youth allowance, AuStudy or AbStudy payments;
• Are the holders of a valid and prescribed Government concession card.

The parties may also be entitled to a reduction or exemption of the Court filing fee if you are suffering financial hardship or meet particular financial criteria.

For the Court’s exemption guidelines, click here. Once you both have ascertained which criteria you would meet, download the relevant Court filing fee exemption application form here.

You will need to complete the exemption form and file it, along with any supporting documents (eg: a copy of your Government concession card), with your Form 11 Application, in place of your filing fee.

You can also apply for a deferral or refund of your filing fee. Contact the Family Court directly to find out whether this applies to you.

Settling your matter already in the Court

It is very common for parties to a matter already in the Court to come to a settlement before trial.

If the parties have come to a settlement, then they will simply be able to provide a Minute of Consent Orders (without the Form 11) to the Court at the next hearing date. Alternatively, if your next hearing date is some time away, the parties can sign a Minute of Final Consent Orders and post it to the Court with a covering letter, explaining that an agreement has been reached ahead of the next hearing date.

If you have any queries or complications with your settlement, you ought to consider seeking legal advice.

Next Steps

Once the Court has received and accepted your Application for Consent Orders for filing, your application will be placed before a Magistrate or a Registrar to be made final. This can take some time, so do not be worried if you haven’t heard back from the Court for a few weeks.

If you want to check on the progress of your application, you can call the Court registry.

The Court may have some further questions they would like to ask the parties about their proposed division. Alternatively, the Court may be of the view that the Orders sought by the parties are not just and equitable, or in a child’s best interests. In those cases, the Court will write to the parties outlining their concerns and giving instruction on how they would like the parties to rectify the issues. You must follow these instructions, together, as soon as practicable.

In extreme circumstances, the Court will refuse to make the Orders sought by the parties and reject the application.

However, usually, provided that the application is legal and prepared correctly, the Court will make Orders in terms that the parties seek. The Court’s Orders will be final and enforceable, just as if the parties had been through a trial.

The Court will post copies of the final, sealed Orders to both parties once pronounced and extracted. The parties can then use these Orders to transfer property.

Take note that making the Orders may not be the final step required to make the Orders effective. Particularly if your application involves a transfer of superannuation or real property, you will need to provide a copy of the Orders to the superannuation Trustee and your settlement agent respectively. This example is not an exhaustive list of such circumstances. If you are unsure about what to do next with your Orders, you should consider seeking legal advice.