Procedure for applications for Parenting and Financial Orders in the Family Court

Contributed by HenryMoser and current to 27 July 2018

Making an application

Pre-action procedures

Before a party makes an application to the Court, he or she has to write to the other party and tell them about the intention to make a claim with the Court and what will be sought. The parties are also required to engage in Alternative Dispute Resolution (see Alternative Dispute Resolution (ADR)).

Only once these steps have been attended to and the parties have not been able to resolve their issues are they allowed to make an application.

In certain cases, such as where the matter is urgent, where there is a risk of child abuse, in cases of domestic violence or where the other party refuses to negotiate, an application can be made without having to go through the pre-action procedures.

Application for Final Orders

Note that the WA Family Court has the forms referred to in this section as well as kits and useful brochures available from its website. Unless electronic filing is possible, original documents must be filed at the Court either over the counter or by mail.

An Application for Final Orders is made with a Form 1. A fee is payable although this fee may be waived.

Where financial matters are in issue a Financial Statement (Form 13) has to be filed as well. The application (and the Form 13) have to be served on the other party and the other party has to file a response (Form 1A), pay a fee and also file a Form 13 (if financial matters are in issue).

Applications for final orders may take from 12 to 24 months to be decided depending on what is in issue.

Application in a Case – Interim Orders

If there is a need for arrangements to be put in place before the matter is determined on a final basis, the Court can make Interim Orders on an Application in a Case. These are temporary orders which only last until the next Court hearing. It usually takes about 6 weeks from the time the application is made until the first Court hearing when interim orders can be made.

An Application in a Case can be made at the same time as an Application for Final Orders and after that at any time until the final hearing of the matter.

An Application in a Case must be accompanied by an affidavit setting out the relevant history of the dispute, what steps have been taken to resolve the dispute and the basis for asking the Court to make the interim orders.

Court Events

First Court Date

After the filing of an Application for Final Orders with or without an Application in a Case the matter is allocated either:

• to a hearing before a Magistrate; or
• to a Case Assessment Conference with a Registrar and, in cases involving children, a Court Counsellor.

If the issues cannot be resolved on a final basis, any interim applications are dealt with and directions given for the further proceedings.

Conciliation Conference

In financial disputes, the parties are required to attend at one conference convened before a Registrar of the Court to see whether they can resolve their dispute without taking the proceedings any further. If they are represented, their lawyers also participate in that conference.

Anything said at that conference is “without prejudice” and cannot be used in Court at a later date.

The Court encourages parties however to attend mediation outside of the Court process and will waive the requirement for the parties to attend a Conciliation Conference if they attend mediation. In that case, the parties will be able to move on to the next step in the proceedings more quickly.

However, in reality the vast majority of matters going to outside mediation resolve and the Court then only formalizes the parties’ agreement.

If the matter is not resolved, directions are given for the further proceedings, especially for the preparation of the matter for a final hearing, including the preparation of affidavits.

Readiness Hearing

After the Conciliation Conference or the Mediation, the parties attend a Readiness Hearing at which time a Registrar or the Magistrate in whose docket the matter is checks whether the matter is ready to proceed to trial.

If so, it is allocated to either:

• a Callover at which time the List Judge lists the matter for trial usually two months later; or
• if the matter will occupy two days or less for trial, a trial before the Docket Magistrate.

Final Hearing

Unless the final hearing is allocated a fixed date or remains before the Docket Magistrate, all listings for final hearing in the Family Court are made in a Rolling List, that is, each matter is given a date before which the final hearing will not start (Not Before Date). Each Judge or Trial Magistrate is usually allocated one case each day and if a matter does not finish before the next matter is due to start, the second matter is postponed until the first is finished.

Experience shows that because many matters settle before the final hearing, or even on the day of the final hearing, matters usually start on the Not Before Date, the next day or worst, two days later.

At the final hearing, a Judge or Trial Magistrate hears all the evidence of the parties and the submissions to support each party’s case. Unless the evidence of a witness contained in the affidavit filed beforehand is not contested, each witness has to attend for cross-examination by the other party.

In some cases, the Judge or Trial Magistrate may deliver reasons for decision and make orders immediately after the end of the final hearing. In most cases, however, Judges “reserve” the decision and hand it down, in writing, between two weeks and three months after the hearing.

Urgent matters

In exceptional circumstances, such as where a child has been removed or where an asset is at risk of being disposed of, an urgent order may be sought to have the child returned or an injunction granted to prevent the child’s removal. The Court can hear these cases very quickly (usually within a couple of days and even earlier if there is any concern about the child’s safety or welfare).

Applications for urgent interim orders are made as an Application in a Case with a Form 2, must be supported with an affidavit and must be accompanied by a letter to the Principal Registrar setting out the facts supporting the need for an urgent hearing. The Court will take these facts into account when allocating the Court date.

Duty of full and frank disclosure

In any proceedings before the Family Court, the parties are under a strict obligation to make full and frank disclosure of all matters and documents that may have an impact on the outcome of the case.

The Court has set out very detailed rules how and when disclosure has to be provided.

Generally, each party has to let the other party know what relevant documents are held or under their control. The duty of disclosure is continuing, which means that if additional documents come into possession of a party, they have to be disclosed as well.

There is a requirement for each party before the final hearing to give an undertaking of having made full and frank disclosure. A party who fails to make such disclosure may be penalised by the Court.

Where the non-disclosure is discovered after the Court has dealt with the case, the orders made by the Court may be set aside.

All parties to proceedings in the Family Court have to take their obligations of disclosure very seriously.