Commencing an Application in the Family Court

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.

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