Finalising an Agreement

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;
  1. The originally co-signed Minute of Consent Orders, plus 5 copies;
  1. For married couples, a copy of your marriage certificate;
  1. For de facto couples, your originally signed joint-affidavit, and 2 copies;
  1. For de facto couples seeking children’s Orders, copies of your children’s birth certificates;
  1. 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;
  1. 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
  1. 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.

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