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.
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.
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:
- You need to recover children that are being withheld from you;
- There is reasonabe cause to believe that your children will be removed from Western Australia;
- Where a child or a party is in imminent danger of being a victim of family violence or neglect;
- 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.
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.