Procedure for applications for parenting and financial orders in the Family Court

Contributed by Heinrich Moser and current to 1 September 2005

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 primary dispute resolution (see 'PDR' on page _).

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: www.familycourt.wa.gov.au. Be aware, however, that original documents must be filed at the Court either over the counter or by mail. In limited circumstances documents may be faxed or emailed to the Court: contact the Court for more information on filing procedures, costs etc (contact details are provided at the end of this chapter).

An Application for Final Orders is made with a Form 1. A fee of $181 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 of $181 and also file a Form 13 (if financial matters are in issue).

Applications for final orders may take from 6 to 18 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.

Information session

All parties involved in proceedings are required to attend an information session at the Court or at a number of regional community legal centres.

The information session provides the parties with up-to-date information on the procedures of the Court.

Parties may in some cases be excused from attendance where they have recently attended an information session or where it is impracticable for them to attend an information session (for example, if they live in a remote area).

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

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.

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.

Pre-Trial Conference

The Pre-Trial Conference is a further “without prejudice” conference conducted in a similar format as the Conciliation Conference.

The main difference is that prior to the Pre-Trial Conference each party will have filed all their affidavits containing their evidence in chief. This allows the Registrar and both parties and their lawyers to make a better assessment of the possible outcomes of the case.

If the matter is not resolved at that point, the matter is given a date before a Judge for a final hearing.

Final Hearing

Unless the final hearing is allocated a fixed date, 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 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 between the Pre-Trial Conference and 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 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 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 there are real threats to remove the child from the care of the person who has had the main responsibility for their daily care and welfare, 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.

A Restraining Order may also be relevant (see FAMILY AND DOMESTIC VIOLENCE ).

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.

APPEALS

Appeals against a decision of a Magistrate and reviews of a decision made by a Registrar

Subject to permission to appeal being necessary (see below), any decision by a Magistrate or Registrar can be brought before a Judge by way of appeal or for review.

The Judge will reconsider the matter afresh and will not determine whether the first decision was incorrect, but will replace it if the Judge comes to a different conclusion. New and additional evidence may be adduced before the Judge.

A review is made by filing a Form 1 and no fee is payable. An appeal is filed with a Form 20 and a fee of $363 is payable.

Appeal against a decision of a Judge

Again subject to permission to appeal being necessary (see below), any decision by a Judge may be brought before either:

• the Family Court of Australia, for cases arising under the Family Law Act 1975 and the Child Support legislation; or
• the Court of Appeal of Western Australia, for cases arising under the Family Court Act 1997.

An appeal against a decision of a Judge is dealt with by way of rehearing, that is, only the evidence used at the trial will be considered. In limited circumstances the Court may allow fresh evidence to be adduced.

The Court will consider whether the Judge made an error in reaching the decision either on the facts or by the application of the law. An appeal is lodged with a Form 20 and a fee of $746 is payable.

Cases where permission to appeal is required

All appeals involving Child Support issues and any interim decisions in financial matters need the permission of the Court with whom the appeal is lodged before the appeal can be heard.

Permission is only granted where the circumstances of the case require it or where an important legal principle has to be considered.

Stay of an order under appeal

Appealing against an order does not mean that the order cannot be carried into effect. Any order is valid until an appeal is successful. In limited circumstances a party may, however, require the operation of the order to be stayed. The party has to make an application for a stay to the judicial officer who made the order and has to establish that unless a stay is granted, even a successful appeal would have no effect and it would have been fruitless to bring the appeal in the first place.

Time limits

Any appeal or review has to be lodged within 28 days of the making of the order complained of.