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How does the Family Court of WA deal with a case

 

There are occasions when you will need to ask the family court for help in resolving your dispute. This may be because you have been to Family dispute resolution (FDR) trying to work out issues about your children, or tried yourself to work out your financial/property settlement but not reached an agreement. Starting a case in the family court is called "commencing proceedings". If you file an application or a response to an application at the court you are called a party.

What happens if I go to the family court?

The family court brings you and the other parties together to make arrangements about what should happen with your children and/or property following separation. The court will give you and the other parties opportunities during the process to reach your own decisions about the matter. If no agreement is reached, the court will have a trial on the issues and a judge or magistrate will make a decision about what should happen with your children and/or property.

Where do I start?

To start a case at the family court you need to file forms or papers, and to serve those papers on the other parties. The Family Court of WA website has information about what forms to use, depending on what you are asking the court to do.

Before starting a case for parenting orders, you are usually required to attend FDR with a family dispute resolution practitioner. You may fit within an exemption, meaning you may not have to go through the FDR process. If FDR is not successful at resolving all the issues, you can ask the family dispute resolution practitioner to issue you with a certificate which you will need to file at the family court in order to commence proceedings for parenting orders. Go to the Family dispute resolution page or visit the Family Court of WA website for more information.

What does 'file papers' mean?

File papers means going to the Family Court of WA and giving the papers to the registry to start your case. The family court in Perth is located at 150 Terrace Road. In regional areas you can file family court documents at the counter of your local courthouse.

In order to commence proceedings you need to file an application.

You also need to file a copy of your marriage certificate if you were married to the other party, or if you were not married to the other party and the case involves children, copies of the children's birth certificates.

Does it cost anything to start a family court case? 

With most applications you will need to pay a filing fee. If you receive Centrelink payments or are in financial difficulty you can ask for a reduction in the court fees by filing an application for reduction of court fees that you can get from the Family Court of WA website or from the court when you file your papers.

When will I have to go to court?

Your matter will usually be allocated a hearing date as soon as practicable after 28 days from the date your application was filed. If your matter is urgent (for example, if your children's safety is at risk or you require an urgent injunction to prevent the other party from selling property without your consent), you can write a short letter to the duty registrar setting out the basis of the urgency and the court may decide to list your matter sooner. You should seek legal advice if you think your matter is urgent.

Where do I get a copy of my marriage certificate or the children's birth certificates?

Birth and marriage certificates are available from the Registry of Births, Deaths and Marriages. The office is located at level 10, 141 St Georges Terrace and is open from 8.30am to 4.30pm Monday to Friday. You can also request a certificate by mail to PO Box 7720 Cloisters Square Perth 6850, or in person at some regional courts. You will have to pay for the certificate.

For more information about obtaining certificates, see the Registry of Births, Deaths & Marriages section of the Department of the Attorney General's website or call the Registry on 1300 305 021.


What is a case information affidavit?

A case information affidavit is a form used by the family court that you will usually have to complete to start a case involving parenting issues. A case information affidavit asks for information on your family, the circumstances of your case and other such information. The form is a sworn or affirmed document.


What is an affidavit?

An affidavit is a sworn or affirmed statement setting out evidence to support your case. You usually do not have to provide an affidavit, aside from a case information affidavit, to the court to start a case involving parenting issues. Only in specific circumstances will the court require an additional affidavit.

What does 'serve papers' mean?

Once you have filed your papers you will receive stamped copies from the court and you need to serve them. Serve means giving a copy of your papers to other parties involved in the case after you have filed the papers at the family court.

You will need to have someone serve the other parties in person. This is called personal service. Generally you cannot serve documents on the other parties yourself. You can get a friend or relative over the age of 18 to serve documents on your behalf. Alternatively you can employ a professional process server to serve the documents for you for a fee.

For more information on how to serve papers see the Family Court of WA's Service Kit.

What if I need to serve papers and I don't know where the other person is?

If you don't know where the other person is, this does not mean that you cannot start your court case. However, you will need to think about how to let the other person know that you are asking the court to make an order. You can ask the court for permission via a court order to serve the person by sending the documents to someone else such as a friend or family member of that person (called substituted service). Otherwise, you can ask the court for permission not to serve the documents (called dispensation of service). If you want to ask the court to make any of these orders, you can find more information and the required documents in the Family Court of WA's Dispensation of Service Kit.

What does ex parte mean?

In special circumstances you can ask the court to make orders without the other party knowing and without serving the other party. This is called an "ex parte application" meaning without the other party being present in court. Ex parte applications are made in urgent and serious matters. You should get legal advice before making such an application.

What is family court procedure?

Family court procedure is the formal steps of your case as it proceeds through the family court from the first hearing date to a trial. There are many stages during the court process where you may be able to reach an agreement with the other party and bring an end to the case without a trial.

What happens at the first court date in children's matters?

In children's matters, the first court date will usually be a Child Related Proceeding List (CRP List). As well as the magistrate, a family consultant will be present at the CRP List and will assist the court in determining what should be the next steps in your matter. A family consultant is a trained psychologist or social worker.

The court may receive evidence from the parties and/or the family consultant and make procedural orders about how your case will proceed. The court may already have some information from the Department for Child Protection if they have been involved or information about any restraining orders or other criminal matters if there has been family violence.

The court may make a date for you to attend a case assessment conference or a further hearing, or request that the parties attempt family dispute resolution.

The court will not usually make any orders about the children on this date, but may be able to make any orders that the parties have agreed to.

What happens at the first court date in property matters?

In proceedings involving property matters, when you file your application your matter will be listed for a procedural hearing before a registrar, or before a magistrate if you are seeking interim as well as final property orders. At the first hearing of a property matter, the court will determine whether or not the parties have complied with their duty of disclosure and may make orders to facilitate the efficient resolution of the case. Your case will be allocated a date for a conciliation conference. Subject to the time available to the court and the progress of the case, the court may be able to deal with any interim property issues you have on this date.  

What is a case assessment conference?

A case assessment conference (CAC) is an opportunity for the people involved in a parenting case to get together to try to reach an agreement about their issues. A family consultant will assist you in trying to reach agreement. The family consultant will speak with each of the parties separately and if the parties wish, there may be an opportunity for the parties to meet together with the family consultant to discuss issues directly. For more information, see Case assessment conference.

What does a family consultant do?

A family consultant is involved in the early stages of your case if it involves children's issues, and tries to help you resolve your issues without going to trial. During the case assessment conference the family consultant will listen to all of the parties and will then provide the court with a written report on what they have heard. The family consultant may also make recommendations to the court about your case. You should remember that anything you say to a family consultant is not confidential and may be repeated in court.

What is a conciliation conference?

A conciliation conference will take place in matters where there are property issues involved. The conference is conducted by a registrar or in some circumstances a judge. A family consultant may also come along to the conciliation conference if there are children's issues involved in your case.

At a conciliation conference the registrar will ask you and the other person to say what you consider to be the important issues and what you would like to achieve. You need to make a genuine effort to negotiate and come to an agreement. You may have more than one conciliation conference if the registrar determines that it is likely the matter will be resolved at a second conference.

If you do not reach agreement at a conciliation conference the registrar may make orders specifying what further actions the parties will need to take in order to prepare for a readiness hearing or trial.

See the Family Court of WA's Conciliation Conference brochure for more information on what to expect at a conciliation conference and what needs to be done to prepare for a conciliation conference.

What is the difference between interim and final orders?

Interim orders are made for the time being while your case is in court and before final orders are made. Final orders are made at the end of a case, usually either after a trial or when the parties have agreed to final consent orders. Both interim and final orders are court orders and thus have consequences if not complied with.


What is a readiness hearing?

A readiness hearing is a court date used to make sure a case is ready for trial. You may need to provide the court with information about your case before the readiness hearing. You will also need to be able to tell the court at your readiness hearing that you are ready for trial, how long you think the trial will take and which witnesses you want to call. If the registrar determines that your matter is ready to go to trial, your case will be allocated to a "callover" in which your case will be given a date for trial.

 

What happens if we go to trial?

 

If you go to trial you will have to bring evidence to support your case. Trials are held in front of a judge or magistrate. At the end of a trial the judge or magistrate will make a decision about your case. It is recommended that you get legal representation for a trial. Anyone over the age of 18 can attend a trial unless the judge orders otherwise. The media cannot publish any information that identifies people involved in family court proceedings.

What should I call the judge?

You can refer to the judge or magistrate as your honour, sir or madam/ma'am. A registrar may be referred to as sir or madam/ma'am.

Is the process different outside of Perth?

The court process is different outside of Perth. As there is no separate family court outside of Perth, people in regional areas may be able to start their cases in the magistrates court in their area. The family court judges and magistrates do however visit certain regional courthouses at certain times on what is known as a "court circuit". You should check with your local courthouse or the Family Court of WA to see if this happens in your regional area.

There are no family consultants based outside of Perth so case assessment conferences will not always take place in regional areas, or may take place via video link or telephone with a family consultant in Perth. You should ask the court dealing with your case about what options are available to participate in a case assessment conference.

Sometimes cases will need to be transferred to the family court in Perth. This can happen if you ask for different interim orders to final orders or in complex cases. You may appear via video link or telephone if your case is transferred and you cannot get to Perth. You will need to ask the court for permission to do this and can apply using a Request to attend by electronic means form.

Do I need a lawyer?

No, you do not need a lawyer to represent you in the family court. You are allowed to represent yourself. Another person who is not a lawyer cannot represent you.

If you are unsure about how the family court will deal with your case, you should get legal advice.

The Family Court of WA has produced a Self represented litigants handbook as a resource for people representing themselves in the family court. The handbook is not intended as a substitute for professional legal advice.

Where can I get more information?

For more information on the family court process and other useful information about family law, see the Family Court of WA's Information Sessions webpage.

 

Last reviewed: 03/10/2011

Last Modified: 15/02/2012

Disclaimer

The material displayed on this page is intended for information only. If you have a legal problem, you should see a lawyer. Legal Aid Western Australia believes that the information provided is accurate, however does not accept responsibility for any errors or omissions.