Skip Ribbon Commands
Skip to main content
Navigate Up
Sign In

Quick Launch

Text Size
  Print Print this page

How does the Family Court deal with a property case

How does the Family Court deal with a property case

There may be times when you will need to ask the Family Court for help in resolving your issues about property or finances. This may be because you have tried working the issues out directly with the other person but have not been able to reach an agreement or were not able to come to an agreement through a dispute resolution process such as mediation. 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 property and finances after separation. The court will give you and the other people involved 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 property and finances.

How does the Family Court decide who should get what in a property settlement?

If you ask the Family Court to make a decision about property settlement, they may do the following:

  1. Look at all the property involved. This can be property owned by yourself, your former partner, property you jointly own or even property owned by another person if the court thinks either person may have a claim to that property. Examples of property include houses, blocks of land, businesses, motor vehicles, shares, savings, furniture and other items such as pots and pans (sometimes called “chattels”). The court will usually consider all items of property regardless of whose name they are in or when they were obtained.
  2. Look at the contributions of each person. Contributions may be financial (such as wages, inheritances or savings brought into the relationship) or non-financial (such as looking after children and housework). Contributions may have been made before, during or after the relationship (such as continuing to look after children following separation).
  3. Look at the future needs of each person. This may include looking at factors such as whether each person works or has the capacity to work, whether there are children involved and who is looking after them, and the age and state of health of each person. The court may make an adjustment to the property entitlements of each person based upon their respective future needs.
  4. Consider whether the final division of property is just and equitable to the parties given their particular circumstances. The court will also consider how the property settlement should be carried out and which particular pieces of property are to be kept by each person.

How does the court value our property?

The court will usually accept valuations if they are agreed by the parties (for example, you may have agreed on the value of your home based on appraisals by real estate agents). If the value of your home, business, or other items such as cars, boats, tools and so on cannot be agreed, you will need to obtain a sworn valuation which will be filed in court with an affidavit by the valuer. See also Dividing property – married couples or Dividing property – de facto couples.

You will usually have to arrange your own valuer (also called an “independent expert”) and pay for the report. Sometimes the court will make an order that the other party pay for or contribute towards the cost of the report. You could also agree with the other person to engage one expert jointly.

What if the valuations of my expert and the other party’s expert are not the same?

If the valuers do not agree, you will need to arrange a “conference of the experts” to take place before (usually 28 days before) your readiness hearing, or before trial, if there will not be a readiness hearing.

At the conference of experts the valuations will be discussed and the valuers will see if they can come to an agreement on some or all of the issues. They will then prepare a joint statement about the issues including whether there has been any agreement and the reasons for any disagreement. This report can be given to the court as evidence about what is agreed by the experts and what further issues need to be examined in court.

If the parties still do not agree about the valuation (even if the valuers now agree), the court will ultimately decide what value to place on the property based upon the valuers’ report, any evidence the valuers give in court and any other available evidence.

There are particular rules about the conduct of these conferences and what parties or their lawyers are required to do. Seek legal advice if your case involves an independent expert.

How do I start a property case in the Family Court?

To start a case at the Family Court you need to file forms or papers, and 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.

You will need to file and keep up to date a Financial Statement which sets out all your assets and liabilities as well as information such as your income.

There are certain procedures you will need to follow before starting a case in the Family Court. For more information, see Before you go to court – property.

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.

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 an affidavit?

An affidavit is a sworn or affirmed statement setting out evidence to support your case. You may need to prepare one or more affidavits during the course of your Family Court case.

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 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 by 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.

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 close as practicable to 28 days after the date your application was filed. If your matter is urgent (for example if 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.

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 (see Before you go to court – property) 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 conciliation conference?

A conciliation conference is a meeting between the parties and their lawyers (if any), 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.

If both parties are legally represented and have already undertaken a mediation-style conference, you may not need to attend a conciliation conference.

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 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. Unless the court specifically allows it the media or the parties involved cannot publish any information that identifies people involved in Family Court proceedings.

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. If you want to seek interim orders after you have started your property case, you will need to file a certificate with the court stating that you have tried to resolve or at least narrow the issues in dispute and let the court know what issues it still needs to resolve. You may not have to do this if the issue is urgent or if you have another good reason why you cannot confer with the other party. Get legal advice if you want to ask for interim orders in a property case.

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.

Examples of interim orders that may be made in a property case include:

  • orders allowing one of the parties to live in the former home
  • orders preventing the parties from dealing with certain items of property
  • orders providing for one party to pay a sum of money to the other on a one-off or ongoing basis until the matter can be finalised

What is an injunction?

An injunction is a court order to stop someone from doing something. The court is reluctant to make injunctions unless there is a real need for it, as they restrict a person’s ability to conduct themselves as they normally would be able to.

In property cases, the types of injunctions that may be given include to:

  • stop your former partner selling, mortgaging or otherwise dealing with your property
  • stop you or your former partner from using or occupying the family home 
  • prevent someone from doing certain things with a business, such as taking on a new contract.

How do I get an injunction?

You need to apply to the Family Court to get an injunction. If there is urgency, or if you think the person you want the injunction against might do something such sell property without your knowledge or authority if they find out about your application, you might be able to get an "ex parte" hearing at the court. This means a hearing in court without the other person being present or knowing about the injunction application.

You should get urgent legal advice on your particular situation before making an application.

What if an injunction is brought against me?

If you have an injunction brought against you, you should make sure you do what the court order says. You should also seek legal advice about your particular situation.

Is it a criminal offence to breach an injunction?

It is not a criminal offence to breach (break) an injunction. In most cases the police will not act on an injunction unless it specifically directs them to do so or gives them clear power to do something.

However, if you breach an injunction there are a number of things the court can do. The court can:

  • charge you with contempt of court
  • make you pay a fine 
  • make you pay a bond (money) into court 
  • change any existing court orders 
  • send you to prison

Can the court make injunctions against people other than me and my ex-partner?

Yes, the court can grant injunctions which affect people other than you and your ex-partner. These other people are known as "third parties". Some examples of "third party" injunctions that can be made in relation to property are to:

  • change the amount of debt for which each person is responsible to the third party
  • stop a third party from repossessing property 
  • stop a third party from taking you or your ex-partner to court 
  • bind third party trustees

You should seek legal advice if your injunction involves a third party.

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.

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?

  • Go to the When Separating website. Here you will find short films about family law and other helpful information and links for families experiencing separation.
  • 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: 01/11/2012

Last modified: 7/10/2015 12:24 PM

Disclaimer

The information displayed on this page is provided for information purposes only and does not constitute legal advice. If you have a legal problem, you should see a lawyer. Legal Aid Western Australia aims to provide information that is accurate, however does not accept responsibility for any errors or omissions in the information provided on this page or incorporated into it by reference.