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  • Sami Abbas

How Family Court Orders Work

Family Court orders on a table.

Family law matters can be emotionally charged and legally intricate, especially when it comes to determining arrangements for children or dividing assets. In Western Australia, the Family Court plays a crucial role in resolving disputes and ensuring the best interests of the family are upheld. Central to this process are Family Court orders, legal directives that outline arrangements and responsibilities concerning various aspects of family life post-separation or divorce.


Western Australia stands apart from other Australian states by having its own dedicated family court. While family law matters in other states are typically handled by the Federal Circuit and Family Court, Section 41 of the Family Law Act 1975 (Cth) allows states to establish their own family courts. Thus, the Family Court of Western Australia was established under the Family Court Act 1975 (WA), later replaced by the Family Court Act 1997 (WA).


The Family Court operates under Western Australian legislation and Commonwealth legislation. Under the Family Law Act 1975 (Cth) (‘FLA’), the Family Court Act 1997 (WA) (‘FCA’) and the Family Court Rules 2021 (WA) (‘FCR’) the court has jurisdiction to issue various types of orders to address matters arising from family disputes. The Family Court operates as a federal court in Australia, and its jurisdiction extends across the entire country. Unlike some other legal proceedings, there are no geographical restrictions on where family law proceedings can be initiated. This means that individuals seeking to commence proceedings in the Family Court can do so at any registry of the court, regardless of their location within Australia. Here are the key types of court orders that can be made:


  1. Divorce Court Orders: A divorce formally terminates a marriage. The court can issue orders pertaining to divorce proceedings, including the dissolution of the marriage and the division of assets.

  2. Parenting Orders: When parents cannot reach an agreement on parenting arrangements, they can seek parenting orders from the court.

  3. Property and Financial Orders: In cases involving the division of assets and financial matters, the court can issue orders to resolve disputes and ensure a fair and equitable distribution of property, debts, and financial resources between parties.

 

Here are the three main types of orders that can be sought:

  1. Final Orders: These orders effectively bring the matter to a close, providing a definitive resolution to the issues in dispute. Final orders are typically sought when parties have exhausted negotiations or mediation and require a formal decision from the court.

  2. Interlocutory Orders: In urgent cases or situations requiring immediate action, interlocutory orders may be sought. These orders are temporary and remain in effect until further orders or final orders are made. It's important to note that usually, an application for interlocutory orders cannot be filed unless an application for final orders has been lodged.

  3. Consent Orders: Consent orders are agreements reached between you and the other party, without the need for court intervention. These orders carry the same legal weight as if they had been made by a judicial officer after a court hearing. Parties can apply for consent orders jointly, presenting their agreement to the court for approval. Consent orders offer a streamlined and cooperative approach to resolving disputes, often avoiding the need for lengthy court proceedings.

 

These court orders play a vital role in resolving conflicts and providing clarity and stability for families undergoing separation or divorce. By addressing various aspects of family life, including parenting arrangements, financial matters, and divorce proceedings, the court aims to protect the best interests of the parties involved, particularly the well-being of any children affected by the dispute.


Before initiating proceedings under Part VIII of the Family Law Act 1975, parties are required to adhere to compulsory pre-action procedures. These procedures necessitate parties to undertake sincere efforts to resolve disputes through negotiation, counselling, conciliation, and arbitration. The primary objective of pre-action procedures is to mitigate the volume of cases brought before the courts by promoting alternative dispute resolution methods and minimising the necessity for parties to appear in court when suitable. By engaging in pre-action procedures, parties have the opportunity to explore avenues for amicable resolution, fostering a more efficient and effective approach to resolving family law disputes.


In this comprehensive guide, we delve into the intricacies of Family Court orders in Western Australia. From understanding how they need to be worded to their purpose and significance, we'll navigate through the essential aspects that every individual involved in family law proceedings should comprehend. Whether you're a parent seeking clarity on child custody arrangements or a spouse aiming to ensure equitable division of assets, grasping the nuances of Family Court orders is paramount for achieving resolution and maintaining familial stability amidst challenging times.

 

Divorce Orders


Statistics provided by the Australian Bureau of Statistics highlight the significant prevalence of marriage and divorce in Australia, with 119,188 marriages and 49,404 divorces recorded in 2018 alone.[1] While the rate of marriages has steadily increased since 2001, the rate of divorces has fluctuated, albeit with an overall decrease. These figures underscore the reality that a considerable number of marriages do end in divorce, suggesting that over 40% of marriages may result in dissolution.


The Federal Circuit and Family Court of Australia has the jurisdiction or power to deal with dissolution of marriage (i.e. divorce) under Part VI of the Family Law Act 1975 (Cth). In Western Australia, you will need to apply to the Family Court of Western Australia. Divorce orders play a significant role in formally recognising the end of a marriage. However, it's essential to understand that a divorce order solely addresses the marital status of the parties involved and does not resolve other related matters such as financial support, property distribution, or arrangements for children. Once a divorce order is granted by the court, typically after a period of separation and other legal requirements have been met, the court will issue a divorce certificate. This certificate serves as official evidence of the divorce and marks the legal termination of the marriage. Importantly, the divorce order takes effect one month and one day after it is granted by the court.


While a divorce order changes your legal status to recognise the end of the marriage, it does not automatically address issues related to children or property division. These matters are typically dealt with separately from the divorce proceedings. Disputes concerning children or property require separate court processes, and parties may need to seek specific orders related to these issues through the appropriate legal channels.


Applying for a divorce in Australia entails meeting specific eligibility criteria and adhering to procedural requirements. Here's a summary of the key points:

  1. Separation Period: You must have been separated from your spouse for at least 12 months before applying for a divorce. This separation can be with or without mutual agreement.

  2. Eligibility Criteria: Either you or your spouse must meet one of the following criteria:

  • Be an Australian citizen.

  • Live in Australia and consider it your permanent home.

  • Have lived in Australia for at least 12 months before applying for the divorce.

  1. Marriage Overseas: If you were married overseas, you can still apply for a divorce in Australia as long as you meet the eligibility criteria mentioned above.

  2. Counselling Requirement: If the marriage lasted for less than two years, you must attend counselling with a family counsellor. You'll need to file a counselling certificate or obtain court permission to apply for a divorce without the certificate.

  3. Application Process: You can apply for a divorce either alone or jointly with your spouse.

 

Parenting Orders


The Family Court system in Western Australia acknowledges that various individuals may have legitimate concerns regarding the care, welfare, and development of a child. Therefore, it allows a broad range of people to apply for parenting orders, not just the child's parents. This could include grandparents, other relatives, or any person who has a genuine interest in the well-being of the child. The timing of applying for parenting orders is flexible. You can initiate proceedings before or after separation or divorce. The paramount consideration for the court is the best interests of the child, regardless of the circumstances surrounding the application.


These orders cover a range of issues related to the care and upbringing of children, including:

  1. Determining which parent, the child will primarily reside with.

  2. Specifying the amount of time the child will spend with each parent and other significant individuals, such as grandparents.

  3. Allocating decision-making responsibilities for major long-term issues affecting the child, such as education, healthcare, and religious upbringing.

  4. Addressing parental relocations within Western Australia, to another state, or overseas.

  5. Designating the school the child will attend.

  6. Establishing provisions for medical care and treatment.

  7. Setting guidelines for traveling with the child, both domestically and internationally.

 

When it comes to applications for parenting orders in Western Australia, the relevant legislation depends on the marital status of the child's parents. If the parents were or are married, the law applied is Part VII of the Family Law Act 1975 (Cth). On the other hand, if the parents were never married, the law applied is Part 5 of the Family Court Act 1997 (WA).


Both the FLA and the FCA are designed with the best interests of the child at their core. These Acts aim to ensure that children are safeguarded and provided with the support they need to thrive. Some of the key objectives outlined in both Acts include:

  1. Promoting Meaningful Parental Involvement: Both Acts emphasise the importance of children having the benefit of meaningful involvement from both parents to the maximum extent possible, if it aligns with the child's best interests.

  2. Protecting Children from Harm: The Acts seek to shield children from physical or psychological harm, including abuse, neglect, or exposure to family violence.

  3. Facilitating Proper Parenting: Ensuring that children receive adequate and proper parenting to support their growth and development, enabling them to achieve their full potential.

  4. Parental Duties and Responsibilities: Emphasising the duties and responsibilities of parents concerning the care, welfare, and development of their children. This includes providing a nurturing and supportive environment for their children's well-being.

By adhering to these objectives, the court aims to create a framework that prioritises the welfare and best interests of the child in all parenting matters. Through the application of these laws, decisions regarding parenting arrangements are made with careful consideration of the unique circumstances of each family, aiming to foster healthy relationships and secure environments for children to thrive.

 

Financial Orders


In the Family Law Act (FLA), property matters arising from both marriage and de facto relationships are addressed under specific sections. Part VIII of the FLA deals with property matters stemming from a marriage, while Part VIIIAB of the FLA pertains to property matters arising from a de facto relationship. Section 79 of the FLA outlines the court's authority to make orders altering interests in property following the breakdown of a marriage relationship. Similarly, Section 90SM of the FLA delineates the court's power to make orders altering interests in property after the dissolution of a de facto relationship.


Following separation or divorce, arrangements regarding property and finances typically need to be made. All property accumulated during the relationship, including superannuation, is subject to division. It's important to note that ownership, purchase, or use of the property does not necessarily affect its consideration in a property split. Parties may attempt to reach an agreement on property division and financial arrangements through direct discussions or by attending Family Dispute Resolution (FDR). However, if an agreement cannot be reached, an application to the Family Court may be necessary to obtain a decision on how property should be divided.


In family law proceedings, delineating what constitutes property subject to the court's jurisdiction for altering the interests of the parties involved is paramount. These principles, derived from common law cases, serve as guiding criteria for determining the scope of property in family law matters. Various assets and entitlements have been recognised as property, including shares in companies, choses in action, rights of action related to proprietary estoppel or resulting trust, and more. Conversely, certain rights and entitlements have been excluded from the definition of property within the court's jurisdiction, such as the right to exclude a spouse from the matrimonial home, non-vested entitlements to long service leave, claims in tort for personal injuries, and others. To provide clarity, a table outlining included and excluded assets can serve as a useful reference tool for individuals navigating family law property matters:[2]

Included as Property

Excluded from Property

Shares in a company

Right to exclude spouse from matrimonial home

Choses in action

Non-vested entitlements to long service leave

Right of action for estoppel/trust

Claims in tort for personal injuries

Enforceable expectation under spouse's will

Borrowing capacity

Control over trust assets

Debts owed by a party

Funds paid into court

Expectation of future income

Bankrupt's interest in surplus

Rights to retirement benefits under specific legislation

Vested rights in superannuation, redundancy, and long service leave

Post-separation inheritances (in some cases)

Partner's interest in a partnership


Rights to due administration of family trust


Power to change vesting date of a trust


 

Consent Orders


Couples can formalise their negotiated agreements on family matters by applying for consent orders to be issued by the court without hearings. The Family Law Act 1975 (Cth) and the Family Court Act 1997 (WA) grant the Family Court of Western Australia the authority to issue orders by consent of the parties involved. Specifically, Rule 24(b) of the Family Court Rules 1998 (WA) empowers court registrars to make orders reflecting the exact terms that have been mutually agreed upon by all parties to a family law matter. This allows couples to negotiate their own arrangements for divorce, children, property division, and spousal maintenance outside of court proceedings. Once consensus is reached, they can submit a draft consent order to have it formally issued and legally enforced by the court's registrar, without needing to go through contested hearings before a judge.


If there is an ongoing case, parties can request consent orders orally during hearings, by lodging a draft order, or tendering it to the judicial officer per regulation 166.1a of the Family Court Rules 2021. If no case is currently filed, they must apply specifically for consent orders along with a draft order clearly stating the agreed terms and bearing all parties' signatures (166.2, 166.3). Certain types of orders like stepparent maintenance or matters involving family violence require filing an initiating application even with consent (166.4, 166.5). This regulatory process allows couples to convert their mutually agreed arrangements into legally binding consent orders ratified by the court, avoiding the need for contested proceedings while still benefiting from the court's authority and enforcement powers. The consent order mechanism provides an efficient, lower-conflict pathway to resolve family issues through negotiated settlement.

 

Final Orders


According to Regulation 51 of the Family Court Rules 2021, an initiating application must adhere to specific requirements regarding the contents of the application for a final order. The applicant is obligated to provide full particulars of the orders sought and include all causes of action that can be conveniently disposed of in the same case. However, there are exceptions outlined in subrule (2), where a party seeking particular orders, such as an order for annulment of marriage, a declaration of marriage validity, divorce, or annulment, or an order authorising a medical procedure, should not include any other cause of action in the application. Despite this restriction, subrule (3) permits a party to seek both an order for annulment of marriage and a declaration as to the validity of a marriage, divorce, or annulment within the same application.


A "final" parenting orders made by the court for separated parents are not truly final, as they can be changed if there is a significant change in circumstances. The general rule from the case Rice & Asplund requires parents to establish a substantial change in circumstances from when the original orders were made in order for the court to re-visit and vary the parenting arrangements.[3] The recent case of Searson & Searson highlighted that even a relatively short period of 15 months can involve significant changes that warrant revisiting parenting orders.[4] In that case, the mother's relationship progressing significantly, her desire to have more children, and financial/employment changes were deemed sufficient changes by the court to vary the orders and allow her relocation.

 

While designed to avoid endless re-litigation, the Rice & Asplund rule recognises that as families' situations evolve over time, the basis for the original orders can break down, necessitating the ability to modify arrangements through further court orders in the best interests of the children. The court assesses if the core circumstances underlying the original orders have materially changed when considering varying "final" parenting orders.

 

Conclusion


Through the issuance of Family Court orders, the court provides clear directives that govern arrangements and responsibilities related to children and asset division post-separation or divorce. These orders are instrumental in safeguarding the best interests of the family members involved, ensuring fairness, equity, and stability during times of transition and conflict.


Numerous resources are available to support individuals navigating the complexities of the family court system. The Attorney General provides valuable guides and information to help individuals understand their rights and responsibilities, while Legal Aid articles offer insightful guidance on various legal matters.[5] Additionally, at Carter Dickens Lawyers, we stand ready to provide expert assistance and guidance throughout your legal journey. Our experienced team is committed to helping you navigate family court proceedings with confidence and clarity.

 

Disclaimer: The information provided here is for educational purposes only and should not be considered legal advice. If you need legal assistance, we recommend contacting Carter Dickens Lawyers or consulting a qualified attorney. Legal matters can vary based on laws and regulations, and it is important to seek professional advice for your specific situation.


[1] Australian Bureau of Statistics, 3310.0 — Marriages and Divorces, Australia, 2018.

[2] In the Marriage of Duff (1977) 15 ALR 476; Jones v Skinner (1835) 5 LJ Ch 90; In the Marriage of Komaromi (1976) 2 Fam LR 11,590; In the Marriage of Nelson (1977) 2 Fam LR 11,628.

[3] Rice, M.A. and Asplund, C.J. [1978] FamCA 84; (1979).

[4] Searson & Searson [2017] FamCAFC 119.

[5] Attorney-General’s Department, ‘Parenting orders – what you need to know’ (Web Page, 19 October 2019) < https://www.ag.gov.au/families-and-marriage/publications/parenting-orders-what-you-need-know>.

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