1Citation
These rules are the Family Court Rules 2021.
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Bill homepageThese rules are the Family Court Rules 2021.
These rules come into operation as follows —
Part 1 Division 1 — on the day on which these rules are published in the Gazette;
the rest of the rules — on the later of —
the day after that day; and
23 August 2021.
These rules apply to the federal and non‑federal jurisdictions of the Family Court of Western Australia and the Magistrates Court throughout Western Australia in relation to matters contained in these rules.
In these rules —
Act means the Family Court Act 1997;
address for service means the street address, postal address or email address given by a party where documents may be left for the party or to where documents may be sent for the party;
affidavit means a document that complies with rules 238, 239 and 483;
appeal —
means an appeal to the Court from a court of summary jurisdiction; and
includes a cross‑appeal;
appellant includes a cross‑appellant;
applicant includes a cross‑applicant who is seeking other orders in response to an application;
application includes —
an initiating application; and
an application in a case; and
an application for divorce; and
an application for consent orders; and
an application for contempt; and
an application alleging a contravention of an order of the Court or of a provision of the Act or of the Family Law Act; and
a notice of appeal; and
a cross‑application set out in a response to an application (response to an initiating application) or response to an application in a case;
approved form, in relation to a provision of these rules, means a form approved under rule 486 for the purposes of the provision;
assessment hearing means a hearing conducted by a registrar at which the amount to be paid on an itemised costs account is assessed;
attend means to present at a court event (including by electronic communication);
bankrupt has the meaning given by the Bankruptcy Act section 5(1);
Bankruptcy Act means the Bankruptcy Act 1966 (Commonwealth);
bankruptcy case means a case in which a court has jurisdiction in bankruptcy under the Bankruptcy Act section 35, 35A or 35B;
Bankruptcy Regulations means the Bankruptcy Regulations 2021 (Commonwealth);
case means a proceeding under the Act, the Family Law Act, the regulations, these rules or any other law that vests jurisdiction in a court;
case guardian —
means a person appointed by the court under rule 105 to manage and conduct a case for a child or a person with a disability; and
includes a next friend, guardian ad litem, tutor or litigation guardian;
child‑related proceedings includes child‑related proceedings as defined in the Family Law Act section 69ZM;
Child Support Act means, as the case requires, either or both of —
the Child Support (Assessment) Act; and
the Child Support (Registration and Collection) Act;
Child Support Agency means the agency of the Commonwealth Department of Social Services that administers a Child Support Act;
child support agreement has the meaning given by the Child Support (Assessment) Act section 81;
child support application or appeal means an application or appeal in which the only orders sought are under a Child Support Act;
child support assessment includes —
an administrative assessment for child support under the Child Support (Assessment) Act Part 5; and
an amended assessment to give effect to an order;
child support liability means an amount owing under a Child Support Act (including a child support assessment or registered child support agreement) that may be registered for collection by the Child Support Agency;
Child Support Registrar means the Child Support Registrar under the Child Support (Registration and Collection) Act section 10;
conduct money means money paid by a party to a witness, before the witness appears at a court event for the party, for —
travel between the witness’s place of residence or employment and the court; and
if necessary, reasonable accommodation expenses for the witness; and
in the case of a subpoena for production, the reasonable costs of complying with the subpoena;
contact has the same meaning as in the Family Law Act Part VII;
corporation includes —
a company; and
a body corporate; and
an unincorporated body that may sue or be sued or hold property in the name of its secretary or of an officer of the body appointed for that purpose;
Corporations Act means the Corporations Act 2001 (Commonwealth);
Corporations Rules means the Federal Court (Corporations) Rules 2000 (Commonwealth);
costs —
means an amount paid or to be paid for work done by a lawyer; and
includes expenses;
costs agreement means a written agreement between a party and the party’s lawyer, about the costs to be charged by the lawyer for work done for a case for the party, in accordance with —
for an agreement entered into before 1 July 2008, Family Law Rules 2004 (Commonwealth) Schedule 6 clause 6.15, as applied by Schedule 2 Division 2 clause 2; or
for an agreement entered into after 30 June 2008, the law of a State or Territory;
costs assessment order means an order made by a registrar fixing the total amount payable for costs under rule 348(1), 349(3) or 354(2);
costs notice means a brochure, approved by the executive manager of the Court appointed under section 25(1)(c) of the Act, about costs under Part 19 or Schedule 2;
counsel includes a barrister and a solicitor acting as a barrister;
court means —
the Court; and
the Magistrates Court in the exercise of —
the federal jurisdiction with which it is invested by the Family Law Act; and
the non‑federal jurisdiction with which it is invested by the Act;
court event includes —
a hearing or part of a hearing; and
a trial or part of a trial; and
a conference; and
an attendance with a family consultant performing the functions of a family consultant; and
an attendance with a single expert witness performing the functions of a single expert witness;
cross‑vesting law means a law relating to cross‑vesting jurisdiction of —
the Commonwealth, other than the Corporations Act Part 9.6A; or
a State or Territory;
declaration as to validity, in relation to a marriage, divorce or annulment, means an order that the marriage, divorce or nullity order is valid or invalid;
discontinue, in relation to a case, means to withdraw all or part of the case;
draft consent order means a document that complies with rule 166(3);
each person to be served has the meaning given in rule 122(4);
earnings include —
wages, salary, fees, bonus, commission or overtime pay; and
other money payable in addition to or instead of wages or salary; and
a pension, annuity or vested superannuation money; and
money payable instead of leave; and
royalties; and
retirement benefits due or accruing; and
any salary sacrifice arrangement; and
performance‑based incentives and non‑monetary benefits;
ECMS means the electronic case management system for the management of proceedings in Western Australian courts and tribunals;
electronic has the meaning given in the Courts and Tribunals (Electronic Processes Facilitation) Act 2013 section 5;
electronic communication means —
a video link; or
an audio link; or
another appropriate electronic means of communication;
eligible carer has the meaning given by the Child Support (Assessment) Act section 7B;
enforcement officer includes —
a Marshal, a delegate of the Marshal or any other officer of the court; or
a person appointed by the court for the purpose of enforcing an order;
enforcement order —
means an order requiring a person to comply with an obligation; and
includes the following —
an enforcement warrant;
a third party debt notice;
an order for the seizure and sale of real or personal property;
an order varying an enforcement order;
expense means an amount paid to a third party (other than a lawyer) for work done in a case or services provided for a party;
expert means an independent person who has relevant specialised knowledge based on the person’s training, study or experience;
expert witness means an expert who has been instructed to give or prepare independent evidence for the purpose of a case;
family report means a report concerning the best interests of a child, prepared under section 73 of the Act or the Family Law Act section 55A(2) or 62G;
filing registry means the registry of the court in which a case has commenced or to which a case is transferred;
final order means the order of the court that finally decides a case commenced by an initiating application;
financial agreement means an agreement that is a financial agreement under section 205ZN, 205ZO or 205ZP of the Act, or the Family Law Act section 90B, 90C or 90D, other than an ante‑nuptial (pre‑marriage) or post‑nuptial (after marriage) settlement to which the Family Law Act section 85A applies;
financial case means a case (other than an appeal) involving an application —
relating to the maintenance of 1 of the parties to a marriage, or to a de facto relationship after the breakdown of the relationship, including an application for permission to start a spouse maintenance case; or
relating to the property of the parties to a marriage, or to a de facto relationship after the breakdown of the relationship, or of either of them, including —
an application for permission to start a property case; and
an application to set aside an order altering property interests; and
an application in relation to a financial agreement or termination agreement; and
an application in relation to a transaction to defeat a claim;
or
relating to the vested bankruptcy property in relation to a bankrupt party to a marriage, or to a de facto relationship after the breakdown of the relationship; or
relating to the maintenance of children; or
under the Child Support (Assessment) Act section 116, 123 or 129; or
relating to child‑bearing expenses; or
for the purposes of Part 20 Division 1 — that includes an application for the enforcement of a financial obligation;
financial orders includes orders in relation to —
maintenance; or
a child support application under the Child Support (Assessment) Act section 116, 123 or 129; or
contribution to child‑bearing expenses; or
property;
fresh application means any of the following applications (including compliance with pre‑action procedures associated with them) made after 30 June 2008 —
an application for final orders;
an application that includes an application for final orders;
an application in a case filed in connection with a fresh application;
an application for divorce;
an application for consent orders;
a contempt, contravention or enforcement application, unless an allegation of the contempt, contravention or breach relates to an interim or interlocutory order made in a pending or ongoing application for final orders filed before 1 July 2008;
an application relating to contempt in the face of the court arising from an event occurring after 30 June 2008;
an appeal, and a re‑hearing following an appeal;
an application for review of final orders made by a registrar;
hearing means the process, other than a trial, of determining —
an application in a case; or
an application for divorce; or
an application mentioned in rule 74; or
part of a case; or
an enforcement application;
itemised costs account means a document prepared in accordance with rule 339;
judicial officer includes a judge, a registrar, and a magistrate (including a family law magistrate);
lawyer means a person who is enrolled as a legal practitioner of —
a federal court; or
the Supreme Court of a State or Territory;
legislative provision includes —
a provision in an applicable Act; and
these rules; and
the regulations; and
any other applicable regulations made under the Act or the Family Law Act; and
any conventions mentioned in a regulation made under the Act or the Family Law Act;
maintenance application means an initiating application in which the only orders sought are for maintenance (including a variation of a previous maintenance order) or a contribution towards child‑bearing expenses;
medical procedure application means an initiating application seeking an order authorising a major medical procedure for a child that is not for the purpose of treating a bodily malfunction or disease;
member benefit statement means a statement issued by or on behalf of the trustee of a superannuation fund setting out a person’s entitlement to benefits from the fund as at a date specified in the statement;
non‑convention country means a country with which Australia does not have a convention as to service of documents;
oath includes affirmation;
order, relating to a passport, includes —
an order permitting a child to leave Australia; and
an order relating to the issue, control or surrender of a passport;
parenting case means a case in which the application seeks a parenting order or a child‑related injunction under the Act or the Family Law Act, other than an application for child maintenance;
party has the meaning given in rule 95;
payee means a person who is entitled to take action against a payer to enforce an obligation to pay money, created by an assessment, order or agreement, with which the payer has not complied;
payer means a person who has an obligation to pay money to, or do an act to financially assist, a payee under an assessment, order or agreement;
permission means the leave or consent of the court;
person includes a corporation, authority or party;
person with a disability, in relation to a case, means a person who, because of a physical or mental disability —
does not understand the nature or possible consequences of the case; or
is not capable of adequately conducting, or giving adequate instruction for the conduct of, the case;
pre‑action procedure means the set of principles and procedures (the text of which is set out in Schedule 1) with which the parties must comply before starting a case;
prescribed child welfare authority means the CEO as defined in the Children and Community Services Act 2004 section 3;
prescribed property, for a person, means —
clothes, bed, bedding, kitchen furniture (except an automatic dishwasher or microwave) and washing machine; and
ordinary tools of trade, plant and equipment, professional instruments and reference books, the combined value of which is not more than $5 000;
property includes —
real and personal property; and
superannuation;
property case means a case in which orders (other than consent orders) are sought relating to —
the property of the parties to a marriage, or to a de facto relationship after the breakdown of the relationship, or of either of them; or
the vested bankruptcy property in relation to a bankrupt party to a marriage, or to a de facto relationship after the breakdown of the relationship;
protected earnings rate means the actual threshold income amount that would apply to a payer under the Bankruptcy Act Part VI Division 4B if the payer were a bankrupt;
registered, in relation to a document, means accepted for filing;
regulations means, as the case requires —
the Family Court Regulations 1998; and
the Family Law Regulations 1984 (Commonwealth); and
any other applicable regulations made under the Act or the Family Law Act;
seal means a stamp or other impression (including, in the case of an electronic document, an electronic or virtual stamp) that the court puts on a document to indicate that the document has been issued by the court;
sealed copy means a document that bears a court seal;
security for costs means the security that a respondent may ask the court to order the applicant to pay for costs that may be awarded to the respondent;
serve means to give or deliver a document to a person in the manner required by these rules;
service by electronic means includes service by facsimile, email or any other form of electronic transmission;
sign means write a person’s name, including a mark by a person who is unable to write their name;
single expert witness means an expert witness who is appointed by agreement between the parties or by the court to give evidence or prepare a report on an issue;
special federal matter has the meaning given by the Jurisdiction of Courts (Cross‑vesting) Act 1987 (Commonwealth) section 3(1);
step means a procedural act taken in the conduct or management of a case;
superannuation information form means a form approved under rule 486 for obtaining information from the trustee of a superannuation fund in family law cases;
sworn, for an affidavit or evidence, means an oath by a witness that the witness is telling the truth;
third party debt notice means a notice given to a third party who holds money for, or owes money to, a payer demanding that the money be paid to a payee to satisfy an obligation that the payer owes the payee;
third party debtor means a person from whom a payee claims a debt that is owed to the payer;
transcript means a written or electronic transcription of a hearing or a trial prepared by a contractor providing transcription services to the court for the case;
trial means the process of determining a case started by an initiating application specified in item 1 of the Table to rule 26;
undertaking as to damages has the meaning given in rule 316(4);
unreasonable, in relation to costs for work done in a case, means costs for work that would not normally be done in a case of a particular type;
work done for a case includes work done in relation to the case (including in relation to the pre‑action procedure) and work done in anticipation of starting the case;
working day means a day other than a Saturday, a Sunday or a public holiday;
written notice means a document (for example, a letter) that complies with rule 483(1) or (2).
The main purpose of these rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case.
The court must apply these rules to promote the main purpose, and actively manage each case by —
encouraging and helping parties to consider and use a dispute resolution method rather than having the case resolved by trial; and
having regard to unresolved risks or other concerns about the welfare of a child involved; and
identifying the issues in dispute early in the case and separating and disposing of any issues that do not need full investigation and trial; and
at an early stage, identifying and matching types of cases to the most appropriate case management procedure; and
setting realistic timetables, and monitoring and controlling the progress of each case; and
ensuring that parties and their lawyers comply with these rules, any practice directions and procedural orders; and
considering whether the likely benefits of taking a step justify the cost of that step; and
dealing with as many aspects of the case as possible on the same occasion; and
minimising the need for parties and their lawyers to attend court by, if appropriate, relying on documents; and
having regard to any barriers to a party’s understanding of anything relevant to the case.
To achieve the main purpose, the court must apply these rules in a way that —
deals with each case fairly, justly and in a timely manner; and
encourages parties to negotiate a settlement, if appropriate; and
is proportionate to the issues in a case and their complexity, and the likely costs of the case; and
promotes the saving of costs; and
gives an appropriate share of the court’s resources to a case, taking into account the needs of other cases; and
promotes family relationships after resolution of the dispute, where possible.
Each party has a responsibility to promote and achieve the main purpose, including —
ensuring that any orders sought are reasonable in the circumstances of the case and that the court has the power to make those orders; and
complying with the duty of disclosure; and
ensuring readiness for court events; and
providing realistic estimates of the length of hearings or trials; and
complying with time limits; and
giving notice, as soon as practicable, of an intention to apply for an adjournment or cancellation of a court event; and
assisting the just, timely and cost‑effective disposal of cases; and
identifying the issues genuinely in dispute in a case; and
being satisfied that there is a reasonable basis for alleging, denying or not admitting a fact; and
limiting evidence, including cross‑examination, to that which is relevant and necessary; and
being aware of, and abiding by, the requirements of any practice direction or guideline published by the court; and
complying with these rules and any orders.
A lawyer for a party has a responsibility to comply, as far as possible, with subrule (1).
A lawyer attending a court event for a party must —
be familiar with the case; and
be authorised to deal with any issue likely to arise.
Unless a legislative provision states otherwise, a court may make an order, on application or on the initiative of the court, in relation to any matter specified in these rules.
When making an order, a court may —
impose terms and conditions; and
make a consequential order; and
specify the consequence of failure to comply with the order; and
take into account whether a party has complied with a pre‑action procedure.
A court may make any orders that the court considers necessary if satisfied that —
a legislative provision does not provide a practice or procedure; or
a difficulty arises, or doubt exists, in relation to a matter of practice or procedure.
A court may set aside or vary an order made in the exercise of a power under these rules.
These rules apply unless a court, on application or the court’s own initiative, orders otherwise.
A court may dispense with compliance with any of these rules at any time, before or after the occasion for compliance arises.
In considering whether to make an order under this rule, a court may consider —
the main purpose of these rules; and
the administration of justice; and
whether the application has been promptly made; and
whether non‑compliance was intentional; and
the effect that granting relief would have on each party and parties to other cases in the court.
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