Part 1.1
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Direct links to the current provisions in Family Law Rules 2004.
These Rules are the Family Law Rules 2004.
These Rules commence on 29 March 2004.
Note: The Family Law Rules 1984 (the old Rules), as in force under the Family Law Act 1975 immediately before the commencement of these Rules (the new Rules), are repealed—see the Family Law Repeal Rules 2004. The new Rules apply to a case that was commenced in accordance with the old Rules and not determined before the repeal of those Rules—see rule 4 of the Family Law Repeal Rules 2004.
(1) Chapter 1 sets out the general rules that the court may apply in all cases. (2) If a rule in another Chapter conflicts with a rule in Chapter 1 of these Rules, the rule in Chapter 1 applies.
(1) The Family Court Rules 2021 (WA), as in force at the start of 23 August 2021, apply in relation to the exercise of jurisdiction under the Act by the Family Court of Western Australia and the Magistrates Court of Western Australia. (2) For the purpose of the exercise of jurisdiction under the Act by the Family Court of Western Australia or the Magistrates Court of Western Australia, a provision of the Family Court Rules 2021 (WA), as applied by subrule (1) of this rule, prevails over a provision of these Rules to the extent of any inconsistency.
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.
Note: Section 43 of the Act sets out the principles that the court must apply when exercising its jurisdiction under the Act.
(1) Before starting a case, each prospective party to the case must comply with the pre‑action procedures, the text of which is set out in Schedule 1. (2) Compliance with subrule (1) is not necessary if: (a) for a parenting case—the case involves allegations of child abuse or family violence, or the risk of child abuse or family violence; (b) for a property case—the case involves allegations of family violence, or the risk of family violence, or fraud; (c) the application is urgent; (d) the applicant would be unduly prejudiced; (e) there has been a previous application in the same cause of action in the 12 months immediately before the start of the case; (f) the case is an application for divorce; (g) the case is a child support application or appeal; or (h) the case involves a court’s jurisdiction in bankruptcy under section 35 or 35B of the Bankruptcy Act.
Note 1: The court publishes a brochure setting out the pre‑action procedures for financial cases and parenting cases.
Note 2: The court may take into account a party’s failure to comply with a pre‑action procedure when considering whether to order costs (see paragraph 1.10(2)(d)).
Note 3: Subsections 60I(7) to (12) provide for attendance at family dispute resolution before applying for an order under Part VII of the Act in relation to a child.
The court must apply these Rules to promote the main purpose, and actively manage each case by: (a) encouraging and helping parties to consider and use a dispute resolution method rather than having the case resolved by trial; (b) having regard to unresolved risks or other concerns about the welfare of a child involved; (c) identifying the issues in dispute early in the case and separating and disposing of any issues that do not need full investigation and trial; (d) at an early stage, identifying and matching types of cases to the most appropriate case management procedure; (e) setting realistic timetables, and monitoring and controlling the progress of each case; (f) ensuring that parties and their lawyers comply with these Rules, any practice directions and procedural orders; (g) considering whether the likely benefits of taking a step justify the cost of that step; (h) dealing with as many aspects of the case as possible on the same occasion; (i) minimising the need for parties and their lawyers to attend court by, if appropriate, relying on documents; and (j) having regard to any barriers to a party’s understanding of anything relevant to the case.
To achieve the main purpose, the court applies these Rules in a way that: (a) deals with each case fairly, justly and in a timely manner; (b) encourages parties to negotiate a settlement, if appropriate; (c) is proportionate to the issues in a case and their complexity, and the likely costs of the case; (d) promotes the saving of costs; (e) gives an appropriate share of the court’s resources to a case, taking into account the needs of other cases; and (f) promotes family relationships after resolution of the dispute, where possible.
(1) Each party has a responsibility to promote and achieve the main purpose, including: (a) ensuring that any orders sought are reasonable in the circumstances of the case and that the court has the power to make those orders; (b) complying with the duty of disclosure (see rule 13.01); (c) ensuring readiness for court events; (d) providing realistic estimates of the length of hearings or trials; (e) complying with time limits; (f) giving notice, as soon as practicable, of an intention to apply for an adjournment or cancellation of a court event; (g) assisting the just, timely and cost‑effective disposal of cases; (h) identifying the issues genuinely in dispute in a case; (i) being satisfied that there is a reasonable basis for alleging, denying or not admitting a fact; (j) limiting evidence, including cross‑examination, to that which is relevant and necessary; (k) being aware of, and abiding by, the requirements of any practice direction or guideline published by the court; and (l) complying with these Rules and any orders. (2) A lawyer for a party has a responsibility to comply, as far as possible, with subrule (1).
Note: The court recognises that a lawyer acts on a party’s instructions and may be unable to establish whether those instructions are correct.
(3) A lawyer attending a court event for a party must: (a) be familiar with the case; and (b) be authorised to deal with any issue likely to arise.
Note: The court may take into account a failure to comply with this rule when considering costs (see subrule 19.10(1) and subclause 6.10(1) of Schedule 6).
If the court is satisfied that: (a) a legislative provision does not provide a practice or procedure; or (b) a difficulty arises, or doubt exists, in relation to a matter of practice or procedure; it may make such orders as it considers necessary.
(1) Unless a legislative provision states otherwise, the court may make an order, on application or on its own initiative, in relation to any matter mentioned in these Rules. (2) When making an order, the court may: (a) impose terms and conditions; (b) make a consequential order; (c) specify the consequence of failure to comply with the order; and (d) take into account whether a party has complied with a pre‑action procedure.
The court may set aside or vary an order made in the exercise of a power under these Rules.
(1) These Rules apply unless the court, on application or its own initiative, orders otherwise. (2) The court may dispense with compliance with any of these Rules at any time, before or after the occasion for compliance arises. (3) In considering whether to make an order under this rule, the court may consider: (a) the main purpose of these Rules (see rule 1.04); (b) the administration of justice; (c) whether the application has been promptly made; (d) whether non‑compliance was intentional; and (e) the effect that granting relief would have on each party and parties to other cases in the court.
Unless a legislative provision states otherwise, if: (a) these Rules provide that an application or appeal is to be heard by a particular judicial officer or particular class of judicial officer; and (b) such a person is unavailable; the application or appeal may be listed before another judicial officer who has jurisdiction to hear the application or appeal.
(1) A party may apply to the court to shorten or extend a time that is fixed under these Rules or by a procedural order. (2) A party may make an application under subrule (1) for an order extending a time to be made even though the time fixed by the rule or order has passed. (3) A party who makes an application under subrule (1) for an extension of time may be ordered to pay any other party’s costs in relation to the application.
If a rule or order requires a person to take an action but does not specify a time by which the action is to be taken, the person must take the action as soon as practicable.
(1) The dictionary at the end of these Rules defines and explains certain words and expressions. (2) Within a definition, the defined term is identified by bold italics. (3) The dictionary is part of these Rules. (4) A definition of a word or expression in the dictionary applies to each use of the word or expression in these Rules, unless the context does not permit.
(1) The following are explanatory only and are not part of these Rules: (a) chapter summaries; (b) examples; (c) flow charts; (d) notes. (2) The explanatory guide at the end of these Rules is not part of these Rules and is not to be used in interpreting these Rules.
Note 1: See section 13 and paragraph 15AB(2)(a) of the Acts Interpretation Act 1901.
Note 2: In interpreting these Rules:
Note: Specific prevails over the general
Note: In these Rules, if there is a conflict between a general rule and a specific rule, the specific rule prevails.
Note: Use of ‘and’ and ‘or’ between paragraphs etc
Note: A series of paragraphs may be joined by the word and or or, which will appear between the last 2 paragraphs only. The series is to be read as if the same word appears between each paragraph in the series—for example:
Note: (1) This is:
(a) a paragraph;
(b) another paragraph; and
(c) yet another paragraph.
Note: and
Note: (2) This is:
(a) a paragraph;
(b) another paragraph; or
(c) yet another paragraph.
Note: If the paragraphs are to be read as a list, the words and or or are not used—for example:
Note: (3) A provision may include the following:
(a) a paragraph;
(b) another paragraph;
(c) yet another paragraph.
The Family Court of Australia must sit at the times and places the Chief Justice directs.
(1) A person must not photograph or record by electronic or mechanical means: (a) a hearing or part of a hearing: (b) a trial or part of a trial; (c) a conference under the Act, these Rules or an order of a court; (d) an attendance with a family consultant; (e) an attendance with a single expert under these Rules; (f) a conference of experts ordered by a court; or (g) a person who is in court premises.
Note: Section 121 of the Act restricts publication of information relating to cases.
(2) Subrule (1) does not apply to a photograph or recording made at the request of: (a) a court; (b) in relation to an attendance with a family consultant—the family consultant; (c) in relation to an attendance with an expert witness—the expert; or (d) in relation to a conference of experts—the experts. (3) A person commits an offence if the person contravenes subrule (1).
Penalty: 50 penalty units.
(1) A list of cases to be heard in the court prepared by a Registry Manager may be: (a) published in the law list in a newspaper; and (b) made available to members of the legal profession and their employees.
Note: See subsection 121(2) of the Act.
(2) The list may contain: (a) subject to subrule (3), the family name of a party, but not a given name; (b) the file number of a case; (c) the name of the judicial officer for a hearing or trial; (d) the time and place where a named judicial officer will sit; and (e) the general nature of an application. (3) For a case in which a court has jurisdiction in bankruptcy under section 35 or 35B of the Bankruptcy Act, the list may contain the given name of a party.
(1) Time in a case runs during a period when the filing registry is closed. (2) If: (a) the period allowed by these Rules or an order for an action to be validly taken is 5 days or less; and (b) the period includes a day when the filing registry is closed; that day is not counted. (3) For the calculation of time of one day or more from a particular day, or from the occurrence of a particular event, the particular day, or the day when the event occurs, is not counted. (4) If the last day for taking an action requiring attendance at a filing registry is on a day when the filing registry is closed, the action may be taken on the next day when the filing registry is open. (5) Subsection 36(2) of the Acts Interpretation Act 1901 does not apply to these Rules.
The seal of the Court may be attached to a document: (a) by hand; or (b) by electronic means; or (c) in any other way.
Chapter 2—Starting a case
Note: Summary of Chapter 2
Note: Chapter 2 sets out rules about:
Note: the form of application you must file to start a case in a court, respond to an application or seek orders in the course of a case;
Note: the documents you must file with an application or response; and
Note: the brochures that must be served in a case.
Note: Before starting a case, you must comply with the court’s pre‑action procedures (see subrule 1.05(1) and Schedule 1).
Note: The rules in Chapter 1 relating to the court’s general powers apply in all cases and override all other provisions in these Rules.
Note: A word or expression used in this Chapter may be defined in the dictionary at the end of these Rules.
A person starting a case must file an application as set out in Table 2.1.
Table 2.1 Applications
| Item | Kind of application | Application form to be filed |
|---|---|---|
| 1 | Application seeking final orders (other than a consent order or a divorce), for example: | Initiating Application (Family Law) |
| property settlement parenting (including in relation to a child born under a surrogacy arrangement) maintenance child support medical procedures | ||
| nullity declaration as to validity of marriage, divorce or annulment | ||
| order relating to passport (see Division 4.2.7) | ||
| 2 | Interim order sought at the same time as an application for final orders is made | Initiating Application (Family Law) |
| 2A | Interim order sought after an application for final orders is made | Application in a Case |
| 3 | Procedural, ancillary or other incidental order relating to an order or application sought at the same time as an application for final orders is made | Initiating Application (Family Law) |
| 3A | Procedural, ancillary or other incidental order relating to an order or application sought after an application for final orders is made | Application in a Case |
| 4 | Enforcement of a financial obligation or parenting order | Application in a Case |
| 5 | Review of an order of a Registrar or Judicial Registrar | Application in a Case |
| 6 | Divorce | Application for Divorce |
| 7 | Consent order when there is no current case | Application for Consent Orders |
| 8 | Contravention of an order under Division 13A of Part VII of the Act affecting children, for example, a breach of a contact order | Application—Contravention |
| 9 | Contravention of an order under Part XIIIA of the Act not affecting children, for example, a breach of a property order | Application—Contravention |
| 10 | Failure to comply with a bond entered into in accordance with the Act | Application—Contravention |
| 11 | Contempt of court | Application—Contempt |
Note 1: A respondent seeking orders in another cause of action may make an application in a Response to Initiating Application (Family Law) (see paragraph 9.01 (3) (c)).
Note 2: For further information about:
(a) a divorce application, see Chapter 3;
(b) starting a case for final orders other than a divorce, see Chapter 4;
(ba) making an application for a parenting order in relation to a child born under a surrogacy arrangement, see Division 4.2.8;
(c) making an Application in a Case, see Chapter 5;
(d) an application for a consent order, see Chapter 10;
(e) an application for contempt, enforcement or contravention, see Chapters 20 and 21; and
(f) an application relating to the failure of a party to comply with a bond, see Chapter 21;
(g) an appeal or an application relating to an appeal, see Chapter 22; and
(h) an application relating to a bankruptcy case, see Chapter 26.
Note 3: An application seeking orders under the Act may not be filed in a court of a Territory unless the applicant or respondent ordinarily resides in the Territory at the time the application is filed (see subsection 39(8) and section 69K of the Act).
(1) A person must file with an application mentioned in an item of Table 2.2, the document mentioned in the item if the document has not already been filed.
Table 2.2 Documents to be filed with applications
| Item | Application | Documents to be filed with application |
|---|---|---|
| 2A | Initiating Application (Family Law) in which an order is sought under Part VII of the Act, for example, a parenting order | (a) unless paragraph (b) applies—a certificate given to the applicant by a family dispute resolution practitioner under subsection 60I(8) of the Act;(b) if no certificate is required because paragraph 60I(9)(b), (c), (d), (e) or (f) of the Act applies—an affidavit in a form approved by the Chief Executive Officer unless another affidavit filed in the proceedings sets out the factual basis of the exception claimed(c) if the application is for a parenting order in relation to a child born under a surrogacy arrangement—an affidavit in a form approved by the Chief Executive Officer;(d) a Notice of Child Abuse, Family Violence or RiskNote: Division 4.2.8 of these Rules and section 60HB of the Act relate to children born under surrogacy arrangements. |
| 2B | Initiating Application (Family Law) in which an order is sought relating to a de facto relationship | (a) the documents required by an item in this table that applies to the application (for example items 2A to 6 and 9); and(b) to satisfy the court for section 90SB of the Act that the relationship is or was registered under a prescribed law—the certificate of registration; and |
| (c) for an applicant who has made a choice under subitem 86A(1) or 90A(1) of Schedule 1 to the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008—a document that satisfies the requirements of subitem 86A(5) or 90A(5) of that Act | ||
| 2C | Response to Initiating Application (Family Law) in which an order is sought under Part VII of the Act, for example, a parenting order | a Notice of Child Abuse, Family Violence or Risk |
| 3 | Initiating Application (Family Law), or Response to Initiating Application (Family Law), in which financial orders are sought, for example, property settlement, maintenance, child support | a completed Financial Statement (see rule 13.05) |
| 4 | Initiating Application (Family Law) or Response to Initiating Application (Family Law) in which property settlement orders are sought, and Reply responding to Response to Initiating Application (Family Law) in which property orders are sought as a new cause of action | (a) the documents mentioned in this column in item 3;(b) a completed superannuation information form (attached to the Financial Statement) for a superannuation interest of the party filing the Initiating Application (Family Law), Response or Reply to an Initiating Application (Family Law) |
| 5 | Initiating Application (Family Law) or Response to an Initiating Application (Family Law) relying on a cross‑vesting law, or seeking an order under Part 4.2: for a medical procedure; for step‑parent maintenance, if there is consent; for nullity of marriage; for a declaration as to validity of a marriage or divorce or annulment; or relating to a passport | an affidavit (see section 66M of the Act and rules 4.06, 4.09, 4.29 and 4.30) |
| 6 | Initiating Application (Family Law) or Response to an Initiating Application (Family Law) in which a child support application or appeal is made | the documents mentioned in rule 4.18 for the application |
| 7 | Application for interim, procedural, ancillary or other incidental orders in an Initiating Application (Family Law) or Application in Case (other than an application seeking review of a decision of a Registrar or Judicial Registrar) | an affidavit (see rules 5.02 and 9.02) |
| 9 | Application for Consent Orders | (a) if the orders sought are for a de facto relationship—one of the documents mentioned in this column in item 2B; |
| (b) if the orders sought relate to a superannuation interest—proof of the value of the interest (see subsection 90MT(2) of the Act);(c) if an order is sought under Part VII of the Act—a Notice of Child Abuse, Family Violence or Risk | ||
| 10 | Application—Contravention, other than an application to which item 10A applies | an affidavit (see subrules 21.02(2) and (3)) |
| 10A | Application—Contravention in which an order is sought under Part VII of the Act | (a) an affidavit (see subrules 21.02(2) and (3)); and(b) either:(i) a certificate given to the applicant by the family dispute resolution practitioner under subsection 60I(8) of the Act; or |
| (ii) if no certificate is required because paragraph 60I(9)(b), (c), (d), (e) or (f) of the Act applies—an affidavit in a form approved by the Chief Executive Officer unless another affidavit filed in the proceedings sets out the factual basis of the exception claimed | ||
| 11 | Application—Contempt | an affidavit (see subrule 21.02(2)) |
(4) If a document mentioned in Table 2.2 is not in English, the person filing the document must file: (a) a translation of the document, in English; and (b) an affidavit, by the person who made the translation, verifying the translation and setting out the person’s qualifications to make the translation. (5) An applicant in proceedings mentioned in subsection 100(1) of the Assessment Act or subsection 105(1) of the Registration Act is not required to file in the court a certificate given to the applicant by a family dispute resolution practitioner under subsection 60I(8) of the Family Law Act.
Note 1: A party must not file an affidavit with an Initiating Application (Family Law) unless an application seeking interim, procedural, ancillary or other incidental orders is included in the Initiating Application (Family Law) or permitted to do so by Chapter 4 or an order (see rules 1.12 and 4.02).
Note 2: A document that is filed must be served (see rules 7.03 and 7.04).
Note 3: For information about filing documents, see Chapter 24.
A person who files a document by electronic communication must: (a) include in the filed document and each copy served on another person any details the person knows about the location, date and time of the next court event in the matter; and (b) if the Registry Manager notifies the person of the details of the next court event—give a copy of the notice as soon as practicable to each person on whom the document is or has been served.
A person who files an Initiating Application (Family Law) or an Application for Divorce must, when serving the application on the respondent, also serve a brochure prepared by the court for section 12F of the Act.
Note: In addition to the requirements of this rule, an applicant who has filed an application for enforcement must serve the relevant brochure on the respondent (see paragraph 20.11(3)(b)).
Chapter 1—Introduction
Note: Summary of Chapter 1
Note: Chapter 1 sets out the rules relating to:
Note: the main purpose of these Rules, and the obligations of parties, lawyers and the court;
Note: the court’s general powers that are to apply in all cases; and
Note: other preliminary matters, including sittings, definitions, calculation of time and publication.
Note: These Rules are not, and should not be read as if they were, a complete code of the court’s powers. Other powers are found in the provisions of various Acts, the court’s inherent jurisdiction and the common law.
Note: The rules in Chapter 1 relating to the court’s general powers apply in all cases and override all other provisions in these Rules.
Note: A word or expression used in this Chapter may be defined in the dictionary at the end of these Rules.
These Rules are the Family Law Rules 2004.
These Rules commence on 29 March 2004.
Note: The Family Law Rules 1984 (the old Rules), as in force under the Family Law Act 1975 immediately before the commencement of these Rules (the new Rules), are repealed—see the Family Law Repeal Rules 2004. The new Rules apply to a case that was commenced in accordance with the old Rules and not determined before the repeal of those Rules—see rule 4 of the Family Law Repeal Rules 2004.
(1) Chapter 1 sets out the general rules that the court may apply in all cases. (2) If a rule in another Chapter conflicts with a rule in Chapter 1 of these Rules, the rule in Chapter 1 applies.
(1) The Family Court Rules 2021 (WA), as in force at the start of 23 August 2021, apply in relation to the exercise of jurisdiction under the Act by the Family Court of Western Australia and the Magistrates Court of Western Australia. (2) For the purpose of the exercise of jurisdiction under the Act by the Family Court of Western Australia or the Magistrates Court of Western Australia, a provision of the Family Court Rules 2021 (WA), as applied by subrule (1) of this rule, prevails over a provision of these Rules to the extent of any inconsistency.
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.
Note: Section 43 of the Act sets out the principles that the court must apply when exercising its jurisdiction under the Act.
(1) Before starting a case, each prospective party to the case must comply with the pre‑action procedures, the text of which is set out in Schedule 1. (2) Compliance with subrule (1) is not necessary if: (a) for a parenting case—the case involves allegations of child abuse or family violence, or the risk of child abuse or family violence; (b) for a property case—the case involves allegations of family violence, or the risk of family violence, or fraud; (c) the application is urgent; (d) the applicant would be unduly prejudiced; (e) there has been a previous application in the same cause of action in the 12 months immediately before the start of the case; (f) the case is an application for divorce; (g) the case is a child support application or appeal; or (h) the case involves a court’s jurisdiction in bankruptcy under section 35 or 35B of the Bankruptcy Act.
Note 1: The court publishes a brochure setting out the pre‑action procedures for financial cases and parenting cases.
Note 2: The court may take into account a party’s failure to comply with a pre‑action procedure when considering whether to order costs (see paragraph 1.10(2)(d)).
Note 3: Subsections 60I(7) to (12) provide for attendance at family dispute resolution before applying for an order under Part VII of the Act in relation to a child.
The court must apply these Rules to promote the main purpose, and actively manage each case by: (a) encouraging and helping parties to consider and use a dispute resolution method rather than having the case resolved by trial; (b) having regard to unresolved risks or other concerns about the welfare of a child involved; (c) identifying the issues in dispute early in the case and separating and disposing of any issues that do not need full investigation and trial; (d) at an early stage, identifying and matching types of cases to the most appropriate case management procedure; (e) setting realistic timetables, and monitoring and controlling the progress of each case; (f) ensuring that parties and their lawyers comply with these Rules, any practice directions and procedural orders; (g) considering whether the likely benefits of taking a step justify the cost of that step; (h) dealing with as many aspects of the case as possible on the same occasion; (i) minimising the need for parties and their lawyers to attend court by, if appropriate, relying on documents; and (j) having regard to any barriers to a party’s understanding of anything relevant to the case.
To achieve the main purpose, the court applies these Rules in a way that: (a) deals with each case fairly, justly and in a timely manner; (b) encourages parties to negotiate a settlement, if appropriate; (c) is proportionate to the issues in a case and their complexity, and the likely costs of the case; (d) promotes the saving of costs; (e) gives an appropriate share of the court’s resources to a case, taking into account the needs of other cases; and (f) promotes family relationships after resolution of the dispute, where possible.
(1) Each party has a responsibility to promote and achieve the main purpose, including: (a) ensuring that any orders sought are reasonable in the circumstances of the case and that the court has the power to make those orders; (b) complying with the duty of disclosure (see rule 13.01); (c) ensuring readiness for court events; (d) providing realistic estimates of the length of hearings or trials; (e) complying with time limits; (f) giving notice, as soon as practicable, of an intention to apply for an adjournment or cancellation of a court event; (g) assisting the just, timely and cost‑effective disposal of cases; (h) identifying the issues genuinely in dispute in a case; (i) being satisfied that there is a reasonable basis for alleging, denying or not admitting a fact; (j) limiting evidence, including cross‑examination, to that which is relevant and necessary; (k) being aware of, and abiding by, the requirements of any practice direction or guideline published by the court; and (l) complying with these Rules and any orders. (2) A lawyer for a party has a responsibility to comply, as far as possible, with subrule (1).
Note: The court recognises that a lawyer acts on a party’s instructions and may be unable to establish whether those instructions are correct.
(3) A lawyer attending a court event for a party must: (a) be familiar with the case; and (b) be authorised to deal with any issue likely to arise.
Note: The court may take into account a failure to comply with this rule when considering costs (see subrule 19.10(1) and subclause 6.10(1) of Schedule 6).
If the court is satisfied that: (a) a legislative provision does not provide a practice or procedure; or (b) a difficulty arises, or doubt exists, in relation to a matter of practice or procedure; it may make such orders as it considers necessary.
(1) Unless a legislative provision states otherwise, the court may make an order, on application or on its own initiative, in relation to any matter mentioned in these Rules. (2) When making an order, the court may: (a) impose terms and conditions; (b) make a consequential order; (c) specify the consequence of failure to comply with the order; and (d) take into account whether a party has complied with a pre‑action procedure.
The court may set aside or vary an order made in the exercise of a power under these Rules.
(1) These Rules apply unless the court, on application or its own initiative, orders otherwise. (2) The court may dispense with compliance with any of these Rules at any time, before or after the occasion for compliance arises. (3) In considering whether to make an order under this rule, the court may consider: (a) the main purpose of these Rules (see rule 1.04); (b) the administration of justice; (c) whether the application has been promptly made; (d) whether non‑compliance was intentional; and (e) the effect that granting relief would have on each party and parties to other cases in the court.
Unless a legislative provision states otherwise, if: (a) these Rules provide that an application or appeal is to be heard by a particular judicial officer or particular class of judicial officer; and (b) such a person is unavailable; the application or appeal may be listed before another judicial officer who has jurisdiction to hear the application or appeal.
(1) A party may apply to the court to shorten or extend a time that is fixed under these Rules or by a procedural order. (2) A party may make an application under subrule (1) for an order extending a time to be made even though the time fixed by the rule or order has passed. (3) A party who makes an application under subrule (1) for an extension of time may be ordered to pay any other party’s costs in relation to the application.
If a rule or order requires a person to take an action but does not specify a time by which the action is to be taken, the person must take the action as soon as practicable.
(1) The dictionary at the end of these Rules defines and explains certain words and expressions. (2) Within a definition, the defined term is identified by bold italics. (3) The dictionary is part of these Rules. (4) A definition of a word or expression in the dictionary applies to each use of the word or expression in these Rules, unless the context does not permit.
(1) The following are explanatory only and are not part of these Rules: (a) chapter summaries; (b) examples; (c) flow charts; (d) notes. (2) The explanatory guide at the end of these Rules is not part of these Rules and is not to be used in interpreting these Rules.
Note 1: See section 13 and paragraph 15AB(2)(a) of the Acts Interpretation Act 1901.
Note 2: In interpreting these Rules:
Note: Specific prevails over the general
Note: In these Rules, if there is a conflict between a general rule and a specific rule, the specific rule prevails.
Note: Use of ‘and’ and ‘or’ between paragraphs etc
Note: A series of paragraphs may be joined by the word and or or, which will appear between the last 2 paragraphs only. The series is to be read as if the same word appears between each paragraph in the series—for example:
Note: (1) This is:
(a) a paragraph;
(b) another paragraph; and
(c) yet another paragraph.
Note: and
Note: (2) This is:
(a) a paragraph;
(b) another paragraph; or
(c) yet another paragraph.
Note: If the paragraphs are to be read as a list, the words and or or are not used—for example:
Note: (3) A provision may include the following:
(a) a paragraph;
(b) another paragraph;
(c) yet another paragraph.
The Family Court of Australia must sit at the times and places the Chief Justice directs.
(1) A person must not photograph or record by electronic or mechanical means: (a) a hearing or part of a hearing: (b) a trial or part of a trial; (c) a conference under the Act, these Rules or an order of a court; (d) an attendance with a family consultant; (e) an attendance with a single expert under these Rules; (f) a conference of experts ordered by a court; or (g) a person who is in court premises.
Note: Section 121 of the Act restricts publication of information relating to cases.
(2) Subrule (1) does not apply to a photograph or recording made at the request of: (a) a court; (b) in relation to an attendance with a family consultant—the family consultant; (c) in relation to an attendance with an expert witness—the expert; or (d) in relation to a conference of experts—the experts. (3) A person commits an offence if the person contravenes subrule (1).
Penalty: 50 penalty units.
(1) A list of cases to be heard in the court prepared by a Registry Manager may be: (a) published in the law list in a newspaper; and (b) made available to members of the legal profession and their employees.
Note: See subsection 121(2) of the Act.
(2) The list may contain: (a) subject to subrule (3), the family name of a party, but not a given name; (b) the file number of a case; (c) the name of the judicial officer for a hearing or trial; (d) the time and place where a named judicial officer will sit; and (e) the general nature of an application. (3) For a case in which a court has jurisdiction in bankruptcy under section 35 or 35B of the Bankruptcy Act, the list may contain the given name of a party.
(1) Time in a case runs during a period when the filing registry is closed. (2) If: (a) the period allowed by these Rules or an order for an action to be validly taken is 5 days or less; and (b) the period includes a day when the filing registry is closed; that day is not counted. (3) For the calculation of time of one day or more from a particular day, or from the occurrence of a particular event, the particular day, or the day when the event occurs, is not counted. (4) If the last day for taking an action requiring attendance at a filing registry is on a day when the filing registry is closed, the action may be taken on the next day when the filing registry is open. (5) Subsection 36(2) of the Acts Interpretation Act 1901 does not apply to these Rules.
The seal of the Court may be attached to a document: (a) by hand; or (b) by electronic means; or (c) in any other way.
Chapter 2—Starting a case
Note: Summary of Chapter 2
Note: Chapter 2 sets out rules about:
Note: the form of application you must file to start a case in a court, respond to an application or seek orders in the course of a case;
Note: the documents you must file with an application or response; and
Note: the brochures that must be served in a case.
Note: Before starting a case, you must comply with the court’s pre‑action procedures (see subrule 1.05(1) and Schedule 1).
Note: The rules in Chapter 1 relating to the court’s general powers apply in all cases and override all other provisions in these Rules.
Note: A word or expression used in this Chapter may be defined in the dictionary at the end of these Rules.
A person starting a case must file an application as set out in Table 2.1.
Table 2.1 Applications
| Item | Kind of application | Application form to be filed |
|---|---|---|
| 1 | Application seeking final orders (other than a consent order or a divorce), for example: | Initiating Application (Family Law) |
| property settlement parenting (including in relation to a child born under a surrogacy arrangement) maintenance child support medical procedures | ||
| nullity declaration as to validity of marriage, divorce or annulment | ||
| order relating to passport (see Division 4.2.7) | ||
| 2 | Interim order sought at the same time as an application for final orders is made | Initiating Application (Family Law) |
| 2A | Interim order sought after an application for final orders is made | Application in a Case |
| 3 | Procedural, ancillary or other incidental order relating to an order or application sought at the same time as an application for final orders is made | Initiating Application (Family Law) |
| 3A | Procedural, ancillary or other incidental order relating to an order or application sought after an application for final orders is made | Application in a Case |
| 4 | Enforcement of a financial obligation or parenting order | Application in a Case |
| 5 | Review of an order of a Registrar or Judicial Registrar | Application in a Case |
| 6 | Divorce | Application for Divorce |
| 7 | Consent order when there is no current case | Application for Consent Orders |
| 8 | Contravention of an order under Division 13A of Part VII of the Act affecting children, for example, a breach of a contact order | Application—Contravention |
| 9 | Contravention of an order under Part XIIIA of the Act not affecting children, for example, a breach of a property order | Application—Contravention |
| 10 | Failure to comply with a bond entered into in accordance with the Act | Application—Contravention |
| 11 | Contempt of court | Application—Contempt |
Note 1: A respondent seeking orders in another cause of action may make an application in a Response to Initiating Application (Family Law) (see paragraph 9.01 (3) (c)).
Note 2: For further information about:
(a) a divorce application, see Chapter 3;
(b) starting a case for final orders other than a divorce, see Chapter 4;
(ba) making an application for a parenting order in relation to a child born under a surrogacy arrangement, see Division 4.2.8;
(c) making an Application in a Case, see Chapter 5;
(d) an application for a consent order, see Chapter 10;
(e) an application for contempt, enforcement or contravention, see Chapters 20 and 21; and
(f) an application relating to the failure of a party to comply with a bond, see Chapter 21;
(g) an appeal or an application relating to an appeal, see Chapter 22; and
(h) an application relating to a bankruptcy case, see Chapter 26.
Note 3: An application seeking orders under the Act may not be filed in a court of a Territory unless the applicant or respondent ordinarily resides in the Territory at the time the application is filed (see subsection 39(8) and section 69K of the Act).
(1) A person must file with an application mentioned in an item of Table 2.2, the document mentioned in the item if the document has not already been filed.
Table 2.2 Documents to be filed with applications
| Item | Application | Documents to be filed with application |
|---|---|---|
| 2A | Initiating Application (Family Law) in which an order is sought under Part VII of the Act, for example, a parenting order | (a) unless paragraph (b) applies—a certificate given to the applicant by a family dispute resolution practitioner under subsection 60I(8) of the Act;(b) if no certificate is required because paragraph 60I(9)(b), (c), (d), (e) or (f) of the Act applies—an affidavit in a form approved by the Chief Executive Officer unless another affidavit filed in the proceedings sets out the factual basis of the exception claimed(c) if the application is for a parenting order in relation to a child born under a surrogacy arrangement—an affidavit in a form approved by the Chief Executive Officer;(d) a Notice of Child Abuse, Family Violence or RiskNote: Division 4.2.8 of these Rules and section 60HB of the Act relate to children born under surrogacy arrangements. |
| 2B | Initiating Application (Family Law) in which an order is sought relating to a de facto relationship | (a) the documents required by an item in this table that applies to the application (for example items 2A to 6 and 9); and(b) to satisfy the court for section 90SB of the Act that the relationship is or was registered under a prescribed law—the certificate of registration; and |
| (c) for an applicant who has made a choice under subitem 86A(1) or 90A(1) of Schedule 1 to the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008—a document that satisfies the requirements of subitem 86A(5) or 90A(5) of that Act | ||
| 2C | Response to Initiating Application (Family Law) in which an order is sought under Part VII of the Act, for example, a parenting order | a Notice of Child Abuse, Family Violence or Risk |
| 3 | Initiating Application (Family Law), or Response to Initiating Application (Family Law), in which financial orders are sought, for example, property settlement, maintenance, child support | a completed Financial Statement (see rule 13.05) |
| 4 | Initiating Application (Family Law) or Response to Initiating Application (Family Law) in which property settlement orders are sought, and Reply responding to Response to Initiating Application (Family Law) in which property orders are sought as a new cause of action | (a) the documents mentioned in this column in item 3;(b) a completed superannuation information form (attached to the Financial Statement) for a superannuation interest of the party filing the Initiating Application (Family Law), Response or Reply to an Initiating Application (Family Law) |
| 5 | Initiating Application (Family Law) or Response to an Initiating Application (Family Law) relying on a cross‑vesting law, or seeking an order under Part 4.2: for a medical procedure; for step‑parent maintenance, if there is consent; for nullity of marriage; for a declaration as to validity of a marriage or divorce or annulment; or relating to a passport | an affidavit (see section 66M of the Act and rules 4.06, 4.09, 4.29 and 4.30) |
| 6 | Initiating Application (Family Law) or Response to an Initiating Application (Family Law) in which a child support application or appeal is made | the documents mentioned in rule 4.18 for the application |
| 7 | Application for interim, procedural, ancillary or other incidental orders in an Initiating Application (Family Law) or Application in Case (other than an application seeking review of a decision of a Registrar or Judicial Registrar) | an affidavit (see rules 5.02 and 9.02) |
| 9 | Application for Consent Orders | (a) if the orders sought are for a de facto relationship—one of the documents mentioned in this column in item 2B; |
| (b) if the orders sought relate to a superannuation interest—proof of the value of the interest (see subsection 90MT(2) of the Act);(c) if an order is sought under Part VII of the Act—a Notice of Child Abuse, Family Violence or Risk | ||
| 10 | Application—Contravention, other than an application to which item 10A applies | an affidavit (see subrules 21.02(2) and (3)) |
| 10A | Application—Contravention in which an order is sought under Part VII of the Act | (a) an affidavit (see subrules 21.02(2) and (3)); and(b) either:(i) a certificate given to the applicant by the family dispute resolution practitioner under subsection 60I(8) of the Act; or |
| (ii) if no certificate is required because paragraph 60I(9)(b), (c), (d), (e) or (f) of the Act applies—an affidavit in a form approved by the Chief Executive Officer unless another affidavit filed in the proceedings sets out the factual basis of the exception claimed | ||
| 11 | Application—Contempt | an affidavit (see subrule 21.02(2)) |
(4) If a document mentioned in Table 2.2 is not in English, the person filing the document must file: (a) a translation of the document, in English; and (b) an affidavit, by the person who made the translation, verifying the translation and setting out the person’s qualifications to make the translation. (5) An applicant in proceedings mentioned in subsection 100(1) of the Assessment Act or subsection 105(1) of the Registration Act is not required to file in the court a certificate given to the applicant by a family dispute resolution practitioner under subsection 60I(8) of the Family Law Act.
Note 1: A party must not file an affidavit with an Initiating Application (Family Law) unless an application seeking interim, procedural, ancillary or other incidental orders is included in the Initiating Application (Family Law) or permitted to do so by Chapter 4 or an order (see rules 1.12 and 4.02).
Note 2: A document that is filed must be served (see rules 7.03 and 7.04).
Note 3: For information about filing documents, see Chapter 24.
A person who files a document by electronic communication must: (a) include in the filed document and each copy served on another person any details the person knows about the location, date and time of the next court event in the matter; and (b) if the Registry Manager notifies the person of the details of the next court event—give a copy of the notice as soon as practicable to each person on whom the document is or has been served.
A person who files an Initiating Application (Family Law) or an Application for Divorce must, when serving the application on the respondent, also serve a brochure prepared by the court for section 12F of the Act.
Note: In addition to the requirements of this rule, an applicant who has filed an application for enforcement must serve the relevant brochure on the respondent (see paragraph 20.11(3)(b)).
In this Division:
interested person:
(a) in a proceeding to which section 67Z of the Act applies—has the meaning given by subsection (4) of that section; and
(b) in a proceeding to which section 67ZBA of the Act applies—has the meaning given by subsection (4) of that section.
Part VII order has the same meaning as in subsection 60I(1) of the Act.
Registry Manager has the same meaning as in section 67Z of the Act.
This Division applies to a case if an application is made to a court for a Part VII order in relation to a child in the case.
If: (a) a person who is a party to a proceeding, or an interested person in a proceeding, has filed a Notice of Child Abuse, Family Violence or Risk in the proceeding; and (b) after filing the notice, the person becomes aware of new facts or circumstances that would require the person to file a Notice of Child Abuse, Family Violence or Risk for the purposes of subsection 67Z(2) or 67ZBA(2) of the Act in relation to those new facts or circumstances; the person must file: (c) a Notice of Child Abuse, Family Violence or Risk setting out those new facts or circumstances; and (d) an affidavit stating the evidence relied on to support each allegation set out in the notice.
Note 1: A true copy of a Notice of Child Abuse, Family Violence or Risk that is filed for the purposes of subsection 67Z(2) or 67ZBA(2) of the Act must be served on the person to whom the allegations relate: see subsections 67Z(2) and 67ZBA(2) of the Act.
Note 2: If a Notice of Child Abuse, Family Violence or Risk alleges that a child has been abused or is at risk of being abused, the Registry Manager must notify a prescribed child welfare authority: see subsection 67Z(3) and paragraph 67ZBA(3)(b) of the Act.
(1) The prescribed form for a notice mentioned in subsection 67Z(2) or 67ZBA(2) of the Act is the Notice of Child Abuse, Family Violence or Risk.
Note: The Notice of Child Abuse, Family Violence or Risk is set out in Schedule 2.
(2) A person who files a Notice of Child Abuse, Family Violence or Risk that includes one or more allegations of child abuse, family violence or risk of harm to a child must file an affidavit stating the evidence on which each allegation set out in the notice is based, no later than the time the notice is filed.
Note 1: If a Notice of Child Abuse, Family Violence or Risk filed in a proceeding alleges that a child to whom the proceeding relates has been abused or is at risk of being abused by a person, or that there has been family violence or that there is a risk of family violence by one of the parties to the proceeding, a true copy of the notice must be served on the person to whom the allegations relate: see subsections 67Z(2) and 67ZBA(2) of the Act. The requirements for service of filed documents are set out in rule 7.04.
Note 2: If a Notice of Child Abuse, Family Violence or Risk filed in a proceeding alleges that a child to whom the proceeding relates has been abused or is at risk of being abused, the Registry Manager must notify a prescribed child welfare authority: see subsection 67Z(3) and paragraph 67ZBA(3)(b) of the Act.
(3) Subrule (2) does not apply to a notice filed with an Application for Consent Orders.
(1) A party must file a copy of any family violence order affecting the child or a member of the child’s family: (a) when a case starts; or (b) as soon as practicable after the order is made. (2) If a copy of the family violence order is not available, the party must file a written notice containing: (a) an undertaking to file the order within a specified time; (b) the date of the order; (c) the court that made the order; and (d) the details of the order. (2A) Subrule (2) does not apply to a party starting a case by filing an Application for Consent Orders. (3) If, during the case, a family violence order affecting the child or a member of the child’s family is varied, any party affected by the variation must, as soon as practicable after the order is varied, file a copy of the variation.
If a party to a property settlement or spousal maintenance case, or a de facto property settlement or maintenance proceedings, is required to give the Registry Manager written notice under subsection 79B(3), 90M(3) or 90VA(3) of the Act of a proceeds of crime order or forfeiture application, the party must: (a) file the notice as soon as possible after the party is notified by the proceeds of crime authority under paragraph 79B(3)(b), 90M(3)(b) or 90VA(3)(b) of the Act; and (b) if the person is required under paragraph 79B(3)(d), 90M(3)(d) or 90VA(3)(d) of the Act to give a document to the Registry Manager—attach the document to the notice.
(1) If the proceeds of crime authority applies under section 79C, 90N or 90VB of the Act to stay a property settlement or spousal maintenance case, or a de facto property settlement or maintenance proceedings, the authority must, at the same time, file a sealed copy of the proceeds of crime order or forfeiture application covering the property of the parties to the marriage or either of them, if not already filed. (2) An application under section 79D, 90P or 90VC of the Act to lift a stay of a property settlement or spousal maintenance case, or a de facto property settlement or maintenance proceedings, must have filed with it: (a) proof that the proceeds of crime order has ceased to be in force or that the forfeiture application has been finally determined; and (b) if made by a party, the written consent of the proceeds of crime authority under section 79D, 90P or 90VC of the Act.
Note: A party seeking a stay of a case or an order lifting a stay under this rule must file an Application in a Case (see Chapter 5).
Chapter 1—Introduction
Note: Summary of Chapter 1
Note: Chapter 1 sets out the rules relating to:
Note: the main purpose of these Rules, and the obligations of parties, lawyers and the court;
Note: the court’s general powers that are to apply in all cases; and
Note: other preliminary matters, including sittings, definitions, calculation of time and publication.
Note: These Rules are not, and should not be read as if they were, a complete code of the court’s powers. Other powers are found in the provisions of various Acts, the court’s inherent jurisdiction and the common law.
Note: The rules in Chapter 1 relating to the court’s general powers apply in all cases and override all other provisions in these Rules.
Note: A word or expression used in this Chapter may be defined in the dictionary at the end of these Rules.
These Rules are the Family Law Rules 2004.
These Rules commence on 29 March 2004.
Note: The Family Law Rules 1984 (the old Rules), as in force under the Family Law Act 1975 immediately before the commencement of these Rules (the new Rules), are repealed—see the Family Law Repeal Rules 2004. The new Rules apply to a case that was commenced in accordance with the old Rules and not determined before the repeal of those Rules—see rule 4 of the Family Law Repeal Rules 2004.
(1) Chapter 1 sets out the general rules that the court may apply in all cases. (2) If a rule in another Chapter conflicts with a rule in Chapter 1 of these Rules, the rule in Chapter 1 applies.
(1) The Family Court Rules 2021 (WA), as in force at the start of 23 August 2021, apply in relation to the exercise of jurisdiction under the Act by the Family Court of Western Australia and the Magistrates Court of Western Australia. (2) For the purpose of the exercise of jurisdiction under the Act by the Family Court of Western Australia or the Magistrates Court of Western Australia, a provision of the Family Court Rules 2021 (WA), as applied by subrule (1) of this rule, prevails over a provision of these Rules to the extent of any inconsistency.
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.
Note: Section 43 of the Act sets out the principles that the court must apply when exercising its jurisdiction under the Act.
(1) Before starting a case, each prospective party to the case must comply with the pre‑action procedures, the text of which is set out in Schedule 1. (2) Compliance with subrule (1) is not necessary if: (a) for a parenting case—the case involves allegations of child abuse or family violence, or the risk of child abuse or family violence; (b) for a property case—the case involves allegations of family violence, or the risk of family violence, or fraud; (c) the application is urgent; (d) the applicant would be unduly prejudiced; (e) there has been a previous application in the same cause of action in the 12 months immediately before the start of the case; (f) the case is an application for divorce; (g) the case is a child support application or appeal; or (h) the case involves a court’s jurisdiction in bankruptcy under section 35 or 35B of the Bankruptcy Act.
Note 1: The court publishes a brochure setting out the pre‑action procedures for financial cases and parenting cases.
Note 2: The court may take into account a party’s failure to comply with a pre‑action procedure when considering whether to order costs (see paragraph 1.10(2)(d)).
Note 3: Subsections 60I(7) to (12) provide for attendance at family dispute resolution before applying for an order under Part VII of the Act in relation to a child.
The court must apply these Rules to promote the main purpose, and actively manage each case by: (a) encouraging and helping parties to consider and use a dispute resolution method rather than having the case resolved by trial; (b) having regard to unresolved risks or other concerns about the welfare of a child involved; (c) identifying the issues in dispute early in the case and separating and disposing of any issues that do not need full investigation and trial; (d) at an early stage, identifying and matching types of cases to the most appropriate case management procedure; (e) setting realistic timetables, and monitoring and controlling the progress of each case; (f) ensuring that parties and their lawyers comply with these Rules, any practice directions and procedural orders; (g) considering whether the likely benefits of taking a step justify the cost of that step; (h) dealing with as many aspects of the case as possible on the same occasion; (i) minimising the need for parties and their lawyers to attend court by, if appropriate, relying on documents; and (j) having regard to any barriers to a party’s understanding of anything relevant to the case.
To achieve the main purpose, the court applies these Rules in a way that: (a) deals with each case fairly, justly and in a timely manner; (b) encourages parties to negotiate a settlement, if appropriate; (c) is proportionate to the issues in a case and their complexity, and the likely costs of the case; (d) promotes the saving of costs; (e) gives an appropriate share of the court’s resources to a case, taking into account the needs of other cases; and (f) promotes family relationships after resolution of the dispute, where possible.
(1) Each party has a responsibility to promote and achieve the main purpose, including: (a) ensuring that any orders sought are reasonable in the circumstances of the case and that the court has the power to make those orders; (b) complying with the duty of disclosure (see rule 13.01); (c) ensuring readiness for court events; (d) providing realistic estimates of the length of hearings or trials; (e) complying with time limits; (f) giving notice, as soon as practicable, of an intention to apply for an adjournment or cancellation of a court event; (g) assisting the just, timely and cost‑effective disposal of cases; (h) identifying the issues genuinely in dispute in a case; (i) being satisfied that there is a reasonable basis for alleging, denying or not admitting a fact; (j) limiting evidence, including cross‑examination, to that which is relevant and necessary; (k) being aware of, and abiding by, the requirements of any practice direction or guideline published by the court; and (l) complying with these Rules and any orders. (2) A lawyer for a party has a responsibility to comply, as far as possible, with subrule (1).
Note: The court recognises that a lawyer acts on a party’s instructions and may be unable to establish whether those instructions are correct.
(3) A lawyer attending a court event for a party must: (a) be familiar with the case; and (b) be authorised to deal with any issue likely to arise.
Note: The court may take into account a failure to comply with this rule when considering costs (see subrule 19.10(1) and subclause 6.10(1) of Schedule 6).
If the court is satisfied that: (a) a legislative provision does not provide a practice or procedure; or (b) a difficulty arises, or doubt exists, in relation to a matter of practice or procedure; it may make such orders as it considers necessary.
(1) Unless a legislative provision states otherwise, the court may make an order, on application or on its own initiative, in relation to any matter mentioned in these Rules. (2) When making an order, the court may: (a) impose terms and conditions; (b) make a consequential order; (c) specify the consequence of failure to comply with the order; and (d) take into account whether a party has complied with a pre‑action procedure.
The court may set aside or vary an order made in the exercise of a power under these Rules.
(1) These Rules apply unless the court, on application or its own initiative, orders otherwise. (2) The court may dispense with compliance with any of these Rules at any time, before or after the occasion for compliance arises. (3) In considering whether to make an order under this rule, the court may consider: (a) the main purpose of these Rules (see rule 1.04); (b) the administration of justice; (c) whether the application has been promptly made; (d) whether non‑compliance was intentional; and (e) the effect that granting relief would have on each party and parties to other cases in the court.
Unless a legislative provision states otherwise, if: (a) these Rules provide that an application or appeal is to be heard by a particular judicial officer or particular class of judicial officer; and (b) such a person is unavailable; the application or appeal may be listed before another judicial officer who has jurisdiction to hear the application or appeal.
(1) A party may apply to the court to shorten or extend a time that is fixed under these Rules or by a procedural order. (2) A party may make an application under subrule (1) for an order extending a time to be made even though the time fixed by the rule or order has passed. (3) A party who makes an application under subrule (1) for an extension of time may be ordered to pay any other party’s costs in relation to the application.
If a rule or order requires a person to take an action but does not specify a time by which the action is to be taken, the person must take the action as soon as practicable.
(1) The dictionary at the end of these Rules defines and explains certain words and expressions. (2) Within a definition, the defined term is identified by bold italics. (3) The dictionary is part of these Rules. (4) A definition of a word or expression in the dictionary applies to each use of the word or expression in these Rules, unless the context does not permit.
(1) The following are explanatory only and are not part of these Rules: (a) chapter summaries; (b) examples; (c) flow charts; (d) notes. (2) The explanatory guide at the end of these Rules is not part of these Rules and is not to be used in interpreting these Rules.
Note 1: See section 13 and paragraph 15AB(2)(a) of the Acts Interpretation Act 1901.
Note 2: In interpreting these Rules:
Note: Specific prevails over the general
Note: In these Rules, if there is a conflict between a general rule and a specific rule, the specific rule prevails.
Note: Use of ‘and’ and ‘or’ between paragraphs etc
Note: A series of paragraphs may be joined by the word and or or, which will appear between the last 2 paragraphs only. The series is to be read as if the same word appears between each paragraph in the series—for example:
Note: (1) This is:
(a) a paragraph;
(b) another paragraph; and
(c) yet another paragraph.
Note: and
Note: (2) This is:
(a) a paragraph;
(b) another paragraph; or
(c) yet another paragraph.
Note: If the paragraphs are to be read as a list, the words and or or are not used—for example:
Note: (3) A provision may include the following:
(a) a paragraph;
(b) another paragraph;
(c) yet another paragraph.
The Family Court of Australia must sit at the times and places the Chief Justice directs.
(1) A person must not photograph or record by electronic or mechanical means: (a) a hearing or part of a hearing: (b) a trial or part of a trial; (c) a conference under the Act, these Rules or an order of a court; (d) an attendance with a family consultant; (e) an attendance with a single expert under these Rules; (f) a conference of experts ordered by a court; or (g) a person who is in court premises.
Note: Section 121 of the Act restricts publication of information relating to cases.
(2) Subrule (1) does not apply to a photograph or recording made at the request of: (a) a court; (b) in relation to an attendance with a family consultant—the family consultant; (c) in relation to an attendance with an expert witness—the expert; or (d) in relation to a conference of experts—the experts. (3) A person commits an offence if the person contravenes subrule (1).
Penalty: 50 penalty units.
(1) A list of cases to be heard in the court prepared by a Registry Manager may be: (a) published in the law list in a newspaper; and (b) made available to members of the legal profession and their employees.
Note: See subsection 121(2) of the Act.
(2) The list may contain: (a) subject to subrule (3), the family name of a party, but not a given name; (b) the file number of a case; (c) the name of the judicial officer for a hearing or trial; (d) the time and place where a named judicial officer will sit; and (e) the general nature of an application. (3) For a case in which a court has jurisdiction in bankruptcy under section 35 or 35B of the Bankruptcy Act, the list may contain the given name of a party.
(1) Time in a case runs during a period when the filing registry is closed. (2) If: (a) the period allowed by these Rules or an order for an action to be validly taken is 5 days or less; and (b) the period includes a day when the filing registry is closed; that day is not counted. (3) For the calculation of time of one day or more from a particular day, or from the occurrence of a particular event, the particular day, or the day when the event occurs, is not counted. (4) If the last day for taking an action requiring attendance at a filing registry is on a day when the filing registry is closed, the action may be taken on the next day when the filing registry is open. (5) Subsection 36(2) of the Acts Interpretation Act 1901 does not apply to these Rules.
The seal of the Court may be attached to a document: (a) by hand; or (b) by electronic means; or (c) in any other way.
Chapter 2—Starting a case
Note: Summary of Chapter 2
Note: Chapter 2 sets out rules about:
Note: the form of application you must file to start a case in a court, respond to an application or seek orders in the course of a case;
Note: the documents you must file with an application or response; and
Note: the brochures that must be served in a case.
Note: Before starting a case, you must comply with the court’s pre‑action procedures (see subrule 1.05(1) and Schedule 1).
Note: The rules in Chapter 1 relating to the court’s general powers apply in all cases and override all other provisions in these Rules.
Note: A word or expression used in this Chapter may be defined in the dictionary at the end of these Rules.
A person starting a case must file an application as set out in Table 2.1.
Table 2.1 Applications
| Item | Kind of application | Application form to be filed |
|---|---|---|
| 1 | Application seeking final orders (other than a consent order or a divorce), for example: | Initiating Application (Family Law) |
| property settlement parenting (including in relation to a child born under a surrogacy arrangement) maintenance child support medical procedures | ||
| nullity declaration as to validity of marriage, divorce or annulment | ||
| order relating to passport (see Division 4.2.7) | ||
| 2 | Interim order sought at the same time as an application for final orders is made | Initiating Application (Family Law) |
| 2A | Interim order sought after an application for final orders is made | Application in a Case |
| 3 | Procedural, ancillary or other incidental order relating to an order or application sought at the same time as an application for final orders is made | Initiating Application (Family Law) |
| 3A | Procedural, ancillary or other incidental order relating to an order or application sought after an application for final orders is made | Application in a Case |
| 4 | Enforcement of a financial obligation or parenting order | Application in a Case |
| 5 | Review of an order of a Registrar or Judicial Registrar | Application in a Case |
| 6 | Divorce | Application for Divorce |
| 7 | Consent order when there is no current case | Application for Consent Orders |
| 8 | Contravention of an order under Division 13A of Part VII of the Act affecting children, for example, a breach of a contact order | Application—Contravention |
| 9 | Contravention of an order under Part XIIIA of the Act not affecting children, for example, a breach of a property order | Application—Contravention |
| 10 | Failure to comply with a bond entered into in accordance with the Act | Application—Contravention |
| 11 | Contempt of court | Application—Contempt |
Note 1: A respondent seeking orders in another cause of action may make an application in a Response to Initiating Application (Family Law) (see paragraph 9.01 (3) (c)).
Note 2: For further information about:
(a) a divorce application, see Chapter 3;
(b) starting a case for final orders other than a divorce, see Chapter 4;
(ba) making an application for a parenting order in relation to a child born under a surrogacy arrangement, see Division 4.2.8;
(c) making an Application in a Case, see Chapter 5;
(d) an application for a consent order, see Chapter 10;
(e) an application for contempt, enforcement or contravention, see Chapters 20 and 21; and
(f) an application relating to the failure of a party to comply with a bond, see Chapter 21;
(g) an appeal or an application relating to an appeal, see Chapter 22; and
(h) an application relating to a bankruptcy case, see Chapter 26.
Note 3: An application seeking orders under the Act may not be filed in a court of a Territory unless the applicant or respondent ordinarily resides in the Territory at the time the application is filed (see subsection 39(8) and section 69K of the Act).
(1) A person must file with an application mentioned in an item of Table 2.2, the document mentioned in the item if the document has not already been filed.
Table 2.2 Documents to be filed with applications
| Item | Application | Documents to be filed with application |
|---|---|---|
| 2A | Initiating Application (Family Law) in which an order is sought under Part VII of the Act, for example, a parenting order | (a) unless paragraph (b) applies—a certificate given to the applicant by a family dispute resolution practitioner under subsection 60I(8) of the Act;(b) if no certificate is required because paragraph 60I(9)(b), (c), (d), (e) or (f) of the Act applies—an affidavit in a form approved by the Chief Executive Officer unless another affidavit filed in the proceedings sets out the factual basis of the exception claimed(c) if the application is for a parenting order in relation to a child born under a surrogacy arrangement—an affidavit in a form approved by the Chief Executive Officer;(d) a Notice of Child Abuse, Family Violence or RiskNote: Division 4.2.8 of these Rules and section 60HB of the Act relate to children born under surrogacy arrangements. |
| 2B | Initiating Application (Family Law) in which an order is sought relating to a de facto relationship | (a) the documents required by an item in this table that applies to the application (for example items 2A to 6 and 9); and(b) to satisfy the court for section 90SB of the Act that the relationship is or was registered under a prescribed law—the certificate of registration; and |
| (c) for an applicant who has made a choice under subitem 86A(1) or 90A(1) of Schedule 1 to the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008—a document that satisfies the requirements of subitem 86A(5) or 90A(5) of that Act | ||
| 2C | Response to Initiating Application (Family Law) in which an order is sought under Part VII of the Act, for example, a parenting order | a Notice of Child Abuse, Family Violence or Risk |
| 3 | Initiating Application (Family Law), or Response to Initiating Application (Family Law), in which financial orders are sought, for example, property settlement, maintenance, child support | a completed Financial Statement (see rule 13.05) |
| 4 | Initiating Application (Family Law) or Response to Initiating Application (Family Law) in which property settlement orders are sought, and Reply responding to Response to Initiating Application (Family Law) in which property orders are sought as a new cause of action | (a) the documents mentioned in this column in item 3;(b) a completed superannuation information form (attached to the Financial Statement) for a superannuation interest of the party filing the Initiating Application (Family Law), Response or Reply to an Initiating Application (Family Law) |
| 5 | Initiating Application (Family Law) or Response to an Initiating Application (Family Law) relying on a cross‑vesting law, or seeking an order under Part 4.2: for a medical procedure; for step‑parent maintenance, if there is consent; for nullity of marriage; for a declaration as to validity of a marriage or divorce or annulment; or relating to a passport | an affidavit (see section 66M of the Act and rules 4.06, 4.09, 4.29 and 4.30) |
| 6 | Initiating Application (Family Law) or Response to an Initiating Application (Family Law) in which a child support application or appeal is made | the documents mentioned in rule 4.18 for the application |
| 7 | Application for interim, procedural, ancillary or other incidental orders in an Initiating Application (Family Law) or Application in Case (other than an application seeking review of a decision of a Registrar or Judicial Registrar) | an affidavit (see rules 5.02 and 9.02) |
| 9 | Application for Consent Orders | (a) if the orders sought are for a de facto relationship—one of the documents mentioned in this column in item 2B; |
| (b) if the orders sought relate to a superannuation interest—proof of the value of the interest (see subsection 90MT(2) of the Act);(c) if an order is sought under Part VII of the Act—a Notice of Child Abuse, Family Violence or Risk | ||
| 10 | Application—Contravention, other than an application to which item 10A applies | an affidavit (see subrules 21.02(2) and (3)) |
| 10A | Application—Contravention in which an order is sought under Part VII of the Act | (a) an affidavit (see subrules 21.02(2) and (3)); and(b) either:(i) a certificate given to the applicant by the family dispute resolution practitioner under subsection 60I(8) of the Act; or |
| (ii) if no certificate is required because paragraph 60I(9)(b), (c), (d), (e) or (f) of the Act applies—an affidavit in a form approved by the Chief Executive Officer unless another affidavit filed in the proceedings sets out the factual basis of the exception claimed | ||
| 11 | Application—Contempt | an affidavit (see subrule 21.02(2)) |
(4) If a document mentioned in Table 2.2 is not in English, the person filing the document must file: (a) a translation of the document, in English; and (b) an affidavit, by the person who made the translation, verifying the translation and setting out the person’s qualifications to make the translation. (5) An applicant in proceedings mentioned in subsection 100(1) of the Assessment Act or subsection 105(1) of the Registration Act is not required to file in the court a certificate given to the applicant by a family dispute resolution practitioner under subsection 60I(8) of the Family Law Act.
Note 1: A party must not file an affidavit with an Initiating Application (Family Law) unless an application seeking interim, procedural, ancillary or other incidental orders is included in the Initiating Application (Family Law) or permitted to do so by Chapter 4 or an order (see rules 1.12 and 4.02).
Note 2: A document that is filed must be served (see rules 7.03 and 7.04).
Note 3: For information about filing documents, see Chapter 24.
A person who files a document by electronic communication must: (a) include in the filed document and each copy served on another person any details the person knows about the location, date and time of the next court event in the matter; and (b) if the Registry Manager notifies the person of the details of the next court event—give a copy of the notice as soon as practicable to each person on whom the document is or has been served.
A person who files an Initiating Application (Family Law) or an Application for Divorce must, when serving the application on the respondent, also serve a brochure prepared by the court for section 12F of the Act.
Note: In addition to the requirements of this rule, an applicant who has filed an application for enforcement must serve the relevant brochure on the respondent (see paragraph 20.11(3)(b)).
In this Division:
interested person:
(a) in a proceeding to which section 67Z of the Act applies—has the meaning given by subsection (4) of that section; and
(b) in a proceeding to which section 67ZBA of the Act applies—has the meaning given by subsection (4) of that section.
Part VII order has the same meaning as in subsection 60I(1) of the Act.
Registry Manager has the same meaning as in section 67Z of the Act.
This Division applies to a case if an application is made to a court for a Part VII order in relation to a child in the case.
If: (a) a person who is a party to a proceeding, or an interested person in a proceeding, has filed a Notice of Child Abuse, Family Violence or Risk in the proceeding; and (b) after filing the notice, the person becomes aware of new facts or circumstances that would require the person to file a Notice of Child Abuse, Family Violence or Risk for the purposes of subsection 67Z(2) or 67ZBA(2) of the Act in relation to those new facts or circumstances; the person must file: (c) a Notice of Child Abuse, Family Violence or Risk setting out those new facts or circumstances; and (d) an affidavit stating the evidence relied on to support each allegation set out in the notice.
Note 1: A true copy of a Notice of Child Abuse, Family Violence or Risk that is filed for the purposes of subsection 67Z(2) or 67ZBA(2) of the Act must be served on the person to whom the allegations relate: see subsections 67Z(2) and 67ZBA(2) of the Act.
Note 2: If a Notice of Child Abuse, Family Violence or Risk alleges that a child has been abused or is at risk of being abused, the Registry Manager must notify a prescribed child welfare authority: see subsection 67Z(3) and paragraph 67ZBA(3)(b) of the Act.
(1) The prescribed form for a notice mentioned in subsection 67Z(2) or 67ZBA(2) of the Act is the Notice of Child Abuse, Family Violence or Risk.
Note: The Notice of Child Abuse, Family Violence or Risk is set out in Schedule 2.
(2) A person who files a Notice of Child Abuse, Family Violence or Risk that includes one or more allegations of child abuse, family violence or risk of harm to a child must file an affidavit stating the evidence on which each allegation set out in the notice is based, no later than the time the notice is filed.
Note 1: If a Notice of Child Abuse, Family Violence or Risk filed in a proceeding alleges that a child to whom the proceeding relates has been abused or is at risk of being abused by a person, or that there has been family violence or that there is a risk of family violence by one of the parties to the proceeding, a true copy of the notice must be served on the person to whom the allegations relate: see subsections 67Z(2) and 67ZBA(2) of the Act. The requirements for service of filed documents are set out in rule 7.04.
Note 2: If a Notice of Child Abuse, Family Violence or Risk filed in a proceeding alleges that a child to whom the proceeding relates has been abused or is at risk of being abused, the Registry Manager must notify a prescribed child welfare authority: see subsection 67Z(3) and paragraph 67ZBA(3)(b) of the Act.
(3) Subrule (2) does not apply to a notice filed with an Application for Consent Orders.
(1) A party must file a copy of any family violence order affecting the child or a member of the child’s family: (a) when a case starts; or (b) as soon as practicable after the order is made. (2) If a copy of the family violence order is not available, the party must file a written notice containing: (a) an undertaking to file the order within a specified time; (b) the date of the order; (c) the court that made the order; and (d) the details of the order. (2A) Subrule (2) does not apply to a party starting a case by filing an Application for Consent Orders. (3) If, during the case, a family violence order affecting the child or a member of the child’s family is varied, any party affected by the variation must, as soon as practicable after the order is varied, file a copy of the variation.
If a party to a property settlement or spousal maintenance case, or a de facto property settlement or maintenance proceedings, is required to give the Registry Manager written notice under subsection 79B(3), 90M(3) or 90VA(3) of the Act of a proceeds of crime order or forfeiture application, the party must: (a) file the notice as soon as possible after the party is notified by the proceeds of crime authority under paragraph 79B(3)(b), 90M(3)(b) or 90VA(3)(b) of the Act; and (b) if the person is required under paragraph 79B(3)(d), 90M(3)(d) or 90VA(3)(d) of the Act to give a document to the Registry Manager—attach the document to the notice.
(1) If the proceeds of crime authority applies under section 79C, 90N or 90VB of the Act to stay a property settlement or spousal maintenance case, or a de facto property settlement or maintenance proceedings, the authority must, at the same time, file a sealed copy of the proceeds of crime order or forfeiture application covering the property of the parties to the marriage or either of them, if not already filed. (2) An application under section 79D, 90P or 90VC of the Act to lift a stay of a property settlement or spousal maintenance case, or a de facto property settlement or maintenance proceedings, must have filed with it: (a) proof that the proceeds of crime order has ceased to be in force or that the forfeiture application has been finally determined; and (b) if made by a party, the written consent of the proceeds of crime authority under section 79D, 90P or 90VC of the Act.
Note: A party seeking a stay of a case or an order lifting a stay under this rule must file an Application in a Case (see Chapter 5).
In this Division:
interested person:
(a) in a proceeding to which section 67Z of the Act applies—has the meaning given by subsection (4) of that section; and
(b) in a proceeding to which section 67ZBA of the Act applies—has the meaning given by subsection (4) of that section.
Part VII order has the same meaning as in subsection 60I(1) of the Act.
Registry Manager has the same meaning as in section 67Z of the Act.
This Division applies to a case if an application is made to a court for a Part VII order in relation to a child in the case.
If: (a) a person who is a party to a proceeding, or an interested person in a proceeding, has filed a Notice of Child Abuse, Family Violence or Risk in the proceeding; and (b) after filing the notice, the person becomes aware of new facts or circumstances that would require the person to file a Notice of Child Abuse, Family Violence or Risk for the purposes of subsection 67Z(2) or 67ZBA(2) of the Act in relation to those new facts or circumstances; the person must file: (c) a Notice of Child Abuse, Family Violence or Risk setting out those new facts or circumstances; and (d) an affidavit stating the evidence relied on to support each allegation set out in the notice.
Note 1: A true copy of a Notice of Child Abuse, Family Violence or Risk that is filed for the purposes of subsection 67Z(2) or 67ZBA(2) of the Act must be served on the person to whom the allegations relate: see subsections 67Z(2) and 67ZBA(2) of the Act.
Note 2: If a Notice of Child Abuse, Family Violence or Risk alleges that a child has been abused or is at risk of being abused, the Registry Manager must notify a prescribed child welfare authority: see subsection 67Z(3) and paragraph 67ZBA(3)(b) of the Act.
(1) The prescribed form for a notice mentioned in subsection 67Z(2) or 67ZBA(2) of the Act is the Notice of Child Abuse, Family Violence or Risk.
Note: The Notice of Child Abuse, Family Violence or Risk is set out in Schedule 2.
(2) A person who files a Notice of Child Abuse, Family Violence or Risk that includes one or more allegations of child abuse, family violence or risk of harm to a child must file an affidavit stating the evidence on which each allegation set out in the notice is based, no later than the time the notice is filed.
Note 1: If a Notice of Child Abuse, Family Violence or Risk filed in a proceeding alleges that a child to whom the proceeding relates has been abused or is at risk of being abused by a person, or that there has been family violence or that there is a risk of family violence by one of the parties to the proceeding, a true copy of the notice must be served on the person to whom the allegations relate: see subsections 67Z(2) and 67ZBA(2) of the Act. The requirements for service of filed documents are set out in rule 7.04.
Note 2: If a Notice of Child Abuse, Family Violence or Risk filed in a proceeding alleges that a child to whom the proceeding relates has been abused or is at risk of being abused, the Registry Manager must notify a prescribed child welfare authority: see subsection 67Z(3) and paragraph 67ZBA(3)(b) of the Act.
(3) Subrule (2) does not apply to a notice filed with an Application for Consent Orders.
(1) A party must file a copy of any family violence order affecting the child or a member of the child’s family: (a) when a case starts; or (b) as soon as practicable after the order is made. (2) If a copy of the family violence order is not available, the party must file a written notice containing: (a) an undertaking to file the order within a specified time; (b) the date of the order; (c) the court that made the order; and (d) the details of the order. (2A) Subrule (2) does not apply to a party starting a case by filing an Application for Consent Orders. (3) If, during the case, a family violence order affecting the child or a member of the child’s family is varied, any party affected by the variation must, as soon as practicable after the order is varied, file a copy of the variation.
Sourced from the Federal Register of Legislation (legislation.gov.au), CC BY 4.0.
These Rules are the Family Law Rules 2004.
These Rules commence on 29 March 2004.
Note: The Family Law Rules 1984 (the old Rules), as in force under the Family Law Act 1975 immediately before the commencement of these Rules (the new Rules), are repealed—see the Family Law Repeal Rules 2004. The new Rules apply to a case that was commenced in accordance with the old Rules and not determined before the repeal of those Rules—see rule 4 of the Family Law Repeal Rules 2004.
(1) Chapter 1 sets out the general rules that the court may apply in all cases. (2) If a rule in another Chapter conflicts with a rule in Chapter 1 of these Rules, the rule in Chapter 1 applies.
(1) The Family Court Rules 2021 (WA), as in force at the start of 23 August 2021, apply in relation to the exercise of jurisdiction under the Act by the Family Court of Western Australia and the Magistrates Court of Western Australia. (2) For the purpose of the exercise of jurisdiction under the Act by the Family Court of Western Australia or the Magistrates Court of Western Australia, a provision of the Family Court Rules 2021 (WA), as applied by subrule (1) of this rule, prevails over a provision of these Rules to the extent of any inconsistency.
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.
Note: Section 43 of the Act sets out the principles that the court must apply when exercising its jurisdiction under the Act.
(1) Before starting a case, each prospective party to the case must comply with the pre‑action procedures, the text of which is set out in Schedule 1. (2) Compliance with subrule (1) is not necessary if: (a) for a parenting case—the case involves allegations of child abuse or family violence, or the risk of child abuse or family violence; (b) for a property case—the case involves allegations of family violence, or the risk of family violence, or fraud; (c) the application is urgent; (d) the applicant would be unduly prejudiced; (e) there has been a previous application in the same cause of action in the 12 months immediately before the start of the case; (f) the case is an application for divorce; (g) the case is a child support application or appeal; or (h) the case involves a court’s jurisdiction in bankruptcy under section 35 or 35B of the Bankruptcy Act.
Note 1: The court publishes a brochure setting out the pre‑action procedures for financial cases and parenting cases.
Note 2: The court may take into account a party’s failure to comply with a pre‑action procedure when considering whether to order costs (see paragraph 1.10(2)(d)).
Note 3: Subsections 60I(7) to (12) provide for attendance at family dispute resolution before applying for an order under Part VII of the Act in relation to a child.
The court must apply these Rules to promote the main purpose, and actively manage each case by: (a) encouraging and helping parties to consider and use a dispute resolution method rather than having the case resolved by trial; (b) having regard to unresolved risks or other concerns about the welfare of a child involved; (c) identifying the issues in dispute early in the case and separating and disposing of any issues that do not need full investigation and trial; (d) at an early stage, identifying and matching types of cases to the most appropriate case management procedure; (e) setting realistic timetables, and monitoring and controlling the progress of each case; (f) ensuring that parties and their lawyers comply with these Rules, any practice directions and procedural orders; (g) considering whether the likely benefits of taking a step justify the cost of that step; (h) dealing with as many aspects of the case as possible on the same occasion; (i) minimising the need for parties and their lawyers to attend court by, if appropriate, relying on documents; and (j) having regard to any barriers to a party’s understanding of anything relevant to the case.
To achieve the main purpose, the court applies these Rules in a way that: (a) deals with each case fairly, justly and in a timely manner; (b) encourages parties to negotiate a settlement, if appropriate; (c) is proportionate to the issues in a case and their complexity, and the likely costs of the case; (d) promotes the saving of costs; (e) gives an appropriate share of the court’s resources to a case, taking into account the needs of other cases; and (f) promotes family relationships after resolution of the dispute, where possible.
(1) Each party has a responsibility to promote and achieve the main purpose, including: (a) ensuring that any orders sought are reasonable in the circumstances of the case and that the court has the power to make those orders; (b) complying with the duty of disclosure (see rule 13.01); (c) ensuring readiness for court events; (d) providing realistic estimates of the length of hearings or trials; (e) complying with time limits; (f) giving notice, as soon as practicable, of an intention to apply for an adjournment or cancellation of a court event; (g) assisting the just, timely and cost‑effective disposal of cases; (h) identifying the issues genuinely in dispute in a case; (i) being satisfied that there is a reasonable basis for alleging, denying or not admitting a fact; (j) limiting evidence, including cross‑examination, to that which is relevant and necessary; (k) being aware of, and abiding by, the requirements of any practice direction or guideline published by the court; and (l) complying with these Rules and any orders. (2) A lawyer for a party has a responsibility to comply, as far as possible, with subrule (1).
Note: The court recognises that a lawyer acts on a party’s instructions and may be unable to establish whether those instructions are correct.
(3) A lawyer attending a court event for a party must: (a) be familiar with the case; and (b) be authorised to deal with any issue likely to arise.
Note: The court may take into account a failure to comply with this rule when considering costs (see subrule 19.10(1) and subclause 6.10(1) of Schedule 6).
If the court is satisfied that: (a) a legislative provision does not provide a practice or procedure; or (b) a difficulty arises, or doubt exists, in relation to a matter of practice or procedure; it may make such orders as it considers necessary.
(1) Unless a legislative provision states otherwise, the court may make an order, on application or on its own initiative, in relation to any matter mentioned in these Rules. (2) When making an order, the court may: (a) impose terms and conditions; (b) make a consequential order; (c) specify the consequence of failure to comply with the order; and (d) take into account whether a party has complied with a pre‑action procedure.
The court may set aside or vary an order made in the exercise of a power under these Rules.
(1) These Rules apply unless the court, on application or its own initiative, orders otherwise. (2) The court may dispense with compliance with any of these Rules at any time, before or after the occasion for compliance arises. (3) In considering whether to make an order under this rule, the court may consider: (a) the main purpose of these Rules (see rule 1.04); (b) the administration of justice; (c) whether the application has been promptly made; (d) whether non‑compliance was intentional; and (e) the effect that granting relief would have on each party and parties to other cases in the court.
Unless a legislative provision states otherwise, if: (a) these Rules provide that an application or appeal is to be heard by a particular judicial officer or particular class of judicial officer; and (b) such a person is unavailable; the application or appeal may be listed before another judicial officer who has jurisdiction to hear the application or appeal.
(1) A party may apply to the court to shorten or extend a time that is fixed under these Rules or by a procedural order. (2) A party may make an application under subrule (1) for an order extending a time to be made even though the time fixed by the rule or order has passed. (3) A party who makes an application under subrule (1) for an extension of time may be ordered to pay any other party’s costs in relation to the application.
If a rule or order requires a person to take an action but does not specify a time by which the action is to be taken, the person must take the action as soon as practicable.
(1) The dictionary at the end of these Rules defines and explains certain words and expressions. (2) Within a definition, the defined term is identified by bold italics. (3) The dictionary is part of these Rules. (4) A definition of a word or expression in the dictionary applies to each use of the word or expression in these Rules, unless the context does not permit.
(1) The following are explanatory only and are not part of these Rules: (a) chapter summaries; (b) examples; (c) flow charts; (d) notes. (2) The explanatory guide at the end of these Rules is not part of these Rules and is not to be used in interpreting these Rules.
Note 1: See section 13 and paragraph 15AB(2)(a) of the Acts Interpretation Act 1901.
Note 2: In interpreting these Rules:
Note: Specific prevails over the general
Note: In these Rules, if there is a conflict between a general rule and a specific rule, the specific rule prevails.
Note: Use of ‘and’ and ‘or’ between paragraphs etc
Note: A series of paragraphs may be joined by the word and or or, which will appear between the last 2 paragraphs only. The series is to be read as if the same word appears between each paragraph in the series—for example:
Note: (1) This is:
(a) a paragraph;
(b) another paragraph; and
(c) yet another paragraph.
Note: and
Note: (2) This is:
(a) a paragraph;
(b) another paragraph; or
(c) yet another paragraph.
Note: If the paragraphs are to be read as a list, the words and or or are not used—for example:
Note: (3) A provision may include the following:
(a) a paragraph;
(b) another paragraph;
(c) yet another paragraph.
The Family Court of Australia must sit at the times and places the Chief Justice directs.
(1) A person must not photograph or record by electronic or mechanical means: (a) a hearing or part of a hearing: (b) a trial or part of a trial; (c) a conference under the Act, these Rules or an order of a court; (d) an attendance with a family consultant; (e) an attendance with a single expert under these Rules; (f) a conference of experts ordered by a court; or (g) a person who is in court premises.
Note: Section 121 of the Act restricts publication of information relating to cases.
(2) Subrule (1) does not apply to a photograph or recording made at the request of: (a) a court; (b) in relation to an attendance with a family consultant—the family consultant; (c) in relation to an attendance with an expert witness—the expert; or (d) in relation to a conference of experts—the experts. (3) A person commits an offence if the person contravenes subrule (1).
Penalty: 50 penalty units.
(1) A list of cases to be heard in the court prepared by a Registry Manager may be: (a) published in the law list in a newspaper; and (b) made available to members of the legal profession and their employees.
Note: See subsection 121(2) of the Act.
(2) The list may contain: (a) subject to subrule (3), the family name of a party, but not a given name; (b) the file number of a case; (c) the name of the judicial officer for a hearing or trial; (d) the time and place where a named judicial officer will sit; and (e) the general nature of an application. (3) For a case in which a court has jurisdiction in bankruptcy under section 35 or 35B of the Bankruptcy Act, the list may contain the given name of a party.
(1) Time in a case runs during a period when the filing registry is closed. (2) If: (a) the period allowed by these Rules or an order for an action to be validly taken is 5 days or less; and (b) the period includes a day when the filing registry is closed; that day is not counted. (3) For the calculation of time of one day or more from a particular day, or from the occurrence of a particular event, the particular day, or the day when the event occurs, is not counted. (4) If the last day for taking an action requiring attendance at a filing registry is on a day when the filing registry is closed, the action may be taken on the next day when the filing registry is open. (5) Subsection 36(2) of the Acts Interpretation Act 1901 does not apply to these Rules.
The seal of the Court may be attached to a document: (a) by hand; or (b) by electronic means; or (c) in any other way.
Chapter 2—Starting a case
Note: Summary of Chapter 2
Note: Chapter 2 sets out rules about:
Note: the form of application you must file to start a case in a court, respond to an application or seek orders in the course of a case;
Note: the documents you must file with an application or response; and
Note: the brochures that must be served in a case.
Note: Before starting a case, you must comply with the court’s pre‑action procedures (see subrule 1.05(1) and Schedule 1).
Note: The rules in Chapter 1 relating to the court’s general powers apply in all cases and override all other provisions in these Rules.
Note: A word or expression used in this Chapter may be de
This is an opening excerpt, not the complete document.