Lexi Webster
The Family Court of Western Australia is a state court that handles divorce settlements, child custody, adoption, surrogacy, and marital property settlements. The court deals with both married and unmarried couples, including de facto relationships, under federal and state legislation, respectively. While divorce does not resolve issues related to property or children, the court considers spousal maintenance on a case-by-case basis. Western Australia is the only Australian state with its own Family Court, and its primary interests in divorce cases are ensuring children's safety and fostering meaningful relationships with both parents.
| Characteristics | Values |
|---|---|
| Location | 150 Terrace Road, Perth, Western Australia |
| Country circuits | Albany, Broome, Bunbury, Geraldton, and Kalgoorlie |
| Court funding | Commonwealth Government |
| Court cases | Divorce, child custody, adoption, surrogacy, and marital property settlements |
| Court proceedings for married people | Family Law Act 1975 (Commonwealth) |
| Court proceedings for unmarried people | Family Court Act 1997 (Western Australia) |
| Divorce criteria | Separation for 12 months or more, no likelihood of reconciliation |
| Divorce requirements | Residency requirements, arrangements for children under 18 |
| Divorce fees | Filing fee for divorce applications |
| De facto couples' rights | Same property settlement rights as married couples |
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What You'll Learn
Child custody and care arrangements
The Family Court of Western Australia handles divorce settlements, including child custody and care arrangements. Child custody disputes can be emotionally draining and legally complex, but understanding Western Australia's laws can help you make informed decisions.
The first step is to file an application with the Family Court of Western Australia for parenting orders. This outlines the type of custody arrangement you seek. Before taking matters to court, it is often advisable to resolve disputes through mediation. If an agreement cannot be reached through mediation, the case proceeds to trial, where the judge will make a decision based on the child's best interests.
In Western Australia, the Family Law Act 1975 (Cth) and the Family Court Act 1997 (WA) primarily govern child custody laws. The primary focus is always on the child's best interests, which the court evaluates based on various factors such as the child's relationship with both parents, the child's views, and the impact of any changes in their circumstances. The court considers it essential for children to have a meaningful relationship with both parents and be protected from neglect, abuse, or harm. If these two factors come into competition, the court will favour protecting the child from harm.
The court may order shared care (equal time) if it decides this is in the child's best interests. However, the court is no longer required to consider making an order for shared care or substantial and significant time. Parents can also agree to arrange a single-expert-witness report without a court order. For both types of reports, the expert interviews the parents, the child, and other relevant people (children are never forced to share their opinions). This process can take several months and may involve a social worker, psychologist, or psychiatrist.
You can request an urgent hearing if your child faces imminent risk. The judicial officer will ask questions about your affidavit and make decisions that cannot wait. This hearing typically happens within days or weeks of lodging your application. A first hearing is for assessing the information the court needs and addressing short-term issues. It usually takes place about six weeks after opening a case and lasts around 20 minutes.
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Property and financial settlements
The Family Court of Western Australia is a state court that deals with family law. It handles cases on divorce, child custody, adoption, surrogacy, and marital property settlements.
Divorce is the formal legal ending of a marriage. It is separate from property settlement and parenting arrangements. A divorce does not sort out issues relating to property or children, and separate arrangements must be made.
If you wish to seek property or financial orders, you need to apply within 12 months of the date of your divorce order. After 12 months, you will need the Court’s permission to apply.
In Western Australia, de facto couples have the same property settlement rights as married couples. It is possible to settle property matters without court involvement, but a formal agreement is recommended. Options for formalising agreements include Orders by Consent approved by the Court, Binding Financial Agreements (BFAs), or, if negotiation fails, contested Court proceedings.
The Family Court considers factors like financial resources, earning capacity, and personal circumstances when deciding on spousal maintenance. It is not automatic and varies from case to case.
The Family Court of Western Australia offers a streamlined process for obtaining a divorce, and applications can be made online via the Western Australia “eCourts” Portal. However, if there are complex issues or disputes related to property division, it may be necessary to attend Court to resolve those matters.
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Spousal maintenance
The Family Court of Western Australia handles divorce settlements, including spousal maintenance. Spousal maintenance is the ongoing financial support paid by one spouse to another after a divorce or separation. It is designed to help the receiving spouse maintain a similar standard of living as they had during the marriage. The right to spousal maintenance is not automatic and varies from case to case.
In Australia, both married couples and de facto couples can potentially claim spousal maintenance. To be eligible for spousal maintenance, the receiving spouse must not be able to adequately support themselves due to factors such as:
- Responsibility for the care of a child under 18 years of age.
- Age or state of health preventing the ability to gain appropriate employment.
- The duration of the relationship and its impact on earning capacity.
The amount and duration of spousal maintenance payments depend on several factors, including the financial resources and earning capacity of both spouses, as well as their personal circumstances. Spousal maintenance may be paid periodically or as a lump sum. It is typically only payable for a limited period, until the receiving spouse can support themselves financially. However, in some circumstances, spousal maintenance may be ordered to be paid on a permanent basis.
In Western Australia, the Family Court considers factors such as financial resources, earning capacity, and personal circumstances when deciding on spousal maintenance. The court will also take into account whether there is a substantial difference in the incomes of the spouses at the date of separation. If the receiving spouse cannot meet their reasonable expenses from personal income or assets, the other spouse may be obligated to provide spousal maintenance.
It is recommended to try to reach an agreement with your spouse before commencing legal proceedings. If an agreement cannot be reached, an application for spousal maintenance orders can be filed with the Federal Circuit and Family Court of Australia. For married couples, the application must be made within 12 months of the divorce. For de facto couples, the application must be made within two years of the final separation.
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Residency requirements
To apply for a divorce in Australia, either you or your spouse must meet the residency requirements. This means that at least one person in the marriage must be an Australian citizen or currently reside in Australia.
If you were born in Australia or have become an Australian citizen by descent (born outside Australia but with at least one parent who was an Australian citizen, and your birth is registered in Australia), you are eligible to apply for a divorce in Australia. Similarly, if you are a citizen by grant of Australian citizenship, you will need to provide a citizenship certificate.
If you are not an Australian citizen, you must be lawfully present in the country and intend to continue living in Australia. To prove this, you must have been living in Australia for at least the last 12 months, and you will need to provide evidence, such as a passport showing the date of arrival at least one year prior and a valid or current visa.
If you are currently living overseas but meet the above criteria, you must provide an address for service in Australia.
It is important to note that divorce is separate from property settlement and parenting arrangements. You do not need to get a divorce when you separate unless you want to remarry, but staying married may affect your legal obligations. If you wish to apply for property or financial orders, you must do so within 12 months of the date of your divorce order. After this period, you will need the Court's permission to apply.
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Application process
The Family Court of Western Australia handles divorce settlements. It is a state court that deals with family law and was established in 1976 under the Family Court Act of 1975.
The application process for divorce settlements in the Family Court of Western Australia is as follows:
- Registration and Document Preparation: Begin by registering for the eCourts Portal. You will need to scan and save your marriage certificate and any other required documents on your computer. If you were married outside of Western Australia, you may need additional documents such as a certificate from Births, Deaths, and Marriages.
- Selecting the Appropriate Court: Choose the Family Court of Western Australia as your court location.
- Completing the Online Form: Fill out the online interactive form, which includes Parts A to G or Parts A to F, depending on the source. You can save your progress as you go, and help is provided throughout the process. Information required includes the date of separation and any relevant details regarding children under 18 and their care arrangements.
- Preview and Submission: Once you have completed the form, preview and check the contents for accuracy before locking and submitting the application.
- Serving the Application: If you are filing a sole application, you must arrange for your spouse to receive a copy of the application and the Marriage, Families, and Separation brochure. An Affidavit of Service must be completed and filed, and service must be corroborated with an additional affidavit.
- Response and Court Consideration: After your spouse has had the opportunity to respond, the court will consider your application. If it is a joint application, the court will begin considering it immediately after filing.
- Attending Court: Generally, attending court is not necessary for uncontested divorces without complex issues or disputes related to property division, child custody, or spousal support. However, if such disputes exist, you may need to attend court to resolve them.
- Property and Financial Orders: If you wish to apply for property or financial orders, you must do so within 12 months of the date of your divorce order. After this period, you will need the court's permission to apply.
It is important to note that divorce proceedings do not finalise arrangements regarding children, finances, or property. Separate applications must be made for these matters. Additionally, both parties to a marriage do not need to consent to the divorce, as Australia operates on a "no-fault" principle.
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Frequently asked questions
Going to court is generally not necessary if the divorce is uncontested and there are no underage children involved. The Family Court of Western Australia offers a streamlined process for obtaining a divorce, and applications can be made online via the Western Australia "eCourts" Portal. However, if there are complex issues or disputes related to property division, child custody, or spousal support, attending court may be necessary to resolve these matters.
Yes, the Family Court of Western Australia handles cases on divorce, child custody, adoption, surrogacy, and marital property settlements.
Applications for divorce should be e-filed online using the Commonwealth Courts Portal online form. You can prepare your own application or ask a lawyer to do it for you. You can apply for a divorce by yourself (a 'sole application') or together with your spouse (a 'joint application'). The same online application is used for both sole and joint applications.
If you have children under the age of 18, you will need to satisfy the court that proper arrangements have been made for their day-to-day care, maintenance, and other aspects of their upbringing. It is important to note that agreeing to a divorce does not mean that you agree with the current arrangements for your children as a continuing arrangement.
No, divorce does not sort out issues relating to property or children. Property and financial matters are separate from divorce proceedings and require separate applications. If you want to apply for property or financial orders, you need to do so within 12 months of the date of your divorce order. After 12 months, you will need the Court's permission to apply.
