Which court?

Over 80% of all family law matters commence in the Federal Circuit Court as a result of the protocol agreement which limits the Family Court to exercising its jurisdiction to complex factual matters. In Western Australia, all applications are made to the Family Court of Western Australia (WA).

It should be noted that there is currently before Parliament a Bill to merge the Family Court and Federal Circuit Court of Australia together to create a single unified court for family law matters in all states and territories except Western Australia. At the time of writing it was not clear if this Bill would pass but practitioners should be mindful as if passed it will significantly change the practice and procedure of family law matters at the Commonwealth level.

It should be noted that the Family Court and the Federal Circuit Court have different rules but often use the same documents. Therefore court procedures will differ between the two courts. The process in the Family Court of WA more closely mirrors that of the Family Court of Australia and, by and large, most of the Family Law Rules 2004 (Cth) are adopted for use in WA with some minor differences.

To see the court procedure, see the Family Court of WA website.

Subpoenas

Invariably a practitioner preparing for a hearing will require subpoenas to be issued, either to ensure the attendance at court of a witness, to seek the production of documents or both.

The Family Court, the Federal Circuit Court and Family Court of WA have different rules in respect of the issue of subpoenas and care must be taken to comply with the relevant rules. In WA there are also relevant Case Management Guidelines and Practice Directions which guide practice. See Subpoenas.

Experts

Expert evidence is often required in proceedings in which property and financial orders are sought. In some circumstances, parties will engage their own experts but more commonly a “single expert” will be appointed by the court to provide a report on the issue requiring determination.

Particular rules apply to the appointment of experts, communication with those experts, the form of reports to be provided by those experts and meeting the costs of those experts. The Family Court, the Federal Circuit Court and Family Court of WA have different rules in respect of expert reports and care must be taken to comply with the relevant rules. In WA there are also relevant Case Management Guidelines and Practice Directions which guide practice. See Appointing an expert witness.

Third parties

Parties who are not parties to the marriage or de facto relationship may either be joined by a party or may intervene in their own right in property settlement cases where they have an interest in the outcome of the proceedings. Typically a creditor or trustee in bankruptcy will be joined in an effort to secure repayment of debts to creditors. The court may make orders in their favour or equally, may restrain them from acting against a party.