22 Apr 2014

Family Court of Western Australia

 

Western Australia is unique amongst Australian states in being the only state with its own Family Court.  Family law matters in all other states are dealt with by two federal Courts – the Family Court of Australia and the Federal Magistrates Court.  The Family Court of Western Australia is an integrated court, in that it combines the functions of a Superior court and a lower Court.  Officially, the WA Family Court is two courts in one – the Family Court itself (constituted by its Judges) and a Magistrates Court (constituted by Family Law Magistrates). The WA Family Court is governed by:

  • Family Court Act 1997 (Western Australia);
  • Family Legislation Amendment Act 2006 (Western Australia);
  • Family Law Rules 2004 (Family Court of WA has not adopted the 2009 amendments to the Commonwealth rules);
  • Family Law Rules 2004 (Commonwealth);

The FCWA also administers the Adoption Act 1994 (WA) and the Surrogacy Act 2008 (WA).

 

Why are things different in WA?

 

The family law situation in Western Australia (WA), is different to every other state and territory in Australia because WA has not yet referred family law powers to the Commonwealth.  In WA family law proceedings are held under one of two pieces of legislation:

  • Family Law Act 1975 (Commonwealth) – which covers those married people who want to divorce and make arrangements for children, property and spousal maintenance;
  • Family Court Act 1997 (Western Australia) – which covers arrangement for children of unmarried people (called ex-nuptial children).  In 2002, the Family Court Act was amended to incorporate de facto relationships and their property matters.

In all other Australian states and territories the Family Law Act 1975 covers all matters involving property and children’s issues, whether couples are married or not.

 

 

What are the practical differences for separating couples in WA?

 

In WA the Family Law Act 1975 covers those married people who want to divorce and make arrangements for children, property and spousal maintenance.  The Family Court Act 1997, which is state based legislation, covers de facto situations.

 

The major material difference that will have a practical effect on WA couples is that there is currently no means by which de facto couples seeking property settlement in the FCWA can obtain superannuation splitting orders.  Married couples can obtain superannuation splitting orders under the Family Law Act (Cth).  This means that a superannuation fund in de facto situation will be taken into consideration as a financial resource that a party will have access to in the future, but the superannuation itself cannot be split between the parties.

 

This is general information only, and does not constitute specific legal advice. If you would like further information in relation to this matter or other legal matters please contact our office at reception@hhg.com.au or call us on 1800 609 945.

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