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Lara Anstie, Simonetta Cavilli, Timothy Doukakis & Chantelle Lacroix

Family law is quite distinct from other areas of law in the way the law is written, the way the courts decide the cases, and the way the court processes work.

The fundamentals are the same:

  • Every litigant has the opportunity to be heard and present evidence;
  • The process is adversarial, and detecting the truth not necessarily the primary goal;
  • Like other civil claims, to accept a fact, the Court must be satisfied on the balance of probabilities, or to a higher standard if the allegation is serious;
  • Courts become involved in people’s lives when someone makes an application, and they do not actively “police” compliance with orders or the law;
  • The Evidence Act 1906 (WA) applies in the Family Court of Western Australia, as in all other Western Australian Courts; and
  • Courts are bound to follow previous decisions of higher courts to achieve consistency in the application of the law.

Major differences are:

  • The family law legislation (Family Law Act and Family Court Act) created a new regime in Australia starting in 1976, and has had substantial amendments every 7-10 years since, depending on the politics of the day and sometimes, social science;
  • Judges and Magistrates make decisions within the limits of a fairly broad discretion as provided in the legislation in both parenting and financial matters ie there is no formula or certain answer (versus a dichotomous “guilty or not guilty”);
  • In parenting matters, the rules of evidence are “relaxed” and the Judges and Magistrates are active in managing the cases;
  • In parenting cases, the Rules of Court prohibit litigants from relying on expert evidence without leave of the court, unless the expert is a treating practitioner or a Single Expert Witness;
  • Children must not give evidence (in court or by affidavit);[1]
  • Children must not be assessed or examined without leave of the court;[2] and
  • The Family Court of Western Australia shares information with police and child welfare authorities as a matter of course.[3]

As a consequence of the regular amendments to the legislation, the language used in family law, especially around parenting orders, may sound like plain English, but has specific meaning under the legislation, and in court orders.

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[1] Family Law Act 1975 (Cth) s 100B.

[2] Family Law Act 1975 (Cth) s 102A.

[3] By means of a Memorandum of Understanding, which is not a public document.

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