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Family Court of Western Australia. Information Session. Property Proceedings. What will be covered…. Settling outside of court Pre-action procedures The Court process, structure and events The Law. The Court. Definitions A party – a person involved in the court process

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Information Session


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    1. Family Court of Western Australia Information Session Property Proceedings

    2. What will be covered… • Settling outside of court • Pre-action procedures • The Court process, structure and events • The Law Family Court of Western Australia

    3. The Court Definitions A party – a person involved in the court process Applicant – person who files the application Respondent – person who receives the application An Order – a decision of the Court which is binding Court Structure Magistrates Court – urgent matters, application’s for interim orders, child support cases, some trials Family Court – complex matters and lengthy matters Family Court of Western Australia

    4. Jurisdiction All marriage and some de facto relationships. What is a de facto relationship? The Court will determine if it is a de facto relationship taking into account these factors: • length • Common residence • sexual relationship • financial dependence or interdependence • the ownership, use and acquisition of property • mutual commitment • Children • Reputation and public aspects of the relationship Family Court of Western Australia

    5. De facto relationships The court can only make an order if: • The de facto relationship lasted at least 2 years; or • There is a child of the de facto relationship who is under 18 and failure to make order would result in serious injustice; or • The applicant made substantial contributions and failure to make order would result in serious injustice. Family Court of Western Australia

    6. De facto relationships (cont) You can only bring an application if: • One or both parties to the application resident in WA on day application made; and • Both parties lived in WA for at least ⅓ of the duration of their de facto relationship; or • The applicant made substantial contributions in WA Family Court of Western Australia

    7. Before commencing proceedings in the Court, you must first comply with the Court’s pre-action procedures. You may be exempt from complying with the pre-action procedures in certain circumstances. Pre-action procedures Family Court of Western Australia

    8. The pre-action procedures in property proceedings are: Pre-action procedures • Participating in some sort of dispute resolution. • If dispute resolution is unsuccessful, writing a letter to the other party/ies, setting out your claim and exploring options for settlement. • Complying with the duty of disclosure. Family Court of Western Australia

    9. Settling outside of court It is usually better if parties can resolve their dispute without having to go through expensive and lengthy court proceedings. There are a number of options available to parties to assist them to settle outside of court. Family Court of Western Australia

    10. Settling outside of court These include: • Negotiation • Mediation through Centrecare or Relationships Australia • Legal Aid’s Alternative Dispute Resolution program • Arbitration Family Court of Western Australia

    11. Reaching an agreement out of Court • Mediation – confidential, voluntary, up to 3 hours free • Arbitration – qualified family law arbitrator helps you reach agreement or makes decision for you, both parties must agree about what issues are to be resolved • Alternative Dispute Resolution – Legal Aid offered service Family Court of Western Australia

    12. Mediation Services • Relationships Australia • 15 Cambridge Street, West Leederville • Phone: 9489 6363 • Centrecare • 12 Brewer Place, Mirrabooka • Phone: 9440 0400 • Anglicare • 23 Adelaide Terrace, East Perth • Phone: 9325 7033 Family Court of Western Australia

    13. Reaching an agreement • Consent Orders – Form 11 Application for Consent Orders. Both parties reach an agreement and file that agreement in Court • Binding Financial Agreement – both parties need specific independent legal advice for the agreement to be binding. • Do nothing Family Court of Western Australia

    14. Advantages • If you reach agreement out of Court, consider whether to make that agreement into Court orders or a Binding Financial Agreement. • Limited circumstances in which orders can be set aside • Nominal stamp duty only on property transferred according to Court orders or Binding Financial Agreement • Capital Gains Tax rollover relief • www.ato.gov.au Family Court of Western Australia

    15. Pre-action procedures Before you file an application to commence proceedings in Court you must fulfil the court’s pre-action procedures: • Dispute resolution • Offer of settlement • Duty of disclosure • Exemptions Family Court of Western Australia

    16. Time limitations Married couples • 1 year from the date your Divorce Order takes effect De facto relationship • 2 years from the date of separation if you were in a de facto relationship Family Court of Western Australia

    17. Process • File documents at Registry • Court process: Family Court of Western Australia

    18. Two main types of applications: Application for Final Orders; and Application for Interim Orders To commence proceedings, one party files a Form 1 Application for Final Orders To apply for interim orders, one party files a Form 2 Application in a Case Applications Family Court of Western Australia

    19. Final Orders – to finalise financial matters between the parties Form 1 Application Form 13 Financial Statement Form 1A Response Form 13 Financial Statement Applicant Respondent Applications (cont) Family Court of Western Australia

    20. Applicant Respondent Applications (cont) Interim Orders – temporary orders made whilst awaiting final orders • Form 2 Application in a Case • Affidavit • Form 2A Response • Affidavit Family Court of Western Australia

    21. Court events Family Court of Western Australia

    22. Court events (cont) Procedural hearing • First court event • Conducted by a judicial officer • Parties attend with their lawyer • Purpose: • Ensure compliance with duty of disclosure • Issues in dispute appropriately defined • Parties in a position to negotiate • Assign to appropriate “track” • Orders made Family Court of Western Australia

    23. Court events (cont) Conciliation conference • Conducted by a Registrar • Approx. 11 weeks after procedural hearing • Purpose: • Parties negotiate and attempt to reach agreement • Parties attend with their lawyer • Orders made Family Court of Western Australia

    24. Court events (cont) Readiness Hearing • Conducted by a Registrar • Approx. 18 months after conciliation conference • 2 months notice • Purpose: • Determine whether matter is ready for trial • Ensure parties ready for trial • Callover • Parties attend with their lawyer • Orders made Family Court of Western Australia

    25. Court events (cont) Callover • Conducted by a Judge • Approx. 3 months after Readiness Hearing • Lawyer attends • Purpose: • Determine expected hearing time of case • Assign case to judicial officer • Allocate trial date Family Court of Western Australia

    26. Court events (cont) • Trial • Before a Judge or a Magistrate • Final Orders made • Judgment given Family Court of Western Australia

    27. Court events (cont) Application for Interim Orders • Hearing before a Magistrate • Not a trial • No additional evidence given • No opportunity to cross examine Family Court of Western Australia

    28. Affidavits • Must have permission from the Court to file • A person under 18 cannot give evidence by affidavit without permission from the Court. • Typed statements containing evidence upon which you intend to rely • Contain facts, not legal arguments or opinions • Must be sworn or affirmed by authorised witnesses only • Eg: Justice of the Peace • Can be made by you or your witnesses • To get permission: file a copy of the unsworn affidavit and a letter explaining why it should be filed, with the Registry Family Court of Western Australia

    29. Court Documents • Forms and Kits • are available at registry and on website • Link: > Kits - Forms - Brochures • Kits: • Family Dispute Resolution - Exemption Kit and Form • Consent Orders Kit • Property Orders Kit • Financial Statement Kit - (includes Form 13) • Service of Documents Kit - (includes Forms 6 and 7) • Superannuation Kit Family Court of Western Australia

    30. The Court room • Applicant - right • Respondent – left • Mobile phones off • Court etiquette • Judge or Magistrate – Your Honour, Sir or Ma’am Family Court of Western Australia

    31. Court Fees • Divorce Application (Form 3) $492 • Application for Final Orders (Form 1) $232 • Response (Form 1A ) $232 • Application for Consent Orders $ 80 • Fixing of a trial date $466 If you don’t think you can afford to pay these fees you can apply to have them waived - Ask at the Registry Consent Order fees can not be waived Family Court of Western Australia

    32. The law • Legislation • Family Law Act 1975 (Cth) - married • Family Court Act 1997 (WA) – de facto • Jurisdiction • All marriages • Some de facto relationships Family Court of Western Australia

    33. Principles of Law • No presumption of a 50/50 split • 4 Step process • Identify and value the assets and liabilities of the parties • Division of property based on contributions • Further adjustment based on various factors • Ensure orders are “just and equitable” Family Court of Western Australia

    34. Step 1 – Identify and Value Value the asset pool: • Asset pool = assets - liabilities • Identify and value property, for example • Real estate • Motor vehicles • Insurance • Shares • Savings • Superannuation • Then subtract any liabilities Family Court of Western Australia

    35. Step 2 - Assess Contributions • Financial Contributions • Property brought to relationship • Wages • Inheritance • Gifts • Non-Financial Contributions • Renovations, Gardening • Working in a family business • Contributions to welfare of family • Role as a homemaker and parent Family Court of Western Australia

    36. Step 3 - Further Adjustment Judge or Magistrate takes into account: • Future income earning capacity/qualifications • Age and state of health • Caring for children • Responsibilities to support others • Financial resources such as a trust fund • Duration of the marriage • Pension / superannuation eligibility • Child support Family Court of Western Australia

    37. Step 4 – Just and Equitable • Final step – the court must ensure that the overall orders are fair Family Court of Western Australia

    38. Superannuation • A financial resource under Step 3 if parties were in a de facto relationship • An asset if parties are married – Step 1 • Superannuation splitting order: • Limited to certain types of funds • Limited to amounts over $5,000 • Only available if parties were married • Many different options • See the Superannuation Information Kit for more information Family Court of Western Australia

    39. Legal Advice • The Court recommends that every party seeks legal advice from a lawyer with family law experience • Law Society of WA – list of Family Law Specialists – 9322 4911 • Legal Aid – 1300 650 579 • Community Legal Centres Association – 9221 9322 ; www.communitylaw.net Legal Fees • Scale fees - $396 per hour unless otherwise agreed • Costs agreement Family Court of Western Australia

    40. Additional Information • Family Court of Western Australia www.familycourt.wa.gov.au • Law Council of Australia, Family Law Section www.familylawsection.org.au • My family is separating — what now? familyseparation.humanservices.gov.au Family Court of Western Australia

    41. End of Session Please remember to collect your attendance certificate Family Court of Western Australia