information session family court of western australia property proceedings
TRANSCRIPT
Information Session
Family Court of Western Australia
Property Proceedings
Family Court of Western AustraliaProperty Proceedings
What will be covered…
Settling outside of court Pre-action procedures The Court process, structure and events The Law
Family Court of Western AustraliaProperty Proceedings
The Court
DefinitionsA 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 StructureMagistrates Court – urgent matters, application’s for
interim orders, child support cases, some trials
Family Court – complex matters and lengthy matters
Family Court of Western AustraliaProperty Proceedings
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 AustraliaProperty Proceedings
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 AustraliaProperty Proceedings
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 AustraliaProperty Proceedings
Pre-action procedures
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.
Family Court of Western AustraliaProperty Proceedings
Pre-action procedures
The pre-action procedures in property proceedings are: 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 AustraliaProperty Proceedings
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 AustraliaProperty Proceedings
Settling outside of court
These include: Negotiation Mediation through Centrecare or
Relationships Australia Legal Aid’s Alternative Dispute Resolution p
rogram Arbitration
Family Court of Western AustraliaProperty Proceedings
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 AustraliaProperty Proceedings
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 AustraliaProperty Proceedings
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 AustraliaProperty Proceedings
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 AustraliaProperty Proceedings
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 AustraliaProperty Proceedings
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 AustraliaProperty Proceedings
Process
File documents at Registry
Court process:
Application for Final Orders
Procedural Hearing
Conciliation Conference
Readiness Hearing
Trial
Application for Interim Orders
Hearing before a Magistrate
Family Court of Western AustraliaProperty Proceedings
Applications
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
Family Court of Western AustraliaProperty Proceedings
Applications (cont)
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
Family Court of Western AustraliaProperty Proceedings
Applications (cont)
Interim Orders – temporary orders made whilst awaiting final orders
Form 2 Application in a Case Affidavit
Form 2A Response Affidavit
Applicant
Respondent
Family Court of Western AustraliaProperty Proceedings
Court events
Application for
Final Orders
Procedural Hearing
Conciliation
Conference
Readiness Hearing
Trial
Application for
Interim Orders
Hearing before a
Magistrate
Family Court of Western AustraliaProperty Proceedings
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 AustraliaProperty Proceedings
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 AustraliaProperty Proceedings
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 AustraliaProperty Proceedings
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 AustraliaProperty Proceedings
Court events (cont)
Trial Before a Judge or a Magistrate Final Orders made Judgment given
Family Court of Western AustraliaProperty Proceedings
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 AustraliaProperty Proceedings
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 AustraliaProperty Proceedings
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 AustraliaProperty Proceedings
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 AustraliaProperty Proceedings
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 AustraliaProperty Proceedings
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 AustraliaProperty Proceedings
Principles of Law
No presumption of a 50/50 split
4 Step process1. Identify and value the assets and
liabilities of the parties2. Division of property based on
contributions3. Further adjustment based on various
factors 4. Ensure orders are “just and equitable”
Family Court of Western AustraliaProperty Proceedings
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 AustraliaProperty Proceedings
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 AustraliaProperty Proceedings
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 AustraliaProperty Proceedings
Step 4 – Just and Equitable
Final step – the court must ensure that the overall orders are fair
Family Court of Western AustraliaProperty Proceedings
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 AustraliaProperty Proceedings
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 AustraliaProperty Proceedings
Additional Information
Family Court of Western Australia www.familycourt.wa.gov.au
Law Council of Australia, Family Law Sectionwww.familylawsection.org.au
My family is separating — what now? familyseparation.humanservices.gov.au
Family Court of Western AustraliaProperty Proceedings
End of Session
Please remember to collect your
attendance certificate