information session family court of western australia property proceedings

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


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


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


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.


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


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.



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.


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.


Settling outside of court

These include: Negotiation Mediation through Centrecare or

Relationships Australia Legal Aid’s Alternative Dispute Resolution p

rogram Arbitration


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


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


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


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



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


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


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


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


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


Applications (cont)

Interim Orders – temporary orders made whilst awaiting final orders

Form 2 Application in a Case Affidavit

Form 2A Response Affidavit

Applicant

Respondent


Court events

Application for

Final Orders

Procedural Hearing

Conciliation

Conference

Readiness Hearing

Trial

Application for

Interim Orders

Hearing before a

Magistrate


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


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


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


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


Court events (cont)

Trial Before a Judge or a Magistrate Final Orders made Judgment given


Court events (cont)

Application for Interim Orders

Hearing before a Magistrate Not a trial No additional evidence given No opportunity to cross examine


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


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


The Court room

Applicant - right Respondent – left Mobile phones off Court etiquette

Judge or Magistrate – Your Honour, Sir or Ma’am


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


The law

Legislation Family Law Act 1975 (Cth) - married Family Court Act 1997 (WA) – de facto

Jurisdiction All marriages Some de facto relationships


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”


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


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


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


Step 4 – Just and Equitable

Final step – the court must ensure that the overall orders are fair


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


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


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


End of Session

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