Transcript Applicant - Family Court of Western Australia

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
Property Proceedings
Family Court of Western Australia
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
Property Proceedings
Family Court of Western Australia
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
Property Proceedings
Family Court of Western Australia
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.

Property Proceedings
Family Court of Western Australia
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

Property Proceedings
Family Court of Western Australia
Pre-action procedures
Before commencing proceedings in the Court,
you must first comply with the Court’s preaction procedures.
You may be exempt from complying with the
pre-action procedures in certain
circumstances.
Property Proceedings
Family Court of Western Australia
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.
Property Proceedings
Family Court of Western Australia
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.
Property Proceedings
Family Court of Western Australia
Settling outside of court
These include:
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Negotiation
Mediation through Centrecare or
Relationships Australia
Legal Aid’s Alternative Dispute Resolution
program
Arbitration
Property Proceedings
Family Court of Western Australia
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
Property Proceedings
Family Court of Western Australia
Mediation Services
 Relationships Australia
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15 Cambridge Street, West Leederville
Phone: 9489 6363
 Centrecare
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12 Brewer Place, Mirrabooka
Phone: 9440 0400
 Anglicare
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23 Adelaide Terrace, East Perth
Phone: 9325 7033
Property Proceedings
Family Court of Western Australia
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
Property Proceedings
Family Court of Western Australia
Advantages
 If you reach agreement out of Court, consider
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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
Property Proceedings
Family Court of Western Australia
Pre-action procedures
Before you file an application to commence
proceedings in Court you must fulfil the
court’s pre-action procedures:
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Dispute resolution
Offer of settlement
Duty of disclosure
Exemptions
Property Proceedings
Family Court of Western Australia
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
Property Proceedings
Family Court of Western Australia
Process
 File documents at Registry
 Court process:
Application for Final Orders
Application for Interim Orders
Procedural Hearing
Hearing before a Magistrate
Conciliation Conference
Readiness Hearing
Trial
Property Proceedings
Family Court of Western Australia
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
Property Proceedings
Family Court of Western Australia
Applications (cont)
Final Orders – to finalise financial matters
between the parties
 Form 1 Application
Applicant
 Form 13 Financial Statement
 Form 1A Response
 Form 13 Financial Statement
Property Proceedings
Respondent
Family Court of Western Australia
Applications (cont)
Interim Orders – temporary orders made
whilst awaiting final orders
 Form 2 Application in a Case
 Affidavit
 Form 2A Response
 Affidavit
Property Proceedings
Applicant
Respondent
Family Court of Western Australia
Court events
Application for
Final Orders
Application for
Interim Orders
Procedural Hearing
Hearing before a
Magistrate
Conciliation
Conference
Readiness Hearing
Trial
Property Proceedings
Family Court of Western Australia
Court events (cont)
Procedural hearing
 First court event
 Conducted by a judicial officer
 Parties attend with their lawyer
 Purpose:
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Ensure compliance with duty of disclosure
Issues in dispute appropriately defined
Parties in a position to negotiate
Assign to appropriate “track”
 Orders made
Property Proceedings
Family Court of Western Australia
Court events (cont)
Conciliation conference
 Conducted by a Registrar
 Approx. 11 weeks after procedural hearing
 Purpose:
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Parties negotiate and attempt to reach agreement
 Parties attend with their lawyer
 Orders made
Property Proceedings
Family Court of Western Australia
Court events (cont)
Readiness Hearing
 Conducted by a Registrar
 Approx. 18 months after conciliation
conference
 2 months notice
 Purpose:
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Determine whether matter is ready for trial
Ensure parties ready for trial
Callover
 Parties attend with their lawyer
 Orders made
Property Proceedings
Family Court of Western Australia
Court events (cont)
Callover
 Conducted by a Judge
 Approx. 3 months after Readiness Hearing
 Lawyer attends
 Purpose:
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Determine expected hearing time of case
Assign case to judicial officer
Allocate trial date
Property Proceedings
Family Court of Western Australia
Court events (cont)
 Trial
 Before a Judge or a Magistrate
 Final Orders made
 Judgment given
Property Proceedings
Family Court of Western Australia
Court events (cont)
Application for Interim Orders
 Hearing before a Magistrate
 Not a trial
 No additional evidence given
 No opportunity to cross examine
Property Proceedings
Family Court of Western Australia
Affidavits
 Must have permission from the Court to file
 A person under 18 cannot give evidence by affidavit
without permission from the Court.
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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
Property Proceedings
Family Court of Western Australia
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
Property Proceedings
Family Court of Western Australia
The Court room
 Applicant - right
 Respondent – left
 Mobile phones off
 Court etiquette
 Judge or Magistrate – Your Honour, Sir or
Ma’am
Property Proceedings
Family Court of Western Australia
Court Fees
 Divorce Application (Form 3)
$492
 Application for Final Orders
(Form 1)
 Response (Form 1A )
 Application for Consent Orders
 Fixing of a trial date
$232
$232
$ 80
$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
Property Proceedings
Family Court of Western Australia
The law
 Legislation
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Family Law Act 1975 (Cth) - married
Family Court Act 1997 (WA) – de facto
 Jurisdiction
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All marriages
Some de facto relationships
Property Proceedings
Family Court of Western Australia
Principles of Law
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No presumption of a 50/50 split
 4 Step process
1.
2.
3.
4.
Property Proceedings
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
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
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Property Proceedings
Family Court of Western Australia
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
Property Proceedings
Family Court of Western Australia
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
Property Proceedings
Family Court of Western Australia
Step 4 – Just and Equitable
 Final step – the court must ensure that the
overall orders are fair
Property Proceedings
Family Court of Western Australia
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:
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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
Property Proceedings
Family Court of Western Australia
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
Property Proceedings
Family Court of Western Australia
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
Property Proceedings
Family Court of Western Australia
End of Session
Please remember to collect your
attendance certificate
Property Proceedings
Family Court of Western Australia