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Information Session Family Court of Western Australia Property Proceedings.

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Presentation on theme: "Information Session Family Court of Western Australia Property Proceedings."— Presentation transcript:

1 Information Session Family Court of Western Australia Property Proceedings

2 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

3 Family Court of Western AustraliaProperty Proceedings 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

4 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

5 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.

6 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

7 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.

8 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.

9 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.

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

11 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

12 Family Court of Western AustraliaProperty Proceedings Mediation Services Relationships Australia 15 Cambridge Street, West Leederville Phone: Centrecare 12 Brewer Place, Mirrabooka Phone: Anglicare 23 Adelaide Terrace, East Perth Phone:

13 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

14 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

15 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

16 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

17 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

18 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

19 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 ApplicantRespondent

20 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 ApplicantRespondent

21 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

22 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

23 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

24 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

25 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

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

27 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

28 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

29 Family Court of Western AustraliaProperty Proceedings Court Documents Forms and Kits are available at registry and on website Link: > Kits - Forms - Brochures> 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

30 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

31 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

32 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

33 Family Court of Western AustraliaProperty Proceedings Principles of Law No presumption of a 50/50 split 4 Step process 1. Identify and value the assets and liabilities of the parties 2. Division of property based on contributions 3. Further adjustment based on various factors 4. Ensure orders are “just and equitable”

34 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

35 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

36 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

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

38 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

39 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 – Legal Aid – Community Legal Centres Association – ; Legal Fees Scale fees - $396 per hour unless otherwise agreed Costs agreement

40 Family Court of Western AustraliaProperty Proceedings Additional Information Family Court of Western Australia Law Council of Australia, Family Law Section My family is separating — what now? familyseparation.humanservices.gov.au

41 Family Court of Western AustraliaProperty Proceedings End of Session Please remember to collect your attendance certificate


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