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1 Information Forum A I M S §To provide you with an understanding of the Court process §To inform you of the principles of law in relation to property.

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Presentation on theme: "1 Information Forum A I M S §To provide you with an understanding of the Court process §To inform you of the principles of law in relation to property."— Presentation transcript:

1 1 Information Forum A I M S §To provide you with an understanding of the Court process §To inform you of the principles of law in relation to property settlement §To provide you with alternatives to going to Court  Please note:  Length of forum – approx. 1 hour  Presenting organisations:  Family Court representative  Please:  Turn off mobile phones  Take attendance certificate at  session closure  Take information handouts

2 2 HOW DO I NEGOTIATE? §Make a list of all the issues §Prioritise the issues – which ones are the most important, which ones can you give and take on and which ones can you accept. §Get as much relevant information as you can such as l Bank statements l Tax returns l Receipts l Valuation certificates §Stick to the issues §Consider other’s opinion §Consider other possibilities §Make a business decision §Content of the agreement

3 3 LEGAL DECISION §COURT MAKES THE DECISION §ADVERSARIAL / COMPETITIVE §LAWYERS REPRESENT YOUR INTERESTS §COMPLEX PROCESS §EMOTIONALLY DIFFICULT §LESS CONTROL OVER OUTCOME §LENGTHY AND EXPENSIVE NEGOTIATED SOLUTION §YOU MAKE THE DECISIONS §CONCILIATORY/COOPERATIVE §NEED TO COMPROMISE AND NEGOTIATE §EMOTIONALLY DIFFICULT §NO DAY IN COURT §CAN ADDRESS AND DIFFUSE EMOTIONAL ISSUES §BRIEF TIME AND COST

4 Family Court of Western Australia Information Session © 4 Two Court Processes  If parenting orders are sought also, the Court process is as set out in the children’s information session  For property orders only, the following Court process apply

5 Family Court of Western Australia Information Session © 5 The Family Court  Two Courts Magistrates Court Magistrates hear urgent matters Interim or temporary orders Maintenance or child support applications Family Court Judges hear later stages of a case  Registry – Level 1 – Open 9.00 am to 4.00 pm

6 Family Court of Western Australia Information Session © 6 Court Users  A Party – is a person involved in the court process.  A party includes:-  Applicant (the person who begins the process by filing the application)  Respondent (the person who receives the application)

7 Family Court of Western Australia Information Session © 7 De Facto Relationship  the length of the relationship  whether the 2 persons have resided together  the nature and extent of common residence  any sexual relationship  financial dependence or interdependence  the ownership, use and acquisition of property  mutual commitment by them to a shared life  whether they care for and support children  the reputation, and public aspects, of the relationship  can be between couples of same sex or different sex  can be married and be in a de facto relationship with another person

8 Family Court of Western Australia Information Session © 8 Only Some De Facto Relationships  Must have separated after 1 December 2002  Only if: A de facto relationship for at least two years; Children under 18 and serious injustice to parent; or Substantial contribution and serious injustice to that person.  Only if: At least one third of the de facto relationship in WA; or Substantial contribution in WA.

9 Family Court of Western Australia Information Session © 9  Forms are available at registry and on website  An Affidavit is a typed statement containing all evidence to be relied on. It must be sworn or affirmed in front of an authorised witness, which can be a Justice of the Peace.  Affidavits by you and your witnesses  It must contain facts and not legal arguments or your opinions. Court Documents

10 Family Court of Western Australia Information Session © 10 Reaching Agreement  If you don’t have an application under way you can reach an agreement.  This agreement can then be filed in the Court in a Form 11/Consent Orders Kit  This agreement is then binding Court Orders  You do not have to enter into the court process!!

11 Family Court of Western Australia Information Session © 11 Stamp Duty  If you reach agreement out of Court, consider whether to make that agreement into Court orders.  Limited circumstances in which orders can be set aside  Nominal stamp duty only on property transferred according to Court orders, including consent orders

12 Family Court of Western Australia Information Session © 12 Pre-Action Procedures  Must follow these procedures before making an application  Must try to negotiate and make a genuine offer of settlement in writing  Can be exempt  Information brochure is available about steps you must take and consequences

13 Family Court of Western Australia Information Session © 13 Court Process - Overview  Form 1 Application filed in the Court  Case Assessment Conference  Conciliation Conference  Pre-Trial Conference  Trial  Form 2 Application in a case filed in the Court  Hearing Before a Magistrate  MUST ATTEND ALL COURT EVENTS

14 Family Court of Western Australia Information Session © 14 Court Process 1. Applicant: Application for Final Orders (Form 1)  Hand form in at registry and serve a copy on the other party  First Court event approximately 28 days later 2. Respondent: Response (Form 1A) 3. Both parties must also file a Form 13 financial statement. Affidavits are usually filed later in the Court process for a Form 1 or Form 1A.

15 Family Court of Western Australia Information Session © 15 Temporary Orders Orders can be made sooner than in 12 months  Called temporary/interim orders  Stay in place until final orders made  Either party – File Form 2 and Affidavit Serve the other party  Person responding to Form 2 – File Form 2A and Affidavit Serve the other party  First Court event usually in 28 days  If no agreement at first court appearance proceed to a hearing by a Magistrate who will make the orders

16 Family Court of Western Australia Information Session © 16 Case Assessment Conference  First Court event  Held in a meeting room  Assessment and Negotiation With a Registrar Identify issues and risks Lawyers are present if you have one Parties are in the same room (unless inappropriate)  Orders made

17 Family Court of Western Australia Information Session © 17 Hearing Before a Magistrate  Only if it is an urgent matter or if you could not reach agreement about temporary orders at the case assessment conference  Eg. mortgage repayments until trial  Not a full trial  Magistrate will ask questions and make orders  These orders are binding until overturned by final orders

18 Family Court of Western Australia Information Session © 18 Conciliation Conference  3-4 months after Case Assessment Conference  Negotiation – helped by a Registrar  If you reach an agreement, orders are made to reflect that agreement  If no agreement, then orders made to proceed to the next stage – Pre-Trial Conference

19 Family Court of Western Australia Information Session © 19 Final Stages  Pre-Trial Conference Must have filed all trial documents 3 weeks before Procedure is like the conciliation conference Another opportunity to negotiate 4-8 weeks later Trial In a Court before a Judge Final orders will be made

20 Family Court of Western Australia Information Session © 20 Using a Courtroom  Court etiquette  If you are unsure of what to do or what courtroom you are in ask the Court Officer  Registrar referred to as “Sir” or “Ma’am” or “Registrar  Judge or Magistrate Referred to as “Your Honour” Otherwise “Sir” or “Ma’am”

21 Family Court of Western Australia Information Session © 21 Property Settlement  Time limits  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”

22 Family Court of Western Australia Information Session © 22 Step 1 – Identify and Value the Property and Resources  Identify and value property such as : Real estate Motor vehicles Insurance Shares Savings Superannuation  Then subtract any debts  Calculate the asset pool

23 Family Court of Western Australia Information Session © 23 Step 2 - 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

24 Family Court of Western Australia Information Session © 24 Step 3 – Further Adjustment  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

25 Family Court of Western Australia Information Session © 25 Step 4 – Just and Equitable  Final step – the court must ensure that the overall orders are fair

26 Family Court of Western Australia Information Session © 26 Dividing Superannuation  Only applies if the parties were married  Limited to certain types of funds  Limited to amounts over $5,000  Many different options  See the Superannuation Information Kit for more information

27 Family Court of Western Australia Information Session © 27 Court Fees  Divorce Application (Form 3)$352  Application for Final Orders (Form 1) $191  Response (Form 1A )$191  Fixing of a trial date$383 If you don’t think you can afford to pay these fees you can apply to have them waived - Ask at the Registry

28 Family Court of Western Australia Information Session © 28 Legal Fees  Scale Fee $182 per hour unless otherwise agreed  Costs Agreement Check carefully before signing  Client Must Be Informed of All Costs And expected costs

29 Family Court of Western Australia Information Session © 29 Where Can I Get Legal Information? For more information, Daily Court Lists and Forms:  Family Court of Western Australia website  To Contact Legal Aid Western Australia  For legislation or judgments see the Australasian Legal Information Institute website

30 Family Court of Western Australia Information Session © 30 Need a Computer?  There are computers here at the Court Or  Your local library

31 Family Court of Western Australia Information Session © 31 Need Some More Help?  Legal Aid 55 St Georges Terrace, Perth Toll Free:  Family Relationships Advice Line –

32 Family Court of Western Australia Information Session © 32 Where Do I Go Now?  Community Legal Centres Legal advice either for free or a nominal fee See the handout for names and addresses  Need an Accredited Family Law Specialist? Law Society of WA 89 St George’s Terrace Perth Phone:  Family Law Arbitrators

33 Family Court of Western Australia Information Session © 33 Mediation Services  Relationships Australia 115 Cambridge St, West Leederville Phone:  Centrecare 12 Brewer Pl, Mirrabooka & 456 Hay St, Perth Phone: or Next Show


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