Information Session Family Court of Western Australia 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 Court Structure 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; 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 pre-action 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: 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 Centrecare Anglicare 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 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 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: 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: 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 Form 13 Financial Statement Form 1A Response Applicant Respondent Property Proceedings 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 Applicant Respondent Property Proceedings Family Court of Western Australia

Court events 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: 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: 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: 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: 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. 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) $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 Property Proceedings Family Court of Western Australia

The law Legislation Jurisdiction Family Law Act 1975 (Cth) - married Family Court Act 1997 (WA) – de facto Jurisdiction All marriages Some de facto relationships Property Proceedings Family Court of Western Australia

Principles of Law 4 Step process No presumption of a 50/50 split 4 Step process 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” Property Proceedings 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 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: 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